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No legally enforceable right accrues in favour of a successful candidate in a selection not held in accordance with law: High Court of Calcutta

The petitioner cannot reap the benefit of a selection process that was not held according to the guidelines published in the Indian Oil Corporation Limited, Siliguri Area Office brochure. This was held by the Hon’ble Justice Amrita Sinha of the Calcutta High Court in the matter of Laxmi Basfore vs. Senior Area Manager, Indian Oil Corporation Limited, Siliguri Area Office & Ors. [W.P.A. No. 705 of 2019]. An advertisement was published in a newspaper by the Indian Oil Corporation Limited, inviting applications for awarding LPG Distributorship at a certain mentioned location. The petitioner, with interest, had applied for the same. After applying for such interest, the petitioner was initially selected after a draw of lots, post which, she was asked to pay a security deposit of Rs. 20,000/-, along with necessary documents. However, according to the respondents, the petitioner failed to comply with the instructions, and her application was rejected, whereas, she complained that she was never informed of such an incident. Meanwhile, the Company had arranged a redraw of the lot, to which Her Lordship has stated in her judgment that the Company has not even produced a “single scrap of paper” to prove that the petitioner was informed of such re-draw, and therein, a third-party candidate got selected, and this third party candidate when requested the Company for an extension of seven days to deposit the security deposit of Rs. 20,000/-, such third party’s candidature in the selection process was allowed despite depositing the required security deposit amount along with the other documents after the extended time period. The Hon’ble Court relied upon the fact as to “whether the Company acted in accordance with the guidelines for selection of LPG Distributorship”. The Court perused the facts and circumstances. Raising the precedent of Glodyne Techno Serve Limited vs. State of Madhya Pradesh & Ors., and Nobel Resources Limited vs. State of Orissa & Ors., that had been put forth by the respondents, the Hon’ble Court said that, “… the matter of Nobel Resources was a well settled proposition of law that disputed questions of facts ordinarily could not be entertained by the High Court in the exercise of its power of judicial review.” Adding to that, in contention of the respondent relying upon the judgment of the Hon’ble Supreme Court in the matter of Glodyne Techno, it held that,”…it was the discretionary power of the authority to reject the candidature of the petitioner on account of non-submission of the deposit and the necessary documents.” On the other hand, the Company failed to convince the Court that the petitioner was ever informed of the re-draw and the subsequent steps taken to intimate her of being successful. Thus, Hon’ble Justice Sinha strictly held that the Company did not adhere to the guidelines at the time of holding the re-draw of the selection process, and such re-draw was illegal and arbitrary. The subsequent steps undertook by the Company, too, shall be deemed to be illegal and liable to be set aside. Her Lordship also stated that solely by submitting the security deposit by the subsequently selected candidate will not be able to save the redraw from the vice of arbitrariness.

IN THE HIGH COURT AT CALCUTTA Constitutional Writ Jurisdiction Present : Hon’ble Justice Amrita Sinha W.P.A. No. 7019 IA No. CAN 20 Old No. CAN 23820 Senior Area Manager Indian Oil Corpn. Ltd. Siliguri Area Office & Ors For the writ petitioner Mr. Raja Basu Chowdhury Adv Mrs. Juin Dutta Chakraborty Adv For the respondents Mr. Jayanta Sengupta Adv Mr. Amit Kumar Nag Adv Mr. M. Roy Adv Hearing concluded on Amrita Sinha J In response to an advertisement published by the Indian Oil Corporation Limited in the daily newspaper on 31st August 2017 inviting applications for awarding LPG Distributorship at Malangi Tea Garden Alipurduar the petitioner applied along with the requisite application fee and she was intimated that her application was registered. The said vacancy is reserved for Scheduled Caste candidate. A draw of lots was conducted on 29th May 2018 wherein the petitioner The next communication received by the petitioner is a letter dated 18th December 2018 whereby the Senior Area Manager of the Company intimated the petitioner about her candidature being rejected as she failed to deposit the field verification certificate deposit fee of Rs. 20 000 only after getting selected for the subject location. In the said communication it was further mentioned that letter in this regard was sent to her on 4th November 2018 and a system generated reminder letter had been issued to her on 12th November 2018 but as she did not take any action in response to the same her candidature stood rejected The letter dated 18th December 2018 was sent to the petitioner through registered post posted on 20th December 2018 Immediately upon receipt of the said letter the petitioner has averred in the writ petition that she visited the office of the respondent authority and expressed her intention and willingness to deposit the aforesaid amount. The respondents refused to accept the same as the time period for making the deposit had expired The petitioner thereafter sent a written communication to the Deputy General Manager of the Company by a letter dated 3rd January 2019 and expressed her willingness to avail the opportunity offered to her. In the absence of a response from the Company the petitioner filed the instant writ petition on 11th January 2019 The matter was taken up for consideration by the Court on 5th February 2019. The Court after hearing the parties directed the respondent Company to file their affidavit in opposition within 8th February 2019 and the matter was directed to appear in the list on 13th February 2019 at the top. The respondent Company was supposed to show before the Court that the petitioner was duly informed by electronic mail of being successful in the draw of lots and was required to deposit the requisite amount and other documents In compliance of the order passed by the Court an affidavit in opposition was affirmed by the Company on 8th February 2019. In the said affidavit the Company annexed an electronic mail communication sent on 4th November 2018 intimating ‘please find attachment for security deposit letter’. The letter dated 4th November 2018 allegedly written to the petitioner has been annexed with the opposition. A further email communication dated 12th November 2018 allegedly being the reminder for putting in deposit fee for conducting field verification claimed to have been sent to the petitioner was also annexed. According to the respondents the petitioner was intimated as regards payment of the deposit fee by way of attachment sent via email on 4th November 2018 and 12th November 2018 The Court took up the matter for consideration on 14th February 2019 and was of the opinion that the petitioner was entitled to an order of interim protection As an interim measure the Court restrained the Company from allotting dealership of LPG in respect of the location Malangi Tea Garden in favour of any third party till disposal of the writ petition. The matter was directed to appear in the monthly list of March 2019 On 24th July 2019 a supplementary affidavit on behalf of the Company was served upon the learned advocate for the petitioner wherefrom the petitioner learnt that the Company being aggrieved by the order passed on 14th February 2019 preferred an appeal before the Hon’ble Division Bench before the Circuit Bench at Jalpaiguri. The Hon’ble Division Bench heard the matter on 5th April 2019 and was not inclined to lift the interim order of stay granted by the learned Single Judge and requested the learned Single Judge to expedite hearing of the writ petition Notice of appeal was never served upon the petitioner In the said supplementary affidavit some additional disclosures were made by the Company. It was mentioned that on cancellation of the petitioner’s candidature on account of failure to deposit the requisite fees and the necessary documents redraw of lots was conducted on 29th December 2018 and a third person was declared as a successful candidate. A communication was sent to the successful candidate vide letter dated 1st January 2019 for payment of credential verification deposit fee along with submission of the requisite documents. A communication dated 9th January 2019 made by the Company to the said successful candidate mentions that the security deposit and the required documents had not been submitted and accordingly seven working days’ time was granted for submission of the requisite money and the documents. Receipt has been annexed to the supplementary affidavit showing that the successful candidate deposited the sum of Rs. 20 000 on 18th January 2019 The primary contention of the petitioner is that as she was not made aware of the fact that the candidature of the first successful candidate was cancelled and there was a redraw of lots held on 3rd. November 2018 where she was successful and further that she was directed and required to pay Rs. 20 000 along with the necessary documents accordingly she was unable to comply the same. Immediately after getting notice of cancellation of her candidature she rushed to the office of the Company and prayed for extension of time to deposit the money The learned advocate of the petitioner has referred to the brochure containing the Unified Guidelines for selection of LPG Distributorship according to which the selection has been made. Paragraph 9 of the said brochure has been relied upon which mentions that all applicants desirous to apply for the locations shall submit their application online along with requisite application fee and the selection of the LPG Distributorship will be done by conducting draw of lots from amongst all the eligible applicants for the location. The status of the application would be communicated through email SMS to the registered email ID mobile number provided by the applicants The provision mentioning about intimation to the selected candidate for submitting required documents has also been placed. A list of eligible applicants and the applicants eligible for draw of lots was to be made available on the notice board and the website of the Company. The procedure for holding the draw of lots has also been relied upon. It mentions that information has to be sent to the eligible candidates through email SMS to report for draw of lots for selection of LPG Distributorship at a specified venue date and time. The successful candidate in the draw of lots upon intimation of selection would be required to make payment of the security deposit and subsequently a Letter of Intent would be issued to the candidate. The candidature of the selected candidate would be cancelled in the event of failure to deposit the amount within seven working days’ time from the date of intimation to the candidate The condition for holding redraw has also been placed. It has been mentioned that redraw for selection would be held from the remaining eligible applicants and the procedures laid down for holding draw will be applicable in case of redraw According to the petitioner the redraw of 3rd November 2018 has not been held in accordance with the guidelines. It has been submitted that the petitioner was never intimated of the redraw. No intimation was sent to her that she was successful in the redraw. She was also not communicated regarding payment of the security deposit and the extension of time for payment of the deposit. It is only after getting the letter of rejection that the petitioner got to know about her selection and thereafter her rejection It has been argued that the Company is liable to act in accordance with the guidelines. Prayer has been made for allowing the petitioner to deposit the money upon setting aside the cancellation of her candidature The learned advocate representing the Company submits that the petitioner was duly intimated about her selection and communication was made through electronic mail requesting her to pay the security deposit and to submit the necessary documents by communicating letters dated 4th November 2018 and 12th November 2018. The petitioner failed to comply with the direction given in the It has further been pointed out that the petitioner approached the Company for the first time by writing the letter dated 3rd January 2019. It has been argued that in the said letter the petitioner never denied regarding receipt of the communication to pay. There is no statement that she was not aware of the direction for making payment within the stipulated time According to the Company intimation may be sent either through email or through SMS. In the instant case intimation was sent to the petitioner through electronic mail. It has been pointed out that the attachment referred to in the electronic mail dated 4th November 2018 and 12th November 2018 was actually sent to the petitioner. It has further been contended that as the petitioner is disputing receipt of the aforesaid letters then the matter has to be decided upon taking evidence and the writ petition is liable to dismissed. It has been submitted that the writ petition filed by the petitioner ought not to be entertained in view of the disputed questions of facts involved herein It has been submitted that the petitioner does not have a right to be awarded the Distributorship. As the petitioner failed to comply with the terms and conditions mentioned in the guidelines accordingly her candidature has been rightly cancelled by the Company. In support of the aforesaid stand the respondents have relied upon the judgments delivered by the Hon’ble Supreme Court in the matter of Glodyne Techno Serve Limited vs State of Madhya Pradesh & Ors. reported in 2011) 5 SCC 103 and Nobel Resources Limited vs State of Orissa & Ors. reported in AIR 2007 SC 119 The respondents pray for dismissal of the writ petition I have heard and considered the rival submissions made on behalf of both the What is to be decided in the instant writ petition is whether the Company acted in accordance with the guidelines for selection of LPG Distributorship. It appears that the advertisement was published in August 2017 inviting application from eligible applicants and the first draw of lots was held in May 2019. The petitioner was unsuccessful. As the successful candidate failed to comply with the guidelines her candidature stood rejected. The petitioner was never intimated about the rejection of the candidature of the successful candidate. The Company conducted a redraw on 3rd November 2018. For conducting the redraw as per paragraph 16 of the guidelines the Company is required to send information to the eligible candidates to report for draw of lots at a specified venue date and time. In the instant case the Company has not produced a single scrap of paper to show that the petitioner was intimated about the redraw to be held on 3rd November 2018. As there was no intimation about the redraw the petitioner was completely unaware of the same According to the respondents the petitioner was successful in the redraw. A successful candidate according to paragraph 17 of the guidelines is required to deposit Rs. 20 000 only and also submit the required documents within seven working days’ of intimation of selection. Apart from an email communication dated 4th November 2018 addressed to the petitioner mentioning about the attachment of the security deposit letter there is nothing to show that the attachment i.e. the letter of intimation of being declared successful in the draw of lots conducted on 3rd November 2018 was at all served upon the petitioner. There is no conclusive evidence to show that the aforesaid letter dated 4th November 2018 was actually sent to the petitioner through electronic mail. The symbol which usually appears when attachment is sent through email is missing in the cover page of the email Similarly the communication dated 12th November 2018 also does not conclusively prove that the letter along with the attachment was actually sent to the email ID of Assuming that the aforesaid letters were sent to the petitioner there is no evidence whatsoever to show that the petitioner was intimated about holding the redraw of lots and about the date time and venue where the redraw of lots was to be held. Admittedly the requirement of Paragraph 16(i) of the aforesaid guidelines has not been complied with by the Company at the time of or prior to conducting The letter dated 18th December 2018 rejecting the candidature of the petitioner was surprisingly sent to the petitioner by registered post with acknowledgment due card. The envelope containing the aforesaid letter was posted on 20th December 2018. The reason for change in the mode of communication has not been addressed by the Company. The petitioner by a letter dated 3rd January 2019 simply prayed for extension of time for making the payment. She never raised the allegation of non receipt of the intimation to pay the security deposit. She neither raised the allegation of not being informed prior to the holding of redraw The Company ignored the request of the petitioner as a fresh redraw was conducted and a third party was selected From the documents annexed to the supplementary affidavit filed by the Company it appears that a further redraw was held on 29th December 2018 in presence of a single applicant who was declared successful. The said successful candidate also failed to pay the security deposit within seven working days’ time as mentioned in the letter dated 1st January 2019. The Company by a letter dated 9th January 2019 extended the time for a further period of seven days for making the payment. The payment was however accepted by the Company on 18th January 2019 that too after expiry of the extended period for making the payment. It appears that the Company surreptitiously held the redraw and granted extension of time to the presently selected candidate but ignored the prayer of the petitioner for grant of extension of time for making the payment The ratio of the judgment delivered by the Hon’ble Supreme Court in the matter of Nobel Resourcesis a well settled proposition of law that disputed questions of fact ordinarily could not have been entertained by the High Court in exercise of its power of judicial review. In the instant case there is absolutely no dispute that prior to holding the redraw on 3rd November 2018 no intimation was served upon the petitioner who was an eligible candidate to participate in the The contention of the respondent relying upon the judgment of the Hon’ble Supreme Court in the matter of Glodyne Techno is that it was the discretionary power of the authority to reject the candidature of the petitioner on account of non submission of the deposit and the necessary documents. The Company miserably failed to convince the Court that the petitioner was ever made aware of the redraw and the subsequent steps taken to intimate her of being successful. Moreover the facts of the case under reference are completely different from the facts of the case at hand As the guidelines have not been adhered to by the Company at the time of holding the redraw accordingly it is concluded that the redraw held by the Company on 3rd November 2018 is illegal and arbitrary. All subsequent steps taken by the Company are also illegal and liable to be set aside and is accordingly set It is made clear that as the redraw held on 3rd November 2018 was not held in accordance with law accordingly the subsequent redraw held on 29th December 2018 cannot be said to be validly held. No legally enforceable right accrues in favour of a successful candidate in a selection not held in accordance with law. Submitting the security deposit by the subsequently selected candidate will not be able to save the redraw from the vice of arbitrariness. Similarly the petitioner cannot reap the benefit of a selection process which was not held in accordance with the guidelines In view of the above the Company is directed to proceed with the redraw from the stage when the selection of the first successful candidate stood cancelled due to non compliance of the guidelines i.e. from the first redraw stage. The redraw shall be held strictly in accordance with the provisions laid down in the Unified WPA No. 7019 along with all connected applications stand disposed of Urgent certified photocopy of this judgment if applied for be supplied to the parties on compliance of usual legal formalities Amrita Sinha J

Soldier whose whereabouts unknown for more than 7 years, presumed dead and not a ‘deserter’: Jammu & Kashmir High Court

If any soldier’s whereabouts are unknown or who has not been heard of from the last ten years will be presumed “dead”. The Jammu & Kashmir High Court presided over by Hon’ble Justice Sanjay Dhar in the case of Madhu Devi V/s Union of India & Ors., [OWP 1440 of 2017]. Desertion is an act of abandonment of military duty without permission and with an intention of not returning back for more than 10 years. In the instant case, it was found that husband of Madhu devi (Petitioner), serving as Head constable in 16 Battalion CRPF went missing in June 2010. Petitioner was being informed by the Company Commander Unit about the missing of her husband. Both respondent and petitioner tried to contact the soldier, but were unable to do so. As a result, on September 6, 2010, petitioner’s husband was declared as ‘Deserter’ from CRPF by the court. Later on, Petition was being filed by the petitioner asking to declare her husband as ‘Dead’ and not ‘Deserter” on the grounds that from the last 7 years since she’s been trying to find her husband and has also issued notices on different media platforms but all her efforts went in vain. Petitioner also argued that respondents themselves couldn’t trace her husband’s whereabouts in the last more than 7 years i.e, w.e.f 3-06-2010. The court relied on the case of N. Pankajam V/s State of Tamil Nadu (Writ Petition No. 5480) where Madras court dealt with somewhat similar circumstances. The Court after hearing the arguments of both the parties came to a conclusion that since it’s been more than 7 years from the day soldier went missing and none of the parties have been able to trace and prove if the soldier is still alive, he’s no more to be considered as ‘Deserter’ and must be presumed ‘Dead’ according to Section 108 of Indian Evidence Act.

HIGH COURT OF JAMMU AND KASHMIR AT JAMMU THROUGH VIRTUAL MODE) OWP No. 1440 2017 Reserved on 17.12.2020 Pronounced on 24 .12.2020 Madhu Devi Union of India and others Through : Mr. Aseem Sawhney Advocate Through : Mr. Vishal Sharma ASGI Coram: HON’BLE MR. JUSTICE SANJAY DHAR JUDGE JUDGEMENT The petitioner has filed the instant writ petition seeking declaration that her husband namely Asha Ram HC GD No.861330131 be declared as dead in terms of Section 108 of India Evidence Act. A Writ of Certiorari to quash the order of respondents whereby the missing husband of the petitioner has been declared as ‘deserter’ has also been sought. Briefly stated the case of the petitioner is that her husband was serving as Head Constable in 16 Battalion CRPF and was last posted at Civil Lines Mathua UP. The Group Centre of the said Battalion is stated to be at Ban Talab Jammu where the husband of the petitioner was putting up in a residential quarter allotted to him. In June 2010 the petitioner got a phone call from the Company Commander of the Unit informing her that her husband had gone to fetch some vegetables but did not return back. The petitioner tried to contact her husband but was unable to do so whereafter she informed respondent No.3 about the same. The respondents also began a search for the OWP No. 1440 2017 petitioner’s husband but could not ascertain his whereabouts. The salary of husband of the petitioner was stopped and the burden of rearing children comprising two sons and a daughter fell upon the shoulders of the petitioner. In June 2010 a communication was received by the petitioner from respondents No.3 informing her that her husband is absent from duty and that he should report for duty else warrants of arrest would be issued against him. The petitioner responded to the said communication vide letter dated 12.06.2010 informing respondent No.3 that she has no knowledge about the whereabouts of her husband and requested respondent No.2 to inform her about the whereabouts of her husband at the earliest. On 09.11.2010 the petitioner addressed another communication to respondent No.2 requesting him to make all out efforts to locate her husband but instead of locating him the respondents leveled the charge of desertion of the Unit against the husband of the petitioner. In the above circumstances the petitioner was left with no option but to approach this Court by filing a petition bearing HC(W) No. 53 2011 whereby she sought a Writ of Habeas Corpus directing the respondents herein as well as the State of UP to produce her husband namely Asha Ram before this Court. Various status reports were called from the concerned police in the aforesaid petition to indicate the whereabouts of the petitioner’s husband but it was reported that he could not be traced. It is the contention of the petitioner that her husband has not been heard of by the family for the last more than seven years and even the respondents have been unable to trace him despite making all out efforts including issuance of notices in the Print and Electronic Media. On this ground it is urged by the petitioner that her husband be declared as dead and the order of the respondents whereby he has been declared as OWP No. 1440 2017 ‘deserter’ be quashed. The respondents have resisted the petition by filing objections thereto. In their objections the respondents have submitted that on 03.06.2010 when the husband of the petitioner was posted in 16 Bn of CRPF at FCI Campus Ganeshra he went to the market to purchase vegetables etc. for the Mess but did not return to Campus. The search parties were sent out to trace him in local area Bus Stand and Railway Station but to no avail. FIR came to be lodged in this regard with Highway Police Station Mathura on 04.06.2010 and a letter was also addressed to SP District Chamoli but the petitioner’s husband could not be traced. It is further averred in the objections that on 10.06.2010 a warrant of arrest was issued against the petitioner’s husband in accordance with the standing procedure but in spite of this he could not be traced. A Court of Enquiry was also conducted and petitioner’s husband was declared as deserter from CRPF w.e.f 03.06.2010 in terms of order dated 06.09.2010. A Departmental Enquiry was ordered against the petitioner’s husband under Section 11(1) of CRPF Act 1979 read with Rule 27 of CRPF Rules 1955 and on the basis of the said Departmental Enquiry charges were found established against the petitioner’s husband. Consequently in terms of order dated 31.03.2011 punishment of dismissal from service was imposed upon the petitioner’s husband. I have heard learned counsel for the parties and perused the record of the It is an admitted case of the parties that the petitioner’s husband is missing from 03.06.2010. FIR has been registered in this regard with Highway Police Station Mathura. The respondents wrote a communication to the petitioner in June 2010 informing her that her husband was missing w.e.f OWP No. 1440 2017 03.06.2010 and she was asked to direct her husband to report for duty. The petitioner has placed on record a letter dated 12.06.2010 whereby she had responded to letter dated 04.06.2010 of respondents informing them that her husband had not come to home and she had made a further request to the respondents to trace out her husband as at the time when he went missing he was on duty in the CRPF Unit at Mathura. Again on 09.12.2010 the petitioner addressed another communication to the Director General of CRPF making a similar request. The petitioner also filed a Habeas Corpus Petition bearing HCP(W) No. 53 2011 before this Court. The record of the said petition is connected to the instant case and a perusal thereof shows that from time to time the Court has sought status reports from the respondents with regard to whereabouts of the petitioner’s husband. All these status reports reveal that the respondents herein as well as the UP Police have made all out efforts to trace out the husband of the petitioner for all these years but without any success. From the aforesaid sequence of events it is established that the petitioner’s husband has remained untraceable and his whereabouts are not known since 03.06.2010. Section 108 of Indian Evidence Act casts burden of proving that a person is alive who has not been heard of for seven years upon the person who affirms it. The provision reads as under: “108. Burden of proving that person is alive who has not been heard of for seven years—Provided that when the question is whether a man is alive or dead and it is proved that he has not been heard of for seven years by those who would naturally have heard of him if he had been alive the burden of proving that he is alive isthe person who affirms it ” OWP No. 1440 2017 Here the petitioner has placed on record material to show that her husband could not be traced for more than seven years i.e. w.e.f 03.06.2010. The respondents are also not in a position to state that the petitioner’s husband is alive. In fact the respondents have not disputed that the petitioner’s husband has remained untraceable. Therefore it is to be presumed that petitioner’s husband is dead as per Section 108 of Indian Evidence Act. The question remains as to whether the respondents could have on the basis of an enquiry declared petitioner’s husband as ‘deserter’ in the circumstances as narrated hereinbefore. The word ‘desert’ has been defined in Oxford English Dictionary to mean: callous or treacherously abandon leave causing it to appear empty andillegaly run away from the military service. In the context of the present case the word ‘desert’ would mean illegally run away from the military service. A person whose whereabouts are unknown and who has not been heard of for the last more than 10 years cannot be stated to have illegally run away from his service. As already noted having regard to the facts of the instant case the petitioner’s husband is presumed to be dead because his whereabouts have remained unknown for the last more than seven years as such by no stretch of imagination he can be held guilty of having deserted the service of CRPF. It is a case where the petitioner’s husband was not available at all for joining the duties as such he could not report for duty. The action of the respondents in declaring the petitioner’s husband as ‘deserter’ and thereafter handing down the punishment of dismissal to him is unsustainable in law. In my aforesaid view I am supported by the judgment of Madras High Court in N. Pankajam vs. State of Tamil Nadu in accordance with the With the aforesaid observations this petition stands disposed of. applicable rules. 24 .12.2019 Sanjeev PS Judge Sanjay Dhar) Whether order is speaking: Yes Whether order is reportable:Yes

Assistant Provident Fund Commissioner Versus Vijaya Bank And Ors

Corporate veil can be pierced by the authorities under a statute only where the statute itself permits lifting of corporate veil for realisation of dues thereunder The petition impugns the E-Auction Sale Notice dated 20th April, 2016 of the respondent no.1 Vijaya Bank (Bank), in pursuance to the provisions of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest (SARFAESI) Act, 2002, of the two properties at Noida of the respondent no.3 M/s. G.K. Products Pvt. Ltd. and respondent no.4 M/s. Well Computer Exim Pvt. Ltd. (Companies) who had stood as guarantors for the financial assistance granted by the respondent no.1 Bank to the respondent no.2 Creative Home Fashions Pvt. Ltd. (Company). The respondents no.5 to 9 are stated to be Directors in each of the respondents no.2 to 4 Companies.It is inter alia the claim of the petitioner Assistant Provident Fund Commissioner that the petitioner has a charge over the properties being auctioned on account of Provident Fund (PF) dues owed by the respondent no.2 Company. 5. The respondent no.1 Bank had attempted sale of the aforesaid properties as far back as in the year 2011 and which sale has been held up since then for the reason of the said objection of the petitioner. 6. Earlier, the petitioner passed orders dated 20th January, 2012 prohibiting the respondent no.1 Bank from auctioning the said properties, compelling the respondent no.1 Bank to file W.P.(C) No.1726/2012 in this Court impugning the said orders of the petitioner.The said writ petition remained pending in this Court till 30th July, 2014 when it was allowed, reasoning that the respondents no.3&4 Companies are separate juridical entities than the respondent no.2 Company which is stated to owe PF dues to the petitioner and that the assets of the respondents no.3&4 Companies cannot be proceeded against for recovery of PF dues of the respondent no.2 Company.The contention of the petitioner then also, of the respondents no.2 to 4 Companies being one and the same entity, was rejected and it was held that the three were separate Companies incorporated under the Companies Act, 1956 and that the petitioner had not commenced any proceeding where this issue had been adjudicated. It was further noted that no proceedings even had been initiated by the petitioner against the respondents no.3&4 Companies and the petitioner could not assume that the three were the same. It was further noted that under Section 8F(3) of the Employees‟ Provident Funds and Miscellaneous Provisions Act, 1952 (PF Act) though the petitioner was authorised to recover its dues from third parties which owed the said dues to the entity owing PF to the petitioner but the same had also not been done and it had not been established that the respondents no.3&4 Companies owed any money to the respondent no.2 Company which was stated to be owing PF dues to the petitioner.The petitioner preferred LPA No.23/2016 against the aforesaid judgment allowing the writ petition of the respondent no.1 Bank but which LPA was dismissed vide order dated 13th January, 2016 affirming the reasoning given by the learned Single Judge.Taking a cue from the aforesaid reasoning, the Recovery Officer of the petitioner claims to have issued a notice dated 22nd March, 2016 to the respondent no.1 Bank and to the respondents no.2 to 9 to show cause why the corporate veil should not be lifted and to have vide a very well written and reasoned order dated 17th May, 2016, after considering the reply of the respondent no.1 Bank to the show cause notice (none of the other notices responded) found a) all the three respondents 2 to 4 Companies to be operating and carrying on business from the said properties; b) the respondents no.5 to 9 to be Directors in all the three respondents no.2 to 4 Companies and thus having the same management; c) the motive of respondents no.2 to 4 Companies being to defraud the revenue under social legislation; d) CBI also was investigating all three companies and their Directors; e) both, respondents no.2 & 4 Companies were making PF compliance through one code till caught; f) that thus all the three respondents no.2 to 4 Companies were hand in glove with each other; and accordingly lifted the corporate veil and held the respondents no.5 to 9 directors of the respondent no.2 Company to be the owners of the properties aforesaid at Noida being auctioned by the respondent no.1 Bank and attached the said properties for the recovery of PF dues of Rs.2,96,87,014/- and penal damages / interest to the tune of Rs.3,44,77,868/- owed by the respondent no.2 company.ISSUE BEFORE THE COURT: The petition impugns the E-Auction Sale Notice dated 20th April, 2016 of the respondent no.1 Vijaya Bank (Bank), in pursuance to the provisions of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest (SARFAESI) Act, 2002, of the two properties at Noida of the respondent no.3 M/s. G.K. Products Pvt. Ltd. and respondent no.4 M/s. Well Computer Exim Pvt. Ltd. (Companies) who had stood as guarantors for the financial assistance granted by the respondent no.1 Bank to the respondent no.2 Creative Home Fashions Pvt. Ltd. (Company). The respondents no.5 to 9 are stated to be Directors in each of the respondents no.2 to 4 Companies. It is inter alia the claim of the petitioner Assistant Provident Fund Commissioner that the petitioner has a charge over the properties being auctioned on account of Provident Fund (PF) dues owed by the respondent no.2 Company. 5. The respondent no.1 Bank had attempted sale of the aforesaid properties as far back as in the year 2011 and which sale has been held up since then for the reason of the said objection of the petitioner. 6. Earlier, the petitioner passed orders dated 20th January, 2012 prohibiting the respondent no.1 Bank from auctioning the said properties, compelling the respondent no.1 Bank to file W.P.(C) No.1726/2012 in this Court impugning the said orders of the petitioner. The said writ petition remained pending in this Court till 30th July, 2014 when it was allowed, reasoning that the respondents no.3&4 Companies are separate juridical entities than the respondent no.2 Company which is stated to owe PF dues to the petitioner and that the assets of the respondents no.3&4 Companies cannot be proceeded against for recovery of PF dues of the respondent no.2 Company. The contention of the petitioner then also, of the respondents no.2 to 4 Companies being one and the same entity, was rejected and it was held that the three were separate Companies incorporated under the Companies Act, 1956 and that the petitioner had not commenced any proceeding where this issue had been adjudicated. It was further noted that no proceedings even had been initiated by the petitioner against the respondents no.3&4 Companies and the petitioner could not assume that the three were the same. It was further noted that under Section 8F(3) of the Employees‟ Provident Funds and Miscellaneous Provisions Act, 1952 (PF Act) though the petitioner was authorised to recover its dues from third parties which owed the said dues to the entity owing PF to the petitioner but the same had also not been done and it had not been established that the respondents no.3&4 Companies owed any money to the respondent no.2 Company which was stated to be owing PF dues to the petitioner. The petitioner preferred LPA No.23/2016 against the aforesaid judgment allowing the writ petition of the respondent no.1 Bank but which LPA was dismissed vide order dated 13th January, 2016 affirming the reasoning given by the learned Single Judge. Taking a cue from the aforesaid reasoning, the Recovery Officer of the petitioner claims to have issued a notice dated 22nd March, 2016 to the respondent no.1 Bank and to the respondents no.2 to 9 to show cause why the corporate veil should not be lifted and to have vide a very well written and reasoned order dated 17th May, 2016, after considering the reply of the respondent no.1 Bank to the show cause notice (none of the other notices responded) found a) all the three respondents 2 to 4 Companies to be operating and carrying on business from the said properties; b) the respondents no.5 to 9 to be Directors in all the three respondents no.2 to 4 Companies and thus having the same management; c) the motive of respondents no.2 to 4 Companies being to defraud the revenue under social legislation; d) CBI also was investigating all three companies and their Directors; e) both, respondents no.2 & 4 Companies were making PF compliance through one code till caught; f) that thus all the three respondents no.2 to 4 Companies were hand in glove with each other; and accordingly lifted the corporate veil and held the respondents no.5 to 9 directors of the respondent no.2 Company to be the owners of the properties aforesaid at Noida being auctioned by the respondent no.1 Bank and attached the said properties for the recovery of PF dues of Rs.2,96,87,014/- and penal damages / interest to the tune of Rs.3,44,77,868/- owed by the respondent no.2 company. What is the power of the petitioner or its Recovery Officer to lift the corporate veil? RATIO OF THE COURTSupreme Court in Rajasthan Prem Krishan Goods Transport Co. Vs. Regional Provident Fund Commissioner, New Delhi (1996) 9 SCC 454 to have upheld the finding recorded by the Regional Provident Fund Commissioner of clubbing all the employees of two business entities and treating two to be one entity and thereby making the provisions of the PF Act applicable, without however going into the question; however neither of the two entities was a „company‟ within the meaning of the Companies Act and the question of corporate veil did not arise;Supreme Court to have in Calcutta Chromotype Ltd. Vs. Collector of Central Excise, Calcutta (1998) 3 SCC 681 held that there is no bar on the authorities to lift the veil of a company to see it was not wearing that mask for not being treated as a related person when, in fact, it was one and the same person; however again, what was for adjudication was the applicability of Section 4(1)(a) of the Central Excise and Salt Act, 1944 dealing with sales „not to a related person‟M/s. Gujarat Sweet Mart Vs. Regional Director, Employees State Insurance MANU/MH/0378/2014 holding that in the matter of realisation of statutory dues the authorities can always lift the corporate veil to find out the real persons who are responsible for payment of said statutory dues and that the PF Act is a beneficial piece of legislation so as to ensure that the employees get their due share on superannuation; accordingly, the realisation of provident fund dues of another company from its holding company was upheld;Though a reading of the aforesaid judgments would indicate that the petitioner / its RO is entitled and empowered to pierce the corporate veil but It be may mention that the judgments of the Supreme Court aforenoted are with respect to the clubbing of employees for the purpose of application of the beneficial legislations, provisions whereof are applicable only upon a certain minimum number of employees being employed therein and in the context of the definition and meaning of “establishment” and “employer” in the said statutes and the said judgments may not be applicable in the context of recovery of PF dues of one company by attachment and sale of properties of another company by lifting/piercing the corporate veil as has been done in the present case.Corporate veil can be pierced by the authorities under a statute only where the statute itself permits lifting of corporate veil for realisation of dues thereunder. A perusal of the PF Act with the Second and Third Schedules of the Income Tax Act, in my opinion, neither provides for corporate veil to be pierced nor empowers the authorities under PF Act to lift corporate veil to recover the dues of one company from another. Lifting of corporate veil entails adjudication of facts and which I do not find the authorities under the PF Act to be empowered to do. Merely because Rules 82 and 83 afford protection to authorities under PF Act as available to judicial officers and vest in the said authorities powers of receiving evidence, administrating oath, enforcing attendance and compelling production of documents, as in a Civil Court, will not convert the said authorities into a Civil Court to adjudicate disputed question of facts of lifting of corporate veil for recovery of dues of one company from another.Even where the statute does not provide for lifting of corporate veil, it can still be lifted under the common law if public interest so demands. However such lifting of corporate veil under the common law cannot be by the authorities under the statute and can be only by the Courts.The Bombay High Court in Oil and Natural Gas Corporation Ltd. Vs. Jindal Drilling and Industries Limited and in Wind World (India) Limited Vs. Enercon GmbH has held that Arbitral Tribunal has no power to lift the corporate veil and only a Court can lift a corporate veil of the company. The reason therefor, in my view is quiet obvious. In the absence of a statute permitting lifting of corporate veil and in which case lifting of veil will be for reasons given in the statute, corporate veil under common law is lifted to prevent fraud and finding in which respect can be returned only by the Court. Supreme Court in Rajasthan Prem Krishan Goods Transport Co. Vs. Regional Provident Fund Commissioner, New Delhi (1996) 9 SCC 454 to have upheld the finding recorded by the Regional Provident Fund Commissioner of clubbing all the employees of two business entities and treating two to be one entity and thereby making the provisions of the PF Act applicable, without however going into the question; however neither of the two entities was a „company‟ within the meaning of the Companies Act and the question of corporate veil did not arise; Supreme Court to have in Calcutta Chromotype Ltd. Vs. Collector of Central Excise, Calcutta (1998) 3 SCC 681 held that there is no bar on the authorities to lift the veil of a company to see it was not wearing that mask for not being treated as a related person when, in fact, it was one and the same person; however again, what was for adjudication was the applicability of Section 4(1)(a) of the Central Excise and Salt Act, 1944 dealing with sales „not to a related person‟ M/s. Gujarat Sweet Mart Vs. Regional Director, Employees State Insurance MANU/MH/0378/2014 holding that in the matter of realisation of statutory dues the authorities can always lift the corporate veil to find out the real persons who are responsible for payment of said statutory dues and that the PF Act is a beneficial piece of legislation so as to ensure that the employees get their due share on superannuation; accordingly, the realisation of provident fund dues of another company from its holding company was upheld; Though a reading of the aforesaid judgments would indicate that the petitioner / its RO is entitled and empowered to pierce the corporate veil but It be may mention that the judgments of the Supreme Court aforenoted are with respect to the clubbing of employees for the purpose of application of the beneficial legislations, provisions whereof are applicable only upon a certain minimum number of employees being employed therein and in the context of the definition and meaning of “establishment” and “employer” in the said statutes and the said judgments may not be applicable in the context of recovery of PF dues of one company by attachment and sale of properties of another company by lifting/piercing the corporate veil as has been done in the present case. Corporate veil can be pierced by the authorities under a statute only where the statute itself permits lifting of corporate veil for realisation of dues thereunder. A perusal of the PF Act with the Second and Third Schedules of the Income Tax Act, in my opinion, neither provides for corporate veil to be pierced nor empowers the authorities under PF Act to lift corporate veil to recover the dues of one company from another. Lifting of corporate veil entails adjudication of facts and which I do not find the authorities under the PF Act to be empowered to do. Merely because Rules 82 and 83 afford protection to authorities under PF Act as available to judicial officers and vest in the said authorities powers of receiving evidence, administrating oath, enforcing attendance and compelling production of documents, as in a Civil Court, will not convert the said authorities into a Civil Court to adjudicate disputed question of facts of lifting of corporate veil for recovery of dues of one company from another. Even where the statute does not provide for lifting of corporate veil, it can still be lifted under the common law if public interest so demands. However such lifting of corporate veil under the common law cannot be by the authorities under the statute and can be only by the Courts. The Bombay High Court in Oil and Natural Gas Corporation Ltd. Vs. Jindal Drilling and Industries Limited and in Wind World (India) Limited Vs. Enercon GmbH has held that Arbitral Tribunal has no power to lift the corporate veil and only a Court can lift a corporate veil of the company. The reason therefor, in my view is quiet obvious. In the absence of a statute permitting lifting of corporate veil and in which case lifting of veil will be for reasons given in the statute, corporate veil under common law is lifted to prevent fraud and finding in which respect can be returned only by the Court. DECISION HELD BY COURT:The  petitioner if aggrieved from the measures taken by the respondent no.1 Bank under the SARFAESI Act had the remedy available of approaching the Debt Recovery Tribunal (DRT) under Section 17 of the SARFAESI Act and which the petitioner has again failed to do. It is a well settled principle that jurisdiction under Article 226 will not be exercised when an alternative efficacious remedy is available. Reference in the said regard can be made to the recent judgment of the Supreme Court in Joshi Technologies International Inc. Vs. Union of India (2015) 7 SCC 728. 23.Liberty is however given to the petitioner to, if is able to make out a case and if permitted in law, make a claim against the respondent no.1 Bank with respect to the sale proceeds of the aforesaid two properties.To the said extent, none of the observations contained in this order shall come in the way of the petitioner. The petition is accordingly dismissed. No costs. The  petitioner if aggrieved from the measures taken by the respondent no.1 Bank under the SARFAESI Act had the remedy available of approaching the Debt Recovery Tribunal (DRT) under Section 17 of the SARFAESI Act and which the petitioner has again failed to do. It is a well settled principle that jurisdiction under Article 226 will not be exercised when an alternative efficacious remedy is available. Reference in the said regard can be made to the recent judgment of the Supreme Court in Joshi Technologies International Inc. Vs. Union of India (2015) 7 SCC 728. 23. Liberty is however given to the petitioner to, if is able to make out a case and if permitted in law, make a claim against the respondent no.1 Bank with respect to the sale proceeds of the aforesaid two properties. To the said extent, none of the observations contained in this order shall come in the way of the petitioner. The petition is accordingly dismissed. No costs.

IN THE HIGH COURT OF DELHI AT NEW DELHI Date of decision: 26th May 2016 W.P.(C) No.4970 2016 & CM No.20687 2016No.4970 2016 & CM No.20687 2016in pursuance to the provisions of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act 2002 of the two properties at Noida of the respondent no.3 M s. G.K. Products Pvt. Ltd. and respondent no.4 M s. Well Computer Exim Pvt. Ltd.who had stood as guarantors for the financial assistance granted by the respondent no.1 Bank to the respondent no.2 Creative Home Fashions Pvt. Ltd. Company). The respondents no.5 to 9 are stated to be Directors in each of the respondents no.2 to 4 Companies. W.P.(C) No.4970 2016 4. It is inter alia the claim of the petitioner Assistant Provident Fund Commissioner that the petitioner has a charge over the properties being auctioned on account of Provident Funddues owed by the respondent no.2 Company. The respondent no.1 Bank had attempted sale of the aforesaid properties as far back as in the year 2011 and which sale has been held up since then for the reason of the said objection of the petitioner. Earlier the petitioner passed orders dated 20th January 2012 prohibiting the respondent no.1 Bank from auctioning the said properties compelling the respondent no.1 Bank to file W.P.(C) No.1726 2012 in this Court impugning the said orders of the petitioner. The said writ petition remained pending in this Court till 30th July 2014 when it was allowed reasoning that the respondents no.3&4 Companies are separate juridical entities than the respondent no.2 Company which is stated to owe PF dues to the petitioner and that the assets of the respondents no.3&4 Companies cannot be proceeded against for recovery of PF dues of the respondent no.2 Company. The contention of the petitioner then also of the respondents no.2 to 4 Companies being one and the same entity was rejected and it was held that the three were separate Companies incorporated under the Companies Act 1956 and that the petitioner had not commenced any proceeding where this issue had been adjudicated. It was further noted that no proceedings even had been initiated by the petitioner against the respondents no.3&4 Companies and the petitioner could not assume that the three were the same. It was further noted that under Section 8F(3) of the Employees‟ Provident Funds and Miscellaneous Provisions Act 1952 W.P.(C) No.4970 2016 though the petitioner was authorised to recover its dues from third parties which owed the said dues to the entity owing PF to the petitioner but the same had also not been done and it had not been established that the respondents no.3&4 Companies owed any money to the respondent no.2 Company which was stated to be owing PF dues to the petitioner. The petitioner preferred LPA No.23 2016 against the aforesaid judgment allowing the writ petition of the respondent no.1 Bank but which LPA was dismissed vide order dated 13th January 2016 affirming the reasoning given by the learned Single Judge. Taking a cue from the aforesaid reasoning the Recovery Officer of the petitioner claims to have issued a notice dated 22nd March 2016 to the respondent no.1 Bank and to the respondents no.2 to 9 to show cause why the corporate veil should not be lifted and to have vide a very well written and reasoned order dated 17th May 2016 after considering the reply of the respondent no.1 Bank to the show cause noticefound a) all the three respondents 2 to 4 Companies to be operating and carrying on business from the said properties b) the respondents no.5 to 9 to be Directors in all the three respondents no.2 to 4 Companies and thus having the same management c) the motive of respondents no.2 to 4 Companies being to defraud the revenue under social legislation d) CBI also was investigating all three companies and their Directors e) both respondents no.2 & 4 Companies were making PF compliance through one code till caught f) that thus all the three respondents no.2 to 4 Companies were hand in glove with each other and W.P.(C) No.4970 2016 accordingly lifted the corporate veil and held the respondents no.5 to 9 directors of the respondent no.2 Company to be the owners of the properties aforesaid at Noida being auctioned by the respondent no.1 Bank and attached the said properties for the recovery of PF dues of Rs.2 96 87 014 and penal damages interest to the tune of Rs.3 44 77 868 owed by the respondent no.2 company. I have enquired from the counsel for the petitioner as to what is the power of the petitioner or its Recovery Officer to lift the corporate veil. 10. The counsel for the petitioner save for generally stating that the petitioner exercises judicial functions is unable to cite any provision under which the petitioner may have been authorised by law to undertake an exercise as of lifting of corporate veil. 11. The order dated 17th May 2016 is in a proceeding under Sections 8B to 8G of the PF Act and which provisions also are not found to be so authorising or empowering the petitioner. Section 8B authorises the petitioner to issue to the Recovery Officera certificate specifying the amount of arrears and empowers the RO to on receipt of such certificate proceed to recover the amount “from the establishment or as the case may be the employer by one or more of the modes” prescribed therein namely by attachment and sale of movable or immovable property of the establishment or as the case may be of the employer or by arrest of the employer and his detention in prison or by appointing a receiver for the management of the movable or immovable properties of the establishment or as the case may be of the employer. The remaining provisions 8C to 8G are found to be procedural in nature. However Section 8G makes W.P.(C) No.4970 2016 applicable the provisions of the Second and Third Schedules of the Income tax Act 1961 and the Income tax Rules 1962 to the said proceedings. 12. The counsel for the petitioner has drawn attention to Clauses 82 and 83 of the Second Schedule of the Income Tax Act. Clause 82 provides that a Commissioner and the Tax Recovery Officer in the discharge of their functions under the Schedule shall be deemed to be acting judicially within the meaning of the Judicial Officers Protection Act 1850 and Clause 83 provides that the said officers shall have the powers of a Civil Court while trying a suit for the purpose of receiving evidence administering oaths enforcing the attendance of witnesses and compelling the production of documents. 13. The said provisions in my view would not make the petitioner or its Recovery Officer a Court as the counsel for the petitioner contends. All that the said provisions vest in the petitioner are certain powers of the Civil Court and which would not include the inherent adjudicatory powers as in the Civil Court. I however find: Supreme Court in Rajasthan Prem Krishan Goods Transport Co. Vs. Regional Provident Fund Commissioner New Delhi 1996) 9 SCC 454 to have upheld the finding recorded by the Regional Provident Fund Commissioner of clubbing all the employees of two business entities and treating two to be one entity and thereby making the provisions of the PF Act applicable without however going into the question however W.P.(C) No.4970 2016 neither of the two entities was a „company‟ within the meaning of the Companies Act and the question of corporate veil did not arise Supreme Court to have in Calcutta Chromotype Ltd. Vs. Collector of Central Excise Calcutta 3 SCC 681 held that there is no bar on the authorities to lift the veil of a company to see it was not wearing that mask for not being treated as a related person when in fact it was one and the same person however again what was for adjudication was the applicability of Section 4(1)(a) of the Central Excise and Salt Act 1944 dealing with sales „not to a related person‟ c) M s L. N. Gadodia and Son Pvt. Ltd. Vs. Regional Provident Fund Commissioner MANU DE 9834 2007 where also clubbing of the employees of two companies for applying the provisions of the PF Act was upheld d) G.V. Films Ltd. Vs. S. Priyadarshan MANU TN 2550 2005 where a Single Judge of the High Court of Madras to have held that the Tax Recovery Officer acting under Rules 82 and 83 of the Second Schedule to the Income Tax Act 1961 is entitled to lift the veil of corporate entity and pay regard to the realities though a number of judgments were relied upon but if I may respectfully say so none is with respect to the power of the authorities such as the petitioner herein or its RO and are in the context of the power of the Court to lift the corporate veil W.P.(C) No.4970 2016 M s. Gujarat Sweet Mart Vs. Regional Director Employees State Insurance MANU MH 0378 2014 holding that in the matter of realisation of statutory dues the authorities can always lift the corporate veil to find out the real persons who are responsible for payment of said statutory dues and that the PF Act is a beneficial piece of legislation so as to ensure that the employees get their due share on superannuation accordingly the realisation of provident fund dues of another company from its holding company was upheld f) K. Ramasamy Vs. Commissioner of Income Tax MANU TN 2670 2002 where a Division Bench of the High Court of Madras held that income tax authorities are entitled to pierce the veil of corporate personality and look at the reality of transaction g) Bhaskar Tea & Industries Ltd. Vs. Employees’ Regional Provident Fund Organization MANU WB 0483 2014 also holding that in the matter of realisation of statutory dues the authorities can always lift the corporate veil to find out the real persons who are responsible for payment of such statutory dues. 15. Though a reading of the aforesaid judgments would indicate that the petitioner its RO is entitled and empowered to pierce the corporate veil but I may mention that the judgments of the Supreme Court aforenoted are with respect to the clubbing of employees for the purpose of application of the beneficial legislations provisions whereof are applicable only upon a certain minimum number of employees being employed therein and in the context W.P.(C) No.4970 2016 of the definition and meaning of “establishment” and “employer” in the said statutes and the said judgments may not be applicable in the context of recovery of PF dues of one company by attachment and sale of properties of another company by lifting piercing the corporate veil as has been done in the present case. The judgment supra of this court is also in the same vein. Though the High Courts of Madras Bombay and Calcutta have held so but I do not find any judgment of this Court and entertain doubt whether the authorities under the PF Act can be held to be so empowered. In fact the High Court of Bombay in Universal Pollution Control P. Ltd. Vs. Regional Provident Fund Commissioner 2006 Mh. L.J.831 held that there is no provision in the PF Act that a liability of one company can be fastened on the other company even by lifting the corporate veil. Mention may also be made to Regional Provident Fund Commissioner Vs. ABS Spinning Orissa Ltd. MANU SC 8103 2008 where a holding company was held to be not liable for provident fund dues of its subsidiary. In my view corporate veil can be lifted either where it is permitted by a statute or where it is contractually so agreed or under the common law. 17. The question is not whether the corporate veil can be pierced or not. It definitely can be. There is also no doubt that avoidance of statutory liabilities under a social welfare legislation is a reason enough to lift the corporate veil. The question which however arises for adjudication is whether the corporate veil can be pierced lifted by the authorities under the PF Act. Again in my view corporate veil can be pierced by the authorities under a statute only where the statute itself permits lifting of corporate veil for realisation of dues thereunder. A perusal of the PF Act with the Second W.P.(C) No.4970 2016 and Third Schedules of the Income Tax Act in my opinion neither provides for corporate veil to be pierced nor empowers the authorities under PF Act to lift corporate veil to recover the dues of one company from another. Lifting of corporate veil entails adjudication of facts and which I do not find the authorities under the PF Act to be empowered to do. Merely because Rules 82 and 83 afford protection to authorities under PF Act as available to judicial officers and vest in the said authorities powers of receiving evidence administrating oath enforcing attendance and compelling production of documents as in a Civil Court will not convert the said authorities into a Civil Court to adjudicate disputed question of facts of lifting of corporate veil for recovery of dues of one company from another. I am further of the view that even where the statute does not provide for lifting of corporate veil it can still be lifted under the common law if public interest so demands. However such lifting of corporate veil under the common law cannot be by the authorities under the statute and can be only by the Courts. To me it prima facie appears that the petitioner if desirous of lifting corporate veil will have to approach the Civil Court. The Bombay High Court in Oil and Natural Gas Corporation Ltd. Vs. Jindal Drilling and Industries Limited MANU MH 0735 2015 and in Wind WorldLimited Vs. Enercon GmbH MANU MH 0411 2016 has held that Arbitral Tribunal has no power to lift the corporate veil and only a Court can lift a corporate veil of the company. The reason therefor in my view is quiet obvious. In the absence of a statute permitting lifting of corporate veil and in which case lifting of veil will be for reasons given in the statute corporate W.P.(C) No.4970 2016 veil under common law is lifted to prevent fraud and finding in which respect can be returned only by the Court. 18. However I do not deem it necessary to entertain this petition to finally adjudicate the said legal question or to render a final view on the said aspect being of the view that the present petition is liable to the dismissed for other reasons. 19. Piercing of corporate veil even if permitted to the petitioner its Recovery Officer has to be in public interest. I am of the view that it is not in the larger public interest to stall any further the auction scheduled for today by the respondent no.1 Bank. It cannot be lost sight of that the dues for recovery whereof the respondent no.1 Bank is proceeding to auction the properties aforesaid are also public dues and the said auction has been stalled at the instance of the petitioner for the last nearly five years. The petitioner even now has merely attached the properties and if were to proceed with the sale of the property it may take another five years or so and of which there is no certainty also as of now. On the contrary the respondent no.1 Bank is on the threshold of selling the property and realization of sale proceeds thereof. It is not deemed appropriate to at this stage interfere with such sale. I need in this context refer only to Vikas Singh Vs. Lieutenant Governor 227DLT 333Manisha Sharma Vs. Commissioner of Delhi Police MANU DE 3411 2015 and Delhi Development Authority Vs. Manav Shiksha Samiti MANU DE 0815 2012 holding that this Court in exercise of power under Article 226 of the Constitution of India is empowered to deny a relief even if the petitioner is entitled thereto W.P.(C) No.4970 2016 if otherwise granting of such relief is not found to be just or proper. I fear that if this Court were to interfere with the sale today and or to entertain this petition the property will be wasted further benefiting neither the petitioner nor the respondent no.1 Bank and may be to the benefit of the respondents no.2 to 9. 22. There is another reason for not entertaining the petition. I am of the view that the petitioner if aggrieved from the measures taken by the respondent no.1 Bank under the SARFAESI Act had the remedy available of approaching the Debt Recovery Tribunal under Section 17 of the SARFAESI Act and which the petitioner has again failed to do. It is a well settled principle that jurisdiction under Article 226 will not be exercised when an alternative efficacious remedy is available. Reference in the said regard can be made to the recent judgment of the Supreme Court in Joshi Technologies International Inc. Vs. Union of India7 SCC 728. 23. Liberty is however given to the petitioner to if is able to make out a case and if permitted in law make a claim against the respondent no.1 Bank with respect to the sale proceeds of the aforesaid two properties. To the said extent none of the observations contained in this order shall come in the way of the petitioner. 24. The petition is accordingly dismissed. No costs. MAY 26 2016 RAJIV SAHAI ENDLAW J W.P.(C) No.4970 2016

Defendant can only participate in the complaint after Ex-Parte Opposition Decision is set aside, unable to submit a Written Statement: Orissa High Court

When an ex parte decree is set aside and the suit is restored to file, the defendants cannot be relegated back to the position prior to the date of hearing of the suit. He would be debarred from filing any written statement in the suit, but then he can participate in the hearing of the suit inasmuch cross-examine the witness of the plaintiff, adduce evidence and address argument. These were upheld by the Hight Court of Orissa through the learned bench of Justice K.R. Mohapatra in the case of Himansu Sekhar Srichandan v. Sudhir Ranjan Patra (since dead) Jully Patra & Ors, (CMP No.1423 of 2019). The crux of the case is the plaintiff seeks a declaration of his right, title, interest and ownership of the property in the suit schedule and a declaration declaring that Respondent number 1 does not have the authority to withdraw the case land. Respondent number 2 and 3 immediately sought time to file a written statement. However, despite repeated postponements, they did not file a written statement. In the end, matter proceeded ex parte and decree was drawn. Next, Defendants number 2 and 3 have filed an application under Order IX Rule 13 CPC to set aside the ex-parte decision mentioned above and an application for condonation of the delay. The Senior Civil Judge, after considering the circumstances described by the parties, allowed the delay and set aside the announcement of the ex party. The same was challenged in this suit. The petitioner has submitted that the application limit under Order IX Rule 13, CPC is regulated under Article 123 of the Limitation Act, which provides two ways to determine the starting point of limitation. The first is when the summons was not properly served on the Respondent. Secondly, if the summons is properly served, the respondent must show sufficient reason to satisfy the Court for not appearing on the date on which the trial was called. It was argued that in a speedy trial, Defendant No. 2 and 3 appeared in court through their Attorney and despite the adjournment several times he did not include his written statement. The court while exercising its discretion will not be able to set aside the obligatory requirements under the provision. In a speedy case, the Chief Justice did not consider the conduct of the party seeking independence or negotiating legal requirements while approving the disputed order. Finally, it depends on the scale of the State of Orissa & Anr. v. Smt. Sitanjali Jena, ((2016) 121 CLT 492), has filed a motion to set aside the ex-party decision even though the case has been returned to the file, but the Defendants cannot be adjourned before the date of the hearing. They will be barred from completing the written statement. The attorney representing the defendant withholding that ‘sufficient reason’ under the Limitations Act should be construed as a touchstone of pragmatic boundaries as set out in Nakul Swain v. Jogendra Das, (1996 (1) OLR 534). The expression ‘reason enough they should get free construction’ in order to promote greater justice, as set out in the case of GMG Engineering Industries and Others v. ISSA Green Power Solution and Ors., ((2015) 15 SCC 659). In addition, he argued that the reduction law is based on public policy. Restrictions are not intended to infringe on the rights of parties found under the law as they are held by the N Supreme Court. Balakrishnan v. M. Krishnamuthy, ((1998) 7 SCC 123). There may be some error on the part of the plaintiff concerned. That alone is not enough to deny his plea and close the door on him. The learned bench of Justice K.R. Mohapatra relying on Sangram Singh v. Election Tribunal, Kotah & Anr., (AIR 1955 SC 425) and Arjun Singh v. Mohindra Kumar and Ors., (AIR 1964 SC 993), concluded that on a close reading of the impugned order, it appears that learned Senior Civil Judge has made his best endeavour and discussed the matter in detai with reference to materials available on record to set aside the ex parte decree. Hence, no interference is warranted with regard to setting aside the ex parte decree. However, it was clarified that the Defendant Nos. 2 and 3 cannot be permitted to file their written statement. They can only take part in the hearing of the suit without propounding their own case. However, they can advance their argument on the basis of the materials available on record only.

IN THE HIGH COURT OF ORISSA AT CUTTACK CMP No.14219 An application under Article 227 of the Constitution of India) Himansu Sekhar Srichandan Versus . Petitioner Sudhir Ranjan PatraJully Patra and others . Opposite Parties Advocates appeared in this case: For Petitioner : Mr. Bibekananda Bhuyan For Opposite Parties : Mr. Suresh Chandra Tripathy Mr. Keshab Kumar Pradhan For O.P. No.3) For O.P. Nos.1 and 2) CORAM: MR JUSTICE K.R. MOHAPATRA 4th February 2022 K.R.MOHAPATRA J Order dated 5th December 2019passed by learned Senior Civil Judge Bhubaneswar in CMA No.31 of 2018 filed under Order IX Rule 13 CPC is under challenge in this CMP. This CMP finds its genesis from CS No.17811 filed by the Petitioner for declaration of his right title interest and possession over the suit schedule land as well as for a decree to declare that Defendant No.1 has no authority to alienate the suit land and also to declare that the two registered sale deeds bearing Nos.3530 and 3533 of 2000 are not binding on the Plaintiff as well as proforma Defendant Nos. 4 and 5. A relief of permanent injunction against Defendant Nos. 1 to 3 was also CMP No.14219 Page 1 of 13 2 sought for. The suit schedule land pertains to Plot No.133 to an extent of Ac.0.177 decimals and Plot No.134 to an extent of Ac.150 decimals under Khata No.291 situated in mouza Jharapada. The Opposite Party Nos.1 and 2 herein are Defendant Nos.2 and 3 in the suit. Defendant No.4 appeared on 4th December 2015 and filed his written statement alone in the suit. Defendant No. 5(a) on appearance filed a memo and adopted the written statement of Defendant No.4. The contesting Opposite Parties namely Defendant Nos. 2 and 3 appeared on 20th March 2012 and filed a petition for time to file their written statement. However in spite of several adjournments they did not file written statement. Order dated 20th June 2012 of the suit reveals that Defendant Nos. 2 and 3 on their appearance through Sri Gyanaranjan Mohapatra Advocate filed a petition for adjournment to file written statement which was rejected. On 6th November 2013 although Defendant Nos.2 and 3 filed hazira but they neither filed their written statement nor prayed for time for filing of the same. Subsequently on 24th November 2016 issues were settled. On 27th March 2017 the Plaintiff filed evidence in affidavit. On 4th July 2017 when the suit was called on for hearing Defendant Nos. 2 and 3 were absent on call and were set ex parte. Thus PW 1 was examined and exhibits 1 to 9 were admitted into evidence. In due course the case was posted to 15th July 2017 for argument. On that date Defendant Nos.1 to 3 also filed a petition for adjournment for which the suit was adjourned to 17th July 2017 on which date the argument was heard and the judgment was pronounced on 18th July 2017. The decree was drawn up subsequently and was signed on 27th July 2017. Subsequently on 13th March 2018 Defendant Nos.2 and 3 filed CMA No.31 of 2018 under Order IX Rule 13 CPC to set aside the ex parte decree along with an application under Section 5 of the Limitation CMP No. 14219 3 Act to condone the delay in filing the CMA. In the CMA the Defendant Nos. 2 and 3 took a stand that they along with Defendant No.1 entered appearance in the suit on 6th November 2013 through their counsel and sought for adjournment for filing written statement. When the suit was posted to 24th November 2016 they could not take proper step as the Clerk in charge had met with an accident and sustained a fracture of femur. He resumed his work only in the month of August 2017. Their Advocate namely Sri Gyanaranjan Mohapatra was also suffering from ligament fracture for which the Defendant Nos. 2 and 3 were kept in dark about the progress of the suit and were set ex parte. Consequently the ex parte judgment and decree was passed. It was specifically pleaded in the said CMA that on 4th January 2018 the Defendant Nos. 2 and 3 learnt about the decree and requested the Advocate’s Clerk to obtain the copy of the judgment. Accordingly an application for obtaining the certified copy of the judgment and decree was made on 8th January 2018 which was made available to them on 17th February 2018. Within thirty days thereafter the petition under Order IX Rule 13 CPC was filed. The Plaintiff Petitioner who was the Opposite Party No.1 in the said CMA contested the case by filing objection stating that no sufficient cause was shown either for condonation of delay or for setting aside the ex parte judgment and decree. In support of their case the Defendant No.3 was examined as PW 1 the Advocate’s Clerk namely Sri Srikanta Kumar Das as PW 2 and Advocate Sri Gyanaranjan Mohapatra as PW 3. On the other hand the Plaintiff Petitioner examined himself as DW 1 and one Dr. Jayakrishna Mishra was examined as DW 2. The documents relied upon by Defendant Nos.2 and 3 were marked as Exts.1 to 7 and that of the Plaintiff Petitioner as Ext.A. Learned Senior Civil Judge took up hearing of the petition for condonation of delay along with the CMA filed under Order IX Rule 13 CPC and by order dated 5th CMP No. 14219 4 December 2019 allowed the CMA by condoning the delay for which this CMP has been filed. Mr. Bhuyan learned counsel for the Petitioner submitted that the limitation for filing an application under Order IX Rule 13 CPC is governed under Article 123 of the Limitation Act which provides two modes for determining the starting point of limitation i.e. thirty days from the date of the decree when the applicants have appeared in the suit andthirty days from the date of knowledge when summons were not duly served. In the instant case Defendant Nos.2 and 3 had entered appearance in the suit through their Advocate and in spite of several adjournments did not file their written statement. Thus clause of Article 123 of the Limitation Act has application for determining the starting point of limitation in the case. The ex parte judgment was passed on 19th July 2017 and the application under Order IX rule 13 CPC was filed on 13th March 2018. The averments made in the petition for condonation of delay as well as the evidence of the witnesses of Defendant Nos.2 and 3 reveal that on 4th January 2018 they came to know about the ex parte decree. In order to succeed in a Petition under Order IX Rule 13 CPC the applicant has to show sufficient cause for his non appearance on the date when the suit was called on for hearing. Explanation offered by Defendant Nos.2 and 3 does not disclose any cause of delay till 4th January 2018 much less about sufficient cause for their non appearance on the date when the suit was called on for hearing. The ex parte hearing commenced from 4th July 2017 and the Defendant Nos.1 to 3 were set ex parte on that date. Subsequently the judgment was pronounced on 19th July 2017 followed by signing of the decree on 27th July 2017. No explanation having been offered by Defendants No.2 and 3 for their non appearance on the date when the suit was called on for CMP No. 14219 5 hearing learned Senior Civil Judge has committed gross error in allowing the petition under Order IX Rule 13 CPC. The evidence of PW 3 namely Sri Gyanaranjan Mohapatra learned counsel appearing for Defendant Nos.2 and 3 deposed that he suffered from ligament fracture from 29th July 2017 and recovered on 11th April 2018. He also stated in his evidence that he was under treatment and was bedridden during that period. In his evidence he also deposed that he informed his clients namely Defendant Nos.2 and 3 about the judgment and decree after he came to know about the same on 3rd January 2018. It is his evidence that he had instructed Defendant Nos.2 and 3 to remain present in the Court for filing written statement. Although the Defendant Nos. 1 to 3 were set ex parte on 4th July 2017 but no prayer for setting aside the ex parte order was made by Defendant Nos.2 and 3 although their counsel appeared and filed petitions for adjournment on 4th July 2017 7th July 2017 and 15th July 2017. As such the inordinate delay caused in filing the petition under Order IX Rule 13 CPC should not have been condoned and the petition under Order IX Rule 13 CPC ought not have been allowed. It is his submission that while exercising power under Order IX Rule 13 CPC the trial Court is expected to exercise its discretion judiciously. The Court while exercising its discretion cannot brush aside the mandatory requirements of Order IX Rule 13 CPC. In the instant case learned Senior Civil Judge neither considered the demeanor of the party seeking such relief nor discussed about the requirements of law while passing the impugned order. Relying upon the ratio in the case of State of Orissa and another Vs. Smt. Sitanjali Jena reported in121 CLT 492 he submitted that on setting aside an ex parte decree though the suit is restored to file but the Defendants cannot be relegated back to the CMP No. 14219 6 position prior to the date of hearing of the suit. He would be debarred from filing written statement. At the same time he can participate in the hearing of the suit by cross examining the witnesses of the Plaintiff adducing evidence without propounding his own case in the suit and advancing argument. He therefore submitted that even if this Court comes to a conclusion that the discretion exercised by learned Senior Civil Judge is legal and justified still then the Defendant Nos.2 and 3 cannot be permitted to file written statement and propound their own case in the suit. In view of the above he prayed for setting aside the impugned Mr. Tripathy learned counsel for Opposite Party Nos.1 and 2 Defendant Nos.2 and 3 in the suit) vehemently countenancing such submission made lengthy argument defending the impugned order. It is his submission that sufficient cause has to be construed on the touchstone of pragmatic parameters as set out in Nakul Swain Vs. Jogendra Das reported in 1996 OLR 534. The expression ‘sufficient cause’ must receive ‘liberal construction’ so as to advance substantial justice as laid down in the case of GMG Engineering Industries and Others Vs. ISSA Green Power Solution and Others reported in15 SCC 659. The law of limitation is founded on public policy. Rules of limitation are not meant to destroy the rights of the parties available under law 7 SCC 123. There may be some lapses on the part of the litigant concerned. That alone is not enough to turn down his plea and shut the door against him. When learned Senior Civil Judge has discussed the evidence available on record and found sufficient cause for condoning the delay in filing application under Order IX Rule 13 CPC and set aside the ex parte decree this Court in exercise of supervisory jurisdiction under Article 227 CMP No. 14219 7 should not re assess the same and substitute the finding of learned Senior Civil Judge by its own. It is his submission that Defendant No.3 who was examined as PW 1 deposed that he came to know about the ex parte decree in the month of January 2018. Hehad not engaged any other advocate except Sri Gyanaranjan Mohapatra to defend his case. On 4th January 2018 he for the first time came to know about the ex parte decree from his Advocate then from the Advocate’s Clerk. Similarly Sri Gyanaranjan Mohapatra who was examined as PW 3 in his evidence stated that Defendant Nos.2 and 3 had entrusted him to conduct CS No. 1783 of 2011 in the Court of learned Senior Civil Judge Bhubaneswar. On the first day of their appearance he and the Advocate’s Clerk namely Sri Srikanta Das had assured Defendant Nos. 2 and 3 to take all possible steps for them in the suit. They also assured them to inform the position of the suit from time to time and theyneed not come to Court on each date of posting. It was also deposed by PW 3 that Defendant Nos.2 and 3 were instructed to come to Court when they would be informed. The Advocate’s Clerk namely Srikanta Das was taking all the steps required in the suit. Written statement on behalf of Defendant Nos.2 and 3 could not be filed as they were waiting for filing of the written statement of Defendant Nos.4 and 5 who were the venders of Defendant Nos.2 and 3. Unfortunately during pendency of the suit Sri Gyanaranjan Mohapatra learned counsel appearing for Defendant Nos.2 and 3 suffered from ligament fracture and waist cramp. He was under physiotherapy from 29th June 2017 to 11th April 2018. Since he was under treatment and was bedridden and the Advocate’s Clerk did not inform him about the status of the suit he could not inform the Defendant Nos.2 and 3 about the same. CMP No. 14219 8 Mr. Tripathy also relied upon evidence of PW 2 who in his evidence reiterated the statement of P.W. 3 and deposed that on the date of appearance he along with Mr. Mohapatra learned counsel assured Defendant Nos.2 and 3 to take all possible steps in the suit and informed that their presence is not required on each and every date of posting of the suit. They will be informed when their presence would be required. He met with an accident and after recovery he did not inform either the Defendant Nos.2 and 3 or Sri Gyanaranjan Mohapatra about the status of the suit. Only on 4th January 2018 he informed Defendant No.3 that the suit has been decreed ex parte. The certified copy of the ex parte judgment and decree was applied on 8th January 2018 the same was notified on 5th February 2018 and after submission of requisites the certified copy was made available to him on 17th February 2018. On receiving the same PW 2 handed it over to Defendant No.3. Thereafter CMA was filed. Thus it is clearly proved that the Defendant Nos.2 and 3 had no knowledge about the ex parte judgment and decree till it was informed by PWs 2 and 3. Thereafter CMA was filed without any further delay. Thus no fault can be attributed to Defendant Nos.2 and 3 for the delay in filing the petition under Order IX Rule 13 CPC. It is his submission that the Hon’ble Supreme Court made it clear that legislature has conferred power to condone delay by incorporating Section 5 to the Limitation Act. Ordinarily a litigant does not stand to benefit by delayed lodging of an application or appeal. Refusing to condone delay can result in a meritorious matter being thrown out at very threshold. When delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties. Every day delay must be explained does not mean that a pedantic approach should be made. He also drew attention of this Court to the findings of learned Senior Civil Judge to arrive at the impugned conclusion. Hence Mr. Tripathy learned counsel CMP No. 14219 9 for Opposite Parties submitted that learned Senior Civil Judge has committed no error in exercising the discretion by setting aside the ex parte judgment and decree. The Defendant Nos. 2 and 3 have also paid the cost of Rs.50 000 as condition precedent for setting aside the ex parte judgment and decree. It is his submission that the subject matter of dispute is a valuable piece of land which is situated at prime locality of the Bhubaneswar town which is the State’s capital. Loss if any caused to the Plaintiff has already been compensated on payment of a hefty cost. He therefore prayed for dismissal of the CMP. Before delving into the rival contentions of the parties it is to be kept in mind that Order IX CPC deals with appearance of parties and consequences of their non appearance in the suit. Rule 13 of Order IX CPC deals with setting aside the decree passed ex parte. It provides that if the Court is satisfied that either the summons was not duly served on the Defendant or that the Defendant was prevented by sufficient cause from appearing in the Court when the suit was called on for hearing the Court shall make an order for setting aside the decree as against him on such terms as to cost as it thinks fit. Thus it essentially provides two contingencies under which an ex parte decree can be set aside. The first contingency is when the summons is not duly served on the Defendant. The second one is if summon is duly served then the Defendant has to show sufficient cause to the satisfaction of the Court for his non appearance on the date when the suit was called on for hearing. In the instant case the situation falls under second category. Admittedly the Defendant Nos.2 and 3 were duly served with the summons they appeared through learned counsel and sought for adjournment on several occasions to file written statement. They were admittedly set ex parte on 4th July 2017 on which date the suit was called on for hearing. Although CMP No. 14219 10 learned counsel for Defendant Nos.2 and 3 subsequently filed petitions for adjournment dated 7th July 2017 and 15th July 2017 but no prayer to set aside the ex parte order was made nor the written statement was filed on their behalf. Admittedly the ex parte judgment was pronounced on 19th July 2017 and the decree was drawn up on 24th July 2017 and was sealed and signed on 27th July 2017. Article 123 of the Limitation Act provides that when summons were duly served on the Defendants the limitation for filing of petition under Order IX Rule 13 CPC commences from the date of passing of the ex parte decree. The period of limitation for filing of such application as provided under Article 123 of the Limitation Act is thirty days. Admittedly the petition under Order IX Rule 13 CPC was filed on 13th March 2018 along with a petition under Section 5 of the Limitation Act. Materials available on record reveal that Defendant Nos.2 and 3 have made an endeavour to explain the delay in filing the petition under Order IX Rule 13 CPC stating that on 4th January 2018 they came to know about the ex parte decree from their learned Advocate and thereafter from the Advocate’s Clerk. Immediately thereafter steps were taken to obtain certified copy of the judgment and decree and after obtaining the same on 17th February 2018 the petition for setting aside ex parte decree was filed within thirty days i.e. 13th March 2018. Mr. Tripathy learned counsel for the Opposite Party Nos.1 and 2 made an endeavour to justify the delay in filing the petition under Order IX Rule 13 CPC stating that Defendant Nos. 2 and 3 had no knowledge about the ex parte decree and they should not suffer for the latches if any on the part of their Counsel. Learned Senior Civil Judge on assessment of the materials available on record observed that P.W. 2 sustained fracture of femur in an accident and P.W.3 CMP No. 14219 11 suffered from ligament fracture. In support of his case he relied upon the ratio decided in Rafiq Vs. Munshilal reported in 2 SCC 388 wherein it is held as follows: “…..What is the fault of the party who having done everything in his power and expected of him would suffer because of the default of his advocate. If we reject this appeal as Mr. A.K.Sanghi invited us to do the only one who would suffer would not be the lawyer who did not appear but the party whose interest he represented. The problem that agitates us is whether it is proper that the party should suffer for the inaction deliberate omission or misdemeanor of his agent. The answer obviously is in the negative. May be that the learned advocate absented himself deliberately or intentionally. We have no material for ascertaining that aspect of the matter. We say nothing more on that aspect of the matter. However we cannot be a party to an innocent party suffering injustice merely because his chosen advocate defaulted. ” He also relied upon the ratio in Bank of India Vs. Mehta Brothers and others reported in AIR 1991 Delhi 194 in which it is held that the real test for adjudication of a petition under Order IX Rule 13 CPC is whether the litigant upon learning about the ex parte decree takes immediate steps in filing the application seeking setting aside of ex parte decree. He also relied upon the case law in Nakula Swain in which this Court held that the Courts have to judge the application under Order IX Rule 13 CPC on the touchstone of pragmatic parameters. Also relying upon the ratio in the case of N. BalakrishnanMr. Tripathy submitted that the Law of limitation is founded on public policy. Rules of limitation are not meant to destroy the right of parties. Primary function of the Court is to adjudicate the dispute and to advance substantial justice. Further in the said case it is held that be it an appeal or any other case if it is proved that there are some lapses on the part of the litigant concerned but that alone is not enough to turn down his plea and to shut the door against CMP No. 14219 12 Suffering of P.Ws. 2 and 3 is of little significance when on assessment of evidence learned Senior Civil Judge came to a categorical finding that the Defendant Nos. 2 and 3 had no knowledge about passing of the ex parte decree till 4th January 2018. On scrutiny of materials available on record vis à vis applying the avowed principle of law as discussed above it brings out a clear picture that Defendant Nos.2 and 3 on getting information of the ex parte decree immediately took step for setting aside the same. The material available on record of course suggests that there are certain latches on the part of learned counsel to whom Defendant Nos.2 and 3 entrusted the case and relied upon. Another aspect is clear from scrutiny of materials on record that Defendant Nos.2 and 3 had no knowledge of the ex parte decree till 4th January 2018 when they were informed by Mr. Mohapatra learned counsel engaged by them. Lack of knowledge is also a sufficient cause for condonation of delay. Due to lack of knowledge of the ex parte decree the Defendant Nos. 2 and 3 could not take steps to set aside the same within the statutory period. Explanation of sufficient cause for non appearance of Defendant Nos.2 and 3 on the date when the suit was called on for hearing is also because of lack of knowledge. In my view lack of knowledge having been established prepondering the probabilities this Court is of the considered opinion that Defendant Nos. 2 and 3 have shown sufficient cause for their non appearance on the date when the suit was called for hearing. On a close reading of the impugned order it appears that learned Senior Civil Judge has made his best endeavour and discussed the matter in detail with reference to materials available on record to set aside the ex parte decree. When this Court is satisfied that the discretion has been exercised judiciously by the learned Senior Civil Judge no interference is warranted with regard to setting aside the ex parte decree. CMP No. 14219 13 9. The next issue that arises for consideration is that as a consequence of setting aside of the ex parte decree whether Defendant Nos.2 and 3 can be permitted to file their written statement and contest the case. Law is no more res integra on this issue. As held in the case of Sitanjali Jena this Court relying upon the ratio decided in the case of Sangram Singh Vs. Election Tribunal Kotah and another reported in AIR 1955 SC 425 and Arjun Singh Vs. Mohindra Kumar and others reported in AIR 1964 SC 993 has held as under “8. Thus the logical sequitur of the analysis made in the preceding paragraph is that when an ex parte decree is set aside and the suit is restored to file the defendants cannot be relegated back to the position prior to the date of hearing of the suit. He would be debarred from filing any written statement in the suit but then he can participate in the hearing of the suit inasmuch cross examine the witness of the plaintiff adduce evidence and address argument.” In view of the above I have no hesitation to hold that though the ex parte decree is set aside the Defendant Nos.2 and 3 cannot be permitted to file their written statement. They can only take part in the hearing of the suit without propounding their own case. However they can advance their argument on the basis of the materials available on record only. With the aforesaid observation the CMP is disposed of. Orissa High Court Cuttack. Dated the 4th February 2022 S.S. Satapathy K.R. Mohapatra) Judge CMP No. 14219

Bail Application denied since 20 year old boy violated curfew restrictions and was not wearing a mask: Mumbai Sessions Court

The accused is 20 yr. old so he must know the critical situation of pandemic and should duly follow the guidelines issued by the local authority and police. Yet, he along with other boys took the law into his hands and failed to adhere to the guidelines issued by the State government to control the spread of COVID-19. So, he was denied bail since the learned Court believed that he could be a serious menace to society. This remarkable judgment was passed by the Sessions Court Mumbai in the matter of NAVED ABID QURESHI V The State [BAIL APPLICATION NO.1100 OF 2021] by Honourable Justice Shri Abhijeet A. Nandgaonkar. This application was filed under Section 439 of CrPC wherein the accused has prayed for bail pertaining to C.R.No.81 of 2021 which was registered in J.J. Marg Police Station for the offences punishable under Sections 353,332,333,143,147,188 of Indian Penal Code and under Section 51(B) of Disaster Management Act. On 04.04.2021, the informant found some boys, playing cricket in the middle of the road by putting one wooden table. On the said table two mobiles were also kept. On seeing the police, the boys ran away leaving behind their phones. When they came back to retrieve their phones the informant told them he would take action against them as they have not wearing the mask. So, one of the boys twisted the informants’ hand and snatched the phone, and ran away. Later, the informant came to the police station and lodged a report vide C.R.No.81/2021 since he fractured his hand and the police then arrested accused Naved Abid Qureshi and after inquiry with him, his participation in the offence has been appeared and came to be arrested. However, custody of the 7-year-old accused was handed over to his father. The appellant denied committing any of the alleged offences whereas the prosecution contended that the accused along with some other boys was playing cricket in contravention of the guidelines issued by the State Government, however, the petitioner stated that such contravention attracts offences that are bailable in nature yet the provisions of Section 143 and 147 of IPC are deliberately applied to arraign the present applicant. The applicant-petitioner further submitted that prima-facie provisions of Section 353 of IPC is not attracted and learned Metropolitan Magistrate has committed an error while rejecting the bail application since there is no case of the unlawful assembly to meet common object or to share a common intention.   Considering the situation of COVID-19 in the State, the police authority imposed Section 144 of in Mumbai city to control the situation. In such pandemic situation, the accused along with other boys was allegedly playing cricket that too without wearing a mask, is prima-facie contravening the provisions of the Disaster Management Act, is itself sufficient to hold the accused and other boys have formed an unlawful assembly with a common object to take law in hand and contravened the guidelines issued by the State Authority. Thus, the learned Sessions Judge stated, “the applicant along with other boys have not adhere or respect the guidelines issued by the Authority in amidst of pandemic to control spreading COVID-19 and they have taken law in hand. Therefore, even if the applicant/accused would be released on stringent conditions, it will be serious menace to the general public at large as the applicant has not abide the guidelines issued by the Authority in this pandemic situation, which is surging in the State and the country.” He also observed that “instead of following the directions, the accused alleged to deter the public servant from discharging his duty by applying criminal force.” Therefore, the learned Judge took a strict stance and found that the accused violated the guidelines and also gathered together with other accused with a common intention and “disobeyed the orders of police causing endangering the life of public at large, I do not find any substance in the application to release the applicant/accused even on stringent conditions.”

IN THE COURT OF SESSIONS FOR GR.BOMBAY AT MUMBAI BAIL APPLICATION NO.1100 OF 2021 NAVED ABID QURESHI V s The Stateof Disaster Management Act It is the case of the applicant that he has nothing to do with the alleged offence and has not committed any alleged offence. On the contrary applicant has framed on the basis of concocted story. As per BA No.1100 2021 case of the prosecution the accused and other boys were playing cricket in contravention of the guidelines issued by the State Government and such contravention attracts offences which are bailable in nature. The complainant has not attributed any overt act to the present applicant Therefore provisions of Section 353 of IPC cannot be attracted. The provisions of Section 143 and 147 of IPC are deliberately applied to arraign the present applicant. From the FIR it is evident that no assault on public office has been carried out to obstruct in carrying out his public duty. Hence question of obstructing the public servant to discharge his lawful duty does not arise at all for alleged offence. It is further submitted by the applicant that prima facie provisions of Section 353 of IPC is not attracted. While rejecting the bail application learned Metropolitan Magistrate has committed error Learned Metropolitan Magistrate overlooked to appreciate that there is no case of unlawful assembly to meet common object or to share a common intention. Merely because other accused are absconding cannot be the sole ground for denying the bail to the present applicant All practical sort of investigation has been completed and applicant has cooperated with the investigating agency and nothing has to be recovered investigated at the instance of the present applicant. The applicant is ready to attend the concerned police station as and when required and cooperate the investigating agency. On such grounds applicant has prayed to release on bail on any such terms and Say of the concerned police station was called. PI Kiran Pawar vide Exh.2 has filed say through learned A.P.P and strongly objected the application on the grounds that the applicant has committed serious BA No.1100 2021 type of offence. If he is released on bail applicant would again commit such type of offence and will threaten or pressurize the informant and witnesses. The applicant will abscond if released on bail and he will not attend in the court proceedings. On such grounds they have prayed to reject the bail application. Heard both the sides. Perused the record and submissions. It is the case of the prosecution that on 04.04.2021 at about 19.00 hours informant and PN No.4737 when on petrolling duty at Bara Imam Road Kachwala Building near U.P. Restaurant Don Taki Mumbai they found some boys were playing cricket in middle of the road by putting one wooden table. On the said table two mobiles were also kept. On seeing police the boys were trying to ran away from the spot. However police personnel stopped them and asked them to face the action as they were playing without mask. However the boys were able to run away. Therefore the informant picked the phone kept on the table. Due to which all the boys again came close to the informant At that time informant told them he would take action against them as they have not wearing the mask. At that time one of the boys twisted left hand of the informant and snatched the phone which was taken by the informant and thereafter all the boys ran away. Thereafter police inquired nearby and they came to know the names of the boys as Aasif Narpali who twisted the hand of the informant and other boys names as Farman Mujju Qureshi Naved Qureshi Mujahid Qureshi Junaid Bacchi and Kamran Shaikh. As informant’s left hand was twisted he has taken to Sir J.J Hospital for treatment and it was reported that the informant has BA No.1100 2021 suffered fracture. Thereafter informant came to the police station and lodged report vide C.R.No.81 2021. Thereafter police apprehended Mujahid Abid Qureshi. As he is found juvenile after completing formalities to be juvenile offender conflict with law his custody was handed over to his father. Thereafter accused Naved Abid Qureshi was arrested from Don Taki area and after inquiry with him his participation in the offence has been appeared and came to be arrested On going though the case papers and copy of FIR prima facie it appears the name of applicant accused in the FIR being a member of an unlawful assembly. Considering the situation of COVID 19 in the State particularly in Mumbai is spreading like mayhem. Therefore the police authority have imposed Section 144 of Cr.P.C. in Mumbai city to control the situation. In such pandemic situation the applicant accused along with other boys were allegedly playing cricket that too without wearing mask is prima facie contravening the provisions of Disaster Management Act is itself sufficient to hold that applicant accused and other boys have formed an unlawful assembly with an common object to take law in hand and contravened the guidelines issued by the State Authority. Though the applicant is 20 years old however he must have to know the situation of pandemic in city and to follow the guidelines issued by the local authority and police. As against what appears is that the applicant along with other boys have not adhere or respect the guidelines issued by the Authority in amidst of pandemic to control spreading COVID 19 and they have taken law in hand. Therefore even if the applicant accused would be released on stringent conditions it will be serious menace to the general public at large as applicant has not abide the guidelines issued BA No.1100 2021 by the Authority in this pandemic situation which is surging in the State and the country. Therefore I do not find it necessary at this stage to release the applicant on bail. The observations of the learned Metropolitan Magistrate while rejecting the application on 09.04.2021 is appreciable that in this pandemic situation directions issued by the Government from time to time in stead of following the directions the accused alleged to deter the public servant from discharging his duty by applying criminal force that too cause serious injury which is cause fracture to the police constable while discharging his duty as such public servant. Therefore when applicant accused was prima facie found violating the guidelines of Authority in this pandemic situation and gathered together with other accused with an common intention and disobey the orders of police causing endangering the life of public at large I do not find any substance in the application to release the applicant accused even on stringent conditions. In view of above discussion and considering the factual aspects of taking law in hand by forming the unlawful assembly with the common intention to assemble at public place without wearing mask I do not find it proper to release the applicant accused on bail at this stage Hence application is liable to be rejected by following order : O R D E R Bail Application No.1100 of 2021 moved by applicant accused Naved Abid Qureshi pertaining to C.R.No.81 of 2021 registered with Sir J.J. Marg Police Station for the offence punishable under Sections 353 332 333 143 147 188 of Indian Penal Code and BA No.1100 2021 under Section 51(B) of Disaster Management Act stands Application stands disposed of accordingly Additional Sessions Judge (C.R.No.16 Gr.Bombay at Mumbai Dt.: 21 04 2021 Signed on BA No.1100 2021 “CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL 21.04.2021 at 14.42 hours UPLOAD DATE AND TIME KISHOR PRAKASH SHERWADE NAME OF STENOGRAPHER Name of the Judge HHJ SHRI A.A COURT ROOM NO.16 of pronouncement of Judgment order signed by P.O. on Judgment order uploaded on

Bail to be issued on the grounds of delay of filing the FIR and the improvements made by the complainants in subsequent statements : Delhi High Court

When a crime especially when it is of a violent nature, the law is very clear and instructive in order to protect the victims, however it also provides the accused equal opportunity to prove themselves innocent as law believes in “innocent until proven guilty”. This was held in the judgment passed by a single bench judge comprising HON’BLE MR. JUSTICE SUBRAMONIUM PRASAD, in the matter of DHARMENDRA BHATI V. STATE (BAIL APPLN. 2322/2021) dealt with an issue where the petitioner filed for grant of regular bail under Section 439 Cr.P.C against FIR filed for offences punishable under Sections 323/354- B/452/506/509/34 IPC and Section 12 of the POCSO Act. It is stated that the petitioner, who was carrying a danda, started beating her husband. It is stated that other accused persons also started beating the husband of the complainant with kicks and punches. It is stated that while the accused were going they threatened the complainants with dire consequences and they also threatened them stating that if they inform Police about the incident they would kidnap their children from school. On the basis of the statements, FIR No. 206/2019 for offences punishable Sections 323/354-B/452/506/509/34 IPC was registered on 03.10.2019. Record discloses that on the next day of registering the FIR, i.e. on 04.10.2019, the statement of the daughter of the complainants was recorded wherein it was stated that the accused had threatened rape against the child. On the basis of the said statement offence under Section 12 of the POCSO Act was added. The petitioner was arrested on 16.01.2020 and he has been in judicial custody since then. The counsel for the petitioner contends that the FIR was registered after one-and-a-half months of the incident. He contends that the FIR was initially registered under Sections 323/354-B/452/506/509/34 IPC and in the said FIR there is not a single averment that the petitioner and other assailants threatened the child. He states that the fact that there was an inordinate delay of one-and-a-half months in recording the FIR is sufficient for the petitioner to be released on bail. Ms. Meenakshi Dahiya, learned APP for the State contends that the petitioner is accused of a serious offence and the fact that there is a delay in filing the FIR cannot be a reason to grant bail to the petitioner. She also contends that if the petitioner is released on bail he would threaten the witnesses and therefore the petitioner ought not to be released on bail. After hearing both the parties The hon’ble Delhi High court allowed the petition and granted bail at a personal bond in the sum of ₹50,000/ due to the delay of one-and-a-half months in filing the FIR, the improvement made by the complainants in subsequent statements there is a reasonable ground to believe that the petitioner has not committed the offence punishable under Section 12 of POCSO Act.

IN THE HIGH COURT OF DELHI AT NEW DELHI BAIL APPLN. 2322 2021 IN THE MATTER OF: Date of decision: 02nd AUGUST 2021 DHARMENDRA BHATI@ KALU ..... Petitioner Through Mr. Salim Malik Advocate ..... Respondent Through Mr. Amit Chadha APP for the State with SI Naresh Kumar PS Pul Prahladpur along with Complainant in HON BLE MR. JUSTICE SUBRAMONIUM PRASAD SUBRAMONIUM PRASAD J. This petition under Section 439 Cr.P.C. is for grant of regular bail to the petitioner in FIR No. 206 2019 dated 03.10.2019 registered at Police Station Pul Prahladpur for offences punishable under Sections 323 354 B 452 506 509 34 IPC and Section 12 of the POCSO Act. The facts in brief leading to this bail application are as follows: a) On 14.08.2019 information regarding a quarrel was received at Police station Pul Prahladpur which was entered vide DD No.44 & 46A. On receiving the information ASI Rajbir Singh reached the spot and found that the injured had gone to the Hospital. On 15.08.2019 information was received from AIIMS Trauma Centre that one Shabir Ansari and his wife Ishrat Ansari both residents of C 33 E Chungi BAIL APPLN. 2322 2021 No.3 Lal Kuan Delhi had come to AIIMS Hospital for treatment. The said information was received vide DD No.9A. On receiving the information ASI Sher Singh reached AIIMS Trauma Centre and collected the MLCs of the victims being MLC No. 500188387 of Sabir Ansari and MLC No. 500188388 of Ishrat Ansari. b) After about one and a half months of the incident on 03.10.2019 the statement of the victims Ishrat Ansair and Sabir Ansari were recorded. In her statement Ishrat Ansari alleged that on 14.08.2019 the petitioner along with one Aryan Sonu & Sonu Tomar came to her house and they were carrying dandas & iron rods. It is stated that the accused persons entered into her house and said that her husband was destroying their livelihood by supplying water to the colony which had affected their business. It is stated that the petitioner who was carrying a danda started beating her husband. It is stated that other accused persons also started beating the husband of the complainant with kicks and punches. It is stated that when the complainant tried to save her husband the petitioner held her hand and pulled her. It is stated that the petitioner tore her clothes and pressed her breast in order to outrage her modesty. It is stated that when the complainant objected to it the petitioner and other accused persons started beating her. It is stated that when the complainant and her husband shouted for help all the accused ran away. It is stated that while the accused were going they threatened the complainants with dire consequences and they also threatened them stating that if they inform Police about the incident they would kidnap their children from school. On the basis of the statements FIR No. 206 2019 for offences punishable under BAIL APPLN. 2322 2021 Sections 323 354 B 452 506 509 34 IPC was registered on c) Material on record discloses that on the next day of registering the FIR i.e. on 04.10.2019 the statement of the daughter of the complainants was recorded wherein it was stated that the accused had threatened the child that they would rape her and only then her parents would understand. On the basis of the said statement offence under Section 12 of the POCSO Act was added. d) The petitioner was arrested on 16.01.2020 and he has been in judicial custody since then. e) The petitioner filed applications for bail before learned Additional Sessions Judge POCSO South East Saket Courts on 18.07.2020 03.02.2021 and 04.06.2021 which have been dismissed. f) The petitioner has thereafter approached this Court by filing the instant bail application. record. Heard Mr. Salim Malik learned counsel for the petitioner and Mr. Amit Chadha learned APP for the State and perused the material on The learned counsel for the petitioner contends that the FIR was registered after one and a half months of the incident. He contends that the FIR was initially registered under Sections 323 354 B 452 506 509 34 IPC and in the said FIR there is not a single averment that the petitioner and other assailants threatened the child. He states that the offence under Section 12 of the POCSO Act was added after the statement of the child was recorded on 04.10.2019. He states that the fact that there was an inordinate BAIL APPLN. 2322 2021 delay of one and a half months in recording the FIR is sufficient for the petitioner to be released on bail. He further states that the fact that even after one and a half months of the incident there was not even a whisper of any offence against the child and it was introduced by the statement of the child just after the registering of the FIR. He states that this gives rise to a strong suspicion that the complainants are trying to implicate the petitioners because of business rivalry. The learned counsel for the petitioner states that the petitioner is in custody since 16.01.2020 the charge sheet has been filed and therefore the petitioner be released on bail. Per contra Ms. Meenakshi Dahiya learned APP for the State contends that the petitioner is accused of a serious offence and the fact that there is a delay in filing the FIR cannot be a reason to grant bail to the petitioner. It is further contended by the learned APP for the State that the petitioner is involved in one similar case being FIR No. 762 19 registered at Police Station Surajkund for offences under Sections 323 452 506 376D 342 201 109 120B IPC. She also contends that if the petitioner is released on bail he would threaten the witnesses and therefore the petitioner ought not to be released on bail. The material on record indicates that on 14.08.2019 information was received about the incident. On 15.08.2019 the MLCs of the complainants were received by ASI Sher Singh and on 03.10.2019 i.e. after one and a half months of the incident the statements of the victims were recorded and the FIR was registered. The Status Report does not indicate or give any reason as to why there was a delay of one and a half months in recording the statements of the victims and getting the FIR registered. The FIR was registered on 03.10.2019 and the fact that the daughter of the complainants BAIL APPLN. 2322 2021 was threatened to be raped by the petitioner and other assailants was introduced in the complaint only on 04.10.2019. There is a lot of force in the statement made by the learned counsel for the petitioner that such a thing could not be missed by any parent in their first statement which was made after one and a half months of the incident. As rightly submitted by the learned counsel for the petitioner this is not a trivial issue which any parent would have forgotten while registering a complaint that too after one and a half months of the incident because by that time the complainants would have gained their composure. In any event the petitioner is accused of an offence punishable under Section 354B IPC for which the maximum punishment is seven years. For all other offences the punishment is less than seven years. The petitioner is in custody for the last 18 months. The fact that the petitioner is involved in another case being FIR No. 762 19 cannot be a ground to deny bail to the petitioner in the present case where the maximum sentence is seven years. Laying down the parameters for granting or refusing to the grant of bail in Prasanta Kumar Sarkar v. Ashis Chatterjee 14 SCC 496 the Supreme Court observed as under: “9. We are of the opinion that the impugned order is clearly unsustainable. 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 that among other is well BAIL APPLN. 2322 2021 circumstances the factors to be borne in mind while considering an application for bail are: i. whether there is any prima facie or reasonable the accused had committed the offence to believe ii. nature and gravity of the accusation iii. severity of the punishment in the event of iv. danger of the accused absconding or fleeing if conviction released on bail v. character behaviour means position and standing of the accused vi. likelihood of the offence being repeated vii. reasonable apprehension of the witnesses being viii. danger of course of justice being thwarted by influenced and grant of bail. 10. It is manifest that if the High Court does not advert to these relevant considerations and mechanically grants bail the said order would suffer from the vice of non application of mind rendering it to be illegal.” This Court is of the opinion that the delay of one and a half months in filing the FIR the improvement made by the complainants in subsequent statements there is a reasonable ground to believe that the petitioner has not committed the offence punishable under Section 12 of POCSO Act. As stated earlier the petitioner is in custody for the last 18 months and the material on record reveals that the petitioner has roots in the society and there is no danger of the accused absconding or fleeing from justice. The charge sheet has been filed. The petitioner is in custody for the last 18 months. In view of the present pandemic it is unlikely that the trial will commence in the near future. Keeping all these facts in mind this Court BAIL APPLN. 2322 2021 is inclined to grant bail to the petitioner on the following conditions: The petitioner shall furnish a personal bond in the sum of ₹50 000 with one surety of the like amount who should be a relative of the petitioner to the satisfaction of the Trial The petitioner shall not leave NCT of Delhi without prior Court Duty Magistrate. permission of this Court. c) The petitioner shall report to the concerned Police Station every alternate day at 10:30 AM and should be released after completing the formalities within half an hour. d) The petitioner is directed to give all his mobile numbers to the Investigating Officer and keep them operational at all times. e) The petitioner has given his address in the memo of parties as HR 130 first floor Street No.6 Pul Prahladpur Delhi. The petitioner shall continue to reside at the same address. In case there is any change in the address the petitioner is directed to intimate the same to the IO. The petitioner shall not directly or indirectly tamper with evidence or try to influence the witnesses. g) Violation of any of these conditions will result in the cancellation of the bail given to the petitioner. It is made clear that the observations made in this order are only for the purpose of grant of bail and cannot be taken into consideration during the trial. BAIL APPLN. 2322 2021 11. Accordingly the bail application is disposed of along with the pending applications if any. SUBRAMONIUM PRASAD J. AUGUST 02 2021 BAIL APPLN. 2322 2021

Deflecting the course of judicial proceedings is an abuse of Judicial proceedings : Delhi High Court

Recourse to fraud, deflecting the course of judicial processes is an interference with the administration of justice and causes an abuse to the proceedings. This principle was asserted by the Delhi High Court in the case of Altico Capital India Limited vs. SARE Gurugram Private Limited [CS (COMM)1319/2018] by J. Mukta Gupta. In the suit, the Altico Capital India Limited inter alia prayed for a decree of permanent injunction against the defendants restraining them from acting in breach of the Facility Agreement, with respect to changing its management, shareholding, restructuring both corporate and capital, and charter documents, without prior consent of the Plaintiff, directly or indirectly. The plaintiff also pleaded injunction against restraining the defendants from acting in breach of the following agreements with respect to changing its management, shareholding, restructuring both corporate and capital, and charter documents, without prior consent of the plaintiff, directly or indirectly. In the decision reported as Chandra Shahi vs. Anil Kumar Verma, Supreme Court held: “The stream of administration of justice has to remain unpolluted so that purity of court’s atmosphere may give vitality to all the organs of the State. Polluters of judicial firmament are, therefore, required to be well taken care of to maintain the sublimity of court’s environment; so also to enable it to administer justice fairly and to the satisfaction of all concerned. Anyone who takes recourse to fraud, deflects the course of judicial proceedings; or if anything is done with oblique motive, the same interferes with the administration of justice. Such persons are required to be properly dealt with, not only to punish them for the wrong done, but also to deter others from indulging in similar acts which shake the faith of people in the system of administration of justice.”

IN THE HIGH COURT OF DELHI AT NEW DELHI Reserved on: September 21 2020 Decided on: January 12 2021 CS(COMM) 1319 2018 ALTICO CAPITAL INDIA LIMITED Plaintiff Represented by: Mr.Gopal Jain Sr.Advocate with SARE GURUGRAM PRIVATE LIMITED & ORS...... Defendants Represented by: Mr.Rajshekhar Rao Ms.Pooja Mehra Mr.Amit K Mishra Mr.Akshat Hansaria Ms.Manasi Chatpalliwar Ms.Etisha Srivastava Mr.Tushar Bhatnagar and Ms.Astha Ahuja Advocates. Saigal Mr.Amit Singh Chauhan Ms.Gauri Puri Mr.Anandh Venkataramani and Mr.Hemant Chauhan Advocates for defendant No.4. Mr.Krishanu Barua and Mr.Sahil Monga Advocates for defendant Mr.Ashim Sood Mr.Prabhav Shroff Mr.Apoorva Gupta and Mr.Rhythm Buariah Advocates for defendant Mr.Vijay Nair and Mr.Manoranjan Sharma Advocate for Intervenor Wafra Capital in OA No. 23 2020. HON BLE MS. JUSTICE MUKTA GUPTA I.A. 17846 2018I.A. 199 2019I.A. 10 2020CS(COMM) 1319 2018 This suit has been filed by Altico Capital India Ltd.impleading 14 defendants that is SARE Gurugram Pvt. Ltd. Ramprastha SARE Landholding Company Two Pvt. Ltd. Ramprastha SARE Landholding Company Five Pvt. Ltd.SARE Public Company Ltd.(in short „SARE Cyprus‟) Avon Infracon Pvt. Ltd. in short „Avon‟) Brilliant SARE Realty Pvt. Ltd. Impact SARE Magnum Townships Pvt. Ltd. SARE Realty Projects Pvt. Ltd.SARE Cyprus) SPVLtd.SARESPV (in short „SARE Cyprus SPV 11‟) SARE Cyprus Ltd. SARE Realty Singapore Lte Ltd. (all group companies of SARE Group) Axis Trustee Services Ltd.and Vistra ITCLLimitedas defendant Nos. 1 to 14 respectively. In the suit the plaintiff inter alia prayed for a decree of permanent injunction against the defendantsrestraining them from acting in breach of the Facility Agreement with respect to changing its management shareholding restructuring both corporate and capital and charter documents without prior consent of the Plaintiff directly or indirectly restraining the defendants from acting in breach of the following agreements with respect to changing its management shareholding restructuring both corporate and capital and charter documents without prior consent of the plaintiff directly or indirectly viz Amendment dated 24th November 2016 to Debenture Trust Deed dated 4th December 2015 Memorandum of Hypothecation executed by Defendant Nos.1 2 & 3 dated 3rd November CS(COMM) 1319 2018 2016 Unattested Share Pledge Agreement dated 24th November 2016 executed by Defendant Nos.2 & 3 Corporate Guarantee executed by Defendant Nos.2 & 3 dated 24th November 2016 Corporate Guarantee executed by Defendant No.8 dated 2nd March 2017 Unattested Share Pledge Agreement dated 2nd March 2017 executed by Defendant No.8 Memorandum of Hypothecation executed by Defendant Nos.1 2 & 3 dated 24th November 2016 Debenture Trust Deed dated 11th April 2017 restraining the Defendant Nos. 1 2 3 & 8 from changing its board of director management of shareholding restructuring both corporate and capital charter documents without prior approval of the Plaintiff directly or indirectly viz. and acting in breach of the agreements executed in furtherance of the Facility Agreement and Debenture Trust Deed restraining the defendant Nos. 4 5 6 & 7 from changing its management capital structure or shareholding under the Facility Agreement dated 14th May 2018 without prior consent of the Plaintiff directly or indirectly restraining Defendant No.8 from changing its management and control without the prior consent of the Plaintiff directly or indirectly under the Deed of Corporate Guarantee dated 14th May 2018 and Unattested Share Pledge agreement under the Facility Agreement dated 14th May 2018 and Corporate Guarantee and Unattested Share Pledge Agreement under the Debenture Trust 2. Briefly the case of Altico is that Altico and KKR India Asset Finance Pvt. Ltd.entered into a Facility Agreement dated 14th May 2018 with SARE Gurugram. Under the Facility Agreement Altico along with KKR India the lenders of the Facility sanctioned a loan of ₹100 crores to SARE Gurugram out of which loan amount of ₹60 crores was CS(COMM) 1319 2018 extended by Altico and ₹40 crores by KKR India. In addition to the Facility Agreement Altico had previously also disbursed money to SARE Gurugram and debentures in this regard were issued in favour of Altico under the Debenture Trust Deed dated 4th December 2015and a Debenture Trust Deed dated 24th November 2016. Altico had also disbursed money to SARE Realty and in this regard debentures were issued in favour of Altico under Debenture Trust Deed dated 11th April 2017. As a term of the Facility Agreement dated 14th May 2018 defendant Nos.1 to 12 were required to create interest in form of mortgage charge pledge lien hypothecation assignment by way of security Deed of Trust or any other encumbrances on the secured assets in orders to secure the facility loan and confer priority to the payment of Altico and other lenders. Consequently parties executed various ancillary agreements with the lenders appointed security trustees that is Axis Trustee and Vistra. After the first disbursement of the loan amount under the Facility Agreement the guarantors had a period of one year to duly execute mortgage documents in relation to the lands at Panvel Indore and Amritsar along with the guarantees. Further in terms of the facilities defendant Nos.1 to 9 had undertaken to seek the consent of Altico before carrying out any change in their management corporate structure or charter documents. According to Altico thus under the expressed terms of the Facility Agreement defendants were restrained from changing their Board of Directors Management or the shareholding without a prior written consent of the plaintiff Altico. According to Altico Receiver of SARE Cyprus had already appointed Directors in SARE Cyprus Ltd. and Altico apprehended that the receiver may make changes in the management of various CS(COMM) 1319 2018 defendants except SARE Cyprus SARE Cyprus Ltd. Axis Trustee and Vistra in violation of the various agreements as mentioned in the suit in relation to the credit facility. It was thus the case of Altico that any change in the Board of Directors or Management of defendant Nos.1 to 9 would result in loss to Altico and affect the security creation in its favour. Consequently Altico sought the reliefs as noted above. 4. When the suit came up before this Court on the first date of hearing that is 24th December 2018 this Court based on the representation on behalf of Altico passed the following order in I.A.17846 2018 This is an application under Order XXXIX Rule 1 & 2 of Code of Civil Procedure 1908 seeking ex parte ad interim injunction restraining the defendants from acting in breach of the Facility Agreement and other ancillary agreement with respect to changing its management and shareholding without prior consent of the plaintiff directly or indirectly. While the application has several prayer clauses learned senior counsel for the plaintiff at this stage submits that he will be restricting his claim to the interim injunction as prayed above. Learned senior counsel for the plaintiff submits that he had entered into a Facility Agreement on 14.05.2018 and other ancillary agreement with SARE Gurugram Private Limited and other companies i.e. defendant nos.1 to 12. It is submitted that the Facility Agreement created a negative covenant wherein clauses 2.12 and 3.6 of Schedule 6 required a prior mandatory consent of the Lenders in order to make any change in management of defendant no.1 as well as „Third Party Security providers‟ and „SARE groups‟. The relevant clauses are as under: “2.12 Merger The Company the Third Party Security providers and CS(COMM) 1319 2018 SARE group shall not except with the prior consent of all the lenders allow any changes to the management of the Company or the Third Party Security providers or the Sare Group as the case may and or enter into any arrangements with its shareholders or creditors or implementation of any scheme or proposal or taking of any action restructuring for or allowing any reconstruction consolidation amalgamation merger demerger or re schedulement of its debts 3.6 Other Negative Covenants Without the prior written approval of the Majority Lenders the Company shall not…. bb) any direct or indirect change in management and Control of the Company Sare Two or Sare Five or It is submitted by learned senior counsel for the plaintiff that they understand from Defendant no.1 that in exercise of its power the Receiver of Defendant no.4 has already appointed his Directors in Defendant no.11. The plaintiff apprehends that the Receiver will now make changes in the management of the Defendants in violation of the Facility Agreement and various other agreements which would cause irreparable harm and injury to the plaintiff. Learned senior counsel for the plaintiff has very fairly filed a copy of the order dated 12.10.2018 passed by the learned Single Judge of this Court in CS11718 by SARE Public Company Ltd. through its Receiver wherein an injunction has been granted in favour of the plaintiff therein and against the defendant no.17 1319 2018 been made that „Altico are lenders from whom financial facilities are being availed by SARE Gurugram by encumbering the properties assets of SARE Public and its subsidiaries including Brilliant SARE Avon.‟ The prayer in the present injunction application is “to restrain the defendants from acting in breach of the Facility Agreement and other ancillary agreement with respect to changing its management shareholding directly or indirectly without the prior consent of the plaintiff.” I have gone through the relevant clauses extracted above. Clauses 2.12 and 3.6stipulate that Defendant nos.1 to 12 will not allow any change directly or indirectly in the management shareholding control of the companies without prior consent of the Lenders. A perusal of the order dated 12.10.2018 shows that injunction was granted to the limited extent of taking any further lien charge security mortgage and pledge over any of the assets of defendant nos.1 to 15 till the next date of hearing which is 28.01.2019 and does not extend to the relief sought in the present application. The plaintiff has made out a prima facie case in its favour and balance of convenience is also in its favour. This court is of the opinion that irreparable harm and injury will be caused if the relief of injunction as prayed above is not The Defendant nos.1 to 12 are hereby restrained from the management and shareholding directly or indirectly under the Facility Agreement dated 14.05.2018 and other ancillary agreements without prior consent of the plaintiff till the next date of hearing.” Contentions of learned counsel appearing on behalf of SARE Cyprus defendant No.4) seeking rejection of the plaint are two folds. Firstly in the entire suit though no cause of action is pleaded against SARE Cyprus however surreptitiously reliefs are sought by including SARE Cyprus in the averments and prayers. It is the case of SARE Cyprus that it is not a CS(COMM) 1319 2018 signatory to the Facility Agreement nor any other agreement even though it is the parent company of SARE Gurugram and it provided no security nor any collateral for the Facility Agreement. Further SARE Cyprus has never authorised SARE Gurugram to make any commitment undertaking on its behalf in the Facility Agreement including the negative covenant of no change in shareholding management of SARE Cyprus without prior consent of the plaintiff Altico. Secondly it is contended that since Altico had assigned the facilities to ACRE no cause of action subsisted in favour of Altico and the suit cannot be maintained by consenting to the impleadment of KKR India as a defendant in the suit. Contentions on behalf of SARE Cyprus in relation to I.A.199 2019 under Order XXIX Rule 4 CPC seeking vacation of the interim order against SARE Cyprus are that while seeking an interim order from this Court Altico suppressed material facts. Altico‟s cause of action was premised on the order dated 12th October 2018 passed in CSNo.1179 2018 titled as „SARE Public Company Ltd. vs. Sare Gurugram and others‟. However Altico failed to file the plaint and the necessary documents of the said suit as mandated under Order VII Rule 14 CPC intentionally and deliberately suppressing material documents. Further after appointment of the receiver of SARE Cyprus none of the defendants of SARE Group can create any security mortgage pledge dispose of any property enter into or sign any new contracts or agreements etc. without first obtaining the receiver‟s written consent. Thirdly that on the date of signing of the Facility Agreement only two Directors were on Board in SARE Cyprus both of whom resigned on 29th August 2018 and thus under the Companies Law of Republic of Cyprus there was an urgent need to CS(COMM) 1319 2018 appoint atleast two Directors on the Board of SARE Cyprus. Learned counsel for SARE Cyprus further states that despite the fact that the cause of action in favour of Altico allegedly arose on 12th October 2018 when a suit was filed by the Receiver of SARE Cyprus being CS Comm.) No.1179 2018 and an ex parte ad interim order was passed restraining SARE Entities from creating any lien charge or encumbrances on their assets in furtherance of the Facility Agreement the said interim order dated 12th October 2018 was not filed along with the plaint but a copy of the order was merely handed over across the Bar at the time of hearing. Therefore even the document which forms the fundamental basis of cause of action of Altico was not filed along with the plaint. 8. Mr.Rajshekhar Rao learned counsel for SARE Cyprus relies upon the decisions reported as 2006 SCC 100 Mayar Ltd. & Ors. vs. Owners and Parties Vessl M.V. Fortune Express & Ors. 8 SCC 706 Church of Christ Charitable Trust & Educational Charitable Society vs. Poniamman Education Trust 1977SCC 467 T. Arivandandam vs. T.V. Satyapal & Anr. 1998SCC 70 I.T.C. Ltd. vs. Debts Recovery Appellate Tribunal & Ors. 1998DRJ DB 109 Satish Khosla vs. Eli Lilly Ranbaxy Ltd. 2012DRJ 108Raj Kumari Garg vs. SM Ezaz & Ors. AIR 2005 Mad 72 Suguna Poultry Farm Ltd. vs. Arul Maniamman Textiles Ltd. Reliance is also placed on the decision reported as ILR 1987 Delhi 210 Pratap Chand Mehta vs. Krishna Devi Mehta to contend that when the suit is not maintainable it cannot be allowed to continue by a subsequent application for substitution or addition of parties. According to learned counsel for Altico one of the condition precedent for entering into the Facility Agreement with SARE Gurugram CS(COMM) 1319 2018 was that all companies of SARE Group shall not without the prior consent of all the lenders allow any changes to the management of these companies. In terms of Clause 2 of the conditions precedent SARE Cyprus passed the Board Resolution dated 20th April 2018 which was signed by the Director of SARE Cyprus consenting to the issuance of corporate guarantee in terms of the Facility Agreement. Thus SARE Cyprus was bound by the terms of the Facility Agreement. Further the present suit was not filed by Altico to enforce its security under the Facility Agreement or any other independent guarantee but to enforce a negative covenant restraining the change in the management and control of SARE Cyprus and other defendants without prior consent of Altico. It is further contended that a statement made by a subsidiary company that is SARE Gurugram will bind the parent company that is SARE Cyprus. 10. Relevant clauses of Facility Agreement on which Altico basis its claim are reproduced herein under: “SCHEDULE 2 CONDITIONS PRECEDENT PART A CONDITIONS PRECEDENT TO EXECUTION 1. CORPORATE b) A copy of resolution of the board of directors of the Company relevant Guarantors relevant Pledgers terms of and contemplated by the Facility Documents and resolving that it execute the Facility Documents to which it is a party ii) authorizing a specific Person or Persons to execute the Facility Documents to which it is a party on its behalf iii) authorizing a specific Person or Persons on its behalf to sign CS(COMM) 1319 2018 and or dispatch all certificates documents and notices to be signed and or dispatched by it under or in connection with the Facility Documents to which it is a party. SCHEDULE 6 COVENANTS AND UNDERTAKINGS 2. GENERAL UNDERTAKINGS 2.12. MERGER The Company the Third Party Security Providers and Sare Group shall not except with the prior consent of all the Lenders allow any changes to the management of the Company or the Third Party Security Providers or the Sare group as the case maybe and or enter into any agreements with its shareholders or creditors or implementation of any scheme or proposal or taking of any action for or allowing any restructuring reconstruction consolidation amalgamation merger de merger or reschedulement of its debts any direct or indirect change in management and Control of the Company Sare Two and Sare Five." 11. This Court during the course of arguments sought a specific reply from learned Senior Counsel for Altico as to whether SARE Cyprus was a signatory to the Facility Agreement or any ancillary or supplementary agreement or guarantee. The answer on this query was in the negative. It was however stated that even though SARE Gyprus was not a signatory to the Facility Agreement or any other ancillary agreement SARE Cyprus had passed the Board Resolution dated 20th April 2018 signed by the Director of SARE Cyprus consenting to the issuance of corporate guarantee in terms of the Facility Agreement. Thus SARE Cyprus was bound by its Board Resolution. When this Court wanted to peruse the said Board Resolution learned counsel for Altico stated that this document was not filed by Altico CS(COMM) 1319 2018 along with the plaint however the same was filed by KKR along with I.A.494 2019 for impleadment in the suit as KKR had not been originally impleaded as a defendant by Altico. I.A.494 2019 came up before this Court on 16th January 2019. Admittedly no advance copy of this application was served on learned counsel for SARE Cyprus and was served only on learned counsel for Altico. The said application was allowed permitting impleadment of KKR under Order I Rule 10 CPC based on the no objection furnished by learned counsel for Altico on 16th January 2019 itself. Hence SARE Cyprus had no knowledge of this purported Board Resolution since the same was never served on SARE Cyprus or its counsels. 13. For the first time the purported Board Resolution of SARE Cyprus dated 20th April 2018 signed by Mr.Michael Henry O‟ Sullivan resolving the issuance of the corporate guarantee for securing the repayment of monies to the lenderas a condition precedent in terms of Schedule 2 of the Facility Agreement was referred to and relied upon by learned counsel for the plaintiff Altico during the course of hearing in these applications. 14. Learned counsel for SARE Cyprus took instructions and it was revealed that the person who signed the said resolution that is Mr.Michael Henry O‟ Sullivan was never a Director of SARE Cyprus. When learned counsel for Altico was confronted with this fact learned counsel for plaintiff Altico had no reply to the same. Hence the reliance on behalf of Altico on the purported Board of Resolution dated 20th April 2018 which never formed part of the documents of the plaint is wholly unwarranted as the same is not a genuine document. 15. For the facts noted above contention on behalf of Altico while CS(COMM) 1319 2018 seeking an ex parte ad interim injunction before this Court on 24th December 2018 that Altico had entered into the Facility Agreement on 14th May 2018 and other ancillary agreement with the defendant Nos.1 to 12 was incorrect in so far as SARE Cyprus was concerned for the reason there was neither any agreement nor any board resolution of the SARE Cyprus authorising SARE Gurugram or any other person to incur obligation on behalf of SARE Cyprus. In para 20 of the plaint Altico has stated that the defendants were mandated with multiple obligations under the Facility Agreement dated 14th May 2018 arrived at between Altico KKR and SARE Gurugram. SARE Gurugram was thus required to create security and obligations were imposed on the guarantors. As per para 24 of the plaint in terms of the negative covenants the third party security providers which included defendant Nos.2 3 4 5 6 and 7 were bound by the negative covenants. In sub paras a) to of para 25 of the plaint Altico has enumerated the guarantees mortgages and agreements termed as ancillary agreements executed by the various defendants however there is no mention whatsoever of any agreement undertaking mortgage or guarantee executed by SARE Cyprus. Again in paragraph 36 of the plaint Altico claims that the defendants executed various ancillary agreements with defendant No.13 that is Axis Trustee on behalf of Altico which restricted the defendants from changing its management without a prior notice to the security trustee or the lender. It would be further relevant to note that though there was no agreement with SARE Cyprus in para 36 of the plaint Altico specifically stated that the defendants had even executed various ancillary agreements stated above with the CS(COMM) 1319 2018 defendant No.13 Axis Trustee on behalf of Altico which specifically restricted the defendants from changing its management without prior notice to the security trustees or the lenders. While dealing with the specific deeds of guarantee in para 38 39 40 41 and 42 of the plaint Altico nowhere refers to any specific deed of guarantee or the clauses thereunder with SARE Cyprus however in para 43 of the plaint again by general averments it is pleaded that the express clauses restrained the defendants which would include SARE Cyprus) from changing their board of directors management or shareholding without prior written consent of Altico or defendant No.13 Axis Trustee which is acting on behalf of the Altico. Similarly while mentioning ancillary agreements in para 67 of the plaint though no reference is made to any agreement with defendant No.4 SARE Cyprus however subsequently the acts agreements of the other defendants are also attributed to SARE Cyprus thereby including SARE Cyprus in the sweep with all the defendants. 18. Thus it is incorrectly noted in para 66 and other paragraphs of the plaint that the Facility Agreement imposes restrictions and negative covenants on third party security providers that is defendant Nos.2 3 4 5 6 and 7. 19. On pages 886 and 888 of the documents filed Altico has placed on record copies of the deeds unconditional irrevocable deed of guarantee executed to be executed by SARE Cyprus however the fact remains that no such guarantees were ever executed by SARE Cyprus. From the plain reading of the plaint it is evident that though there is no specific averment qua SARE Cyprus nor any specific undertaking MoU agreement guarantees etc. is attributed to be executed by SARE Cyprus CS(COMM) 1319 2018 oath. however in the sweep all defendants SARE Cyprus has been included in different paragraphs and thus injunction also sought against SARE Cyprus besides other defendants. Thus not only is the present suit where there is no cause of action against SARE Cyprus but the suit contains false and incorrect pleadings with concealment and suppression of material facts on 21. Despite specific pleadings in respect of SARE Cyprus in the plaint that a Receiver of Wafra has been appointed in respect of SARE Cyprus and a suit being CSNo.1179 2018 was filed wherein Altico and KKR were injuncted by this Court neither were the plaint and documents of the said suit filed nor Wafra impleaded by Altico rather when Wafra filed an application for impleadment the same was opposed by plaintiff Altico. 22. Further though Altico sought the prayers seeking restrain of the change of management against all the defendants the averments in the plaint in paras 87 and 88 of the plaint are as under: 88. 87. Thereafter Wafra appointed a Receiver on August 08 2018 to manage the affairs and assets of the Defendant No. 4 in reference of the Purchase Agreements dated April 28 2011 and Debenture dated April 28 2011 regarding the secured assets of the Defendant No.4. It is submitted that the Plaintiff understands from Defendant 1 that in exercise of its powers the Receiver of the Defendant No.4 has already appointed his directors in the Defendant No. 11. The Plaintiff now apprehends that the Receiver may make changes in the management of the various defendants except Defendant Nos. 4 11 13 and 14 in violation of the various agreements mentioned earlier in this suit entered into CS(COMM) 1319 2018 by the Defendants in relation to the credit facilities advanced by the Plaintiff. It is thus evident that Altico was aware that to manage the affairs and assets of SARE Cyprus Wafra has appointed a receiver on 8th August 2018 and in para 88 of the plaint specifically notes that the receiver of SARE Cyprus has already appointed its Directors in defendant No.11 SARE Cyprus Ltd. and Altico apprehended that the receiver may make changes in the management of the various defendants except defendant Nos.4 11 13 and 14 that is SARE Cyprus SARE Cyprus Ltd. Axis Trustee and Vistra respectively in violation of the various agreements however while seeking the relief in the prayer clause injunction is sought against all the defendants from changing their management Directors shareholdings etc. Similar averments had been made in para 11 of I.A.17846 2018 but in the prayer a sweeping interim injunction is sought against all the defendants. 24. Prayers(e) andof the plaint are as under: a. A decree of permanent injunction restraining the Defendants from acting in breach of the Facility Agreement with respect to changing its management shareholding restructuring both corporate and capital and charter documents without a prior consent of the Plaintiff directly or indirectly e. A decree of permanent injunction against Defendant No. 1 2 3 and 8 restraining them from changing its board of director management shareholding restructuring both corporate and capital and charter documents without prior approval of the Plaintiff and acting in breach of the agreements executed in furtherance of the Facility Agreement and the Debenture Trust h. A decree of permanent injunction against Defendant Nos. 4 5 6 and 7from changing its management capital structure or shareholding under the Facility Agreement dated May 14 CS(COMM) 1319 2018 2018 without a prior consent of the Plaintiff directly or 25. Though in prayer e Altico noted that relief was sought against defendant Nos. 1 3 and 8 however in prayer a injunction is sought against all the defendants. A perusal of the interim order passed by this Court reveals that these facts were not brought to the notice of this Court and a general sweeping order was sought restraining defendant Nos. 1 to 12 from changing the management and shareholding directly or indirectly under the Facility Agreement dated 14th May 2018 and other ancillary agreement without the prior consent of the plaintiff. In the decision reported as AIR 1994 SC 853 S.P.Chengalvaraya Naidu by LRs. Vs. Jagannnath by LRs. & Ors. Supreme Court clearly held that the Courts of law are meant for imparting justice between the parties and one who comes to the Court must come with clean hands. It can be said without hesitation that a person who‟s case is based on falsehood has no right to approach the Court. He can be summarily thrown out at any stage of the litigation. Supreme Court noted that a litigant who approaches the Court is bound to produce all documents executed by him which are relevant to the litigation if he withholds the vital document in order to gain advantage on the other side then he would be guilty of playing fraud on the court as well as on the opposite party. 27. Supreme Court in the decision reported as AIR 1998 SC 1297 K.K. Modi vs. K.N. Modi & Ors. explaining the expression “abuse of the process of the court” held that the same has to be understood in the context that the CS(COMM) 1319 2018 process of court must be used bona fide properly and must not be abused. Supreme Court noted: 43. The Supreme Court Practice 1995 published by Sweet & Maxwell in paragraphs 18 19 33 explains the phrase “abuse of the process of the court” thus: “This term connotes that the process of the court must be used bona fide and properly and must not be abused. The court will prevent improper use of its machinery and will in a proper case summarily prevent its machinery from being used as a means of vexation and oppression in the process of litigation. … The categories of conduct rendering a claim frivolous vexatious or an abuse of process are not closed but depend on all the relevant circumstances. And for this purpose considerations of public policy and the interests of justice may be very 28. In the decision reported as 1995SCC 421 Chandra Shahi vs. Anil Kumar Verma Supreme Court held: fairly and “1. The stream of administration of justice has to remain unpolluted so that purity of court s atmosphere may give vitality to all the organs of the State. Polluters of judicial firmament are therefore required to be well taken care of to maintain the sublimity of court s environment so also to enable it to the satisfaction of all 2. Anyone who takes recourse to fraud deflects the course of judicial proceedings or if anything is done with oblique motive the same interferes with the administration of justice. Such persons are required to be properly dealt with not only to punish them for the wrong done but also to deter others from indulging in similar acts which shake the faith of people in the system of administration of justice.” 29. As noted above the case of Altico in its pleadings specially qua SARE Cyprus is based on false and incorrect facts and finally Altico basis its case on a purported Board Resolution of SARE Cyprus which was a CS(COMM) 1319 2018 fabricated document. No cause of action has been shown in the plaint qua SARE Cyprus. There is concealment of material facts and documents and incorrect and false facts have been pleaded on oath. Without any agreement guarantee or any board resolution passed by SARE Cyprus Altico sought injunction and was granted injunction in the sweep of including it in all the defendants without SARE Cyprus being a privity to any of the contracts with Altico. Thus the present suit is a clear abuse of the process of the Court specially in so far as defendant No.4 SARE Cyprus. It is thus to be seen whether the present plaint can be rejected qua one defendant that is defendant No.4 SARE Cyprus. In the decision reported as 2012 SCC 706 Church of Christ Charitable Trust and Educational Charitable Society vs. Ponniamman Educational Trust one of the issue dealt by the Supreme Court was whether the Single Judge of the High Court was justified in ordering rejection of the plaint in so far as the first defendant was concerned. Supreme Court explaining what cause of action was upheld the judgment of the Single Judge in so far as it rejected the plaint qua one of the defendants. It was held that in the absence of any cause of action shown against the first defendant the suit cannot be proceeded against the first defendant and thus the plaint was rightly rejected as against the first defendant. 31. As noted from the facts above in the entire plaint no cause of action has been brought out against SARE Cyprus and by pleading causes of actions against various other defendants SARE Cyprus is sought to be brought in the sweep of all the defendants and reliefs sought against SARE Cyprus. Therefore the plaint is rejected qua SARE Cyprus defendant No.4 and SARE Cyprus is directed to be deleted from the array of parties. The CS(COMM) 1319 2018 interim order dated 24th December 2018 in application being I.A.17846 2018 under Order XXXIX Rule 1 and 2 CPC is vacated qua SARE Cyprus and is modified to this extent. 32. Consequently I.A. 17846 2018 I.A. 199 2019and I.A. 10 2020 are disposed of with a cost of ₹1 Lakh against Altico to be deposited in Delhi High Court Legal Services Committee within four week. JANUARY 12 2021 CS(COMM) 1319 2018

Unequivocal confession leads to dismissal of appeal in a Rape case with minor: Meghalaya High Court

The material against the appellant, based on the deposition of the witnesses, were summarised and put to the appellant for his response in course of the exercise conducted by the trial court under Section 313 of the Code of the Criminal Procedure, 1973.These were upheld by the High Court of Meghalaya through Division bench of Sanjib Banerjee, and W. Diengdoh in the case of Witnar T. Sangma @ Rambong Vs. State of Meghalaya (Crl.A.No.13 of 2019) The crux of the case is the 14-year-old victim while returning from school between 3 pm and 4 pm on April 27, 2017, was accosted by the present appellant and another person who forcibly took her to the nearby jungle and raped her one after another. The two left the victim bleeding and threatened the victim not to narrate the incident to any person. The victim identified the appellant in Court. The other person involved was discovered to be a juvenile and the matter pertaining to such other person was referred to the Juvenile Justice Board. The victim was medically examined shortly after the complaint was lodged, and, in course of the examination, it was found that she had redness in the labia minora and her hymen was torn. Her “inner frock” was seized by the investigating officer and the medical examiner, who examined the victim, testified later in Court that it was his opinion that the victim had been violated and sexually assaulted. The appellant’s statements at the Section 313 of the Code of the Criminal Procedure, 1973 stage, amount to this: “that neither the appellant nor the other person involved with him had any motive of committing rape on the victim or bore any grudge against the victim or her family but upon seeing the victim trudging back alone after school, they were overcome with carnal desire and committed the offence.” The appellant admitted to the fact that the victim was bleeding at the time that the appellant raped her and the juvenile offender committed rape thereafter. The appellant also admitted that the appellant and the juvenile offender had threatened the victim and had asked her not to disclose the incident to any person. The learned Division bench of Sanjib Banerjee, CJ. and W. Diengdoh, accordingly dismissed and observed that there was no merit in the appeal, and it was established and proved beyond reasonable doubt in course of the trial that it was the appellant who committed the offence. accordingly dismissed. And stated, “Considering the entirety of the matter and the fact that the appellant had unequivocally confessed to having committed the offence, there was little room for the trial court to doubt the victim’s version or to pass a different sentence than has been by the judgment of conviction and the order of punishment.”

Serial No. 6 Regular List HIGH COURT OF MEGHALAYA AT SHILLONG Date of Order: 15.02.2022 Witnar T. Sangma @ Rambong Vs. State of Meghalaya Hon’ble Mr. Justice Sanjib Banerjee Chief Justice Hon’ble Mr. Justice W. Diengdoh Judge For the Petitioner AppellantFor the RespondentDr. N Mozika Legal Aid Counsel Mr. K Khan PP with Mr. S Sengupta Addl.PP JUDGMENT:(Oral) This is the usual appeal filed on behalf of the convict with counsel engaged by the Legal Services Authority. However there is little room for the appellant to manoeuvre or wriggle out of the situation in view of the facts as they presented themselves before the Trial Court and the veritable admission on the part of the appellant. 2. The FIR was lodged by the 14 year old victim’s father on April 28 2017 reporting of an incident that took place the previous afternoon. The victim’s statements given in course of the investigation and her oral testimony in Court are clear and leave little room for doubt. Just as her father’s FIR had indicated the victim was returning from school between 3 pm and 4 pm on April 27 2017 when she was accosted by the present appellant and another person who forcibly took her to the nearby jungle and raped her one after another. The two left the victim bleeding and threatened the victim not to narrate the incident to any person. 3. The victim identified the appellant in Court. The other person involved was discovered to be a juvenile and the matter pertaining to such other person was referred to the Juvenile Justice Board. 4. The victim was medically examined shortly after the complaint was lodged and in course of the examination it was found that she had redness in the labia minora and her hymen was torn. Her “inner frock” was seized by the investigating officer and the medical examiner who examined the victim testified later in Court that it was his opinion that the victim had been violated and sexually assaulted. 5. There was no eye witness and several of the witnesses called by the prosecution corroborated the narration of the incident by the victim. All the material against the appellant based on the deposition of the witnesses were summarised and put to the appellant for his response in course of the exercise conducted by the trial court under Section 313 of the Code of the Criminal Procedure 1973. Though in response to one of the initial questions the appellant said that he had not committed any rape it is clear from the appellant’s answers that followed particularly the appellant’s response to question Nos. 5 9 and 15 that the appellant admitted to having committed the offence along with the juvenile. The appellant’s statements at the Section 313 stage amount to this: that neither the appellant nor the other person involved with him had any motive of committing rape on the victim or bore any grudge against the victim or her family but upon seeing the victim trudging back alone after school they were overcome with carnal desire and committed the offence. 6. The appellant admitted to the fact that the victim was bleeding at the time that the appellant raped her and the juvenile offender committed rape thereafter. The appellant also admitted that the appellant and the juvenile offender had threatened the victim and had asked her not to disclose the incident to any person. 7. In a matter of the present kind when there is a clear picture of the incident which is brought out by the victim in the course of her statement or her deposition particularly when the victim may have no axe to grind against the accused a degree of sanctity has to be accorded to the victim’s version. In this case even though the victim was a minor she was 14 years old and the way she narrated the incident left little doubt as to her understanding of what was perpetrated on her. The medical examination corroborated the plight suffered by the victim and the examiner’s evidence was also lucid. In addition the appellant herein admitted to having committed the offence in the course of at least three of the answers in response to the questions put to him by the Court at the trial. 8. Considering the entirety of the matter and the fact that the appellant had unequivocally confessed to having committed the offence there was little room for the trial court to doubt the victim’s version or to pass a different sentence than has been by the judgment of conviction and the order of punishment. 9. There is no merit in the appeal and it has been established and proved beyond reasonable doubt in course of the trial that it was the appellant who committed the offence. The sentence followed the conviction and does not call for any interference. Crl.A. No.119 is dismissed. The appellant will immediately be forwarded a copy of this order W. Diengdoh) Judge Chief Justice 10. 11. at no cost. Meghalaya “Lam DR PS”

A person can apply for bail directly to the High Court without invoking the jurisdiction of Sessions Court: Himachal Pradesh High Court

Police officers cannot arrest automatically when the offence is punishable with imprisonment for a term that may be less than seven years or which may extend to seven years, whether with or without a fine. The High Court bench consisting of J. Anoop Chitkara relied on various case laws while granting bail to the petitioner in the matter of Parveen Kumar v. State of Himachal Pradesh [Cr.MP(M) No. 141 of 2021]. The petitioner was accused of commission of offences punishable under the Scheduled Tribes (Prevention of Atrocities) Act, 1989. Section 3(1) of the said Act is a cognizable and non-bailable offence, the petitioner came up under Section 439 of the Code of Criminal Procedure, 1973, seeking permission to surrender before the court and simultaneously seeking release on ad-interim bail. Briefly, the allegations against the petitioner were of using derogatory words prohibited under the Act. The learned counsel for the petitioner stated that the petitioner had no criminal past relating to offences prescribing a sentence of 7 years and more, or when on conviction, the sentence imposed was of more than 3 years. The counsel for State argued that if the Court was inclined towards granting bail, then it should be made subject to very strict conditions. The High Court found that the petitioner had straightaway filed the bail petition before the court which the Court said was permissible as in the case of Mohan Lal v. Prem Chand [AIR 1980 HP 36], the full judge bench held that “a person can directly apply for an anticipatory bail or regular bail to the High Court without first invoking the jurisdiction of the Sessions Judge”. The court turned to the case of Ami Chand v. State of H.P. [CrMPM 1116 of 2020], wherein it was held that “in the absence of any riders or restrictions under S. 439 Crpc, any person accused of a non-bailable offence, under any penal law, including the violations under the Scheduled Caste & Scheduled Tribes (Prevention of Atrocities) Act, 1989, can apply under section 439 Crpc, offering to surrender and simultaneously seeking interim bail”. On receipt of such an application, the Court is to satisfy that the applicant stands arraigned as an accused in an FIR disclosing Non-bailable offences and if all the parameters are complete, then the Court is under an obligation to accept surrender. Since custody is the sine qua non for considering a bail application, the Court is under an obligation to consider the prayer for interim bail after the said deemed custody. The Court hence released the petitioner on bail and subjected him to furnish a personal bond. Click here to read the judgement                                                                                                                         

Hig h C o urt of H.P on 31 01 HCHP 1 IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLACr.MP(M) No.1421Date of Decision: January 27 2021.Parveen Kumar ...Petitioner.VersusState of H.P. ...Respondent.Coram:The Hon’ble Mr. Justice Anoop Chitkara Judge.Whether approved for reporting 1 NO For the petitioner:Mr. B.B. Vaid and Mr. Rakesh Sharma Advocates. For the respondent:Ms. Seema Sharma Dy. A.G. Mr. Manoj Bagga and Mr.Shreyak Sharda Asstt. A.Gs. for the State. FIR No.DatedPolice StationSections194 of202018.12.2020Palampur District Kangra Himachal Pradesh. Section 3(1) of theSC&ST andSections 504 506and 34 of IPC. Anoop Chitkara Judgeof the said Act being cognizable and non bailableoffences has come up under section 439 of the Code of Criminal Procedure 1973 seeking permission to surrender before this Court and simultaneously seekingrelease on ad interim bail. 1Whether reporters of Local Papers may be allowed to see the judgment Hig h C o urt of H.P on 31 01 HCHP 2 2.A perusal of the petition reveals that the petitioner straightaway filed the bailpetition before High Court which is permissible given the decision of a three JudgesBench of HP High Court in Mohan Lal v Prem Chand AIR 1980 HP 36 wherein the Full bench holds that a person can directly apply for an anticipatorybail or regular bail to the High Court without first invoking the jurisdiction of theSessions Judge. 3.The bail petition is silent about criminal history however learned counsel forthe bail petitioner states on instructions that the petitioner has no criminal pastrelating to the offences prescribing sentence of seven years and more or when onconviction the sentence imposed was more than three years. Status report standsfiled and taken on record and the same also does not mention any criminal past of theaccused. 4.Briefly the allegations against the petitioner are using derogatory wordsprohibited under the Scheduled Caste & Scheduled TribesAct 1989 can apply under section 439 CrPC offering to surrender and simultaneously seekinginterim bail. On receipt of such application the Court is to satisfy that the applicantstands arraigned as an accused in a FIR disclosing Non Bailable offences. If all theseparameters are complete then the Courts are under an obligation to accept surrender. Hig h C o urt of H.P on 31 01 HCHP 3 Since custody is a sine qua non for considering a bail application the Court is underan obligation to consider the prayer for interim bail after this deemed custody. Allsuch pleas fall under the scope of S. 439 CrPC itself and there is no need to invokeS. 482 CrPC. After that granting or refusing interim bail is a Judicial function.7.The accused petitioner is present in Court and has offered to surrender whichis accepted and thus is in deemed custody of the Court. 8.The Counsel for the petitioner contends that the complainant made false andexaggerated allegations invoking SCSTPOA with a view to deprive the opportunityof S. 438 CrPC.9.While opposing the bail the alternative contention on behalf of the State is thatif this Court is inclined to grant bail such a bond must be subject to very stringentconditions. 10.Reasoning: Keeping in view the nature of allegations and the sentenceprescribed therein the petitioner has made out a case for bail. 11.In the present case the maximum sentence imposable for the offencesmentioned in FIR attracts the application of the directions passed in Arnesh Kumarv. State of Bihar 8 SCC 273 wherein Hon’ble Supreme Courtdirected all the State Governments to instruct its police officers not to arrestautomatically when the offence is punishable with imprisonment for a term whichmay be less than seven years or which may extend to seven years whether with orwithout fine.12.The possibility of the accused influencing the investigation tampering withevidence intimidating witnesses and the likelihood of fleeing justice can be takencare of by imposing elaborative and stringent conditions. In Sushila Aggarwal5 SCC 1 Para 92 the Constitutional Bench held that unusually subject to the Hig h C o urt of H.P on 31 01 HCHP 4 evidence produced the Courts can impose restrictive conditions.13.Given the above reasoning coupled with the peculiar facts and circumstancesof the case the Court is granting bail to the petitioner subject to strict terms andconditions which shall be over and above and irrespective of the contents of theform of bail bonds in chapter XXXIII of CrPC 1973.14.The petitioner shall be released on bail in the FIR mentioned above subject tohis furnishing a personal bond of Rs. Twenty five thousandto thesatisfaction of the RegistrarAdditional Registrarof this Court or any such Officer as may be authorised in this behalf by any of the Registrars ofthis Court. Given the conduct of the petitioner to offer surrender before this Court shows that such an accused did not try to abscond hence there is no need for suretybonds.15.The furnishing of the personal bonds shall be deemed acceptance of thefollowing and all other stipulations terms and conditions of this bail order:a)Once the trial begins the petitioner shall not in any manner try to delaythe proceedings and undertakes to appear before the concerned Court and toattend the trial on each date unless exempted. In case of an appeal on this verybond the petitioner also promises to appear before the higher Court in terms ofSection 437 A CrPC.b)The attesting officer shall on the reverse page of personal bonds mention the permanent address of the petitioner along with the phonenumber(s) WhatsApp numbere mailand details of personalbank account(s)and in case of any change the petitioner shallimmediately and not later than 30 days from such modification intimate aboutthe change of residential address and change of phone numbers WhatsAppnumber e mail accounts to the Police Station of this FIR to the concernedCourt.c)The petitioner shall not influence browbeat pressurize make anyinducement threat or promise directly or indirectly to the witnesses thePolice officials or any other person acquainted with the facts of the case todissuade them from disclosing such facts to the Police or the Court or totamper with the evidence. Hig h C o urt of H.P on 31 01 HCHP 5 d)The petitioner shall join the investigation as and when called by theInvestigating Officer or any Superior Officer and shall cooperate with theinvestigation at all further stages as may be required. In the event of failure todo so it will be open for the prosecution to seek cancellation of the bail.Whenever the investigation occurs within the police premises the petitionershall not be called before 8 AM and shall be let off before 5 PM and shall notbe subjected to third degree indecent language inhuman treatment etc.e)In addition to standard modes of processing service of summons theconcerned Court may serve or inform the accused about the issuance ofsummons bailable and non bailable warrants the accused through E Mailand any instant messaging service such as WhatsApp etc.No. 3 2020 I.A. No. 48461 2020 July10 2020]: i.At the first instance the Court shall issue the summons. ii.In case the petitioner fails to appear before the Court on the specifieddate in that eventuality the concerned Court may issue bailablewarrants. iii.Finally if the petitioner still fails to put in an appearance in thateventuality the concerned Court may issue Non Bailable Warrants toprocure the petitioner s presence and may send the petitioner to theJudicial custody for a period for which the concerned Court may deemfit and proper to achieve the purpose.16.During the trial s pendency if the petitioner repeats or commits anyoffence where the sentence prescribed is more than seven years or violatesany condition as stipulated in this order the State may move an appropriateapplication before this Court seeking cancellation of this bail. Otherwise thebail bonds shall continue to remain in force throughout the trial and after thatin terms of Section 437 A of the CrPC.17.Any Advocate for the petitioner and the Officer in whose presence thepetitioner puts signatures on personal bonds shall explain all conditions ofthis bail order in vernacular and if not feasible in Hindi.18.In case the petitioner finds the bail condition(s) as violatingfundamental human or other rights or causing difficulty due to any Hig h C o urt of H.P on 31 01 HCHP 6 situation then for modification of such term(s) the petitioner may file areasoned application before this Court and after taking cognizance even tothe Court taking cognizance or the trial Court as the case may be and suchCourt shall also be competent to modify or delete any condition.19.This order does not in any manner limit or restrict the rights of thePolice or the investigating agency from further investigation per law.20.Any observation made hereinabove is neither an expression of opinion on themerits of the case nor shall the trial Court advert to these comments.21.In return for the protection from incarceration the Court believes that theaccused shall also reciprocate through desirable behavior.22.There would be no need for a certified copy of this order and any Advocate forthe Petitioner can download this order from the official web page of this Court andattest it to be a true copy.The petition stands allowed in the terms mentioned above. Anoop Chitkara Vacation Judge.January 27 2021 (ks).

Only if advocate on record indicates that personal allegations have been made against the members of the arbitral, they may be impleaded; or else, their names should be deleted: Madras High Court

The advocate on record must be enquired seeking to file a petition under Section 34 of the Act wherein the members of the arbitral tribunal have been impleaded as to whether any allegations of misconduct or the like have been levelled in the petition. Only then can their names be impleaded. If not, the names must be deleted. This was held by the two judge bench comprising of the Hon’ble Chief Justice Sanjib Banerjee and Hon’ble Justice Senthilkumar Ramamoorthy in the case of 3i Infotech Limited vs. P. Balasubramanian and Ors. [O.S.A.(CAD) No.38 of 2021] on the 26th of July before the Hon’ble High Court at Madras. The current case is the challenge under Section 37 of the Arbitration and Conciliation Act, 1996 to an order dated July 16, 2019 passed on a petition challenging an arbitral award rendered on June 10, 2015. The short grievance of the appellant lessee is that the arbitral award acknowledged that there was failure on the part of the lessors to mitigate the loss consequent on the breach by the lessee. The appellant submits that once such a finding was rendered, no damages on account of the perceived loss suffered could have been awarded in favour of the lessors. According to the appellant, the respondents herein were not entitled to mesne profits or damages during the period that the leasehold property remained unoccupied and idle, since the respondents had made no attempt to either take over possession thereof or to let out the property to any other and earn therefrom. According to the appellant, despite such aspect of the matter, which goes to the very root of the claim by the lessors in the arbitral reference, the arbitration court dealt with the challenge in a perfunctory manner and merely allowed the award to stand since a considered view was expressed by the arbitral tribunal. It was also observed that, there appears to be sufficient basis to the arbitral tribunal awarding damages since the lessors were not in a position to let out the premises in question as possession in respect thereof had not been made over by the lessee to the lessors till October 9, 2014. There is no merit in the appellant’s grievance that the arbitral tribunal or the court of the first instance had erred in such regard. As such, the challenges to the arbitral award and the impugned order stand repelled. The court herd the submissions of both the parties and observed that There was sufficient material for the arbitral tribunal to conclude that possession had, indeed, not been made over by the lessee to the lessors till or about October 9, 2014 and mesne profits were awarded till October 9, 2014. It is an entirely different matter that the arbitral tribunal did not award interest on the security deposit, though the security deposit had been withheld for an inordinate period of time. Merely because it is an interest-free deposit may not imply that the wrongful withholding of it would not make the person in receipt of the deposit liable for interest for the duration during which it is wrongfully withheld. It was also observed that, adjudicatory authorities are not sued unless direct allegations of misconduct are made against such authorities and precious time is wasted in issuing notices to arbitrators when such arbitrators are made parties to proceedings under Section 34 of the Act. Unless direct allegations of misconduct or the like are made against the arbitrators, it is quite unnecessary to implead the arbitrators and vex them with notices mindlessly issued by the department. The current rules also provide for the arbitrators not being impleaded.

O.S.A.(CAD) No.321IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 26.07.2021CORAM :THE HON BLE MR.SANJIB BANERJEE CHIEF JUSTICEANDTHE HON BLE MR.JUSTICE SENTHILKUMAR RAMAMOORTHYO.S.A.No.3213i Infotech Limited Tower No.5 3rd to 6th FloorsVashi Navi Mumbai 400 703... Appellant Vs1. P.Balasubramanian2. Prabhakar Jain3. Anitha Jain4. Raji Sawhney5. Kamini Sawhney Respondents 2 to 5 rep. by the Power of Attorney P.Balasubramanian as their power agent No.8(25) II Street DP Nagar Kotturpuram Chennai 600 085.6. Dr.Justice AR.Lakshmanan Former Judge Supreme Court of India 1G 1E Dev Regency No.11 First Main Road Gandhi Nagar Adyar Chennai 600 020.__________https: www.mhc.tn.gov.in judis O.S.A.(CAD) No.3217. Mr.Justice J.Kanakaraj Former Judge High Court of Madras No.7 3 Justice Ramanujam Road Chennai 600 041.8. Mr.Justice K.Mohanram Former Judge High Court of Madras No.3 2nd Cross Street Sivakamipuram Thiruvanmiyur Chennai 600 041... Respondents No.3212. The disputes between the parties pertain to a lease deed in respect of an immovable property at Prince Techno Park on the Old Mahabalipuram Road admeasuring 29 500 square feet.3. The short grievance of the appellant lessee is that the arbitral award acknowledged that there was failure on the part of the lessors to mitigate the loss consequent on the breach by the lessee. The appellant submits that once such a finding was rendered no damages on account of the perceived loss suffered could have been awarded in favour of the lessors.4. To an extent the appellant appears to be justified. Paragraph 21 of the arbitral award refers to Ex.C4 which is a letter dated March 9 2011 issued by the lessee to the lessors. The arbitral tribunal framed the relevant issue that fell for assessment in the following words:“The question is as to what is the damages for use and occupation for the period from 9.3.2011 when __________https: www.mhc.tn.gov.in judis O.S.A.(CAD) No.321Ex.C4 was written by the Lessee Respondent till 9.10.2014 when possession was actually taken.”The subsequent discussion at paragraph 21 of the arbitral award refers to a judgment reported at1 SCR 653let out the premises. The tribunal also noticed that there was no evidence to show what would have been the lease rent at the relevant point of time. The tribunal observed that there was no evidence that the property had been subsequently let out and presumed that the property had not been let out and was lying idle. There is sufficient basis to the appellant s assertion that despite __________https: www.mhc.tn.gov.in judis O.S.A.(CAD) No.321noticing the ratio decidendi in the Supreme Court judgment of Murlidhar Chiranjilal the arbitral tribunal may not have applied the dictum to the facts. According to the appellant the respondents herein were not entitled to mesne profits or damages during the period that the leasehold property remained unoccupied and idle since the respondents had made no attempt to either take over possession thereof or to let out the property to any other and earn therefrom.6. According to the appellant despite such aspect of the matter which goes to the very root of the claim by the lessors in the arbitral reference the arbitration court dealt with the challenge in a perfunctory manner and merely allowed the award to stand since a considered view was expressed by the arbitral tribunal.7. In a sense the award of damages by way of mesne profits for the relevant period appears to contradict the earlier finding of the arbitral tribunal in the same paragraph to the effect that the claimants or the lessors had taken no steps to mitigate the loss by __________https: www.mhc.tn.gov.in judis O.S.A.(CAD) No.321seeking to let out the property to some other. However the arbitral tribunal has referred to the letter dated March 9 2011and the award of damages appears to be founded on such letter though the issue has not been discussed in greater detail to indicate why the dictum in Murlidhar Chiranjilal was inapplicable and the lessors entitled to mesne profits for the relevant period nonetheless.8. It is for such purpose that the primary document referred to at the relevant portion of the arbitral award has been looked into though it must be said that a court in seisin of a challenge to an arbitral award does not re appraise the evidence. Indeed it was necessary to look into the document since there is an earlier finding of the arbitral tribunal at paragraph 18 of the award to the effect that the possession of the relevant premises had not been made over by the lessee to the lessors “on 30.9.2010 or 9.3.2011 or on any other date.” The letter dated March 9 2011 issued by the lessee claimed that the lease had expired by efflux of time on September 30 2010 and that the lessee had “already vacated and handed over the premises on September 30 2010.” Apart from the __________https: www.mhc.tn.gov.in judis O.S.A.(CAD) No.321fact that the arbitral tribunal found as a matter of fact that possession of the leasehold premises had not been made over by the lessee to the lessors it is also evident from the following passage in the letter of March 9 2011 that the lessee purported to exercise lien over the leasehold premises till such time that the interest free security deposit furnished by the lessee to the lessors was refunded:“We by our letter dated August 05 2010 have already informed you of our intention to vacate the premises on September 30 2010 however till date you have not refunded the balance amount of interest free refundable security deposit. Thus we hereby call upon you all to refund us the interest free refundable security deposit amount as mentioned below along with penal interest ...”9. There was sufficient material for the arbitral tribunal to conclude that possession had indeed not been made over by the lessee to the lessors till or about October 9 2014 and mesne profits were awarded till October 9 2014. It is an entirely different matter that the arbitral tribunal did not award interest on the security __________https: www.mhc.tn.gov.in judis O.S.A.(CAD) No.321deposit though the security deposit had been withheld for an inordinate period of time. Merely because it is an interest free deposit may not imply that the wrongful withholding of it would not make the person in receipt of the deposit liable for interest for the duration during which it is wrongfully withheld.10. Accordingly there appears to be sufficient basis to the arbitral tribunal awarding damages since the lessors were not in a position to let out the premises in question as possession in respect thereof had not been made over by the lessee to the lessors till October 9 2014. There is no merit in the appellant s grievance that the arbitral tribunal or the court of the first instance had erred in such regard. As such the challenges to the arbitral award and the impugned order stand repelled.11. There is one aspect of the matter that is of crucial importance and must be recorded here. It is elementary that adjudicatory authorities are not sued unless direct allegations of misconduct are made against such authorities and precious time is __________https: www.mhc.tn.gov.in judis O.S.A.(CAD) No.321wasted in issuing notices to arbitrators when such arbitrators are made parties to proceedings under Section 34 of the Act. Unless direct allegations of misconduct or the like are made against the arbitrators it is quite unnecessary to implead the arbitrators and vex them with notices mindlessly issued by the department. The current rules also provide for the arbitrators not being impleaded.12. As a matter of practice without it being set down as a practice direction as such the department is requested to enquire of advocate on record seeking to file a petition under Section 34 of the Act wherein the members of the arbitral tribunal have been impleaded as to whether any allegations of misconduct or the like have been levelled in the petition. A written reply may be sought to cover e filing of petitions under Section 34 of the Act. It is only if advocate on record indicates that personal allegations have been made against the members of the arbitral tribunal or allegations of misconduct or the like have been included in the petition that the members of the arbitral tribunal may be impleaded or else their names should be deleted.__________https: www.mhc.tn.gov.in judis O.S.A.(CAD) No.32113. As a first therefore the names of the arbitrators needlessly impleaded herein stand deleted.14. O.S.A.(CAD) No.321 is dismissed by not interfering with the judgment and order under appeal dated July 16 2019. Consequently C.M.P.No.106521 is closed. There will be no order as to costs. (S.K.R. J.)26.07.2021 Index : YessasiTo:The Sub Assistant Registrar Original SideHigh Court Madras.__________https: www.mhc.tn.gov.in judis O.S.A.(CAD) No.321THE HON BLE CHIEF JUSTICEAND SENTHILKUMAR RAMAMOORTHY J.(sasi) O.S.A.No.321 26.07.2021__________

Neither the authority nor any action has been taken by the authority within the territory in respect of which this court exercises jurisdiction: Delhi High Court

It is an evident fact that if the matter is not fallen within the jurisdiction of the court then no plea shall be heard by the court of the said territory. In the recent matter of Jitendra Singh & Ors. v. Union of India & Anr. [W.P. (C) 9958/2021], the court emphasized the importance of territorial jurisdiction. The above matter was heard on September 10th 2021, and it was presided over by a single judge bench, consisting of Justice Sanjeev Sachdeva. The facts pertinent to the above case are as follows. While relying on the decision given in the case of Jayswal Neco Ltd. v. Union of India & Ors [W.P. (C) 2103/ 2007], the petitioners contended that the court had jurisdiction as the matter is involving Railway board situated in Delhi. According to the petitioners, Senior Divisional Commercial Manager, East Central Railway, Pandit Dindayal Upadhyay Nagar, Uttar Pradesh has issued some demand letters that were needed to be duly met by the petitioners. Aggrieved by the same, and taking the above precedent as an authority, the petitioners filed the case in the Delhi High court. The court, after hearing both the sides and evidence scrutinized, gave a comprehensive observation to the pertinent case. The court opined that the submissions of learned counsel is misplaced and factually not borne out from the records. Cause of action would accrue only where an action is taken by an authority by which petitioner is aggrieved.

IN THE HIGH COURT OF DELHI AT NEW DELHI W.P.9958 2021 Judgment delivered on: 10.09.2021 JITENDRA SINGH & ORS. ….. Petitioner UNION OF INDIA & ANR. …..Respondent Advocates who appeared in this case: For the Petitioner: Mr. V.K. Shukla Ms. Nupur Shukla Mr. D. Mishra and Mr. Anirudha Gulati Advocates. For the Respondent: Mr. Jagjit Singh senior panel counsel with Mr. Preet Singh and Mr. Vipin Chaudhary Advocates for Railways. CORAM: HON’BLE MR. JUSTICE SANJEEV SACHDEVA SANJEEV SACHDEVA J.Petitioner is aggrieved by the action of the Senior Divisional Commercial Manager East Central Railway Pandit Dindayal Upadhyay Nagar Uttar Pradesh whereby enhanced advance annual license fee has been demanded from the petitioner. Learned counsel for the petitioner submits that that this Court would have the territorial jurisdiction as the Railway Board is situated W.P.9958 2021 in Delhi. He submits that the demand raised by the Senior Divisional Commercial Manager East Central Railway Pandit Dindayal Upadhyay Nagar Uttar Pradesh is contrary to the directions issued by the Railway Board at Delhi. Learned counsel relies on a decision of a coordinate Bench of this Court dated 02.07.2007 in W.P. 2103 2007 titled Jayswal Neco Ltd. Vs. Union of India & Ors. to contend that as the Railway Board is situated in Delhi a Writ Petition would lie before this Court. It is noticed that the petitioner impugns demand letters issued by Senior Divisional Commercial Manager East Central Railway Pandit Dindayal Upadhyay Nagar Uttar Pradesh. There is no grievance raised by the petitioner with regard to any action or inaction of the Railway Board. Since the seat of the authority whose action is impugned is not within the territorial jurisdiction of Delhi and is located outside and further as the action impugned is with regard to a demand raised by the said authority situated outside the territorial jurisdiction of the Court cause of action would also not accrue within the territorial jurisdiction of this Court. Article 226 of the Constitution lays down as under: “226. Power of High Courts to issue certain writs W.P.9958 2021 1) Notwithstanding anything in Article 32 every High Court shall have powers throughout the territories in relation to which it exercise jurisdiction to issue to any person or authority including in appropriate cases any Government within those territories directions orders or writs including writs in the nature of habeas corpus mandamus prohibitions quo warranto and certiorari or any of them for the enforcement of any of the rights conferred by Part III and for any other purpose 2) 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 in relation to the territories within exercising jurisdiction 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 underlining supplied) Under Article 226 of the Constitution the High Court has jurisdiction to issue a writ to any person or authority which has its seat within the territory in relation to which it exercises jurisdiction. Under Article 226 the High Court has the power to issue writ to an authority which though does not have its seat within the territorial jurisdiction of the Court but in respect of which the cause of action wholly or in part arises within the territorial jurisdiction of the Court. Reliance placed by learned counsel for the petitioner on the W.P.9958 2021 judgment in Jayswal Neco Ltd.is misplaced inasmuch as the said judgment does not further the case of the petitioner. In Jayswal Neco Ltd. the coordinate Bench of this Court had examined the provisions of Article 226 Constitution of India and by way of illustration specified the following four possibilities: Wher e does the Cause of action whole or in par t) ar ise Which High Cour t would have jur isdiction “S. No. Wher e is the Seat of Gover nment or author ity or r esidence of per son to whom the wr it is to be issued A By virtue of Article 226as well as Article 226[Under Article 226 1)] and BA Under Article 226 2)] and B[Under Article 226 1) as well as Article 226W.P.9958 2021 An explanation of the above table is necessary. For the purpose of demonstrating the territorial jurisdiction of two High Courts in State A and State B there are four possible situations which have been set out in the table above. At S. No. 1 the person authority or government to whom the writ is to be issued is located in State A . The cause of action has also arisen in whole or in part in State A . Therefore it is the High jurisdiction both A alone which has Court of State under Article 226(1) as well as under Article 226(2). In the case of S. No. 2 the person authority or government is located in State A but the cause of action has arisenin State B the territorial jurisdiction for the filing of a writ petition would lie both with the High Court of State A and of State B . The High Court of State A would have jurisdiction by virtue of Article 226(1) inasmuch as the location of the person authority or government to whom the writ is to be issued is within that State. The High Court of State B would have jurisdiction because although the location of the person authority or government is in State A the cause of actionhas arisen in State B . The next case is given under S. No. 3. Here the location of the person authority or government is in State B but the cause of action has arisen in State A . In such a situation both the High Courts of State A and B would have jurisdiction. But the High Court of State A would have jurisdiction under Article 226(2) on account of cause of action and the High Court of State B would have jurisdiction by virtue of Article 226(1) on account of location. Lastly at S. No. 4 is a case which is the inverse of the situation in S. No. 1 both the location and the cause of action arise in State B . Therefore it would be the High Court of State B alone which would have jurisdiction to entertain the writ petition both under Article 226(1) and 226(2). ” W.P.9958 2021 11. Learned Counsel for the Petitioner seeks to bring is case within Serial No.2 above and contends that as the cause of action having arisen in Delhi this Court would have jurisdiction. 12. Clearly the submissions of learned counsel is misplaced and factually not borne out from the records. Cause of action would accrue only where an action is taken by an authority by which petitioner is aggrieved. 13. The subject Railway Station in respect of which the action has been taken is situated in Pandit Dindayal Upadhyay Nagar Uttar Pradesh. The Demand letter has been issued also from the same place and the seat of the authority that has raised a demand i.e. the Senior Divisional Commercial Manager East Central Railway is also situated in Pandit Dindayal Upadhyay Nagar Uttar Pradesh. 14. Petitioner is not aggrieved by any action or inaction on the part of the Railway Board. His contention is that the demand raised by the Senior Divisional Commercial Manager East Central Railway is contrary to the directions of the Railway Board which is situated at Delhi. It is not the direction of the Railway Board that would give rise to a cause of action but the demand raised by the Senior Divisional Commercial Manager East Central Railway situated at Pandit Dindayal Upadhyay Nagar Uttar Pradesh which would give rise to a W.P.9958 2021 cause of action if any. 16. As neither the authority i.e. the Senior Divisional Commercial Manager has its seat in Delhi nor any action has been taken by the authority within the territory in respect of which this court exercises jurisdiction this Court would not have the territorial jurisdiction to entertain the present petition. 17. The petition is accordingly dismissed for lack of territorial jurisdiction. All rights and contentions of parties are reserved. SANJEEV SACHDEVA J. SEPTEMBER 10 2021 W.P.9958 2021

The evidence of an injured eye-witness has great evidentiary value and unless compelling reasons exist, their statements are not to be discarded lightly: Supreme Court

Nobody can enter into the mind of the accused and his intention has to be ascertained from the weapon used, part of the body chosen for assault and the nature of the injury caused as upheld by the Hon’ble Supreme Court through the learned bench led by Justice M. R. Shah in the case of Sadakat Kotwar and Anr. v. The State of Jharkhand (CRIMINAL APPEAL No. 1316 of 2021) The brief facts of the case are that feeling aggrieved and dissatisfied with the impugned judgment and order dated 01.07.2019 passed by the High Court of Jharkhand at Ranchi in Criminal Appeal (SJ) No.393 of 2004 by which the High Court has upheld the conviction of the appellants herein for the offences under Section 307 read with Section 34 of the IPC, the original accused have preferred the present appeal. The Hon’ble Supreme Court held “There are concurrent findings recorded by the courts below holding the appellants – original accused guilty which do not require any interference by this Court in exercise of powers under Article 136 of the Constitution of India. We are in complete agreement with the view taken by the learned Trial Court as well as the High Court. Now so far as the reliance placed upon the decision of this Court in Jai Narain Mishra and Ors. Vs. State of Bihar, (1971) 3 SCC 762 is concerned, on facts such decision shall not be applicable more particularly considering the subsequent decisions as well as the weapon used, nature of injuries caused on the vital part of the body. In view of the above and for the reasons stated hereinabove, the present appeal fails and the same deserves to be dismissed and is accordingly dismissed.”

IN THE CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL No. 13121 Sadakat Kotwar and Anr …Appellant(s JUDGMENT The State of Jharkhand …Respondent(s M. R. Shah J Feeling aggrieved and dissatisfied with the impugned judgment and order dated 01.07.2019 passed by the High Court of Jharkhand at Ranchi in Criminal AppealNo.3904 by which the High Court has upheld the conviction of the appellants herein for the offences under Section 307 read with Section 34 of the IPC the original accused have preferred the present appeal Digitally signed byRASHI GUPTADate: 2021.11.1217:29:53 ISTReason:Signature Not Verified 2. We have gone through the impugned judgment and order passed by the High Court as well as the judgment and order passed by the learned Trial Court convicting the accused for the offences under Section 307 read with Section 34 of the IPC. The prosecution as such has examined in all 10 witnesses in support of the case of the prosecution out of which there are two injured eye witnesses PW7 and PW8. Both of them have supported the case of the prosecution. Even the other witnesses examined by the prosecution i.e. PW1 PW2 PW4 and PW10 are consistent in their statements and have fully supported the case of the prosecution The prosecution has been successful in proving the case against the accused that Appellant No.2 Refaz Kotwar stabbed PW8 Mohd. Jamil Kotwar with a dagger on the right side of his stomach and on left ribs and that PW7 was also stabbed by Appellant No.1 Sadakat Kotwar with a dagger in her ribs. We see no reason to doubt the testimony of the witnesses examined on behalf of the prosecution more particularly PW7 and PW8 who are the injured eye witnesses. It is required to be noted that PW7 and PW8 are the injured eye witnesses. As held by this Court in the case of State of M.P. vs. Mansingh 10 SCC 414 para 9 the evidence of an injured eye witness has great evidentiary value and unless compelling reasons exist their statements are not to be discarded lightly. There are concurrent findings recorded by the courts below holding the appellants original accused guilty which do not require any interference by this Court in exercise of powers under Article 136 of the Constitution of India. 3. Now so far as the submissions on behalf of the appellants that at the most the case may fall under Section 323 of the IPC and therefore the courts below have erred in convicting the accused for the offence under Section 307 IPC is concerned it is the case on behalf of the appellants that it was a case of single blow injury However it is required to be noted that the injury of a single blow was on the vital part of the body i.e. stomach and near chest Nature of the injury is a grievous injury caused by a sharp cutting weapon. The following injuries were found on Jamil Kotwar “Incised wound 1"x1"x muscle deep with Haematoma formation 4"x3" area in 4th and 5th inter costal space in mid axillary region of left The following injuries were found on Samsera Bibi “Incised wound 1"x1 2"x pleura deep in 8th inter costal space mid clericular line of left half of chest.” Thus the nature of injuries was found to be grievous caused by sharp cutting instrument In the case of Mahesh Balmiki vs. State of M.P. 1 SCC 319 in paragraph 9 it is held as under “9 . ... there is no principle that in all cases of a single blow Section 302 Indian Penal Code is not attracted. A single blow may in some cases entail conviction Under Section 302 Indian Penal Code in some cases Under Section 304 Indian Penal Code and in some other cases Under Section 326 Indian Penal Code. The question with regard to the nature of offence has to be determined on the facts and in the circumstances of each case. The nature of the injury whether it is on the vital or non vital part of the body the weapon used the circumstances in which the injury is caused and the manner in which the injury is inflicted are all relevant factors which may go to determine the required intention or knowledge of the offender and the offence committed by him. In the instant case the deceased was disabled from saving himself because he was held by the associates of the Appellant who inflicted though a single yet a fatal blow of the description noted above. These facts clearly establish that the Appellant had the intention to kill the deceased. In any event he can safely be attributed the knowledge that the knife blow given by him was so imminently dangerous that it must in all probability cause death or such bodily injury as is likely to cause death.” 4.1 It is not the case of the accused that the offence occurred out of a sudden quarrel. It also does not appear that the blow was stuck in the heat of the moment. On the contrary considering the depositions of PW7 and PW8 the accused persons pushed and took the husband of PW7 out of the house and thereafter the accused caused the injuries on PW7 and PW8 and stabbed dagger. Thus deadly weapons have been used and the injuries are found to be grievous in nature. As the deadly weapon has been used causing the injury near the chest and stomach which can be said to be on vital part of the body the appellants have been rightly convicted for the offence under Section 307 read with Section 34 of the IPC. As observed and held by this Court in catena of decisions nobody can enter into the mind of the accused and his intention has to be ascertained from the weapon used part of the body chosen for assault and the nature of the injury caused. Considering the case on hand on the aforesaid principles when the deadly weapon dagger has been used there was a stab injury on the stomach and near the chest which can be said to be on the vital part of the body and the nature of injuries caused it is rightly held that the appellants have committed the offence under Section 307 5. We are in complete agreement with the view taken by the learned Trial Court as well as the High Court. Now so far as the reliance placed upon the decision of this Court in Jai Narain Mishra and Ors Vs. State of Bihar 3 SCC 762 is concerned on facts such decision shall not be applicable more particularly considering the subsequent decisions as well as the weapon used nature of injuries caused on the vital part of the body In view of the above and for the reasons stated hereinabove the present appeal fails and the same deserves to be dismissed and is accordingly dismissed [M. R. Shah ….J. New Delhi November 12 2021

Arbitration clause to be invoked even in the absence of response from the defendant: Delhi High Court

The existence of arbitration clause in a contract offers guarantee to the parties that in the case of dispute, it shall be solved amicably however if one party fails to comply and adhere to the clause, this provides the right to seek its invocation in court. This was held in the judgment passed by a single bench judge comprising HON’BLE MR. JUSTICE C .HARI SHANKAR, in the matter of PINE LABS PRIVATE LIMITED V. ICP DIGITAL TECHNOLOGY PRIVATE LIMITED (ARB.P. 300/2021) dealt with an issue where the petitioner filed for invocation of the arbitration clause, for which the petitioner had earlier sent notice to the respondent for which there has been no response to date. In the present case, the Respondent had approached Petitioner’s business of providing software and information technology solutions, for deployment of the devices supplied by Petitioner and availing its services in order to offer EMI schemes in relation to the goods sold at various merchant outlets to cardholders. Agreements were executed between the Respondent and Petitioner dated 01.05.2017,01.06.2017, 10.07.2017 and 18.06.2018. Under these Agreements, for the devices deployed and services rendered to the Respondent, Petitioner raised following invoices that amounted to Rs.6,65,635/-  which were duly received by the Respondent. Despite the receipt of the said invoices, the Respondent paid only a sum of Rs.27,869/- as against total outstanding amount of Rs.6,65,635/-, thus a sum of Rs.6,37,766/-  is due and payable by the Respondent. Under the terms of the Agreement(s) between the parties, the Respondent is not only liable to pay the said invoice amount but also interest @1.5% p.m. for the delayed period i.e. from the due date until paid. Petitioner had diligently performed its part of obligations under the said Agreements and had made the delivery of the work to the satisfaction of the Respondent, thereby giving no reason for the respondent’s default. Thus, prima facie the non-payment of the above invoices is illegal and unwarranted. The Petitioner tried its best to resolve the aforesaid dispute, by calling upon the Respondent in writing vide e-mails and also requesting the Respondent orally to resolve the same. The Petitioner had further requested the Respondent to give its consent for the appointment of ‘Mr. Atul Batra’ as the sole Arbitrator to adjudicate the aforesaid dispute regarding recovery of the aforesaid amount. The Respondent neither paid the amount nor made any effort to settle the aforesaid dispute despite receipt of the said Legal Notice by the Respondent. After hearing both the parties The hon’ble Delhi High court allowed the petition and accordingly appointed Ms. Esha Mazumdar, Advocate as arbitrator to arbitrate on the disputes between the parties under Section 11(6) of the Arbitration and Conciliation Act, 1996. The court also held that the arbitrator would file the requisite disclosure under Section 12(2) of the 1996 Act within a week of entering on reference.

IN THE HIGH COURT OF DELHI AT NEW DELHI ARB.P. 300 2021 PINE LABS PRIVATE LIMITED ..... Petitioner Through Ms. Gurmeet Bindra Adv. ICP DIGITAL TECHNOLOGY PRIVATE LIMITED Through None ..... Respondent HON BLE MR. J USTICE C .HARI SHANKAR O R D E R29.07.2021 C .HARI SHANKAR J . ARB.P. 300 2021 Despite notice having been issued in this matter there is no response from the respondent either today or on the last date of hearing. There has been no appearance on behalf of the respondent on either of the dates. As such the Court has heard Ms. Bindra learned counsel for the petitioner and proceeds to dispose of the matter. This petition under Section 11(6) of the Arbitration and Conciliation Act 1996seeks appointment of an ARB.P. 300 2021 arbitrator to arbitrate on the disputes between the parties. The substratum of the dispute is set out in paras B to I of the petition which are for ready reference reproduced thus: the Respondent approached Petitioner “B. That Petitioner is engaged in the business of providing software and information technology solutions which includes information technology and software solutions for loyalty programs gift card and pre paid petro automation point of sales and credit card and cash payment network of terminals at PCQs and retailers and other ancillary services in the business of offering services in retail automation retail payment solution and transaction processing in India. C. That deployment of the devices supplied by Petitioner and availing its services in order to offer EMI schemes in relation to the goods sold at various merchant outlets to cardholders. Accordingly from time to time Agreements were executed between the Respondent and Petitioner. Certified copy of the Agreements dated 01.05.2017 01.06.2017 10.07.2017 and 18.06.2018 are annexed herewith as document P 2which were duly received by the Respondent No. Document No. Invoice Amount Due Date INV091712009551 1 88 224.00 31.12.2017 15.01.2018 64 900.00 30.11.2018 15.12.2018 INV091812004016 1 55 377.00 11.12.2018 26.12.2018 64 900.00 31.12.2018 15.01.2019 64 900.00 31.01.2019 15.02.2019 17 594.00 31.01.2019 20.02.2019 ARB.P. 300 2021 07 10 620.00 31.01.2019 20.02.2019 21 240.00 31.01.2019 20.02.2019 12 980.00 28.02.2019 20.02.2019 64 900.00 28.02.2019 20.02.2019 Copy of the Invoices are annexed herewith as document P 3 It is further submitted that despite receipt of the said E. invoices the Respondent paid only a sum of Rs.27 869 Rupees Twenty Seven Thousand Eight Hundred Sixty Nine Only) as against total outstanding amount of Rs.6 65 635 Rupees Six Lakhs Sixty Five Thousand Six Hundred and Thirty Five Only) thus a sum of Rs.6 37 766 is due and payable by the Respondent. It is pertinent to state that in terms of the Agreement(s) between the parties the Respondent is not only liable to pay the said invoice amount but also interest @1.5% p.m. for the delayed period i.e. from the due date until paid. F. It is stated that since the Petitioner had diligently performed its part of obligations under the said Agreements and had made the delivery of the work to the satisfaction of the Respondent therefore apparently there is no reason as to why Petitioner should not be paid its outstanding dues. Thus prima facie non payment of the above invoices is illegal and unwarranted. G. That the Petitioner on numerous occasions vide various written communications requested the Petitioner to release the payment due to Petitioner under the aforesaid Agreements and various purchase orders issued by the Respondent. It is stated that despite vide E mail dated 10.10.2018 the Respondent acknowledged the aforesaid dues and assured to pay the same on or before 26.11.2018 it failed to do so. Further vide E mails dated 27.11.2018 and 21.02.2019 the Respondent once again assured the Petitioner that the said outstanding amount will be duly paid. However despite said assurances the Respondent failed to pay the same. Emails dated 10.10.2018 27.11.2018 ana 21.02.2019 are annexed herewith as document P 4despite its assurance the Petitioner sent a Legal Notice via Speed Post Courier and E mail dated 13.11.2019 calling upon the the total outstanding amount of Rs.6 37 766 days of one Party s receipt of a written notice of dispute from the other Patty all disputes arising in connection with this Agreement shall then be settled by a sole arbitrator mutually agreed by the ARB.P. 300 2021 Parties within 30 days after receipt of written request for reference to arbitration by one of the Parties in accordance with the Arbitration and Conciliation Act 1996 with its statutory modifications enactments or reenactments thereto. 10.2 If the Parties cannot agree on a sole arbitrator within the aforesaid 30 day period each Party shall nominate an arbitrator and the two selected arbitrators shall agree on a third arbitrator. 10.3 The place of arbitration shall be New Delhi and the language to be used in the proceeding shall be English. The Parties agree that the arbitration award shall be binding on them and that the arbitral award shall be the sole and exclusive remedy regarding any claims counterclaims or issues presented to the Notice invoking arbitration was sent by the petitioner to the respondent on 13th November 2019. There is no response from the respondent till date. In view of the aforesaid the Court disposes of the present petition by appointing Ms. Esha Mazumdar Advocate as arbitrator to arbitrate on the disputes between the parties. The learned arbitrator is entitled to charge fees in accordance with the Fourth Schedule to the 1996 Act. 10. The learned arbitrator would file the requisite disclosure under Section 12(2) of the 1996 Act within a week of entering on reference. ARB.P. 300 2021 11. The petition stands disposed of in the aforesaid terms. JULY 29 2021 C. HARI SHANKAR J. ARB.P. 300 2021

Criminal proceedings in a matrimonial dispute quashed on the basis of a compromise between the parties: Allahabad High Court

Criminal Proceedings related to non-compoundable offences quashed on the basis of compromise between the parties involved in a matrimonial dispute. The High Court in this case was dealing with the application filed under Section 482 of the CrPC to quash the criminal proceedings that were verified by the lower court. The Allahabad High Court presided over by J. R.N. Tilhari quashed the proceedings in the case of Smt. Pooja Mishra Vs. State of U.P. & Anr., [Application u/s 482 No. – 19739 of 2017]. The brief facts of this case are that the Applicant was married to the son of the complainant who filed an application under Section 156(3) of CrPC and later was directed to file an FIR. The Applicant later filed an FIR under Section 498-A of IPC (cruelty to women), 323 (punishment for voluntarily causing hurt), 307 (attempt to murder), 504 (intentional insult with intent to provoke breach of the peace) and 506 (punishment for criminal intimidation) of the Indian Penal Code (IPC) and Section 3 and 4 of the Dowry Prohibition Act against the husband and her family. Later on the husband and the applicant settled the disputes amicably between them and decided to end their marriage through filing a divorce by mutual consent under Section 13-B of the Hindu Marriage Act. hence, the Applicant filed an application under section 482 for quashing the criminal proceedings filed against her husband. The Court relied on few landmark judgments like the (i) B.S. Joshi & Ors vs State Of Haryana & Anr (2003) 4 SCC 675; (ii) Gian Singh vs State Of Punjab & Anr (2012) 10 SCC 303; (iii) Narinder Singh & others versus State of Panjab & another (2014) 6 SCC 46; (iv) Parbatbhai Aahir @ Parbatbhai vs The State Of Gujarat & Ors 2017 (9) SCC 641; and (v) Social Action Forum for Manav Adhikar & others versus Union of India, 2018 (10) SCC 443 and stated that non-compoundable offences can be quashed if the parties amicably settle or make a compromise between them. The cases can be quashed keeping in mind the facts and circumstances of every case.

Reserved on 14.10.2020 Delivered on 12.01.2021 Court No. 3 Case : APPLICATION U S 482 No. 197317 Applicant : Smt. Pooja Mishra Opposite Party : State of U.P. and Another Counsel for Applicant : Prashant Kumar Singh Counsel for Opposite Party : G.A Hon ble Ravi Nath Tilhari J. 1. Heard Sri Prashant Kumar Singh assisted by Sri Ajai Pratap Singh learned counsel for the applicant Sri L. M. Singh learned counsel for the opposite party no.2 and learned AGA appearing for the State and perused the material brought on 2. This application under Section 482 of Criminal Procedure Cr.P.C.) has been filed with prayer to quash the Charge Sheet No.1416 dated 02.09.2016 as well as entire proceeding of the Case No.516216(State Vs. Smt. Pooja Mishra) arising out of Case Crime No.1616 under Section 309 IPC Police Station Panki District Kanpur Nagar pending in the court of Additional Chief Judicial Magistrate IInd Kanpur Nagar. 3. Briefly stated facts of the case are that the applicant was married to Deepak Mishra son of opposite party no.2 complainant on 11.06.2015 as per the Hindu Rites and Rituals The opposite party no.2 filed an application under Section 156(3) Cr.P.C. which was allowed on 12.04.2016 directing the police to register FIR against the applicant and in pursuance thereof the FIR in Case Crime No.1616 under Section 309 IPC Police Station Panki District Kanpur Nagar was registered on 21.04.2016. After investigation the investigating officer submitted a charge sheet No.144 of 2016 dated 02.09.2016 for the quashing of which alongwith the proceedings of Case No.516216as aforesaid the present petition under Section 482 Cr.P.C. was filed. 4. Besides the above proceedings at the instance of the present applicant an FIR in Case Crime No.1316 under Sections 498 A 323 307 504 506 IPC and Section 3 4 D.P. Act Police Station Panki District Kanpur Nagar was also registered on 27.03.2016 against the present opposite party no.2 alongwith his other family members. In the said case also after investigation charge sheet was submitted and the Magistrate took cognizance against those persons on 09.11.2016. 5. Challenging the said charge sheet the accused therein the present opposite party no.2 and his family members filed Criminal Misc. Application under Section 482 Cr.P.C No.356416in which this Court granted interim order dated 22.11.2016 that no coercive action shall be taken against 6. Learned counsel for the applicant submits that during the pendency of the application under Section 482 Cr.P.C. the parties to the dispute arrived at a settlement and have resolved their disputes amicably and in furtherance thereof the parties jointly filed case No.2020 under Section 13 B of the Hindu Marriage Act before the Principal Judge Family Court Kanpur Nagar. 7. Learned counsel for the applicant further submits that in pursuance of the compromise settlement the present applicant also filed an application supported with an affidavit seeking withdrawal of Case No.51620 of 2016 arising out of Case Crime No.1616 under Section 309 IPC Police Station Panki District Kanpur Nagar before the court concerned and the same is still pending for consideration. 8. Learned counsel for the applicant further submits that an application supported with an affidavit dated 12.02.2020 in respect of Case No.516216 arising out of Case Crime No.1316 under Sections 498 A 323 307 504 506 IPC and Section 3 4 D.P. Act Police Station Panki District Kanpur Nagar was also filed before the court below for withdrawal of the said case. 9. The husband of the present applicant namely Deepak Mishra in view of the compromise filed Criminal Misc Application No.10101 of 2020 before this Court in which by order dated 16.06.2020 the court below was directed to get the compromise verified in Case No.516216 arising out of Case Crime No.137 of 2016 as aforesaid and after the report of verification received from the Chief Judicial Magistrate concerned the proceedings of Case No.516216 arising out of Case Crime No.1316 were quashed by this Court by order dated 31.08.2020 10. Learned counsel for the applicant submits that in view of the compromise settlement between the parties and the same also having been acted upon in as much as on the basis thereof case for divorce by the parties concerned having been filed and the proceedings of Case No.516216 filed by the present applicant against the opposite party no.2 and his family members having been quashed by this Court in Criminal Misc Application No.10101 of 2020 after verification of the compromise from the court below concerned the proceedings of Case No.516216 arising out of Case Crime No.1616 against the applicant at the instance of opposite party no.2 also deserves to be quashed and the present 482 Cr.P.C petition deserves to be allowed 11. A copy of the order dated 31.08.2020 passed by this Court in Application under Section 482 Cr.P.C. No.101020 has been brought on record by way of Criminal Misc. Urgency Application No.20 alongwith copy of the joint applicant filed by the present applicant and the opposite party no.2 before the court concerned in Case No.516216. Copy of the petition for divorce by mutual consent has also been brought on 12. Learned counsel for the opposite party no.2 does not dispute the aforesaid facts and has also submitted that in view of the subsequent development and the compromise between the parties the present application under Section 482 Cr.P.C. may also be allowed to which he has no objection 13. Learned AGA appearing for the State has also not disputed the aforesaid facts 14. I have considered the submissions advanced by learned counsel for the parties and perused the material brought on 15. There is no dispute that the dispute between the parties was predominantly a matrimonial dispute. Both the sides lodged FIR against each other side in which the respective charge sheet were filed. There is also no dispute that during pendency of the case the parties have arrived at a settlement compromise and thereby have amicably resolved their matrimonial dispute and in furtherance thereof case for dissolution of marriage by a decree of divorce by mutual consent was also filed 16. An application for withdrawal of the criminal case field by the present applicant against the opposite party no.2 and his family members was also filed before the court below and arising therefrom in Criminal Misc. Application under Section 482 Cr.P.C. No.10101 of 2020 this Court has quashed the proceedings of the criminal case on the basis of the compromise after its due verification of which a verification report was submitted by the concerned Chief Judicial 17. In view of the above this Court does not consider it necessary to get the joint application filed by the present applicant and the opposite party no.2 before the court below in Case No.51620 of 2016 for quashing of which the present application under Section 482 Cr.P.C. has been filed verified as that very compromise was already got verified in Criminal Misc. Application under Section 482 Cr.P.C. No.101020 18. The prayer to quash the proceedings of the criminal case involved in the present case is also on the basis of the same compromise which has already been got verified in Criminal Misc. Application under Section 482 Cr.P.C. No.101020 and as such this Court on the basis thereof proceeds to pass orders in the present case as well 19. Having regard to the factors that the dispute between the parties is predominantly a matrimonial dispute the parties have amicably settled the dispute by entering into compromise settlement the nature of the offence being personal the FIR being counter blast to the FIR lodged by the applicant against the opposite party no.2 and his family members the proceeding of criminal case filed by the applicant having been quashed by this Court on the basis of the same compromise and the possibility of conviction being remote and bleak as well as considering the legal position as settled in the cases ofB.S Joshi & Ors vs State Of Haryana & Anr4 SCC 675 Gian Singh vs State Of Punjab & Anr10 SCC 303 iii) Narinder Singh & others versus State of Panjab another 6 SCC 46 Parbatbhai Aahir Parbatbhai vs The State Of Gujarat & Ors 2017SCC 641 and Social Action Forum for Manav Adhikar & others versus Union of India 2018SCC 443" to the effect that the proceedings of even a non compoundable offence can be quashed on the basis of compromise such as matrimonial dispute in which type of cases the settlement is to be encouraged this Court finds it a fit case to quash the proceedings of the criminal case alongwith the charge sheet in exercise of inherent powers in order to prevent abuse of the process of the Court and to secure the ends of justice as no useful purpose would be served in keeping and proceeding with the criminal proceedings which would be oppressive to the applicant and opposite party no.2 both. 20. In view of the above the proceedings of Case No.516216(State Vs. Smt. Pooja Mishra) arising out of Case Crime No.1616 under Section 309 IPC Police Station Panki District Kanpur Nagar pending in the court of Additional Chief Judicial Magistrate IInd Kanpur Nagar alongwith the Charge Sheet No.1416 dated 02.09.2016 filed in the aforesaid case are hereby quashed. 21. The petition under Section 482 Cr.P.C. is allowed. 22. There shall be no orders as to costs. Order Date : 12.01.2020 (Ravi Nath Tilhari J

Insurer can recover amount paid to claimant from the owner of insured vehicle if terms of insurance are violated: High Court of Jammu and Kashmir

In a motor accident, if the owner of the offending vehicle has violated the terms and conditions of the insurance policy, the insurer of the offending vehicle can recover the amount paid to the claimant from the owner of the vehicle. This was held in the judgement passed by Justice Vinod Chatterji Koul of the High Court of Jammu and Kashmir High Court in the case of United India Insurance Company Limited v Mst. Shameema and others [CMAM no. 182/2014] pronounced on 22nd June 2021. The appellant, United India Insurance Limited was directed by the Motor Accidents Claims Tribunal, Srinagar to pay a compensation of Rs. 1,50,000 along with 6% interest per annum from date of institution of claim to the respondent, Mst. Shameema. In the case of Mst. Shameema v. United India Insurance Co. ltd, the present respondent filed a claim petition before the tribunal as she was injured in an accident which took place on 11th September 2003 on the National Highway due to rash and negligent driving of another vehicle which was insured by United India Insurance. The appellant pleaded before the court that the owner of the offending vehicle wilfully violated terms and conditions of the insurance policy by allowing his son, respondent no: 2 to drive the vehicle, which lead to the accident. Respondent no: 2 held a learner’s licence to drive light motor vehicle and two wheelers and the appellant contended that the vehicle he was rashly driving was a Tata Sumo which should not be classified as a light motor vehicle. The appellant also added that a learner’s licence was issued so that the person can learn to drive and so he should not be permitted to drive a vehicle carrying passengers. The Motor Accidents Claims Tribunal, Srinagar had thoroughly discussed the validity and effectiveness of the learner’s licence held by respondent no: 2. The tribunal cited the case of New India Assurance Co. Ltd. v Latha Jayraj (II) [1999 ACC 303], where it was held that a learner’s licence would still be considered valid in case of an accident and for insurance purposes. However it was pointed out that in that case the offending vehicle had been a light motor vehicle unlike in the present case. The High Court noted that the case cited by the tribunal would not be appropriate since the vehicle in the present case belonged to a different weight category. The High Court cited the case of Pappu and others v Vinod Kumar Lamba [(2018) 3 SCC 208], where it was established by the Supreme Court that if the insurer succeeded in establishing their defence, the court would direct the insurer to pay the claimant and then allow the insurer to recover the same from the owner of the insured vehicle.

HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR CMAM no. 182 2014 United India Insurance Company Limited Mst. Shameema and others Reserved on: 20.04.2021 Pronounced on: 22.06 .2021 Through: Mr. N. H. Khuroo Advocate Through: Mr. M. Amin Tibetbaqal Adv. for 1 None for respondent 2 and 3. HON’BLE MR JUSTICE VINOD CHATTERJI KOUL JUDGE 1. Impugned in this Appeal is Award dated 10.06.2014 passed by Motor Accident Claims Tribunal Srinagar on a Claim petition bearing File no. 120 2004 titled Mst. Shameema v. United India Insurance Co. ltd. and others directing appellant Insurance Company to pay compensation in the amount of Rs. 1 50 000 along with 6% interest per annum from the date of institution of claim till realization on the grounds made mention of therein. 2. A claim petition as is discernible from perusal of the file was filed by respondent Mst. Shameema before the Tribunal on 12.06.2004 averring therein that the petitioner Mst. Shameema aged 32 years injured in an accident which took place on 11.09.2003 at Hyderbeigh Pattan National Highway due to rash and negligent driving of driver of offending vehicle bearing Registration no. JK01 G 0911 which was insured 2 CMAM no.182 2014 with appellant Insurance Company. Claimant respondent sought compensation to the tune of Rs.19 96 000 3. Appellant Insurance Company resisted the claim petition. It was stand of appellant before the Tribunal that driver of offending vehicle was not 4. The Tribunal in view of pleadings of parties framed following Issues for having valid driving licence. determination which are: a) Whether on 11 09 2003 the petitioner while waiting on the road at Hyderbeigh on Srinagar Baramulla NHW was hit by Sumo bearing JK)1 G 0911 while being driven rashly and negligently by respondent no. 2 whereas the vehicle belonged to respondent no. 3 and was insured with respondent no.1 OPP b) If the issue no. 1 is proved in affirmative whether the petitioner is entitled to compensation on account of the injury suffered and if so to what extent and from whom OPP 5. Claimant respondent produced and examined one witness before the Tribunal. Appellant Insurance Company also produced one witness. 6. By impugned Award the Tribunal found claimants respondents entitled to receive compensation of Rs. 1 50 000 along with 6% interest per annum. 7. Heard and considered. 8. Learned counsel for appellant Insurance Company has stated that the Tribunal erred in passing impugned Award as it has been specifically pleaded and proved by appellant Insurance Company by sufficient evidence that owner respondent No.3 has violated terms and conditions of insurance policy wilfully and knowingly by allowing respondent no.2 to drive offending vehicle without any valid and effective driving licence. Respondent no. 2 who had been driving the vehicle on the date of occurrence is stated to have been holding a learner’s licence to drive only light motor vehicle and the two wheeler but offending vehicle was a 3 CMAM no.182 2014 passenger carrying vehicle and the driver respondent no. 2 could not have plied the said vehicle as he was not authorised under the licence to do so especially when he was holding only a learner’s licence. According to learned counsel under the common and settled law learner’s licence is being issued only in favour of a person who is in the process of learning the art of driving and under no imagination can be permitted to drive the vehicle carrying the passengers. It is contended that owner of offending vehicle respondent no.3 who seems to be the father of driver respondent no.2 has consciously and willingly and knowingly permitted respondent no. 2 to drive offending vehicle which is a passenger carrying vehicle knowing that respondent no. 2 is only holding a learner’s licence to drive the LMV and motor cycle and not the passenger service vehicle. Under such circumstances it can be easily found that respondent no.3 has wilfully and knowingly committed the breach of the policy condition by authorising respondent no. 2 to drive the offending vehicle without having any valid and effective licence for driving the vehicle of the nature which has caused the accident in the case in hand. The learned Tribunal has erred in exonerating respondents 2&3 and instead has held appellant Insurance Company liable under impugned award in violation of provisions of law and that of terms and conditions of the Insurance contract and accordingly the impugned award is liable to be set aside. 9. As regards above submission the Tribunal had discussed validity and effectiveness of driving licence of driver of offending vehicle while deciding Issue no.1 albeit there ought to have been a separate Issue with respect thereof framed and decided by Tribunal. Nevertheless it would be 4 CMAM no.182 2014 apt to go through contents of impugned Award. The Tribunal after deciding Issue no.2 made some discussion as about driving licence of driver of offending vehicle. According to Tribunal driver of offending vehicle was having driving licence though learners and he could have plied offending vehicle. While saying so the Tribunal has made reliance to New India Assurance Co. Ltd v. Latha Jayraj1999 ACC 303. This judgement however has been incorrectly applied by the Tribunal to pass impugned Award. In the present case driver of offending vehicle possessing learner’s licence was not plying a light motor vehicle but a passenger carrying vehicle. So impugned Award to this extent is liable to be set aside and owner of offending vehicle is liable to be fastened with liability of making payment of compensation. At the first instance appellant Insurance Company shall pay amount of compensation with a right to recover the same from owner of offending vehicle. 10. The question whether Insurance Company can be and ought to be directed to pay claim amount with liberty to recover the same from the owner driver of the vehicle has been answered by the Supreme Court in National Insurance Company Ltd v. Swaran Singh and others3 SCC 297 and reiterated in Pappu and others v. Vinod Kumar Lamba and others 3 SCC 208. On the contention of Insurance Company that once the defence taken by insurer is accepted by Tribunal it is bound to discharge insurer and fix liability only on owner and or driver of vehicle the Supreme Court held that even if insurer succeeded in establishing its defence the Tribunal or the Court could direct insurance Company to pay the award amount to claimant and in turn recover the same from owner of vehicle. The three Judge Bench 5 CMAM no.182 2014 of the Supreme Court in Swaran Singh after analysing earlier decisions on the point held that there was no reason to deviate from the said well settled principle. 11. As regards computation of compensation the Tribunal has elaborately discussed Issue no.2 and has rightly given compensation in the amount of Rs.1 50 000 along with 6% interest. To this extent impugned Award need not be interfered with. 12. For the foregoing reasons the Appeal on hand is partly allowed and the Award dated 10.06.2014 passed by Motor Accident Claims Tribunal Srinagar on a Claim Petition bearing File no.120 2004 titled Mst. Shameema v. United India Insurance Co. Ltd. and others to the extent it holds that driver of offending vehicle was having valid driving licence to drive offending vehicle at the time of accident is set aside. Appellant Insurance Company shall pay if not already paid award amount along with interest as given by the Tribunal to claimants respondents. However appellant Insurance Company shall have a right to recover the same from owner of offending vehicle. 13. Disposed of in terms of above. 14. Record of the Tribunal be sent down along with copy of this judgement. Vinod Chatterji Koul) Judge Whether the order is reportable: Yes No.

The power of judicial review will not be permitted to be invoked to protect private interest at the cost of public interest, or to decide contractual disputes: The High Court of Orissa

If the decision relating to award of contract is bona fide and is in public interest, courts will not, in exercise of power of judicial review, interfere even if a procedural aberration or error in assessment or prejudice to a tenderer, is made out. The above statement has been established by the Supreme Court in the case of Jagdish Mandal v. State of Orissa (2007) 14 SCC 517 and has laid the premise for the Orissa High Court while giving its verdict in the case of M/s.I.V.T.V.L.T.(J.V.) v. Chairman-cum-Managing Director, MCL and others [WRIT PETITION (CIVIL) No.4500 OF 2021]. Being an application under articles 226 and 227 of the Constitution of India, the matter was decided by the Chief Justice, Justice B.P. Routray on 4th June 2021. The Petitioner is a joint venture company. He along with Opposite Party No.3 and others participated in the bidding process invited by Opposite Party Nos.1 and 2, i.e., Mahanadi Coal Fields Limited (MCL) vide Notice Inviting Tender (NIT) No.818/2020/657 dated 28th October, 2020 for the work “Hiring of Pay Loaders for Mechanical transfer of Coal into Railway wagons at Siding No.VI & VII of Lakhanpur Area for a quantity of 3,83,25,000 Te.” And there were certain eligibility criterias laid down for the same. The petitioner is of the opinion that opposite party no. 3 does not qualify certain eligibility criterias and hence should not be given the bid. They contended the disqualification of opposite party no. 3 on the grounds that the annualized value of the estimated cost comes to Rs.4,18,31,738/-. Whereas as per the work experience certificate of Opposite Party No.3 filed at Annexure-3 to the tune of Rs.6,00,72,502/- is not matching with the work order submitted by Opposite Party No.3 which has been annexed under Annexure-3 series. Therefore, the work experience certificate of Opposite Party No.3 is not a genuine document. In order to refute this, it was contended by the respondents that Petitioner has not presented the correct facts in the writ petition and that opposite party no. 3 duly qualifies this eligibility criteria. The next contention of the Petitioner is that the clarification issued by M/s.Shyam Metalics and Energy Limited was on 12th December, 2020 whereas the price bids were opened on 7th December, 2020. There is no merit in this contention in view of the clear averment of Opposite Party No.2 in their reply that after ascertaining the genuineness of the work experience certificate from the concerned employer, a decision was taken by the Tender Committee.

IN THE HIGH COURT OF ORISSA AT CUTTACK WRIT PETITIONNo.4500 OF 2021 An application under Articles 226 & 227 of the Constitution of India.) Petitioner Versus Chairman cum Managing Director MCL and others Advocate(s) appeared in this case: ….… Opposite Parties For Petitioner For Opposite Parties Mr. Sidheswar Mohanty Advocate Mr. Debaraj Mohanty Advocate For Opposite Party Nos.1 & 2) CORAM : THE CHIEF JUSTICE JUSTICE B.P. ROUTRAY JUDGMENT 4th June 2021 B.P. Routray J. 1. The Petitioner has challenged the technical qualification of Opposite Party No.3 to compete in the bid invited by Opposite Party Nos.1 and 2 for the work “Hiring of Pay Loaders for Mechanical transfer of Coal into Railway wagons at Siding No.VI & VII of Lakhanpur Area for a quantity of 3 83 25 000 Te.” W.P.(C) No.45021 2. The Petitioner is a joint venture company. He along with Opposite Party No.3 and others participated in the bidding process invited by Opposite Party Nos.1 and 2 i.e. Mahanadi Coal Fields Limitedvide Notice Inviting TenderNo.818 2020 657 dated 28th October 2020 for the work stated above. The eligibility criteria at Clause 8(A) prescribes as follows: “8. Eligibility Criteria: A. Work Experience: The bidder must have experience of works of similar naturevaluing 50% of the annualized estimated value of the work50% of the estimated value of the workput to Tender in any year consecutive 365 days) during last 7 years ending last day of month previous to the one in which bid applications are invited. “Annualised value” of the work shall be calculated as the “Estimated value Period of completion in Days x The value of executed works shall be given a simple weightage to bring them at current price level by adding 5% for each completed yearafter the end date of experience till the last day of month previous to one in which e Tender has been invited. The definition of similar work shall be as follows: Loading of coal any mineral soil ash stone rejects by into railway wagons Pay Loaders Excavators In respect of the above eligibility criteria the bidders are required to furnish the following information on line: W.P.(C) No.45021 I. Start date of the year for which work experience of bidder is to be considered for eligibility. II. Start date & end date of each qualifying experience similar nature). III. Work order Number Agreement Number of each IV. Name & address of Employer Work Order Issuing authority of each experience. V. Percentage share of each experience of the NIT the work experience certificate has been defined to the effect that the bidder must have experience of work of similar nature valuing 50% of the annualised estimated value of the work put to tender. As per calculation 50% of the annualised value of the estimated cost comes to W.P.(C) No.45021 Rs.4 18 31 738 . The work experience certificate of Opposite Party No.3 filed at Annexure 3 to the tune of Rs.6 00 72 502 is not matching with the work order submitted by Opposite Party No.3 which has been annexed under Annexure 3 series. Therefore the work experience certificate of Opposite Party No.3 is not a genuine document. 4. Opposite Party No.3 did not come to contest. 5. Opposite Party Nos.1 and 2 who are Tender Inviting Authorities have contested the case by filing their counter. They have refuted the case of the Petitioner by saying that Petitioner has not presented the correct facts in the writ petition. It is their case that Petitioner has submitted three work experience certificates to reveal his qualification in terms of Clause 8(A) of the NIT. The first certificate has been issued by M s.Shyam Metalics and Energy Limited showing work done experience by Opposite Party No.3 to the tune of Rs.6 00 72 502 and two other work showing value of Rs.2 73 91 960 and Rs.1 51 56 032 respectively by M s.Godavari Commodities Limited. 6. As complaint was received from the Petitioner a clarification to the genuineness of the certificate of Opposite Party No.3 was sought from the respective employers viz. M s.Shyam Metalics and Energy Limited and M s.Godavari Commodities Limited. Both the employers have clarified that the work experience of Opposite Party No.3 as mentioned in his certificate is correct. Thereafter the financial bid was opened wherein Opposite Party No.3 was found L 1 and Petitioner was found L 4. Therefore the offer of Opposite Party No.3 was accepted and Letter of Acceptancewas issued to him on 23rd February 2021. W.P.(C) No.45021 7. The entire issue as revealed from rival contentions of the parties is relating to the work experience certificate submitted by Opposite Party No.3 along with his bid document. Admittedly 50% of the annualised estimated value to qualify the bidder is amounting Rs.4 18 31 738 . This experience qualified value is much less than the experience value submitted by Opposite Party No.3 got from M s.Shyam Metalics and Energy Limited and M s.Godavari Commodities Limited as per the work experience certificate submitted by him in the bid. 8. The Petitioner submits that the work order issued by M s.Shyam Metalics and Energy Limited to Opposite Party No.3 for the period from 1st April 2019 to 31st March 2020 is for loading and shifting charges whereas the experience required by MCL is for loading charges only. Thus the Petitioner submits that the experience certificate issued by M s.Shyam Metalics and Energy Limited in favour of Opposite Party No.3 cannot be considered as a valid certificate in terms of the eligibility norms under the NIT. 9. This contention of the Petitioner does not appear to be factually correct. A perusal of the experience certificate of Opposite Party No.3 under Annexure 3 series) the document at Annexure D 2 to the counter and the clarification under Annexure E 2 series reveals that the experience is regarding loading of raw materials only. In those documents nowhere have the shifting charges been mentioned. Those documents speak of loading charges @Rs.10 per MT plus GST. Therefore we do not see any flaw in the tender process as alleged by Petitioner against Opposite Party No.3. Apart from that as seen from the W.P.(C) No.45021 price bid under Annexure I 2 to the counter Petitioner stood L 4 and Opposite Party No.3 stood L 1 in terms of which the price difference is more than Rs.9 crores. 10. The next contention of the Petitioner is that the clarification issued by M s.Shyam Metalics and Energy Limited was on 12th December 2020 whereas the price bids were opened on 7th December 2020. There is no merit in this contention in view of the clear averment of Opposite Party No.2 in their reply that after ascertaining the genuineness of the work experience certificate from the concerned employer a decision was taken by the Tender Committee. 11. The Supreme Court in Jagdish Mandal v. State of Orissa14 SCC 517 held that: in mind. A contract to prevent arbitrariness “22. Judicial review of administrative action is irrationality unreasonableness bias and mala fides. Its purpose is to check whether choice or decision is made “lawfully” and not to check whether choice or decision is “sound”. When the power of judicial review is invoked in matters relating to tenders or award of contracts certain special features should be is a commercial tenders and awarding transaction. Evaluating contracts are essentially commercial Principles of equity and natural justice stay at a distance. If the decision relating to award of contract is bona fide and is in public interest courts will not in exercise of power of judicial review interfere even if a procedural aberration or error in assessment or prejudice to a tenderer is made out. The power of judicial review will not be permitted to be invoked to protect private interest at the cost of public interest or to decide contractual disputes. The tenderer or W.P.(C) No.45021 contractor with a grievance can always seek damages in a civil court. Attempts by unsuccessful tenderers imaginary grievances wounded pride and business rivalry to make mountains out of molehills of some technical procedural violation or some prejudice to self and persuade courts to interfere by exercising power of judicial review should be resisted. Such interferences either interim or final may hold up public works for years or delay relief and succour to thousands and millions and may increase the project cost manifold. Therefore a court before interfering in tender or contractual matters in exercise of power of judicial review should pose to itself the following questions: i) Whether the process adopted or decision made by the authority is mala fide or intended to favour someone Whether the process adopted or decision made is so arbitrary and irrational that the court can say: “the decision is such that no responsible authority acting reasonably and in accordance with relevant law could have reached” If the answers are in the negative there should be no interference under Article 226. Cases involving blacklisting or imposition of penal tenderer contractor or consequences on a distribution of State largesse stand on a different footing as they may require a higher degree of fairness in action.” Whether public interest is affected. 12. In light of the settled legal position as explained by the Supreme Court in the aforementioned decisions there is no merit in the W.P.(C) No.45021 contentions of the Petitioner. Accordingly the writ petition is dismissed. There shall be no order as to costs. 13. 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 B.P. Routray) Chief Justice 4th June 2021 B.K. Barik Secretary W.P.(C) No.45021

Plea for sole arbitrator filed in the court, further referred to Arbitration, without any intervention of the court: Delhi High Court

The pertinent case is filed in the Delhi High Court, in the matter of To the New Private Ltd. v. Golden Tower Infra Tech Ltd. [ARB.P. 428/2021] filed under section 11 (6) of the Arbitration and Conciliation Act, 1996. The validity of arbitral award was challenged and the proceeding, of the same, was held on September 10th 2021, and was presided over by a single judge bench, consisting of Justice C. Hari Shankar. The facts of the above case, as contended by the parties are as follows. The respondents doubted the maintainability of the dispute under arbitration proceedings, with regards to the amount of claim. The above doubt arose due to the petitioner who submits that his client seeks reference, to arbitration, only of his entitlement to the amount of waiver of Rs. 57,85,750, by a legal notice to the respondents. In furtherance to the above, the respondent had no further issues in resorting to arbitration but was only checking the validity of the said case. As a result, the same case was subjected to be heard at Delhi International Arbitration Centre (DIAC). DIAC would then be appointing a sole arbitrator to adjudicate the subject matter of the case.

IN THE HIGH COURT OF DELHI AT NEW DELHI 2 & 3ARB.P. 428 2021 TO THE NEW PRIVATE LIMITED Through: Mr. Aditya Dewan Adv. ..... Petitioner GOLDEN TOWER INFRATECH LTD ..... Respondent Through: Mr. Joby P. Varghese and Mr.Nishant Rai Advs. ARB.P. 429 2021 M s. TO THE NEW PRIVATE LIMITED ..... Petitioner Through: Mr. Aditya Dewan Adv. GOLDEN TOWER INFRATECH LTD ..... Respondent Through: Mr. Joby P. Varghese and Mr.Nishant Rai Advs. HON BLE MR. JUSTICE C. HARI SHANKAR O R D E RVideo Conferencing) ARB.P. 428 2021 parties to arbitration. ARB.P. 428 & 429 2021 This is a petition under Section 11(6) of the Arbitration and Conciliation Act 1996 seeking reference of the disputes between the 2. Mr. Varghese learned Counsel for the respondent submits that the only misgiving of his client is regarding the nature of the actual dispute being referred to arbitration specifically the quantum of the claim. 3. Mr. Dewan learned Counsel for the petitioner submits that his client seeks reference to arbitration only of his entitlement to the amount of waiver of ₹ 57 85 750 indicated in Annexure A to the legal notice dated 3rd August 2020 by the petitioner to the respondent. 4. Mr. Varghese has no objection to the reference of the issue of entitlement of the petitioner to waiver of the aforesaid amount of ₹ 57 85 750 to arbitration. In view thereof the issue of the entitlement of the petitioner to waiver of ₹ 57 85 750 as sought in Annexure A of the legal notice August 2020 addressed by the petitioner to the respondent stands referred to arbitration. The parties are referred to the Delhi International Arbitration Centre which would proceed to appoint a suitable arbitrator to arbitrate on the disputes. The arbitration would proceed under the aegis of the DIAC and in accordance with its rules and regulations. The arbitrator would be entitled to fees in accordance with the schedule of fees maintained by the DIAC. ARB.P. 428 & 429 2021 It is made clear that this Court has expressed no opinion on the merits of the controversy between the parties and all questions of fact in law remain open to agitation in the arbitral proceedings. 9. With the aforesaid observations the petition stands disposed of. ARB.P. 429 2021 10. This is a petition under Section 11(6) of the Arbitration and Conciliation Act 1996 seeking reference of the disputes between the parties to arbitration. 11. Mr. Varghese learned Counsel for the respondent submits that the only misgiving of his client is regarding the nature of the actual dispute being referred to arbitration specifically the quantum of the claim. 12. Mr. Dewan learned Counsel for the petitioner allays this apprehension by submitting that his client seeks reference to arbitration only of his entitlement to the amount of waiver of ₹ 8 90 915 indicated in Annexure A to the legal notice dated 3rd August 2020 from the petitioner to the respondent. 13. Mr. Varghese has no objection to the reference of the issue of entitlement of the petitioner to waiver of the aforesaid amount of ₹ 8 90 915 to arbitration by an arbitral tribunal. In view thereof the issue of the entitlement of the petitioner to waiver of ₹ 8 90 915 as sought in Annexure A of the legal notice dated 3rd August 2020 addressed by the petitioner to the respondent ARB.P. 428 & 429 2021 stands referred to arbitration. The parties are referred to the Delhi International Arbitration Centre which would proceed to appoint a suitable arbitrator to arbitrate on the disputes. 15. Given the amounts involved the DIAC may consider the appointment of a single arbitrator to arbitrate in both the disputes. 16. The arbitration would proceed under the aegis of the DIAC and in accordance with its rules and regulations. 17. The arbitrator would be entitled to fees in accordance with the schedule of fees maintained by the DIAC. It is made clear that this Court has expressed no opinion on the merits of the controversy between the parties and all questions of fact in law remain open to agitation in the arbitral proceedings. 19. With the aforesaid observations the petition stands disposed of. SEPTEMBER 10 2021 kr C. HARI SHANKAR J ARB.P. 428 & 429 2021

If the decision relating to the award of the contract is bona fide and is in public interest, courts will not exercise power of judicial review: Orissa High Court

Even if a procedural aberration, error in assessment, or prejudice to a tenderer is established, courts will not intervene in the exercise of judicial review if the decision pertaining to contract award is bona fide and in the public interest. The authority of judicial review will not be used to defend private interests at the expense of the public good or to resolve contract disputes. The judgment was passed by The High Court of Orissa in the case of M/s.I.V.T.V.L.T.(J.V.) V. Chairman-cum-Managing Director, MCL and others [WP(C) No.4500 OF 2021] by Single Bench consisting of Hon’ble Shri Justice. B.P. Routray. The Petitioner is a joint venture company, participated in the bidding process invited by Opposite Party i.e., Mahanadi Coal Fields Limited by Notice Inviting Tender for the work. The technical bid was opened, where four bidders including the Petitioner and Opposite Party qualified. Petitioner objected to the technical qualification of Opposite Party and submitted representation to Opposite Party stating that the work experience certificate submitted by Opposite Party is not genuine and ought not to have been accepted. The contention of the Petitioner that as per Clause-8(A) of the NIT, the work experience certificate has been defined to the effect that the bidder must have experience of work of similar nature valuing 50% of the annualised estimated value of the work put to tender. As per calculation, 50% of the annualised value of the estimated cost comes to Rs.4,18,31,738. The work experience certificate of Opposite Party filed of Rs.6,00,72,502, is not matching with the work order submitted by Opposite Party which has been annexed under Annexure-3 series. Therefore, the work experience certificate of Opposite Party is not a genuine document. Opposite counsel refuted the case of the Petitioner by saying that Petitioner has not presented the correct facts in the writ petition. It is their case that Petitioner has submitted three work experience certificates to reveal his qualification in terms of Clause-8(A) of the NIT. The first certificate has been issued by M/s.Shyam Metalics and Energy Limited showing work done experience by the parties to the tune of Rs.6,00,72,502, and two other work experience certificates showing value of Rs.2,73,91,960/- and Rs.1,51,56,032/- respectively by M/s.Godavari Commodities Limited. While relying on the Supreme Court in the case of Jagdish Mandal v. State of Orissa, the court held that “If the decision relating to award of contract is bona fide and is in public interest, courts will not, in exercise of power of judicial review, interfere even if a procedural aberration or error in assessment or prejudice to a tenderer, is made out.”

IN THE HIGH COURT OF ORISSA AT CUTTACK WRIT PETITIONNo.4500 OF 2021 An application under Articles 226 & 227 of the Constitution of India.) Petitioner Versus Chairman cum Managing Director MCL and others Advocate(s) appeared in this case: ….… Opposite Parties For Petitioner For Opposite Parties Mr. Sidheswar Mohanty Advocate Mr. Debaraj Mohanty Advocate For Opposite Party Nos.1 & 2) CORAM : THE CHIEF JUSTICE JUSTICE B.P. ROUTRAY JUDGMENT 4th June 2021 B.P. Routray J. 1. The Petitioner has challenged the technical qualification of Opposite Party No.3 to compete in the bid invited by Opposite Party Nos.1 and 2 for the work “Hiring of Pay Loaders for Mechanical transfer of Coal into Railway wagons at Siding No.VI & VII of Lakhanpur Area for a quantity of 3 83 25 000 Te.” W.P.(C) No.45021 2. The Petitioner is a joint venture company. He along with Opposite Party No.3 and others participated in the bidding process invited by Opposite Party Nos.1 and 2 i.e. Mahanadi Coal Fields Limitedvide Notice Inviting TenderNo.818 2020 657 dated 28th October 2020 for the work stated above. The eligibility criteria at Clause 8(A) prescribes as follows: “8. Eligibility Criteria: A. Work Experience: The bidder must have experience of works of similar naturevaluing 50% of the annualized estimated value of the work50% of the estimated value of the workput to Tender in any year consecutive 365 days) during last 7 years ending last day of month previous to the one in which bid applications are invited. “Annualised value” of the work shall be calculated as the “Estimated value Period of completion in Days x The value of executed works shall be given a simple weightage to bring them at current price level by adding 5% for each completed yearafter the end date of experience till the last day of month previous to one in which e Tender has been invited. The definition of similar work shall be as follows: Loading of coal any mineral soil ash stone rejects by into railway wagons Pay Loaders Excavators In respect of the above eligibility criteria the bidders are required to furnish the following information on line: W.P.(C) No.45021 I. Start date of the year for which work experience of bidder is to be considered for eligibility. II. Start date & end date of each qualifying experience similar nature). III. Work order Number Agreement Number of each IV. Name & address of Employer Work Order Issuing authority of each experience. V. Percentage share of each experience of the NIT the work experience certificate has been defined to the effect that the bidder must have experience of work of similar nature valuing 50% of the annualised estimated value of the work put to tender. As per calculation 50% of the annualised value of the estimated cost comes to W.P.(C) No.45021 Rs.4 18 31 738 . The work experience certificate of Opposite Party No.3 filed at Annexure 3 to the tune of Rs.6 00 72 502 is not matching with the work order submitted by Opposite Party No.3 which has been annexed under Annexure 3 series. Therefore the work experience certificate of Opposite Party No.3 is not a genuine document. 4. Opposite Party No.3 did not come to contest. 5. Opposite Party Nos.1 and 2 who are Tender Inviting Authorities have contested the case by filing their counter. They have refuted the case of the Petitioner by saying that Petitioner has not presented the correct facts in the writ petition. It is their case that Petitioner has submitted three work experience certificates to reveal his qualification in terms of Clause 8(A) of the NIT. The first certificate has been issued by M s.Shyam Metalics and Energy Limited showing work done experience by Opposite Party No.3 to the tune of Rs.6 00 72 502 and two other work showing value of Rs.2 73 91 960 and Rs.1 51 56 032 respectively by M s.Godavari Commodities Limited. 6. As complaint was received from the Petitioner a clarification to the genuineness of the certificate of Opposite Party No.3 was sought from the respective employers viz. M s.Shyam Metalics and Energy Limited and M s.Godavari Commodities Limited. Both the employers have clarified that the work experience of Opposite Party No.3 as mentioned in his certificate is correct. Thereafter the financial bid was opened wherein Opposite Party No.3 was found L 1 and Petitioner was found L 4. Therefore the offer of Opposite Party No.3 was accepted and Letter of Acceptancewas issued to him on 23rd February 2021. W.P.(C) No.45021 7. The entire issue as revealed from rival contentions of the parties is relating to the work experience certificate submitted by Opposite Party No.3 along with his bid document. Admittedly 50% of the annualised estimated value to qualify the bidder is amounting Rs.4 18 31 738 . This experience qualified value is much less than the experience value submitted by Opposite Party No.3 got from M s.Shyam Metalics and Energy Limited and M s.Godavari Commodities Limited as per the work experience certificate submitted by him in the bid. 8. The Petitioner submits that the work order issued by M s.Shyam Metalics and Energy Limited to Opposite Party No.3 for the period from 1st April 2019 to 31st March 2020 is for loading and shifting charges whereas the experience required by MCL is for loading charges only. Thus the Petitioner submits that the experience certificate issued by M s.Shyam Metalics and Energy Limited in favour of Opposite Party No.3 cannot be considered as a valid certificate in terms of the eligibility norms under the NIT. 9. This contention of the Petitioner does not appear to be factually correct. A perusal of the experience certificate of Opposite Party No.3 under Annexure 3 series) the document at Annexure D 2 to the counter and the clarification under Annexure E 2 series reveals that the experience is regarding loading of raw materials only. In those documents nowhere have the shifting charges been mentioned. Those documents speak of loading charges @Rs.10 per MT plus GST. Therefore we do not see any flaw in the tender process as alleged by Petitioner against Opposite Party No.3. Apart from that as seen from the W.P.(C) No.45021 price bid under Annexure I 2 to the counter Petitioner stood L 4 and Opposite Party No.3 stood L 1 in terms of which the price difference is more than Rs.9 crores. 10. The next contention of the Petitioner is that the clarification issued by M s.Shyam Metalics and Energy Limited was on 12th December 2020 whereas the price bids were opened on 7th December 2020. There is no merit in this contention in view of the clear averment of Opposite Party No.2 in their reply that after ascertaining the genuineness of the work experience certificate from the concerned employer a decision was taken by the Tender Committee. 11. The Supreme Court in Jagdish Mandal v. State of Orissa14 SCC 517 held that: in mind. A contract to prevent arbitrariness “22. Judicial review of administrative action is irrationality unreasonableness bias and mala fides. Its purpose is to check whether choice or decision is made “lawfully” and not to check whether choice or decision is “sound”. When the power of judicial review is invoked in matters relating to tenders or award of contracts certain special features should be is a commercial tenders and awarding transaction. Evaluating contracts are essentially commercial Principles of equity and natural justice stay at a distance. If the decision relating to award of contract is bona fide and is in public interest courts will not in exercise of power of judicial review interfere even if a procedural aberration or error in assessment or prejudice to a tenderer is made out. The power of judicial review will not be permitted to be invoked to protect private interest at the cost of public interest or to decide contractual disputes. The tenderer or W.P.(C) No.45021 contractor with a grievance can always seek damages in a civil court. Attempts by unsuccessful tenderers imaginary grievances wounded pride and business rivalry to make mountains out of molehills of some technical procedural violation or some prejudice to self and persuade courts to interfere by exercising power of judicial review should be resisted. Such interferences either interim or final may hold up public works for years or delay relief and succour to thousands and millions and may increase the project cost manifold. Therefore a court before interfering in tender or contractual matters in exercise of power of judicial review should pose to itself the following questions: i) Whether the process adopted or decision made by the authority is mala fide or intended to favour someone Whether the process adopted or decision made is so arbitrary and irrational that the court can say: “the decision is such that no responsible authority acting reasonably and in accordance with relevant law could have reached” If the answers are in the negative there should be no interference under Article 226. Cases involving blacklisting or imposition of penal tenderer contractor or consequences on a distribution of State largesse stand on a different footing as they may require a higher degree of fairness in action.” Whether public interest is affected. 12. In light of the settled legal position as explained by the Supreme Court in the aforementioned decisions there is no merit in the W.P.(C) No.45021 contentions of the Petitioner. Accordingly the writ petition is dismissed. There shall be no order as to costs. 13. 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 B.P. Routray) Chief Justice 4th June 2021 B.K. Barik Secretary W.P.(C) No.45021

Residential certificate is not a proof of citizenship: Calcutta High Court

In the matter pertaining to citizenship, the Calcutta High Court bench comprising of Bibek Chauduri J. reaffirmed the position that such documents as the Aadhar Card, Voter ID and any sort of residential proof may not be a conclusive evidence of citizenship. In the present matter of Khadija Begum v State [CRM/2717/2021], the position of documents conferring the status of citizenship was reiterated. A report was submitted by the S.I. of Police dated 23rd March 2021 wherein it was stated that Khadija had produced two documents i.e. Aadhar Card and Voter ID, before the High Court for the first time, in order to claim her Indian citizenship. However, it was the case of the petitioner that as that as per the documents produced by the S.I. of Police, it can be seen that the documents were produced earlier before the Magistrate wherein the said Magistrate had directed the Investigating Officer to conduct an enquiry for submitting a report regarding her documents. Moreover, it was also submitted by the petitioner that without the IO submitting the said report, a chargesheet was filed in the case after which the Magistrate rejected her bail application under sec. 437 of CrPC. Arguing that the petitioner was a resident of Bangalore, a rent agreement was relied upon by her which was executed between her and the landlord. A Local Tahsildar had issued a residential certificate in her name. The bench ventured into the specifications in The Citizenship Act, 1955 which provides for six different methods to acquire Indian citizenship: by birth (section 3), by descent (section 4), by registration (section 5), by naturalisation (section 6), persons covered by the Assam Accord (section 6A), and by incorporation of territory (section 7). Under section 5(1)(c), a person married to a citizen of India and ordinarily residing in India for at least seven years has the “option” to apply to register as an Indian citizen It is pertinent to note that in National Human Rights Commission vs State of Arunachal Pradesh 1996 SCC (1) 742, the Supreme Court clarified that a person can be registered as a citizen of India only if the requirements of section 5 of the Citizenship Act are satisfied. Further, the Apex Court, in Sarbananda Sonowal vs Union of India WP(civil) 131 of 2000, laid down the principle that the burden of proof is on the claimant, for they would possess the documents required to show they are citizens, within the meaning of the Constitution and under the Act. In light of citizenship, it also vital to shine light on the Article 326 of the Constitution which gives every citizen the right to vote in Lok Sabha and State Assembly elections, which is done through the voter ID. However, a voter ID is issued merely based on self-declaration by the applicant via Form 6 under Rules 13(1) and 26 of the Registration of Electors Rules, 1960 A recent judgment of the Gauhati High Court in Munindra Biswas v. Union of India and Ors. [WP(C) 7426/2019], while reaffirming its previous ruling in Md. Babul Islam v. the State of Assam [WP(C) No. 3547 of 2016] held that the electoral photo identity card is not proof of citizenship. Even so the conclusive proof of citizenship is also not furnished by the aadhar card and this was propounded in the dissenting opinion of Chandrachud J. in the matter of Justice KS Puttaswamy (Retd.) and Anr. vs Union of India and Ors WP(CIVIL) NO 494 OF 2012.

Mithun Sl. No.05 D L Ct.No.30. CRM 2717 2021 In re: An application under Section 439 of the Code of Criminal Procedure in connection with GR Case No.61 21 arising out of Hemnagar Coastal Police Station Case No.02 21 dated 05.01.2021 under Section 14 14C of the Foreigners Act 1946 In the matter of : Khadija Begam Mr.Satadru Lahiri Adv Mr.Safdarv Azam Adv Mrs. Faria Hossain Adv. Ms. Baisali Basu Adv … for the petitioner …for the State Pressing a bail of the petitioner it is submitted by the learned Advocate for the petitioner that one Biplab Dey S.I. of Police Hemnagar Costal Police Station has submitted a report on 23rd March 2021 in compliance with the order dated 17th March 2021 wherein he submitted that accused petitioner produced voter identity card and Aadhaar card before this Court for the first time to claim her citizenship of this Country. However he has produced the certified copy of the order sheets of G.R. Case No.621 wherefrom it is learnt that the said documents were actually produced before the learned Magistrate who directed the Investigating Officer to conduct enquiry and submit a report with regard to the said documents. But without submitting a report the Investigating Officer submitted charge sheet in G.R.Case No.61 of 2021 which prompted the learned Magistrate to reject the application for bail of the petitioner under Section 437 of the Code of Criminal Procedure It is frankly submitted by the learned Advocate for the petitioner that in the EPIC card the name of her husband is shown as Roshith Khan but in the F.I.R. as per the statement of the petitioner the name of her husband was recorded as Late Salam Hauladar. This discrepancy was sought to be clear from the Investigating Agency. The Investigating Agency has mentioned the discrepancy in the EPIC Card and the statement of the accused with regard to husband’s name of the petitioner Learned Advocate for the petitioner submits that this is merely a typographical error and it can be rectified at any point of time. However the petitioner is a resident of Bangalore. A rent agreement was executed between the petitioner and her landlord at Bangalore. Local Tahsildar issued a residential certificate in the name of the petitioner Therefore the learned Advocate for the petitioner has prayed for further enquiry into the matter by Investigating Officer and a report It is needless to say that residential certificate may be obtained by any resident he may be an Indian National or Foreign National if he stays at a particular place. Residential certificate is not a proof of citizenship. I have already recorded that the Advocate for the petitioner has prayed for further enquiry with regard to the name of the husband of the It is already recorded that charge sheet has been submitted in this case. The petitioner is at liberty to make such prayer before the learned Trial Court during trial of the case and in such event the learned Trial Court will cause enquiry during the trial on the basis of the evidence on record At this stage I do not find any merit in the application for Prayer for bail is thus rejected (Bibek Chaudhuri J

The right to personal hearing cannot depend upon the facts of each case: High Court of Delhi

An assessee has a vested right to personal hearing and the same has to be given if an assessee asks for it. The right to personal hearing cannot depend upon the facts of each case. These were stated by High Court of Delhi, consisting Justice Manmohan in the case of Bharat Aluminium Company Ltd. vs. Union of India & Ors. [W.P.(C) 14528/2021] on 14.01.2022. The facts of the case are that the impugned orders was passed arbitrarily without following the principles of natural justice and in violation of the scheme of faceless assessment under Section 144B of the Act, inasmuch as even after the ‘Nil’ or ‘Null’ variation proposed in the show cause notice, additions had been made to the assessed income in the draft assessment order as well as in the impugned final assessment order. Present writ petition has been filed by the petitioner challenging the action of respondent in passing the impugned final assessment order under Section 143(3) of the Income Tax Act, 1961 (Act) and the impugned notice under Section 156 of the Act for Assessment Year 2018-19. The Counsel for the petitioner contended that respondent in the draft assessment order as well as in the impugned final assessment order had proceeded to make additions to the assessed income on the false premise that the petitioner had not furnished relevant details/information in response to the statutory notice issued under Section 142(1) of the Act. He stated that respondent had failed to appreciate that the petitioner was unable to upload the file due to technical glitches on the respondent’s own portal. He emphasised that the petitioner had still filed reply to the notice that too within the due date vide email. He submitted that while Section 144B(1)(xvi) provides an opportunity to the assessee by serving a Show Cause Notice in case any variation of assessment is proposed which is prejudicial to the interest of assessee, Section 144B(1)(xxv) provides for issuance of draft assessment order to the assessee after considering the reply to Show Cause Notice. He emphasized that respondent issued a Show Cause Notice under Section 144B(1)(xvi) proposing ‘Null’ or ‘Nil’ variation and the petitioner duly confirmed the same and, thus, there was no non-compliance on the part of the petitioner. He also stated that the petitioner had not been granted any opportunity of personal hearing, despite a specific request was made u/s 144B(7) of the Act. The Counsel for the respondents submitted that cases of violation of principle of natural justice can be summarized in two categories i.e. (i) denial of opportunity and (ii) insufficiency of opportunity. He stated that the cases falling under the first category, wherein no opportunity was provided to the person charged, cannot withstand the scrutiny of law and were required to be set aside. However, in cases where insufficiency of opportunity was complained of, the prejudice caused to the person deprived of sufficient opportunity had to be taken into account before any finding on legality of such proceedings was recorded. He further stated that personal hearing in assessment proceedings under the Act is an added opportunity in addition to the written replies submitted by assessee and hence denial thereof would fall under the second category of “insufficiency of opportunity. He submitted that grant of personal hearing in routine and mechanical manner or stereotyped manner would not only frustrate the entire concept of Faceless Assessment Scheme but would also defeat the very purpose for which this Scheme was brought about by the Legislature.

IN THE HIGH COURT OF DELHI AT NEW DELHI W.P.(C) 14528 2021 & CM APPL. 45702 2021 BHARAT ALUMINIUM COMPANY LTD. UNION OF INDIA & ORS. Through: Mr. Arvind Datar Senior Advocate with Mr. Gopal Mundhra Advocate. Petitioner Respondents Through: Mr. Gigi C. George Advocate for UOI. Mr. Sanjay Kumar Advocate for Reserved On : 24th December 2021 Date of Decision: 14th January 2022 HON BLE MR. J USTICE MANMOHAN HON BLE MR. J USTICE NAVIN CHAWLA JUDGMENT MANMOHAN J Present writ petition has been filed by the petitioner challenging the action of respondent No.3 in passing the impugned final assessment order th November 2021 under Section 143(3) of the Income Tax Act dated 27 1961 and the impugned notice dated 27th November 2021 under Section 156 of the Act for Assessment Year 2018 19. ARGUMENTS ON BEHALF OF THE PETITIONER 2. Mr. Arvind Datar learned senior counsel for the petitioner stated that the impugned orders have been passed arbitrarily without following the W.P.(C) 14528 2021 principles of natural justice and in gross violation of the scheme of faceless assessment under Section 144B of the Act inasmuch as even after the ‘Nil’ or ‘Null’ variation proposed in the show cause notice additions had been made to the assessed income in the draft assessment order as well as in the impugned final assessment order. He contended that respondent No.3 in the draft assessment order as well as in the impugned final assessment order had proceeded to make additions to the assessed income on the false premise that the petitioner had not furnished relevant details information in response to the statutory notice dated 19th August 2021 issued under Section 142(1) of the Act. He stated that respondent No.3 had failed to appreciate that the petitioner was unable to upload the file due to technical glitches on the respondent’s own portal. He emphasised that the petitioner had still filed reply to the notice that too within the due date vide email dated 3rd September 2021 and thus there was no non compliance on the part of the petitioner. 4. Mr. Arvind Datar submitted that while Section 144B(1)(xvi) provides an opportunity to the assessee by serving a Show Cause Notice in case any variation of assessment is proposed which is prejudicial to the interest of assessee Section 144B(1)(xxv) provides for issuance of draft assessment order to the assessee after considering the reply to Show Cause Notice. He emphasized that in the present case respondent No.3 issued a Show Cause Notice under Section 144B(1)(xvi) proposing ‘Null’ or ‘Nil’ variation and th September the petitioner duly confirmed the same vide letter dated 16 2021. However thereafter respondent No.3 took a complete turnaround and issued the draft assessment order proposing variations for which no Show Cause Notice was ever issued to the petitioner. W.P.(C) 14528 2021 5. He pointed out that this Court in multiple cases including Rani Promoter Pvt. Ltd. vs. Additional Commissioner of Income TaxTMI 919 Delhi High Court] and Toplight Corporate Management Ltd. vs. National Faceless Assessment Centre Delhi 128 taxmann.com 221 has unequivocally held that issuance of Show Cause Notice mentioning the proposed additions under Section 144B(xvi) is a mandatory requirement and any assessment order passed without issuance of such Show Cause Notice is bad in law. He even stated that in the instant case the Show Cause Notice referred to in the final Assessment Order was never served upon the petitioner. He also stated that the petitioner had not been granted any opportunity of personal hearing despite a specific request having been made under Section 144B(7) of the Act by the petitioner. He submitted that Section 144B(7)(vii) and provides opportunity of personal hearing through video conferencing where such option is exercised by the assessee. He stated that this Court in Sanjay Aggarwal vs. National Faceless Assessment Centre TMI 336 Delhi High Court] and Umkal HealthcareLtd. vs. NFAC131 taxmann.com 325has held that it was incumbent upon the Department to accord a personal hearing to the assessee where such a request was made under Section 144B(7) and failure to do so would amount to violation of principles of natural justice as well as mandatory procedure prescribed in the Faceless Assessment Scheme under Section 144B of the Act. He lastly submitted that when power is given to do a certain thing in a certain way the thing must be done in that way or not at all and other methods of performance are forbidden. W.P.(C) 14528 2021 ARGUMENTS ON BEHALF OF THE RESPONDENTS Per contra learned counsel for the respondents Revenue submitted that cases of violation of principle of natural justice can be summarized in two categories i.e. denial of opportunity and insufficiency of opportunity. He stated that the cases falling under the first category wherein no opportunity was provided to the person charged cannot withstand the scrutiny of law and were required to be set aside. However in cases where insufficiency of opportunity was complained of the prejudice caused to the person deprived of sufficient opportunity had to be taken into account before any finding on legality of such proceedings was recorded. He further stated that personal hearing in assessment proceedings under the Act is an added opportunity in addition to the written replies submitted by assessee and hence denial thereof would fall under the second category of “insufficiency of opportunity”. According to him Section 144B of the Act made effective from 1st April 2021 had brought about a new era of faceless assessment where Assessing Officers cannot be identified during the assessment proceedings. He submitted that grant of personal hearing in routine and mechanical manner or stereotyped manner would not only frustrate the entire concept of Faceless Assessment Scheme but would also defeat the very purpose for which this Scheme was brought about by the Legislature. He pointed out that the Legislature in its own wisdom had provided for a mechanism for grant of personal hearing in deserving cases falling in the category of Section l44B of the Act itself. The relevant portion of Section 144B of the Act relied upon by learned counsel for respondents Revenue is reproduced hereinbelow: “144B. Faceless assessment: W.P.(C) 14528 2021 7)(vii) in a case where a variation is proposed in the draft assessment order or final draft assessment order or revised draft assessment order and an opportunity is provided to the assessee by serving a notice calling upon him to show cause as to why the assessment should not be completed as per the such draft or final draft or revised draft assessment order the assessee or his authorized representative as the case may be may request for personal hearing so as to make his oral submissions or present his case before the income tax authority in any unit viii) the Chief Commissioner or the Director General in charge of the Regional Faceless Assessment Centre under which concerned unit is set up may approve the request for personal hearing referred to in clause if he is of the opinion that the request is covered by the circumstances referred to in sub clauseof clausea) toh) circumstances in which personal hearing referred to clauseshall be approved” 10. He further stated that this Court in Sanjay Aggarwaland other similar matters has held that as no standards procedures and process in terms of sub clause of Section 144B(7)(xii) read with Section 144B(7)(viii) of the Act had been framed it was incumbent upon Revenue to accord personal hearing to the petitioner. He emphasised that the aforesaid finding given by this Court was due to Revenue counsel not producing the standard procedure and process framed by the Revenue. He pointed out that the Standard Operating Procedure for personal hearing through video conference under the Faceless Assessment Scheme 2019 was issued by CBDT vide Circular F.No.Pr.CCIT NeAC SOP 2020 21 dated 23rd November 2020. He stated that CBDT vide order F.NO.187 3 2020 W.P.(C) 14528 2021 ITA I dated 31st March 2021 extended the Circulars notifications issued under Faceless Assessment Scheme to the Faceless Assessment under Section 144B of the Act and therefore the SOP contained in circular dated 23rd November 2020 was equally applicable to the proceedings under Section 144B of the Act also. The circular dated 23rd November 2020 is reproduced hereinbelow: “Where any modification is proposed in the draft assessment order DAO) issued by any AU and the Assessee or the authorized representative in his her written response disputes the facts underlying the proposed modification and makes a request for a personal hearing the CCIT ReAC may allow personal hearing through Video Conference after considering facts & circumstances of the case as below: 1. The Assessee has submitted written submission in response to the DAO. 2. The Video Conference will ordinarily be of 30 minutes duration. It may be extended on the request of the Assessee or authorised representative. 3. The Assessee may substantiate points raised in the Video Conference during the session or within a reasonable time allowed by the AU after considering the facts and circumstances of the case.” furnish documents evidence 11. Therefore according to him the personal hearing is discretionary. He emphasised that under faceless assessment under Section 144B of the Act the assessee does not have a vested right to personal hearing and the same could be granted depending upon the individual facts of each case and fulfilling of the conditions laid down in SOP dated 23rd November 2020. W.P.(C) 14528 2021 COURT’S REASONING THIS COURT IS UNABLE TO COMPREHEND AS TO HOW DESPITE ‘NIL’ OR ‘NULL’ VARIATION PROPOSED IN THE SHOW CAUSE NOTICE THE IMPUGNED FINAL ASSESSMENT ORDER AND NOTICE MAKES A DEMAND OF Rs.1 69 77 44 240 . 12. Having heard learned counsel for the parties this Court is unable to comprehend as to how despite ‘Nil’ or ‘Null’ variation proposed in the show cause notice additions had been made to the assessed income in the draft Assessment Order and the final Assessment Order. Infact while the show cause notice assessed a total loss of Rs.1 76 94 91 428 the impugned final assessment order and notice makes a demand of Rs.1 69 77 44 240 as if the petitioner made a super profit! 13. Further no Show Cause Notice as mandatorily required by Section 144B(1)(xvi) of the Act had been served upon the petitioner with respect to the variations made. The draft Assessment Order had also been issued without considering the reply which was submitted by the petitioner well in time in response to notice issued under Section 142(1) of the Act through email given the technical glitch in the online facility. FACELESS ASSESSMENT SCHEME DOES NOT MEAN NO PERSONAL HEARING. NOT UNDERSTOOD AS TO HOW GRANT OF PERSONAL HEARING WOULD EITHER FRUSTRATE THE CONCEPT OR DEFEAT THE VERY PURPOSE OF FACELESS ASSESSMENT SCHEME. 14. Last but not the least this Court finds that no opportunity of personal hearing was given despite a specific request made by the petitioner. 15. This Court is of the opinion that a faceless assessment scheme does not mean no personal hearing. It is not understood as to how grant of W.P.(C) 14528 2021 personal hearing would either frustrate the concept or defeat the very purpose of Faceless Assessment Scheme. In Piramal Enterprises Limited vs. Additional Joint Deputy Assistant Commissioner of Income tax Income tax Officer & Ors. 2021 SCC OnLine Bom 1534 while interpreting Section 144B of the Act the Bombay High Court has held as under: “65. Principles of natural justice firmly run through fabric of section 144B(1) of the Income Tax Act 1961. Whenever DAO FDAO is prejudicial to the interest of assessee or RDAO is prejudicial to the interest of assessee in comparison to DAO or FDAO upon a response to show cause notice personal hearing for oral submissions or to present its case before income tax authority is strongly entwined in the provisions on a request from an assessee unless it is absurd strategised and or intended to protract assessment etc. It would also emerge from various decisions referred to above ordinarily such a request would not be declined. Judgments cited on behalf of petitioner to hereinbefore give exposition on significance and importance of principles of natural justice. 66. Section 144 B of the Income Tax Act 1961 captioned ‘Faceless Assessment’ commences vide its sub section with a non obstante clause and compulsively requires assessment u ss 143(3) and 144 shall be by prescribed procedure contained in sub section of section 144 B in the cases referred to in sub sectionthereof. 67. Sub section of section 144B declares that assessment made under section 143(3) or under section 144(4) referable to subsection 2) other than sub sectionon or after 1st day of April 2021 shall be non est if such assessment is not made in accordance with the is a telling pronounced rigour to follow the procedure under section 144B lest the assessment would be non est. section 144B. There laid down under 68. Going by the provisions under section 144B when hearing has been envisioned and incorporated it is imperative to observe principles of natural justice as stipulated. W.P.(C) 14528 2021 70. In the circumstances when an assessee approaches with response to show cause notice the request made by an assessee as referred to in clauseof sub section 7 of section 144B would have to be taken into account and it would not be proper looking at the prescribed procedure with strong undercurrent to have hearing on a request after notice to say that petitioner would have opportunity pursuant to section 144C in the present matter would intercept operation of the scheme contained under section 144B. IT IS SETTLED LAW THAT WHERE EXERCISE OF A POWER RESULTS IN CIVIL CONSEQUENCES TO CITIZENS UNLESS THE STATUTE SPECIFICALLY RULES OUT THE APPLICATION OF NATURAL JUSTICE THE RULES OF NATURAL JUSTICE WOULD APPLY. 17. This Court is further of the view that where an action entails civil consequences like in the present matter observance of natural justice would be warranted and unless the law specifically excludes the application of natural justice it should be taken as implanted into the scheme. The settled position in law is that where exercise of a power results in civil consequences to citizens unless the statute specifically rules out the application of natural justice the rules of natural justice would apply including the right to personal hearing. Denial of such opportunity is not in consonance with the scheme of the Rule of Law governing our society.1 SCC 229]. In fact the opportunity to provide hearing before making any decision is considered to be a basic requirement in Court proceedings. In C.B. Gautam vs. Union of India & Ors. 1 SCC 78 the Supreme Court invoked the same principle and held that even though it was not statutorily required yet the authority was liable to give notice to the W.P.(C) 14528 2021 affected parties while purchasing their properties under Section 269 UD of the Act namely the compulsory purchase of the property. It was observed that though the time frame within which an order for compulsory purchase has to be made is fairly tight yet urgency is not such that it would preclude a reasonable opportunity of being heard. A presumption of an attempt to evade tax may be raised in case of significant under valuation of the property but it would be rebuttable presumption which necessarily implies that a party must have an opportunity to show cause and rebut the presumption. It was further observed that the very fact that an imputation of tax evasion arises where an order for compulsory purchase is made and such an imputation casts a slur on the parties to the agreement to sell lead to the conclusion that before such an imputation can be made against the parties concerned they must be given an opportunity to show cause that the under valuation in the agreement for sale was not with a view to evade tax. It is therefore all the more necessary that an opportunity of hearing is provided. 19. Subsequently in Sahara Indiavs. Commissioner of Income tax Central I reported in 169 Taxman 328 the Apex Court highlighted the necessity and importance of opportunity of pre decisional hearing to an assesee and that too in the absence of any express provision. Infact the requirement of following principles of natural justice was read into Section 142(2A) of the Income Tax Act following the earlier decisions of the Supreme Court in Swadeshi Cotton Mills vs. Union of India1 SCC 664 and C.B. Gautam vs. Union of India & Ors. 1 SCC 78. Later on this principle was applied to other quasi judicial and other tribunals and it is now clearly laid down that even in these actions where the decision W.P.(C) 14528 2021 of the authority may result in civil consequences a hearing before taking a decision is necessary. AUTHORITY WHOSE USE OF THE EXPRESSION “MAY” IN SECTION 144BIS NOT DECISIVE. WHERE A DISCRETION IS CONFERRED UPON A QUASI CONSEQUENCES THE WORD “MAY” WHICH DENOTES DISCRETION SHOULD BE CONSTRUED TO MEAN A COMMAND. CONSEQUENTLY THIS COURT IS OF THE VIEW THAT REQUIREMENT OF GIVING AN ASSESSEE A REASONABLE OPPORTUNITY OF PERSONAL HEARING IS MANDATORY. 20. The non obstante clause and the use of expression ‘shall be made’ in a mandatory respondent Revenue to follow the prescribed procedure. This Court is also of the view that the use of the expression “may” in Section 144Bis not decisive. It is settled law that having regard to the context the expression “may” used in a statute has varying significance. In some contexts it is purely permissive whereas in others it may make it obligatory upon the person invested with the power to exercise it. The word “may” is capable of meaning “must” or “shall” in the light of the context. In fact where a discretion is conferred upon a quasi judicial authority whose decision has civil consequences the word “may” which denotes discretion should be construed to mean a command. In Statevs. I.K. Nangia & Anr. 1 SCC 258 the Supreme Court has held as under: “15. …There can be no doubt that this implies the performance of a public duty as otherwise the scheme underlying the section would be unworkable. The case in our opinion comes within the dictum of Lord Cairns in Julius v. Lord Bishop of Oxford: There may be something in the nature of the thing empowered to be done something in the object for which it is W.P.(C) 14528 2021 to be done something in the conditions under which it is to be done something in the title of the person or persons for whose benefit the power is to be exercised which may couple the power with a duty and make it the duty of the person in whom the power is reposed to exercise that power when called upon to do so. The Explanation lays down the mode in which the requirements of Section 17(2) should be complied with. Normally the word ‘may’ implies what is optional but for the reasons stated it should in the context in which it appears mean ‘must’. There is an element of compulsion. It is a power coupled with a duty. In Maxwell on Interpretation of Statutes 11th Edn. at p. 231 the principle is stated thus: Statutes which authorise persons to do acts for the benefit of others or as it is sometimes said for the public good or the advancement of justice have often given rise to controversy when conferring the authority in terms simply enabling and not mandatory. In enacting that they ‘may’ or ‘shall if they think fit’ or ‘shall have power’ or that ‘it shall be lawful” for them to do such acts a statute appears to use the language of mere permission but it has been so often decided as to have become an axiom that in such cases such expressions may have—to say the least—a compulsory force and so would seem to be modified by judicial exposition. Though the company is not a body or authority there is no reason why the same principle should not apply. It is thus wrong to suggest that the Explanation is only an enabling provision when its breach entails in the consequences indicated above. It is not left to one s choice but the law makes it imperative. Admittedly M s Ahmed Oomer Bhoy had not at the material time nominated any person in relation to their Delhi branch. The matter is therefore squarely covered by Section 17(1)(a)(ii). 21. This Court is further of the view that a quasi judicial body must normally grant a personal hearing as no assessee or litigant should get a W.P.(C) 14528 2021 feeling that he never got an opportunity or was deprived of an opportunity to clarify the doubts of the assessing officer decision maker. After all confidence and faith of the public in the justness of the decision making process which has serious civil consequences is very important and that too in an authority forum that is the first point of contact between the assessee and the Income Tax Department. The identity of the assessing officer can be hidden protected while granting personal hearing by either creating a blank screen or by decreasing the pixel density resolution. 22. Consequently this Court is of the view that the word “may” in Section 144B(viii) should be read as “must” or “shall” and requirement of giving an assessee a reasonable opportunity of personal hearing is THE CLASSIFICATION MADE BY THE RESPONDENTS REVENUE BY WAY OF A CIRCULAR DATED 23RD NOVEMBER 2020 IS NOT LEGALLY SUSTAINABLE. AN ASSESSEE HAS A VESTED RIGHT TO PERSONAL HEARING AND THE SAME HAS TO BE GIVEN IF AN ASSESSEE ASKS FOR IT. 23. The argument of the respondent Revenue that personal hearing would be allowed only in such cases which involve disputed questions of fact is untenable as cases involving issues of law would also require a personal hearing. This Court is of the view that the classification made by the respondents Revenue by way of the Circular dated 23 November 2020 is not legally sustainable as the classification between fact and law is not founded on intelligible differentia and the said differentia has no rational relation to the object sought to be achieved by Section 144B of the Act. 24. Also if the argument of the respondent Revenue is accepted then this Court while hearing an appeal under Section 260A 14528 2021 substantial question of law) would not be obliged in law to grant a personal hearing to the counsel for the Revenue! 25. Consequently this Court is of the opinion that an assessee has a vested right to personal hearing and the same has to be given if an assessee asks for it. The right to personal hearing cannot depend upon the facts of each case. 26. For the aforesaid reason the impugned final assessment order and impugned notice issued by respondent No.3 to the petitioner are set aside and the matter is remanded back to the Assessing Officer who shall issue a Show Cause Notice and a draft assessment order and thereafter pass a reasoned order in accordance with law. With the aforesaid direction the present writ petition along with pending application stands disposed of. JANUARY 14 2022 MANMOHAN J NAVIN CHAWLA J W.P.(C) 14528 2021

Writ against a show cause notice to be entertained only under exceptional circumstances: Madras High Court

A show cause notice issued by a competent authority may be challenged by a writ only if the authority is incompetent to issue such a notice as per the statutes governing it or if the issue of such notice is mala fide. This was held by the Hon’ble Justice S.M. Subramaniam in the case of M/s.Kavee Marketing Vs. The Assistant Commissioner and Anr. [WP No.12026 of 2012 And MP No.1 of 2012] on the 27th of July before the Hon’ble high court of Judicature at Madras. The brief facts of the case are, respondent 2 (BSNL) is a telecom service. The petitioner is a dealer in SIM Card and Recharge Coupon of BSNL. The price of the SIM Card as well as the Recharge Coupon are fixed by the second respondent. The petitioner and persons similarly placed like that of the petitioner purchased the same at a discount and sell it to the end users. The selling price of SIM Card and Recharge Coupon are fixed and controlled by BSNL and sellers like the petitioner have no control over the same. The petitioner states that the business is limited to the extent of purchasing and selling the SIM Cards and Recharge Coupons in the hands of subscribers of BSNL. The said BSNL is liable to discharge the service tax as prescribed under the Service Tax Law and are discharging the service tax liability to the Department of Service Tax as required under the Law. Under these circumstances, the petitioner claims no liability. A show cause notice was issued to the petitioner since he did not pay the service tax. Aggrieved by such a notice, the petitioner has filed the present writ petition. The counsel for the petitioner submits that, the issue was considered by this Court in number of writ petitions and decisions are rendered in favour of the persons, who all are similarly placed like that of the petitioner. While-so, there is no reason to issue further show cause notice to the writ petitioner. However, the court is of the opinion that that even in such cases, there are some judgments, which all are applicable with reference to the facts and circumstances of the case. It is left open to the writ petitioner to adjudicate the factual aspects before the authorities, enabling them to consider the same and pass order on merits and in accordance with law. The court also observed that, “The writ against a show cause notice may entertain only on exceptional circumstances where the authority without issuing such notice is incompetent under the provisions of the Statutes or the Rules. If there is an allegation of mala fide, then also writ can be entertained. In such circumstances, the authorities against whom such allegations on mala fide are raised is to be impleaded as a party respondent in his personal capacity in the writ proceedings.”

WP No.120212 IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 27 07 2021CORAMTHE HONOURABLE MR. JUSTICE S.M.SUBRAMANIAMWP No.120212AndMP No.12M s.Kavee Marketing Represented by its Proprietor A.K.Elangovan No.313 118 Public Office Road Velipalayam Nagapattinam...Petitionervs.1.The Assistant Commissioner Central Excise Division Karaikal Office of the Assistant Commissioner of Central Excise No.1 Nool Kadai Street Karaikal 609 602.2.Bharat Sanchar Nigam LimitedRepresented by its General Manager Kumbakonam. .. RespondentsWrit Petition is filed under Article 226 of the Constitution of India praying for the issuance of a Writ of Prohibition prohibiting the first 1 6 https: www.mhc.tn.gov.in judis WP No.120212respondent from proceeding further with his communication dated 25.11.2011 in C.No.V 15 15 11 2011 STas it is without jurisdiction.For Petitioner : Mr.N.Murali Kumaran for M s.MCGAN Law Firm.For Respondent 1 : Mr.V.Sundareswaran Standing Counsel.For Respondent 2 : Mr.K.AnbarasanO R D E RThe show cause notice dated 25.11.2011 issued by the first respondent regarding non payment of service tax is under challenge in the present writ petition.2. The petitioner is a dealer in SIM Card and Recharge Coupon of the Bharat Sanchar Nigam Limited hereinafter referred to as BSNL in short. The price of the SIM Card as well as the Recharge Coupon are fixed by the second respondent. The petitioner and persons similarly placed like that of the petitioner purchased the same at a discount and sell it to the end users. The selling price of SIM Card and Recharge Coupon are fixed and controlled by BSNL and sellers like the petitioner have no control over the 2 6 https: www.mhc.tn.gov.in judis WP No.120212same.3. The petitioner states that the business is limited to the extent of purchasing and selling the SIM Cards and Recharge Coupons in the hands of subscribers of BSNL. The said BSNL is liable to discharge the service tax as prescribed under the Service Tax Law and are discharging the service tax liability to the Department of Service Tax as required under the Law. Under these circumstances the petitioner claims no liability.4. The learned counsel appearing on behalf of the petitioner made a submission that the issue was considered by this Court in number of writ petitions and decisions are rendered in favour of the persons who all are similarly placed like that of the petitioner. While so there is no reason to issue further show cause notice to the writ petitioner.5. This Court is of the considered opinion that even in such cases there are some judgments which all are applicable with reference to the facts and circumstances of the case. It is left open to the writ petitioner to 3 6 https: www.mhc.tn.gov.in judis WP No.120212adjudicate the factual aspects before the authorities enabling them to consider the same and pass order on merits and in accordance with law. Contrarily the High Court need not entertain a writ petition against a show cause notice in a routine manner.6. The writ against a show cause notice may entertain only on exceptional circumstances where the authority without issuing such notice is incompetent under the provisions of the Statutes or the Rules. If there is an allegation of mala fide then also writ can be entertained. In such circumstances the authorities against whom such allegations on mala fide are raised is to be impleaded as a party respondent in his personal capacity in the writ proceedings. 7. In respect of the merits of the case the petitioner has to submit the defence statement along with the judgments relied on as well as the documents and the evidences if any for the purpose of considering the same by the authorities.4 6 https: www.mhc.tn.gov.in judis WP No.1202128. In the present case the show cause notice itself was issued in the year 2011 and due to the pendency of the writ petition the writ petitioner has not submitted the defence statement and the authorities have also not passed orders.9. This being the factum established the petitioner is at liberty to submit his defence statement explanation along with the documents as well as the judgments passed by the High Court in the subject within a period of four weeks from the date of receipt of a copy of this order. On receipt of any such explanations documents etc. from the petitioner the respondent is directed to consider the same on merits and in accordance with law within a period of twelve weeks from the date of receipt of the defence statement from the petitioner.10. With the above directions the writ petition stands disposed of. However there shall be no order as to costs. Consequently connected miscellaneous petition is closed.27 07 2021Index : Yes No. Internet : Yes No.Speaking Order Non Speaking Order.Svn5 6 https: www.mhc.tn.gov.in judis WP No.120212S.M.SUBRAMANIAM J.SvnTo1.The Assistant Commissioner Central Excise Division Karaikal Office of the Assistant Commissioner of Central Excise No.1 Nool Kadai Street Karaikal 609 602.2.The General Manager Bharat Sanchar Nigam LimitedKumbakonam.WP No.12021227 07 20216 6

Live PM speech stream at TN temples not for political purpose: Madras High Court

As per Sections 3 to 5 of the Act of 1988, as it is alleged that the political parties are violating the provisions and the HR & CE Department is not ensuring strict compliance to the provisions aforesaid. Admittedly, the provisions quoted above impose certain restrictions which include promotion or propagation of the political activities. These were held by the High Court of Madras through the learned bench of Chief Justice Munishwar Nath Bhandari and Justice D. Bharatha Chakravarthy in the case Rangarajan Narasimhan v. Additional Chief Secretary To Government & Ors. & Other Matters (WP 1986/ 2022 & Ors.) The crux of the case is the petitioner seek a direction on the respondents to prohibit meetings or gathering of people for the purpose of political, spiritual, governmental, personal or any other kind other than the activities in accordance with the recognized religious practices, custom and usage pertaining to the Sampradhaya to which the temple belongs and sanctioned by the respective Agama Shastras and ban any event such as birthdays of employees of HR&CE department, celebration of political leaders’ birth and death anniversaries, Golu (Navarathiri Doll festival), English New year Day, and other entertainment activities inside the temple premises. The applicant personally submits that in terms of the provisions of the Religious Institutions (Preventing Abuse) Act, 1988, the temple premises may not be used for the promotion or dissemination of any political activity or other related activities. However, by disregarding the provisions of the 1988 Act, temples were used to organize political rallies and even to spread the success of various political parties. The reference to Section 3 of the 1988 Act is provided to support the dispute. It is an indication that despite certain restrictions on certain activities, the HR & CE department approves activities that violate Section 3 of the 1988 Act. The applicant submits that ignoring the conditions mentioned above, HR & CE The Department allows the use of temple buildings for political purposes. To reinforce the proposed proposal, refer to the images and news media linked to a written request in which members of political parties have met for a purpose prohibited under the 1988 Act. Referring to the speech delivered by the Honorable Prime Minister. during the presentation of Adi Shankaracharya’s Samadhi, the petitioner pointed out that the said program was broadcast live in more than 16 temples and staff of political parties gathered to see the program. He further added that the foregoing is not valid in terms of Sections 3 to 5 of the 1988 Act. However, no action was taken by the HR & CE Department to prevent or comply with the provisions. The learned Advocate General submits that the exhibition was presented without advertising the facts that it was not intended to promote any political activity or purpose for which it was prohibited under Sections 3 to 5 of the 1988 Act. He pointed out that various temples in Tamil Nadu Province have been declared monuments and the Department of Archaeology is responsible for the preservation and preservation of ancient temples. The Department of Archeology exhibits photographs of conservation and conservation works and the exhibition is not about the achievements of a political party. The Advocate General went on to say that some of the images referring to the mobilization of political parties do not refer to any political activity, but it was during the time when the Honorable Prime Minister delivered the Samadhi of Poojya Adi Shankaracharya and presented the letter. speech, requested to be televised on all 12 Jyothirlingas, four Jyotishpeethas, etc., by order of the Government of India dated 01.11.2021. The event was not organized for the purpose of promoting any political activity but was presented at the time mentioned above. In view of the above, the HR & CE Department has not complied with any of the provisions of the 1988 Act, as stated. The learned bench of Chief Justice Munishwar Nath Bhandari and Justice D. Bharatha Chakravarthy observed that the petitioner has taken an isolated part of the Prime Minister’s speech without referring to the entire theme. The court, therefore, concluded that the live telecast of speech was not for pushing any political agenda. In view of the above, the court dismissed the said writ petition while underscoring that temples have not been used by any political party for political purposes. And stated “……The petitioner in person has given reference of one para of the speech of the Hon’ble Prime Minister, torn out of context, and without taking note of the theme of the event. The permission accorded for the telecast of the speech cannot be said to be for promoting or propagating any political activity, rather it was organised and telecasted largely in all religious places, which includes the Jyotirlingas and Jyothishpeethas on dedication of Samadhi of Shri Adi Shankaracharya. The speech of the Hon’ble Prime Minister, inter alia, shows in depth reference to the legacy of Adi Shankaracharya; what is dharma; what is the relation of dharma and knowledge; the significance of Chardham Yatra; and, the Indian Philosophy of human welfare. A small portion of the speech commending the efforts put in by the State of Uttarakhand for fighting Covid-19 cannot be read in isolation to give it a different colour as claimed by the petitioner.”

W.P.No.19822IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 10.02.2022CORAM :THE HON BLE MR.MUNISHWAR NATH BHANDARI ACTING CHIEF JUSTICEANDTHE HON BLE MR.JUSTICE D.BHARATHA CHAKRAVARTHYW.P.No.19822Rangarajan Narasimhan.. Petitioner vs1. The Additional Chief Secretary to Govt. Govt. of Tamil Nadu Secretariat Chennai 600 009.2. The Secretary Department of Tourism Culture and Religious Endowments Secretariat Chennai 600 009.3. The Commissioner Hindu Religious & Charitable Endowments Dept. 119 Uthamar Gandhi Salai Nungambakkam Chennai 600 034... Respondents Prayer: Petition filed under Article 226 of the Constitution of India for issuance of a Writ of Mandamus directing the respondents to prohibit holding any kind of meetings gathering of whatever name be it political spiritual governmental personal or any other except the activities in accordance with the recognized religious practices custom ____________https: www.mhc.tn.gov.in judis W.P.No.19822and usage pertaining to the Sampradhaya to which the temple belongs and are sanctioned by the respective Agama Shastras and ban any event such as birthdays of employees of HR&CE department celebration of political leaders birth and death anniversaries GoluEnglish New year Day dining and other entertainment activities inside temple premises during marriage Sashtiyabdhapoorthi Sadhabishekam and other similar personal Vaideeka Karmas fine arts which are not connected with the Sampradhaya of the temple and which are performed by non Hindus.For the Petitioner:Mr.Rangarajan NarasimhanParty in personFor the Respondents : Mr.P.MuthukumarState Govt. Pleader for R 1:Mr.R.ShunmugasundaramAdvocate GeneralAssisted by Mr.T.Chandrasekaran Spl.G.P.for RR 2 & 3ORDER(Order of the Court was made by the Hon ble Acting Chief Justice)The writ petition has been filed to seek a direction on the respondents to prohibitmeetings or gathering of people for the purpose of political spiritual governmental personal or any other kind other than the activities in accordance with the recognized religious practices custom and usage pertaining to the Sampradhaya to which ____________https: www.mhc.tn.gov.in judis W.P.No.19822the temple belongs and sanctioned by the respective Agama Shastras and ban any event such as birthdays of employees of HR&CE department celebration of political leaders birth and death anniversaries GoluEnglish New year Day and other entertainment activities inside the temple premises.2. The petitioner in person submits that as per the provisions of the Religious InstitutionsAct 1988 the temple premises cannot be used for promotion or propagation of any political activity or for any other related activities. But ignoring the provisions of the said Act of 1988 the temples are being used for organising political meetings and even for propagating achievements of different political parties. A reference of Section 3 of the Act of 1988 has been given to support the argument. It is to show that despite a specific bar in regard to certain activities the HR & CE department is permitting the activities in violation of Section 3 of the Act of 1988. A further reference of Section 4 of the Act has been given which restricts a religious institution or manager thereof to allow the entry of any arms or ammunition or of any person carrying any arms or ammunition into the religious institution. Section 5 of the Act of 1988 ____________https: www.mhc.tn.gov.in judis W.P.No.19822is also referred which provides that no religious institution or manager thereof shall use or allow the use of any funds or other properties belonging to it for the benefit of any political party or for the purpose of any political activity or for the commission of any act which is punishable as an offence under any law. Section 6 has also been referred which imposes restriction on the organisation of festival congregation procession or assembly under the auspices for use of any political party. 3. The petitioner submits that ignoring the provisions referred to above the HR & CE Department is permitting use of temple premises for political purposes. To fortify the said submission he referred to the photographs and the news article annexed to the writ petition where persons belonging to political parties have gathered for the purpose prohibited under the Act of 1988. Referring to the speech delivered by the Hon ble Prime Minister during the inauguration of the Samadhi of Adi Shankaracharya the petitioner submitted that the said programme was telecast live in more than 16 temples and personnel belonging to political parties gathered there to witness the programme. He submitted that the aforesaid was not permissible in view of ____________https: www.mhc.tn.gov.in judis W.P.No.19822Sections 3 to 5 of the Act of 1988. Yet no action was taken by the HR & CE Department to prohibit or comply with the provisions. 4. The petitioner made a further reference to the photographs exhibited in certain temples to propagate the achievements of certain political parties and submitted that the same is hit by the provisions of the Act of 1988. The prayer is accordingly to grant the relief as prayed in the writ petition.5. The learned Advocate General submits that reference of the exhibition has been given without adverting to the facts that it was not organised for promoting any political activity or for the purpose prohibited under Sections 3 to 5 of the Act of 1988. He submitted that various temples in the State of Tamil Nadu have been declared as monuments and the Department of Archaeology is taking care of the conservation and preservation of the ancient temples. The Department of Archaeology is exhibiting the photographs of the conservation and preservation works and the exhibition is not in regard to achievements of a political party. ____________https: www.mhc.tn.gov.in judis W.P.No.198226. Learned Advocate General further submits that the other photographs referring to the gathering of persons belonging to political parties is not in reference to any political activity but was on the occasion when the Hon ble Prime Minister dedicated the Samadhi of Poojya Adi Shankaracharya and delivered a speech which was requested to be telecast across all the 12 Jyothirlingas four Jyotishpeethas etc. vide the order of the Government of India dated 01.11.2021. The event was organized not for promoting any political activity rather it was delivered on the occasion referred above. In view of the above the HR & CE Department has not offended any provisions of the Act of 1988 as alleged.7. We have considered the submissions of the parties and perused the records.8. The writ petition is essentially to seek compliance of Sections 3 to 5 of the Act of 1988 as it is alleged that the political parties are violating the provisions and the HR & CE Department is not ensuring strict compliance to the provisions aforesaid. For ready reference ____________https: www.mhc.tn.gov.in judis W.P.No.19822Sections 3 to 5 of the Act of 1988 are quoted hereunder:"3. No religious institution or manager thereof shall use or allow the use of any premises belonging to or under the control of the institution for the promotion or propagation of any political activity. orfor the harbouring of any person accused or convicted of an offence under any law for the time being in force orfor the storing of any arms or ammunition. orfor keeping any goods or articles in contravention of any law for the time being in force. orfor erecting or putting up of any construction or fortification including basements bunkers towers or walls without a valid licence or permission under any law for the time being in force orfor the carrying on of any unlawful or subversive act prohibited under any law for the time being in force or in contravention of any order made by any court. orfor the doing of any act which promotes or attempts to promote disharmony or feelings of ____________https: www.mhc.tn.gov.in judis W.P.No.19822enmity hatred or ill will between defferent religious racial language or regional groups or castes or communities. or Prohibition of use of religious institutions for certain purposes. or(h) for the carrying on of any activity prejudicial to the sovereignty unity and integrity of India. orfor the doing of any act in contravention of the provisions of the Prevention of Insults to National Honour Act 1971. 4. No religious institution or manager thereof shall allow the entry of any arms or ammunition or of any person carrying any arms or ammunition into the religious institution : Provided that nothing in this section shall apply to the wearing and carrying of a kirpan by any person professing the Sikh religion. orany arms which are used as part of any religious ceremony or ritual of the institution as established by custom or usage. 5. No religious institution or manager thereof shall use or allow the use of any funds or other properties belonging to or under the control of the institution for the benefit of any political party or for the purpose of any political ____________https: www.mhc.tn.gov.in judis W.P.No.19822activity or for the commission of any act which is punishable as an offence under any law."7. Admittedly the provisions quoted above impose certain restrictions which include promotion or propagation of the political activities. 8. Apropos the allegation that political parties are exhibiting their achievements in the temples by way of photographs learned Advocate General has emphatically stated that many temples have been declared as monuments and the Department of Archaeology is taking up the conservation and preservation work of those temples and it is the said Department which is exhibiting photographs of the various idols etc. and the photographs do not relate to political achievements. The petitioner appearing in person only made an averment in the affidavit and appended a photograph from Twitter which is smudged and does not disclose the contents of the exhibits. The authenticity of such document cannot be examined by this court. Therefore this court taking into account the statement made by learned Advocate General to the effect that such exhibits are relating to the preservation and ____________https: www.mhc.tn.gov.in judis W.P.No.19822conservation of monuments holds that the aforesaid cannot be said to be a propaganda of the political party. 9. So far as the telecast of the speech by the Hon ble Prime Minister is concerned the material produced herein and the letter dated 01.11.2021 issued by the Government of India show that it is on the occasion of unveiling of the statue of Adi Shankaracharaya the great Indian Saint and theologian at Kedarnath on 05.11.2021. Elaborate programmes were organised across 12 Jyotirlingas 4 Jyotishpeethas and his birth place. A decision was taken to celebrate the occasion by holding simultaneous programmes at all places known to have been visited by Shri Adi Shankaracharya. The Hon ble Prime Minister unveiled the statue of the great Indian Saint and dedicated the Samadhi site to the public. The entire event was telecast across all the 12 Jyothirlingas four Jyotishpeethas etc. as requested by the order of the Government of India dated 01.11.2021. 10. The petitioner in person has made a reference of the last para of the speech where the Hon ble Prime Minister commended the efforts put in by the State of Uttarakhand to control the Covid 19. ____________https: www.mhc.tn.gov.in judis W.P.No.19822According to the petitioner the said statement tantamounts to propagating of the achievements of the government which is prohibited under Sections 3 to 5 of the Act of 1988. 11. We have gone through the entire speech of the Hon ble Prime Minister which is on record and find that it is relevant to the occasion. The speech makes a reference of the holy monasteries four Dhamsand 12 Jyothirlingas established by Shri Adi Shankaracharya. In the penultimate paragraph the Hon ble Prime Minister said that the State of Uttarakhand is known to be "Devbhoomi" and referred to the significance of Chardham Yatra. In that context a reference was made to the Chardham Project and it was stated that all the four Dhams are being connected to the highway under the said project. The same does not amount to political propaganda. It was said in the context that the said project improves the access of pilgrims to the four Dhams and the development of the religious places. Thereafter a reference was made to the efforts put in by the Government of Uttarakhand to control Covid 19. The same by no stretch of imagination can be said to be for promoting any political activity. The ____________https: www.mhc.tn.gov.in judis W.P.No.19822petitioner in person has given reference of one para of the speech of the Hon ble Prime Minister torn out of context and without taking note of the theme of the event. The permission accorded for the telecast of the speech cannot be said to be for promoting or propagating any political activity rather it was organised and telecasted largely in all religious places which includes the Jyotirlingas and Jyothishpeethas on dedication of Samadhi of Shri Adi Shankaracharya. The speech of the Hon ble Prime Minister inter alia shows in depth reference to the legacy of Adi Shankaracharya what is dharma what is the relation of dharma and knowledge the significance of Chardham Yatra and the Indian Philosophy of human welfare. A small portion of the speech commending the efforts put in by the State of Uttarakhand for fighting Covid 19 cannot be read in isolation to give it a different colour as claimed by the petitioner.12. In view of the above we do not find violation of Sections 3 to 5 of the Act of 1988. It is more so when they were on certain religious occasions events. The restrictions that exist under the Act of 1988 are otherwise to be followed by the HR & CE Department stricto sensu. ____________https: www.mhc.tn.gov.in judis W.P.No.19822With the aforesaid observations the writ petition is disposed of. No costs.(M.N.B. ACJ.) 10.02.2022 Index : Nosra sasiTo:1. The Additional Chief Secretary to Govt. Govt. of Tamil Nadu Secretariat Chennai 600 009.2. The Secretary Department of Tourism Culture and Religious Endowments Secretariat Chennai 600 009.3. The Commissioner Hindu Religious & Charitable Endowments Dept. 119 Uthamar Gandhi Salai Nungambakkam Chennai 600 034.____________https: www.mhc.tn.gov.in judis W.P.No.19822M.N.Bhandari ACJ. and D.Bharatha Chakravarthy J.(sra)W.P.No.1982210.02.2022____________

The recourse to LOC can be taken only when the accused was deliberately evading arrest or not appearing in the trial court in spite of coercive measures being taken against him- Karnataka High Court.

The recourse to LOC can be taken only when the accused was deliberately evading arrest or not appearing in the trial court in spite of coercive measures being taken against him- Karnataka High Court. The issuance of LOC against an individual has got very serious consequences, which would curtail the free movements of a person and therefore, such a right which is guaranteed under Article 21 of the Constitution of India cannot be curtailed other than in accordance with law. Therefore, when a LOC is being issued, there has to be a proper application of mind by the competent authority and it cannot be issued on a mere request of the Investigating Officer, unless he makes out a case for a need to issue LOC. This certain issue was held in the land mark judgement given by the single bench of MR. JUSTICE S VISHWAJITH SHETTY in CENTRAL BUREAU OF INVESTIGATION, BANKING SECURITIES FRAUD BRANCH VS ASIF KHADER,(Crl.P.1479/2021). The brief facts of the case are that the Central Bureau of Investigation has filed this petition under Section 482 of the Code of Criminal Procedure, challenging the order dated 19th January 2021 in R.C.No.8(E)/2017 passed by the court of XXI Additional City Civil and Sessions Judge and Principal Special Judge for CBI Cases, Bengaluru. The Company and its Directors, who are the accused, had defrauded the Bank, a complaint was lodged, based on which FIR was registered by the petitioner for the offences punishable under Sections 120-B read with Section 420 of IPC, Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988. Learned Special Public Prosecutor for the petitioner submits that the trial court has proceeded to pass the impugned order on the ground that the LOC was issued without assigning proper reason and the LOC was not placed on record, He has relied upon the judgments passed by the Division Bench of this court in (DR.BAVAGUTHU RAGHURAM SHETTY -VS- BUREAU OF IMMIGRATION) and has also filed a memo before this court wherein it is stated that the respondent had appeared before the petitioner on 22.02.2018 and 02.03.2018 and on both the said occasions, his statement was recorded. The learned senior counsel appearing for the respondent would submitted that the trial court has passed a detailed reasoned order which does not suffer from any illegalities or infirmities. He submits that the respondent has throughout cooperated with the Investigating Officer and he has appeared before the Investigating Officer on multiple occasions and his statement has already been recorded. After hearing to the arguments of both the parties the Hon’ble High court held that “Under the circumstances, this Criminal Petition is disposed of, with the following observations: 1) The respondent shall forthwith surrender his Passport before the Passport Authority; 2) The respondent shall make an application before this court in the event of the intending to travel abroad for personal or business reasons by furnishing the travel itinerary and specifying the period of travel In the event of the petitioner filing a charge sheet in the meanwhile, such an application seeking permission to travel shall be filed by the respondent before the trial court.”

Crl.P.1479 2021 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 25TH DAY OF JUNE 2021 THE HON BLE MR. JUSTICE S VISHWAJITH SHETTY CRIMINAL PETITION No.1479 OF 2021 CENTRAL BUREAU OF INVESTIGATION BANKING SECURITIES FRAUD BRANCH NO. 36 BELLARY ROAD GANGANAGAR BANGALORE 560032 REP BY ITS INSPECTOR OF POLICE BY SRI P.PRASANNA KUMAR SPL. SPP) AND: ASIF KHADER DIRECTOR M S. CRANES SOFTWARE INTERNATIONAL LTD. R O FLAT NO. CG 01 H.M. GLADIOUS APARTMENTS NO. 34 AGA ABBAS ALI ROAD ULSOOR BENGALURU 560008. BY SRI SANDESH CHOUTA SR. COUNSEL FOR SRI ISMAIL M. MUSBA ADV.) ... PETITIONER ... RESPONDENT THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF CR.P.C. PRAYING TO QUASH THE ORDER DATED 19.01.2021 PASSED BY THE XXI ADDITIONAL CITY CIVIL AND SESSIONS Crl.P.1479 2021 JUDGE AND PRINCIPAL SPECIAL JUDGE FOR CBI CASESBENGALURU IN RC.NO.82017 AND CONSEQUENTLY ALLOW THIS CRL.P. THIS CRIMINAL PETITION HAVING BEEN HEARD AND RESERVED FOR ORDERS ON 10.06.2021 AND COMING ON FOR ‘PRONOUNCEMENT OF ORDERS’ THIS DAY THE COURT MADE THE FOLLOWING: O R D E R The Central Bureau of Investigation has filed this petition under Section 482 of the Code of Criminal Procedure challenging the order dated 19th January 2021 in R.C.No.8(E) 2017 passed by the court of XXI Additional City Civil and Sessions Judge and Principal Special Judge for CBI Cases Bengaluru2017 against M s.Cranes Software International Limited and its Directors and also unknown public servants. In the Crl.P.1479 2021 complaints it was averred that the accused persons complaint had approached complainant Bank with a request for sanctioning of loan of Rs.30 Crores towards working capital and another sum of Rs.40 Crores towards short term loan. Both these loans were sanctioned and disbursed by the Bank. Subsequently the said accused persons requested the Bank for a corporate loan of Rs.100 Crores stating that they required the amount for the purpose of acquiring a Software Company and also for clearing high cost loan availed by them from J & K Bank Bengaluru. After the said loan of Rs.100 Crores was sanctioned and disbursed the accused persons within a short span of ten days diverted the loan amount to different accounts and it was not utilized for the purpose for which it was sanctioned. Thereafterwards the accused Company and its Directors have failed to repay the loan amounts and an outstanding amount of nearly Rs.200 Crores was due from them. On Crl.P.1479 2021 the allegations that the accused persons had induced the complainant Bank by making false assurances for the purpose of obtaining the loans and accordingly the Company and its Directors who are the accused had defrauded the Bank a complaint was lodged based on which FIR was registered by the petitioner for the offences punishable under Sections 120 B read with Section 420 of IPC Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act 1988. 3. Having regard to the gravity of the offence a Look Out Circular was issued against the respondent and it was being extended from time to time. The respondent had challenged the LOC before this court in Writ Petition No.55157 2018 and the said petition was disposed of by this court with a direction to approach the competent authority by filing necessary for withdrawal of the LOC. The representation thereafterwards made by the respondent Crl.P.1479 2021 for withdrawal of the LOC was rejected by the petitioner and the said order was challenged by the respondent before the trial court and a prayer was also made to rescind the LOC. The application was opposed by the petitioner herein by filing objections. The trial court vide the order impugned has declared that the LOC issued against the respondent herein in connection with the case registered in R.C.No.8(E) 2017 had lapsed and therefore respondent is entitled to move freely inside and outside the country without reference to the Look Out Circular dated 11.07.2017 which was extended on 22.05.2019. 4. Learned Special Public Prosecutor for the petitioner submits that the trial court has proceeded to pass the impugned order on the ground that the LOC was issued without assigning proper reason and the LOC was not placed on record. He submits that the trial court ought to have called for the relevant record and thereafter satisfy itself whether there were sufficient grounds for Crl.P.1479 2021 issuance of LOC. He submits that the respondent herein has not availed bail and his anticipatory bail application was already dismissed. He submits that admittedly the respondent s family is settled abroad and he has got business interest abroad and therefore it could be difficult to secure him during the course of trial and the trial court has erred in unconditionally allowing the respondent to travel abroad. He also submits that the trial court has erroneously held that the LOC has already expired and it has not been renewed after 22.5.2019. He submits that the LOC was last renewed on 24.7.2020 and it is valid upto 10.07.2021 and a copy of the said document has been produced by him at Annexure H. He submits that having regard to the huge amount of Rs.200 crores outstanding which is a public money it is not safe to allow the respondent to travel abroad unconditionally and there are all chances that he may flee from justice. Crl.P.1479 2021 He has relied upon the judgments passed by the Division Bench of this court in Writ Appeal No.315 2021 GM RES) DD 12.5.2021and the order in W.P.No.51087 2019 DD 21.4.2021 Sri.C.Shivakumar Reddy and Others vs The Central Bureau of Investigation and Another) in support of his Learned counsel for the petitioner has also filed a memo before this court wherein it is stated that the respondent had appeared before the petitioner on 22.02.2018 and 02.03.2018 and on both the said occasions his statement was recorded. It is further stated in the memo that a notice was issued to the respondent by the petitioner to appear on 06.11.2018 and produce documents information related to the foreign acquisition and diversion of funds. However the respondent had not appeared before the petitioner on the Crl.P.1479 2021 said date. In the memo it is also stated that investigation has been completed and charge sheet has been filed. But during the course of submission it is stated that the charge sheet has been returned on technical grounds. 5. Per contra learned senior counsel Sri.Sandesh Chouta appearing for the respondent would submit that the trial court has passed a detailed reasoned order which does not suffer from any illegalities or infirmities. He submits the respondent has cooperated with the Investigating Officer and he has appeared before the Investigating Officer on multiple occasions and his statement has already been recorded. He also submits that investigation in the case is complete and charge sheet was also filed but the same was returned to the Prosecutor on the ground that sanction was not obtained for prosecuting the Bank officers who were also accused in the case. He submits that in the charge sheet there is no mention that the respondent is Crl.P.1479 2021 absconding. He submits that the case is registered in the year 2017 and the charge sheet is filed in the month of December 2020 and during the said period the respondent has throughout cooperated with Investigating Officer and he has not been arrested and therefore the present apprehension of the petitioner that the respondent is likely to flee from justice is ill founded. He also submits that the LOC was last extended on 22.5.2019 which would be valid for one year and therefore the extension of the said LOC ought to have been done on or before 21.5.2020. However the LOC now relied upon by the petitioner is dated 24.07.2020 and since the LOC was not renewed within the period of one year the LOC dated 24.7.2020 is not a valid document and the said document was not produced by the petitioner before the trial court. He submits that there are prescribed guidelines for issuance of LOC and the respondent s case does not come under any of the Crl.P.1479 2021 requirements of the guidelines and therefore there is no justification on the part of the petitioner in issuing a LOC which has the effect of restricting the movement of the respondent and thereby violating the right guaranteed to the respondent under Article 21 of the Constitution of following judgments: In support of his arguments he has relied upon the 1. W.P.(Crl.)No.1315 2008 DD 11.8.2010 Sumer Singh Salkan & Ors. vs Asst.Director and Others 2. Crl.O.P.No.27741 2013: E.V.Perumal Samy Reddy and Others vs State and Others 3. W.P.Nos.21305 & 20798 2017 DD 23.07.2018 Karti P.Chidambaram vs Bureau of Immigration and others 4. W.P.(C) No.5382 2020 DD 02.12.2020 : Deept Sarup Aggarwal vs Union of India and Others. 6. During the course of hearing the learned counsel for the respondent has also filed I.A.No.3 2021 with a prayer to allow the respondent to travel abroad with prior Crl.P.1479 2021 intimation to this court notwithstanding the prayer of the respondent to quash the LOC against him. 7. Learned Senior Counsel for the respondent has submitted that as and when the respondent intends to travel abroad he will file necessary application seeking permission of the court and without prior permission of this court the respondent will not travel abroad. He also submitted that the respondent is ready and willing to surrender the Passport before the competent authority and only as and when he intends to travel abroad necessary travel documents could be arranged for the purpose of his travel as per the orders of this court. 8. The undisputed facts of this case are that a criminal case has been registered in the year 2017 against the respondent who is the Managing Director of the first accused Company. The allegations in the complaint are that the respondent and other Directors Crl.P.1479 2021 had induced the complainant Bank for sanction of a loan and after the loan was sanctioned and disbursed the said amount of loan was diverted by the accused persons and not utilized for the purposes for which the loan was availed. The investigation in the case is complete and as per the final report the offences alleged against the respondent are punishable under Section 120 B read with Section 420 of IPC and Sections 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act 1988. 9. Petitioner C.B.I has filed a memo stating that on two occasions the respondent had appeared before the petitioner for the purpose of investigation and they have recorded the statement of the respondent on the said dates. In the final report that is made available to the court it is seen that the respondent is not shown as absconding accused". The petitioner has not disputed that the family of the respondent is settled abroad and respondent has got business interests abroad. Crl.P.1479 2021 10. With this background the question that needs to be considered is whether the trial court was justified in declaring that the LOC issued against the respondent has lapsed and ceased to have any effect and further holding that the respondent was entitled to move freely inside and outside the country without reference to the LOC issued against him. 11. A Coordinate Bench of this court W.P.No.51087 2019 having considered that the petitioners therein had fully cooperated with the C.B.I. for the purpose of investigation and that this court had stayed the further proceedings in the criminal cases pending before the jurisdictional court against the petitioners therein while quashing the LOC issued against the said petitioners had directed them to furnish security to the satisfaction of the Trial Judge and the petitioners Crl.P.1479 2021 were also directed to intimate the travel itinerary to the Trial court from time to time. 12. In the case of Dr.Bavaguthu Raghuram Shetty the Division Bench of this court in Writ Appeal No.315 2021 taking into consideration the fact that the appellant therein was involved in number of cases and the indebtedness of the appellant therein was nearly to the tune of Rs.2800 crores having regard to the paramount national interest had upheld the order of the learned Single Judge of this court refusing to interfere with the LOCs issued to the appellant therein. 13. The High Court of Delhi in the case of Sumer Singh Salkan at paragraph 11 has observed as 11. Look out Circular has also been issued against the petitioner as the petitioner is an accused before the Court of M.M. and he has not appeared before the Court of M.M. If the petitioner gives an Crl.P.1479 2021 undertaking before the court for his appearance on a particular date through his counsel the Lookout issued against the petitioner shall be withdrawn within 24 hours of giving undertaking by the petitioner. The questions raised in the reference are as “A. What are the categories of cases in which the investigating agency can seek recourse of Lookout Circular circumstances B. What procedure is required to be followed by the investigating agency before opening a Lookout 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: to LOC can be A. Recourse 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 there was other coercive measures and Crl.P.1479 2021 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. The person against whom LOC is issued must join 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 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 investigating agency or Court of law. The subordinate courts’ jurisdiction in affirming or cancelling LOC is commensurate with cancellation of NBWs or affirming NBWs." 14. In the case of E.V.Perumal Samy Reddy supra) the High Court of Madras at paragraphs 8 and 9 Crl.P.1479 2021 has observed as follows: 8. It is basic that merely because a person is involved in a criminal case he is not denude of his Fundamental Rights. It is the fundamental of a person to move anywhere he likes including foreign countries. One s such personal freedom and liberty cannot be abridged.[See: Article 21 Constitution of India]. In the celebrated in MENAKA GANDHI Vs. UNION OF INDIA MANU SC 0311 1978 : the Hon ble Supreme Court upheld the constitutional right of persons to go abroad. The phrase no one shall be deprived of his "life and liberty" except procedure established by employed in Article 21 had deep and pervasive effect on fundamental right and human right. MENAKA GANTHIushered a new era in the annals of Indian Human Rights Law. It had gone ahead of American concept of Due Process of Law . 9. But the fundamental right to move anywhere including foreign countries could be regulated. Where persons involved in criminal cases are wanted for investigation for court cases persons who are anti social elements movements can be regulated. Need may arose to apprehend persons who have ability to fly flee away the country. So L.O.C. orders are issued. It is an harmonious way out between a person s fundamental right and interest of the society state. But in any case it must be fair and reasonable. It should not be indiscriminate without any reason or Crl.P.1479 2021 15. In the case of Karti P.Chidambaram the High Court of Madras at paragraphs 70 to 73 has observed as follows: 70. The legality and or validity of a Look Out Circular has to be adjudged having regard to the circumstances prevailing on the date on which the request for issuance of the Look Out Circular had been made. 71. As observed above the FIR against the petitioner was lodged on 15.05.2017. Notice was issued on 15.6.2017 calling upon the petitioner to Officer Investigation Officer on 29.6.2017. On the very next day i.e. 16.6.2017 the impugned Look Out Circular was issued. As on the date of issuance of the Look Out Circular there could have been no reason to suppose that the petitioner would not Officer Investigation Officer. 72. On behalf of the respondents it has been contended that the petitioner did not appear on 29.6.2017 as directed but only appeared pursuant to the directions of the Supreme Court. However as argued by Mr.Subramanium the very fact that after issuance of the first notice dated 16.06.2017 which was returnable on 29.06.2017 a further notice was issued on 04.07.2017 granting the petitioner time till 21.07.2017 shows that there was no immediate apprehension of his evading investigation at least on 04.07.2017. There was thus no justification for Crl.P.1479 2021 issuance of the impugned LOC on 16.06.2017 the validity whereof has expired in any case after one 73. As observed above the issuance of Look Out Circulars is governed by executive instructions the Office Memoranda Nos.25022 13 78 F1 25022 20 98 FIV dated 27.12.2000 as modified by Office Memorandum dated 27.10.2010. Such LOCs cannot be issued as a matter of course but when reasons exist where an accused deliberately evades arrest or does not appear in the trial Court. The argument of the learned Additional Solicitor General that a request for Look Out Circular could have been investigating authority to secure attendance and cooperation of an accused aforesaid circulars and thus not sustainable." inherent power of in view of is contrary 16. In the case of Deept Sarup Aggarwal the High Court of Delhi at paragraph 14 has observed as 14. In the present case there is no doubt that the allegations made against the petitioner are of a grave nature. The petitioner has submitted that the same are false and unsubstantiated however this Court need not detain itself on the examination of such allegations. For the purposes of the Impugned LOC what is relevant to be noted is that the FIR was registered on 08.10.2018. Based thereon the Crl.P.1479 2021 registered ECIR on Enforcement Directorate 02.07.2019. In undue haste on 25.07.2019 the Impugned LOC was issued against the petitioner. The petitioner has asserted that prior thereto the petitioner had joined investigation on 26.12.2018 and 07.01.2019. It is not asserted in the counter in the sur rejoinder filed by the affidavit or respondents that the petitioner is a flight risk having no roots in India or that there is a likelihood the WP(C) No.5382 2020 Page 9 country. The only allegation made is that the conduct of the petitioner is evasive and non cooperative. In my opinion this cannot be a ground for issuance of a LOC." the petitioner absconding 17. From the reading of the aforesaid judgments relied upon by the learned Senior Counsel for the respondent it is very clear that recourse to LOC can be taken only when the accused was deliberately evading arrest or not appearing in the trial court inspite of coercive measures being taken against him and if there is a likelihood of the accused traveling abroad and trying to flee from justice the LOC can be issued as a coercive measure to make a person surrender cooperate with the Crl.P.1479 2021 investigating agency or with the court before which his case is pending. 18. The issuance of LOC against an individual has got very serious consequences which would curtail the free movements of a person and therefore such a right which is guaranteed under Article 21 of the Constitution of India cannot be curtailed other than in accordance with law. Therefore when a LOC is being issued there has to be a proper application of mind by the competent authority and it cannot be issued on a mere request of the Investigating Officer unless he makes out a case for a need to issue LOC. 19. In the case on hand the respondent has appeared before the Investigating Officer and has cooperated for the investigation and his statement has also been recorded on two occasions. It is not the case of the petitioner that they are required to further investigate Crl.P.1479 2021 the respondent and even according to them the investigation in the case is already complete and the final report is ready. The respondent is not shown as an absconding accused in the final report. The trial court considering the fact that the LOC issued against the respondent had already expired and also considering the fact that the petitioner has not made out a case for a need to issue LOC against the respondent has passed an order observing that the LOC issued against the respondent has lapsed and ceased to have any effect and consequently the respondent is free to travel in and out of the country. Though the said order cannot be termed as illegal having regard to the nature of the case filed against the respondent and his indebtedness to the tune of nearly Rs.200 Crores to my mind the trial curt was not justified in unconditionally allowing the respondent to travel in and out of the country. Since the respondent has now filed an application I.A.No.3 2021 before this court Crl.P.1479 2021 stating that he shall travel abroad only after seeking necessary prior permission from this court I am of the opinion that the matter could be disposed of without interfering with the order passed by the trial court and without going to the validity or otherwise of the LOC dated 24.07.2020 by imposing suitable conditions on the respondent and this will take care of the apprehension of the petitioner that there is likelihood of the respondent fleeing away from justice. 20. Under the circumstances this Criminal Petition is disposed of with the following observations: The respondent shall forthwith surrender his Passport before the Passport Authority The respondent shall make an application before this court in the event of he intending to travel abroad for personal or business reasons by furnishing the travel itinerary and specifying the period of travel and also the date of his return so as to Crl.P.1479 2021 enable the Passport Authority to issue necessary travel documents to him In the event of the petitioner filing a charge the meanwhile such an application seeking permission to travel shall be filed by the respondent before the trial court. Sd JUDGE KNM

Likelihood of seniority should not be disturbed: Supreme Court

Seniority is always been a matter of concern in every aspect, considering it to be civil matter or business matters. The indifference arises in regard to promotion mostly on the basis of seniority, thus it results in the conflict of law in most of the cases which we come through. Thus in the case of Vinod Prasad Raturi & Ors. v. Union of India & Ors. [Civil Appeal No.495 of 2021], the court held that likelihood of seniority of other officers should always be taken into consideration and not to be disturbed. The facts of the case begin with the Central Government issuing the final allocation list on April 22, 2003, in compliance with Section 73 of the Act, after considering the objections received from the aggrieved parties. The High Court dismissed the Writ Petition filed by Appellant No.2 and others challenging the allocation to the state of Uttarakhand in a judgment dated 11.12.2003. Appellant No.2 and other SCS Officers, including Respondent No.4, were aggrieved by the High Court’s decision and filed Special Leave Petitions (SLPs) in this Court. This Court ordered the authorities to uphold the status quo in an order dated January 7, 2004. In a letter dated January 9, 2011, the State of Uttarakhand informed the Government of India that 9 vacancies in the Indian Administrative Services (IAS) cadre for the select list for the year 2010 were available. In the year 2009, two additional vacancies arose. In 2011, the IAS cadre had 11 vacancies in total. SLP (C) No.24078 of 2003 was withdrawn by Appellant No.2. Following that, the Government of India issued a final allotment order, allowing Appellant No. 2 to enter the state of Uttarakhand on April 15, 2011. The Appellants were included in the select list for 2011 and they were promoted to IAS in the vacancies determined in accordance with Regulation 5(1) of the IAS (Appointment by Promotion) Regulations, 1955. SLPs filed by Respondent No.4 and others against the judgment of the High Court were dismissed on 12.02.2015. Respondent No.4 then lodged a Review Petition, which this Court also rejected. The Government of India assigned Respondent No.4 and other PCS officers to the state of Uttarakhand on June 9, 2015. The Central Government denied the Government of Uttar Pradesh’s request to keep Respondent No.4 in the state of Uttar Pradesh in an order dated June 25, 2015. On September 2, 2015, the Government of India reiterated its decision to assign Respondent No. 4 and others to the state of Uttarakhand. Respondent No.4 was released from Uttar Pradesh on September 28, 2016, and on October 1, 2016, he began working for the state of Uttarakhand. On 20.02.2017, a tentative seniority list of State Civil Services Officers (Executive Branch) was prepared. Respondent No. 4 filed objections to the tentative seniority list, requesting that the time of service he provided in the Indian Army’s Short Service Commission and as a Deputy Superintendent of Police be counted in calculating the total eligible services. However it wasn’t taken into consideration, and On 20.06.2018, the High Court disposed of the Writ Petition with direction to the Respondents to hold a review DPC within a period of six months. The court had held in this regard that “Respondent No.4 continued to work in the State of Uttar Pradesh by virtue of interim orders passed initially by the High Court of Judicature at Allahabad and later by this Court. He did not make any attempt to have his case considered for promotion to IAS when his juniors in the SCS Officers cadre were being promoted to IAS from the State of Uttarakhand.” “He could have made a request for consideration of his case without prejudice to the ongoing litigation in this Court. Admittedly, he did not lodge any protest or prefer any objection at the time of promotion of the Appellants to IAS. Even after the SLP filed by him was dismissed, an attempt was made for his retention in the State of Uttar Pradesh. As the Union of India did not accept the request made by the State of Uttar Pradesh to retain Respondent No.4 in Uttar Pradesh, having no other alternative he joined the State of Uttarakhand. No fault can be found with Respondent No.4 for pursuing his legal remedies.”

Non Reportable IN THE CIVIL APPELLATE JURISDICTION Civil Appeal No.4921 Arising out of SLPNo 22819) Vinod Prasad Raturi & Ors Union of India & Ors. …. Respondentfor considering allotment of the 4th Respondent to earlier batch. The State of Uttar Pradesh was reorganized under the Uttar Pradesh Reorganization Act 2000Officers on the basis of their seniority for allocation to the State of Uttarakhand. Though some of the officers joined the services in the State of Uttarakhand there were others who objected to their allotment. Writ Petitions were filed in the High Court of Judicature at Allahabad questioning the allotment to the State of Uttarakhand. Appellant No.2 was also a party to the Writ Petition. The High Court stayed the orders of allocation during the pendency of the Writ Petitions. After considering the objections received from the aggrieved parties the Central Government issued the final allocation list on 22.04.2003 in accordance with Section 73 of the Act. By a judgment dated 11.12.2003 the High Court dismissed the Writ Petition filed by Appellant No.2 and others challenging the allocation to the State of Uttarakhand Aggrieved by the judgment of the High Court Appellant No.2 and other SCS Officers including Respondent No.4 filed Special Leave Petitions in this Court. By an order 2 | P a g e dated 07.01.2004 this Court directed the authorities to maintain the status quo. The State of Uttarakhand communicated to the Government of India by a letter dated 09.01.2011 that 9 vacancies in the Indian Administrative Services cadre for the select list for the year 2010 were available. 2 additional vacancies had arisen in the year 2009. In all there were 11 vacancies in the IAS cadre in 2011. Appellant No.2 withdrew SLPNo.240703. Thereafter a final allotment order was passed by the Government of India pursuant to which the Appellant No.2 joined the State of Uttarakhand on 15.04.2011 The Appellants were included in the select list for 2011 and they were promoted to IAS in the vacancies determined in accordance with Regulation 5(1) of the IASRegulations 1955 SLPs filed by Respondent No.4 and others against the judgment of the High Court were dismissed on 12.02.2015 Thereafter Respondent No.4 filed a Review Petition which was also dismissed by this Court. On 09.06.2015 the Government of India allocated Respondent No.4 and other PCS officers to the State of Uttarakhand. The request made by the Government of Uttar Pradesh for retention of 3 | P a g e Respondent No.4 in the State of Uttar Pradesh was rejected by the Central Government by order dated 25.06.2015. The Government of India on 02.09.2015 reiterated its direction of allocation of Respondent No.4 and others to the State of Uttarakhand. Respondent No.4 was relieved on 28.09.2016 from Uttar Pradesh and thereafter he joined the services of the State of Uttarakhand on 01.10.2016. A seniority list of State Civil Services Officerswas prepared on 20.02.2017. Respondent No. 4 submitted his objections to the tentative seniority list wherein he requested for the period of service rendered by him in Short Service Commission of the Indian Army and as Deputy Superintendent of Police to be counted for the purpose of calculating the total qualifying services. A final seniority list of SCS Officerswas issued on 17.03.2017 Respondent No.4 made a representation on 23.11.2017 requesting to induct him in the IAS cadre with seniority being restored as per the seniority in the feeder cadre of PCS Respondent No.4 was promoted to IAS on 09.01.2018 and allocated the year of allotment as 2010. As his juniors were given the year of allotment from 2005 onwards Respondent No.4 requested for revision of his seniority in the IAS cadre He requested for a review DPC to be held in view of the 4 | P a g e allocation of his juniors in earlier batches. As there was no response to his representation Respondent No.4 filed a Writ Petition seeking direction to the Respondents therein to conduct review DPC and to consider his case for allotment in the All India Services as per his seniority in SCS (Executive Branch). On 20.06.2018 the High Court disposed of the Writ Petition with direction to the Respondents to hold a review DPC within a period of six months. 7. We have heard Mr. V. Shekhar learned Senior Counsel appearing on behalf of the Appellants and Mr. Rupinder Singh Suri learned Additional Solicitor General appearing on behalf of the Union of India and Mr. V.K. Shukla learned Senior Advocate for Respondent No. 4. The Appellants contended that the High Court committed an error in directing the review DPC to be conducted without hearing them. The Appellants were not even made parties in the Writ Petition. It is well settled law that persons who are likely to be affected have to be heard before any order likely to affect them is passed. According to the Appellants Respondent No.4 continued to serve in the State of Uttar Pradesh by virtue of an interim order passed by this Court. Till the year 2016 Respondent No.4 did not make any request for consideration of his case for induction to IAS cadre from the State of 5 | P a g e Uttarakhand. Moreover Respondent No.4 did not protest when the Appellants were being inducted in the IAS cadre As Respondent No.4 was not in the State of Uttarakhand when the Appellants were being promoted to IAS cadre he cannot raise any grievance at this stage. It was further submitted on behalf of the Appellants that Respondent No. 4 was considered for promotion to IAS cadre while he was working in the State of Uttar Pradesh. Respondent No.4 contended that the order passed by the High Court which is innocuous in nature should not be interfered with by this Court in exercise of its jurisdiction under Article 136 of the Constitution of India. It was submitted on his behalf that his allotment to the State of Uttarakhand is with effect from 09.11.2000 and he is entitled to get all the benefits including his seniority. Admittedly juniors to Respondent No.4 were promoted earlier than him. The request made by Respondent No.4 to review his seniority in the SCS Officers is legitimate. It was pointed out on behalf of Respondent No.4 that the Union of India also supports his plea that a review DPC has to be conducted. It was pointed out on behalf of the Union of India that the final allocation of SCS Officers was delayed due to pendency of the SLPs in this Court. After dismissal of the SLPs final allocation was made. On the 6 | P a g e basis of the order passed by the High Court in the Writ Petition filed by Respondent No.4 a decision was taken by the Central Government to hold a review DPC which could not be completed in view of certain objections taken by the State of Uttarakhand. The dispute that arises for consideration of this Court is regarding the reconsideration of Respondent No.4 for inclusion in an earlier select list for promotion to IAS in State of Uttarakhand. As stated above Respondent No.4 was finally allocated to the State of Uttarakhand only in the year 2016 after the dismissal of the SLPs filed by them Respondent No.4 requested for reviewing his allotment to his inclusion in the select list prepared for earlier years by restoring his seniority in the SCS Officers cadre. This request was made due to the promotion of his juniors in the SCS Officers cadre to IAS by being included in the select list of earlier years. Respondent No.4 continued to work in the State of Uttar Pradesh by virtue of interim orders passed initially by the High Court of Judicature at Allahabad and later by this Court He did not make any attempt to have his case considered for promotion to IAS when his juniors in the SCS Officers cadre were being promoted to IAS from the State of Uttarakhand 7 | P a g e He could have made a request for consideration of his case without prejudice to the ongoing litigation in this Court Admittedly he did not lodge any protest or prefer any objection at the time of promotion of the Appellants to IAS Even after the SLP filed by him was dismissed an attempt was made for his retention in the State of Uttar Pradesh. As the Union of India did not accept the request made by the State of Uttar Pradesh to retain Respondent No.4 in Uttar Pradesh having no other alternative he joined the State of Uttarakhand. No fault can be found with Respondent No.4 for pursuing his legal remedies. However he cannot now seek to disturb settled matters especially those relating to seniority of others during the period in which he was serving in the State of Uttar Pradesh. In other words the inclusion of the Appellants in the select list of IAS cannot be reviewed at the behest of Respondent No.4 at this stage. No doubt the allocation of Respondent No.4 dates back to 09.11.2000 However Respondent No.4 cannot be permitted to seek review of the promotions made while he was serving the State of Uttar Pradesh. The promotion of the Appellants cannot be disturbed by the 4th Respondent who continued to work in Uttar Pradesh of his volition. The High Court committed an error in directing a review DPC to be 8 | P a g e conducted without hearing the affected parties and without realising that there was a likelihood of seniority of other officers being disturbed. 10. For the aforementioned reasons the judgement of the High Court is set aside and the Appeal is allowed. .....................................J [ L. NAGESWARA RAO .....................................J [ S. RAVINDRA BHAT New Delhi March 05 2021. 9 | P a g e

In absence of documentary proof of income, a deceased income shall be determined by notional income: Allahabad High Court

Once it is established that the deceased was not unemployed and he was engaged in the business of vulcanization, without there being any documentary proof about his income, his income will be determined as notional income. Such an observation was made by the Hon’ble Allahabad High Court before Hon’ble Justice V.M. DESHPANDE in the matter of Smt. Sahana Khatoon & Ors vs The New India Assurance Co. Ltd & Anr[FIRST APPEAL NO.647/2009] on 28.10.2021. The facts of the case involved a motor vehicle accident which happened on the night of 20.07.2003 which the deceased was returning home after closing his shop. The appellant approached the Motor Accident Claims Tribunal by filing a petition under Section 166 of the Motor Vehicles Act claiming the monthly income of the deceased between Rs. 10,000/- to Rs. 15,000/- and thus an aggregate compensation of Rs. 5,00,000/- along with interest @ 12% per annum from the date of accident i.e. 20.07.2003 till its realization. The Motor Accident Claims Tribunal in view of the facts of the income of the deceased granted a compensation of Rs. .1,89,500/- inclusive of no fault liability amount of Rs.50,000/- along with interest at the rate of 7.5% per annum from the date of filing of petition i.e. 09.02.2004 till its realization with proportionate costs. Aggrieved by the present compensation the appellant preferred this appeal. The Hon’ble High Court observed that the Motor Accident Claims Tribunal errored in calculating the monthly income of the deceased @Rs. 50/- per day and has determined it on the very lower side. The Hon’ble High Court further stated that “Once it is established that the deceased was not unemployed and he was engaged in the business of vulcanization, without there being any documentary proof about his income, his monthly income will have to be determined as notional income.”  Thus, in view of the Hon’ble High Court, it is safe to assume the monthly income of the deceased @ Rs. 5000/- Additionally, the Hon’ble High Court observed that the Tribunal did not award any amount on account of future prospects to which the claimants are entitled in the light of the Apex Court decision in National Insurance Company Ltd. Vs. Pranay Sethi and Ors. [(2017) 16 SCC 680]. Therefore, taking into consideration the age of the deceased, they are entitled to 25% toward future prospects. Finally, the Hon’ble High Court allowed the appeal granting compensation of Rs. 10,51,500/- plus the amount already granted by the Tribunal an interest @ 7.5% from the date of filing of the petition i.e. from 09.02.2004 till its actual realization. Click Here To Read The Judgment. Judgment Reviewed by: Rohan Kumar Thakur The facts of the case involved a motor vehicle accident which happened on the night of 20.07.2003 which the deceased was returning home after closing his shop. The appellant approached the Motor Accident Claims Tribunal by filing a petition under Section 166 of the Motor Vehicles Act claiming the monthly income of the deceased between Rs. 10,000/- to Rs. 15,000/- and thus an aggregate compensation of Rs. 5,00,000/- along with interest @ 12% per annum from the date of accident i.e. 20.07.2003 till its realization. The Motor Accident Claims Tribunal in view of the facts of the income of the deceased granted a compensation of Rs. .1,89,500/- inclusive of no fault liability amount of Rs.50,000/- along with interest at the rate of 7.5% per annum from the date of filing of petition i.e. 09.02.2004 till its realization with proportionate costs. Aggrieved by the present compensation the appellant preferred this appeal. The Hon’ble High Court observed that the Motor Accident Claims Tribunal errored in calculating the monthly income of the deceased @Rs. 50/- per day and has determined it on the very lower side. The Hon’ble High Court further stated that “Once it is established that the deceased was not unemployed and he was engaged in the business of vulcanization, without there being any documentary proof about his income, his monthly income will have to be determined as notional income.”  Thus, in view of the Hon’ble High Court, it is safe to assume the monthly income of the deceased @ Rs. 5000/- Additionally, the Hon’ble High Court observed that the Tribunal did not award any amount on account of future prospects to which the claimants are entitled in the light of the Apex Court decision in National Insurance Company Ltd. Vs. Pranay Sethi and Ors. [(2017) 16 SCC 680]. Therefore, taking into consideration the age of the deceased, they are entitled to 25% toward future prospects. Finally, the Hon’ble High Court allowed the appeal granting compensation of Rs. 10,51,500/- plus the amount already granted by the Tribunal an interest @ 7.5% from the date of filing of the petition i.e. from 09.02.2004 till its actual realization. Click Here To Read The Judgment. Judgment Reviewed by: Rohan Kumar Thakur The Hon’ble High Court observed that the Motor Accident Claims Tribunal errored in calculating the monthly income of the deceased @Rs. 50/- per day and has determined it on the very lower side. The Hon’ble High Court further stated that “Once it is established that the deceased was not unemployed and he was engaged in the business of vulcanization, without there being any documentary proof about his income, his monthly income will have to be determined as notional income.”  Thus, in view of the Hon’ble High Court, it is safe to assume the monthly income of the deceased @ Rs. 5000/- Additionally, the Hon’ble High Court observed that the Tribunal did not award any amount on account of future prospects to which the claimants are entitled in the light of the Apex Court decision in National Insurance Company Ltd. Vs. Pranay Sethi and Ors. [(2017) 16 SCC 680]. Therefore, taking into consideration the age of the deceased, they are entitled to 25% toward future prospects. Finally, the Hon’ble High Court allowed the appeal granting compensation of Rs. 10,51,500/- plus the amount already granted by the Tribunal an interest @ 7.5% from the date of filing of the petition i.e. from 09.02.2004 till its actual realization. Click Here To Read The Judgment. Judgment Reviewed by: Rohan Kumar Thakur Additionally, the Hon’ble High Court observed that the Tribunal did not award any amount on account of future prospects to which the claimants are entitled in the light of the Apex Court decision in National Insurance Company Ltd. Vs. Pranay Sethi and Ors. [(2017) 16 SCC 680]. Therefore, taking into consideration the age of the deceased, they are entitled to 25% toward future prospects. Finally, the Hon’ble High Court allowed the appeal granting compensation of Rs. 10,51,500/- plus the amount already granted by the Tribunal an interest @ 7.5% from the date of filing of the petition i.e. from 09.02.2004 till its actual realization.

on 09 11 2021 on 09 11 1fa647.09.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYNAGPUR BENCH AT NAGPURFIRST APPEAL NO.647 20091.Smt. Sahana Khatoon wd oMohd. Israel Ansari aged 30 years Occ. Household.2.Master Saddam s o Mohd. Israel Ansariaged 11 years Occ. Education. 3.Master Imamul s o Mohd. Israel Ansariaged 9 years Occ. Education. 4.Shama Parveen s o Mohd. Israel Ansariaged 8 years Occ. Education. 5.Rajina Khatoon d o Mohd. Israel Ansariaged 7 years Occ. Education. 6.Master Gulam Mustafa s oMohd. Israel Ansari aged 6 years Occ. Education. 7.Reshma d o Mohd. Israel Ansari aged 5 years Occ. Education. All r o Chinchala P.O.M.I.D.C.Chandrapur.Appellant nos. 2 to 7 being minors are represented by their mother andnatural guardian appellant no.1.All r o Chandni Nagar Ghuggus Tahsil and District Chandrapur. .....APPELLANT S ...V E R S U S...1.The New India Assurance Co. Ltd.Through its Branch Manager on R.A. on 09 11 2021 on 09 11 2fa647.09.odtThe New India Assurance Co. Ltd. Gupta Building Kasturba Road Chandrapur.2.Chetan s o Suresh Chunarkar aged major Occ. Service r o WCL Ghuggus B Type Tahsil and District Chandrapur.3.Chandrakant s o Manohar Khandekar aged 23 y ears Occ. Driver r o Indira Nagar Colliery No.2 Ghuggus Tq. Dist. Chandrapur....RESPONDENT S Ms Mitisha Kotecha Advocate for appellants.Mr. M. B. Joshi Advocate for respondent no.1.None for respondent nos. 2 and 3 though served. CORAM: V. M. DESHPANDE J. DATED : 28.10.2021. ORAL JUDGMENT1.This appeal is filed by claimants for enhancement ofcompensation. Heard Ms. Mitisha Kotecha learned counsel forappellants and Mr. M. B. Joshi learned counsel for respondentno.1. Respondent nos. 2 and 3 though served way back in theyear 2009 chose not to remain appear in this appeal and thusnobody is appearing on their behalf.2.Facts giving rise to the present appeal are in shortcompass which are as under: on 09 11 2021 on 09 11 3fa647.09.odtAppellant nos. 1 to 7 are widow sons and daughters ofMohd. Israel Ansari15 Multiplier1 3rd deduction90000=007.Amount after deduction180000=008.Loss of Consortium:(+) Loss of estate(+) Funeral expenses9500=0010Total compensation granted by theTribunal 189500 + 7.5%interest11No fault liability in Rs. 1 89 000 50000=00The claimants were dissatisfied with the amount ofcompensation that was awarded to them. Therefore they filed thepresent appeal. 3.According to the learned counsel for the appellant theTribunal committed error in determining monthly income of thedeceased as Rs.1500 . She submitted that in any case income ofthe deceased was not less than Rs.10 000 per month. She alsosubmitted that the judgment of tribunal cannot stand to thescrutiny of law inasmuch as nothing is granted in favour of the on 09 11 2021 on 09 11 6fa647.09.odtclaimants under the head of future prospects. Also Tribunal haswrongly deducted 1 3rd amount towards personal expenses. She therefore submitted that the appeal be allowed.4.Per contra Mr. Joshi learned counsel for the insurancecompany has supported the judgment of the tribunal and prays fordismissal of the appeal.5.Worth to mention here that the tribunal found that theaccident occurred due to rash and negligent driving of motorvehicle i.e. Tata Sumo having registration no. MH 17 E 206 by itsdriver. The insurance company’s claim that there was acontributory negligence on the part of deceased and also thedriver was not having license was not accepted. Rather it wasrejected by the tribunal. Leave apart separate appeal challengingthe finding recorded against the insurance company was neitherfiled nor the insurance company filed even cross appeal in thisappeal filed by the claimants. Resultantly the finding recorded bythe Tribunal that the deceased was not at all responsible foraccident has attained finality. on 09 11 2021 on 09 11 7fa647.09.odt6.In view of rival submissions on the point of quantum ofcompensation following is the points fall for consideration of thisCourt. Sr.NoPointsAnswer1Whether the learned Member of theMACT has granted just andadequate compensation to theclaimants In the negative.2What order As per final order. 7.Though the claimants in their claim petition averredthat at the time of death the deceased was 40 years old. Nodocumentary evidence was produced on record to prove that theage was 40 years. In my view learned Member of the Tribunalhas rightly reached to the conclusion that at the time of death theage of the deceased was 45 years. The learned Judge has arrivedto that conclsuion in view of the age mentioned in the postmortem note16 SCC 680. Looking tothe age they are entitled to 25% towards future prospects. 12.The learned Judge in my view committed an error indeducting 1 3rd income. Seven persons were dependent on thedeceased. Therefore in my view proper deduction will be 1 5th.The learned Member has applied multiplier of 15. The claimantsare satisfied with the same. on 09 11 2021 on 09 11 10fa647.09.odt13.Perusal of the impugned judgment would show thatinadequate amount was granted in favour of the claimants onaccount of loss of consortium for which they are entitled at therate of Rs.44 000 per dependent in view of the law laid down inMagma General Insurance Co. Ltd vs Nanu Ram Alias ChuhruRam reported in18 SCC 130. Similarly less compensationwas granted to the claimants in respect of the loss of estate andfuture expenses which appellants will be entitled. Therefore inmy view the claimants are surely entitled to enhancement asunder:Quantum of CompensationSr.No.ParticularsAmount25% addition towards future prospects15000=00 4Total yearly notional income75000=005( ) 1 5th deduction15000=006Salary for multiplier60000=007(x) “15” multiplier900000=008Loss of consortium:(+) Rs.44 000 for each claimant(Rs.44000 x 7)308000=009(+) Loss of estate16500=00 on 09 11 2021 on 09 11 11fa647.09.odt10(+) Funeral expenses16500=0011Total Compensation1241000=0012( )Total compensation granted by Tribunal 189500=00Total compensation payable1051500=0014.The conspectus of the aforesaid discussion allows me torecord a finding that the learned Member of the MACT has notproperly determined just and proper compensation.ORDER(i)The appeal is partly allowed.(ii)Judgment and award dated 02.12.2008 passedby Motor Accident Claims Tribunal Chandrapur in MotorAccident Claim Petition No.25 2004 awardingcompensation at only Rs.1 89 500 is hereby set aside.Instead it is held and declared that theclaimants appellants are entitled to total compensation ofRs.12 41 000 Rs.1 89 500 already granted by theTribunal along with interest at the rate of 7.5% p.a. ontotal amount of Rs.12 41 000 from the date of filing ofthe petition i.e. from 09.02.2004 till its actual realization.(iii)Statement of learned counsel of the insurancecompany is accepted that the insurance company will on 09 11 2021 on 09 11 12fa647.09.odtdeposit the amount as granted in this judgment before thetribunal within a period of 2 ½ months from today.After the amount is deposited the claimantswould be entitled to withdraw the same.(iv)Decree be drawn up accordingly. JUDGEkahale

In a democratic setup, elected representatives who have lost majority cannot be allowed to hold power for even a second – Allahabad High Court

In a democratic setup, where the right to govern is on the will of the people the elected representative who has lost majority cannot be permitted to hold office held by Justice Shashi Kant Gupta and Justice Piyush Agrawal in the case of Tripti Rani V. State of UP and Ors [C No. – 13665 of 2020]. The Facts related to this case is– The petitioner was the Pramukh of the Kotwali Kshetra Panchayat, Bijnor. The petitioner assumed the charge of Pramukh on 29.07.2019. On 21.08.2020, a no-confidence motion, as per section 15 of the Uttar Pradesh Kshetra Panchayat & Zila Panchayat Act, 1961, was made in accordance with the procedure laid down under the Act of 1961. In pursuance of the no-confidence motion, the District Magistrate, Bijnor issued a notice dated 21.08.2020 convening a meeting for consideration of the motion of no confidence on 15.09.2020 at 11.00 a.m. at the Kotwali Kshetra Panchayat Office. In view of the aforesaid notice of the District Magistrate, Bijnor, a meeting for consideration of no-confidence motion was to be held at 11.00 a.m. on 15.09.2020. It was contended by the learned counsel for the petitioner that since there were about 185 Members in the Kotwali Kshetra Panchayat, District – Bijnor, they exceeded the number of persons permitted under the Guidelines for Phased Re-opening issued by the Ministry of Home Affairs, Government of India on 29.08.2020. It was further submitted that in view of the aforesaid Guidelines, the proposed meeting for consideration of no-confidence motion could not be convened on 15.09.2020 since it would be in violation of the provisions of the Disaster Management Act. It was observed by the Hon’ble Court that “Democracy is a system of government in which a country’s political leaders are chosen by the people in regular, free, and fair elections. In a democracy, people have a choice between different candidates and parties who want the power to govern. The people are sovereign. They are the highest authority and government is based on the will of the people. Elected representatives at the national and local levels must listen to the people and be responsive to their needs. Thus, the voters have right to elect their representatives and also criticize and replace them if they do not perform well.” The Hon’ble Court while examining the legal question as to whether the meeting for consideration of a no-confidence motion cannot be convened on being in violation of the Disaster Management Act, the court observed that “In view of the above inherent political philosophy and principle, the provision for bringing a no-confidence motion for removing the representatives, has been introduced in the present Act of 1961. The Will of the people is supreme. It cannot be lightly interfered with. Under no circumstance can the will of the people be permitted to be frustrated. In a democratic setup where the right to govern depends on the will of the people, the person who has lost the majority cannot be permitted to hold office. If a representative no longer enjoys the confidence of the people, elected representatives have a right to remove him and he cannot be permitted to remain in power even for a second and has to be immediately replaced by a newly elected representative.” The writ petition lacks merit and it was hereby dismissed. Click here to read the judgement

Court No. 32 Case : WRIT C No. 136620 Petitioner : Tripti Rani Respondent : State Of U P And 5 Others Counsel for Petitioner : Atiqur Rahman Siddiqui Rakesh PandeVishakha Pande Counsel for Respondent : C.S.C. D.C.Mathur Hon ble Shashi Kant Gupta J Hon ble Piyush Agrawal J This writ petition has been filed inter alia for the following i. Issue a writ order or direction in the nature of certiorari quashing the impugned order notice dated 21.08.2020 Annexure No. 3 to the writ petition) passed by Collector ii. Issue a writ order or direction in the nature of mandamus directing the respondent no. 1 to initiate appropriate against the District Magistrate Collector Bijnor for violation of mandatory instructions issued under the Disaster Management Act 2005 The petitioner is the Pramukh of the Kotwali Kshetra Panchayat Bijnor. The petitioner assumed the charge of Pramukh on 29.07.2019. On 21.08.2020 a no confidence motion as per section 15 of the Uttar Pradesh Kshetra Panchayat & Zila Panchayat Act 1961was made in accordance with the procedure laid down under the Act of 1961 In pursuance of the no confidence motion the District Magistrate Bijnor issued a notice dated 21.08.2020 convening a meeting for consideration of the motion of no confidence on 15.09.2020 at 11.00 a.m. at the Kotwali Kshetra Panchayat Office In view of the aforesaid notice of the District Magistrate Bijnor a meeting for consideration of no confidence motion is to be held at 11.00 a.m. on 15.09.2020 It is contended by the learned counsel for the petitioner that since there are about 185 Members in the Kotwali Kshetra Panchayat District Bijnor they exceed the number of persons permitted under the Guidelines for Phased Re openingand in clause 1(iii thereof it has been mentioned that social academic sports entertainment cultural religious political functions and other congregations with a ceiling of 100 persons will be permitted with effect from 21st September 2020 with mandatory wearing of face masks social distancing provision for thermal scanning and hand wash or sanitizers much as possible. During the COVID 19 pandemic everybody has to act with utmost caution so that the spread of infection may be curtailed as 10. The Act of 1961 provides for local self governance where the people of Gaon Sabhas have been given the right to manage their own affairs and perform governmental function through a democratic process under which they have been given the right to elect a Pradhan and remove him by passing a motion of no confidence. Election and removal by a motion of no confidence are two important aspects in democratic set up for which the Act of 1961 has made ample provisions 11. Democracy is a system of government in which a country s political leaders are chosen by the people in regular free and fair elections. In a democracy people have a choice between different candidates and parties who want the power to govern. The people are sovereign. They are the highest authority and government is based on the will of the people. Elected representatives at the national and local levels must listen to the people and be responsive to their needs. Thus the voters have right to elect their representatives and also criticize and replace them if they do not In view of the above inherent political philosophy and principle the provision for bringing a no confidence motion for removing the representatives has been introduced in the present Act of 1961. The Will of people is supreme. It cannot be lightly interfered with. Under no circumstance can the will of the people be permitted to be frustrated. In a democratic set up where right to govern depends on the will of the people the person who has lost the majority cannot be permitted to hold office. If a representative no longer enjoys the confidence of the people elected representatives have a right to remove him and he cannot be permitted to remain in power even for a second and has to be immediately replaced by a newly elected representative 13. Therefore considering the facts & circumstances of the case we direct the District Magistrate Bijnor to ensure all the protocols applicable for social and physical distancing are adhered to. The sitting arrangements be made in such a manner so that it may adhere to the prescribed norms. The District Magistrate Bijnor may also explore the possibility of seating the Members of the Kotwali Kshetra Panchayat in two or three separate rooms a big hall or in open space. The Authority concerned may also explore the possibility of holding a virtual session with the help of modern 14. The District Magistrate or his representative who would be present on the spot will be the best person to understand the ground reality for holding the proposed no confidence motion in the best possible manner and we hope and trust he would ensure that all the protocols as prescribed under the guidelines and norms issued by the State and Central Governments and the observations made hereinabove would be followed 15. At a time when the State is reeling from a monstrous pandemic it is imperative that detailed modalities for holding statutory meetings of local bodies including those for considering ‘No Confidence Motions’ are put in place and implemented Accordingly we direct the State Government to consider framing detailed Guidelines in this regard expeditiously if possible within a period of three weeks from today. A copy of this order be sent to the Chief Secretary for its necessary compliance In view of the aforesaid discussions we do not see any justification to interfere in the matter. The writ petition lacks merit and it is hereby dismissed Order Date : 10.9.2020

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 CRMC No. 10 2018 IA No. 1 2018 Pronounced on: 12 .06.2020 Gurbachan Singh and Others ….Petitioner(s) Through: Mr. Ajay Bakshi Advocate Dalip Singh .…Respondent(s) Through: Mr. Parvinder Singh Advocate CORAM: HON’BLE MRS. JUSTICE SINDHU SHARMA JUDGE Petitioners seek quashing of order dated 11.05.2017 passed by the learned Judicial Magistrate 1st Class Akhnoor holding prima facie their involvement is made out in the commission of offences under sections 145 500 298 and 323 RPC and directed to issue process against them on the complaint filed by respondent Dalip Singh The complaint was filed on 04.05.2017 alleging therein that on 14.04.2017 on the eve of Baisakhi festival the respondent was forced out from Gurudwara Nardiwala by the accused petitioners while he was performing religious prayer and on 16.04.2017 the accused again warned the complainant against entering in the Gurudwara. On 18.04.2017 accused persons made an announcement through a speaker that respondent has been socially boycotted from the Biradhari and he is also prohibited to enter in Gurudwara at Village Nardiwala Tehsil Maira Mandrian. The main occurrence is of dated 22.04.2017 which allegedly took place at 12.30 PM when the accused assaulted the complainant as soon as he entered in the Gurudwara where he was invited by Malkiat Singh and Gurdyal Singh on the 4th death anniversary of their mother Smt Balwant Kour W o Lt. 2 CRMC No. 10 2018 Puran Singh R o Nardiwala. He was thrashed by the accused mercilessly and thus reported the matter to the police but no action was taken. This is only the reason given to explain the delay of nearly 12 days in filing the complaint. Be that as it may the accused may not have any right to prevent the petitioner from entering into Gurudwara but their announcement was not to injure the religious feeling as there is nothing in the complaint to infer their intention. The allegation of social boycott could be one reason for which he can prove charge under section 500 RPC but there is no specific allegation to proceed against the accused under Section 298 RPC. Since the accused did not say anything about his religious beliefs so it was only to prevent complainant not to come to Gurudwara. The incident is of 22.04.2017 and assault has nothing to do with injuring his religious feelings. The complainant was assaulted and it cannot be related to his religion. It could be simply a case of assault against his entry and no presumption can be drawn that was interference in his religious belief. His statement is also clear that his status and position in the society has been lowered in the estimate of society. There is not even a whisper in his statement that as to how on 14th 16th or 18th April 2019 accused tried to injure his religious feeling so no offence under section 298 RPC is made out and process under section 298 RPC has been wrongly issued. It is also a case of non application of mind to say that Section 298 RPC is triable by Sessions Judge as it is triable by a Special Judge appointed under Section 259 A Cr.P.C. which prescribes special procedure for trial which has been completely ignored by the Magistrate. However it appears that the trial Court realized its mistake in taking cognizance under Section 298 RPC and referred the matter to the Sessions Judge who transferred it to Additional Sessions Judge. Similarly 3 CRMC No. 10 2018 section 145 of RPC has absolutely no application to the facts of the case as the complainant has alleged commission of offence punishable under Section 147 RPC which is punishment for rioting. This shows non application of mind by the learned Magistrate. It is thus a case of assault causing simple injury and who has caused what injury has not been specified. So while complaint could be continued under sections 500 323 RPC as such there was no ground for issuing the process under sections 298 & 147 RPC. Thus the process issued under Sections 298 & 145 RPC is illegal and to that extent the process is quashed hence this petition is partly allowed. Offences punishable under Sections 500 & 323 RPC are triable by the Court of Judicial Magistrate 1st Class Akhnoor and the Additional Sessions Judge Jammu shall send the file to the Court of Judicial Magistrate 1st Class Since some of the accused persons are very old and most of them are even senior citizens so the learned Magistrate may exercise his powers to exempt all the senior citizens from personal appearance and will also ensure that the case is disposed of with reasonable dispatch preferably within six their counsel will appear before Judicial Magistrate 1st Class Akhnoor on 10.08.2020 except senior citizens on whose behalf their Advocates will seek exemption. Disposed of in the terms aforesaid. Judge Akhnoor. months. 12.06.2020 SUNIL II Whether the order is speaking: Whether the order is reportable: Yes Yes

Right to Property a Constitutional Right though not a Fundamental Right : Supreme Court

Right to property is still a constitutional right under Article 300A of the Constitution of India though not a fundamental right. The Supreme Court bench consisting of J. Sanjay Kishan Kaul, J. Dinesh Maheshwari and J. Hrishikesh Roy decided upon the matter of Bajranga (Dead) by LRs v. The State of Madhya Pradesh & Ors. [Civil Appeal No. 6209 of 2010] and postulated upon the legislative intent behind Madhya Pradesh Ceiling on Agricultural Holdings Act, 1960. The appellant (now represented by LRs) was the bhumiswami of a piece of agricultural land and was stated to be holding land in excess of the ceiling limit prescribed as per Section 7(b) of the Madhya Pradesh Ceiling on Agricultural Holdings Act, 1960. Hence, the competent authority/officer (respondent) initiated the process to acquire the surplus land and issued a draft statement for the same. After the final order which declared the said excess land as surplus, the respondents initiated the process of taking over possession and eviction under Section 248 of the Madhya Pradesh Land Revenue Code, 1959. The appellants, aggrieved, filed a suit for declaration of title and permanent injunction before the District Court. They stated that the proceedings to recover land from him were illegal as he was actually left with was lesser which was within the prescribed ceiling limit rather than as claimed by the respondents. This was because, the appellants mother-in-law, Jenobhai, who was in Kabza kasht (possession by cultivation)of the land for about 20 years had filed a civil suit against the appellants seeking declaration of title and permanent injunction  with respect to the disputed land. In the suit, Jenobhai was declared the owner.  The Trial Court held that the appellant was the bhumiswami in respect of the survey number in question and the suit was collusive with Jenobai having knowledge of the ceiling proceedings and hence, dismissed the suit. The appellant filed an appeal under Section 96 of the Code of Civil Procedure which the Court allowed and The appellant was declared as the bhumiswami of the surplus land and the respondents were restrained from interfering with his possession of the land.

IN THE CIVIL APPELLATE JURISDICTION CIVIL APPEAL No.62010 BAJRANGAby LRs …Appellant THE STATE OF MADHYA PRADESH & ORS …Respondents JUDGMENT SANJAY KISHAN KAUL J The social objective of providing land to the tiller and the landless post independence was sought to be subserved by bringing in ceiling in agricultural holdings in different States. It is towards this objective that the Madhya Pradesh Ceiling on Agricultural Holdings Act 1960 hereinafter referred to as the ‘said Act’) was brought into force in 1960 The said Act inter alia provided for acquisition as well as disposal of The predecessor in interest of the appellantwas the bhumiswami of agricultural dry land measuring 64.438 acres situated in Village Bagadua Paragna Sheopur Kala District Morena Madhya Pradesh. He was thus stated to be holding land in excess of the ceiling limit prescribed as per Section 7(b) of the said Act whereby a holder along with his family of five members or less could hold a maximum amount of 54 acres of land. As a sequitur thereto the competent authority competent officerinitiated the process to acquire the surplus land and issued a draft statement in Land Ceiling Case No.180 75 76 A 90(B) for acquisition of 10.436 acres of dry land from Survey Nos.755 756 780 and 881 1(the provision has since been deleted The appellant being aggrieved by the final order dated 30.3.1979 filed a suit for declaration of title and permanent injunction before the Court of Civil Judge Class II Sheopur Kala District Morena. It is the say of the appellant as per averments in the plaint that the proceedings to recover land from him were illegal as he was actually left with only 54 acres of land which was within the prescribed ceiling limit in view of the fact that the land measuring 17 bighas and 7 biswa in Survey No.77 had been decreed in favour of one Jenobai who was in kabza kasht possession by cultivation) of the land for about 20 years. She had filed a civil suit being Civil Suit No.319 75A O.C. on 15.10.1975 against the appellant seeking declaration of title and permanent injunction with respect to the aforementioned land. There had been an admission of the ground position by the appellant and thus the suit was decreed on 5.3.1979 declaring Jenobai to be the owner in possession of the said land We may note that Jenobai is actually the mother in law of the appellant and according to her this land was being cultivated by her on the basis of half and half of the land proceeds. However subsequently the appellant developed improper intent and taking advantage of her being a widow and an old woman had colluded with the Patwari to get this disputed land mutated in his name The suit filed by the appellant was contested by the respondents herein and they took a defence in the written statement that the possession of the surplus land had been taken over and allotted to other cultivators. There was however an admission that the appellant in the return filed as per Section 9 of the said Act mentioned the aspect of the pending suit qua Survey No.77. However it was contended that the appellant had neither submitted a copy of the suit nor any proof of pendency of the suit. The suit was alleged to be collusive inasmuch as Jenobai in fact was the mother in law of the appellant and the endeavour was to prevent the surplus land from being acquired. It was pleaded that Jenobai if she had title or possession of the land in survey No.77 would have submitted a claim before the competent authority after the draft statement was issued. The appellant was also alleged to not have submitted any objection to the draft statement and the remedy of the appellant was stated to be by way of an appeal before the competent court which was not pursued. The order of the competent authority was stated to have become final and thus the action for taking over possession of surplus land and allotment thereof was lawful The trial court decided the suit post trial vide judgment and decree dated 7.10.1997. The trial court held that the appellant was the bhumiswami in respect of the survey number in question and the suit was collusive with Jenobai having knowledge of the ceiling proceedings These findings resulted in a dismissal of the suit The appellant filed an appeal under Section 96 of the Code of Civil Procedure 1908before the Court of Additional District Judge Sheopur Kala District Morena. The appellant’s say was that in view of the pendency of the suit filed by Jenobai the proceedings under the said Act should have been kept in abeyance in view of the provisions of Section 11(4) of the said Act. The relevant provisions of Section 11 read as under “11. Preparation of statement of land held in excess of the ceiling area. On the basis of information given in the return under Section 9 or the information obtained by the competent authority under Section 10 the said authority shall after making such enquiry as it may deem fit prepare a separate draft statement in respect of each person holding land in excess of the ceiling area containing the following particulars 3) The draft statement shall be published at such place and in such manner as may be prescribed and a copy thereof shall be served on the holder or holders concerned the creditors and all other persons interested in the land to which it relates. Any objection to the draft statement received within thirty days of the publication thereof shall be duly considered by the competent authority who after giving the objector an opportunity of being heard shall pass such order as it deems fit 4) If while considering the objections received under sub section 3) or otherwise the competent authority finds that any question has arisen regarding the title of a particular holder and such question has not already been determined by a Court of competent jurisdiction the competent authority shall proceed to enquire summarily into the merits of such question and pass such orders as it thinks fit Provided that if such question is already pending for decision before a competent court the competent authority shall await the decision of the court 5) The order of the competent authority under sub section After all such objections have been disposed of the competent authority shall subject to the provisions of this Act and the rules made thereunder make necessary alterations in the draft statement in accordance with the orders passed on objections and shall declare the surplus land held by each holder. The competent authority shall thereafter publish a final statement specifying therein the entire land held by the holder the land to be retained by him and the land declared to be surplus and send a copy thereof the holder concerned. Such a statement shall be published in such manner as may be prescribed and shall be conclusive evidence of the facts stated therein.]” The information about the pendency of the suit between Jenobai and the appellant had been furnished to the competent authority and post decree of the suit the appellant had been left with only 54 acres of land Thus there was no reason to initiate proceedings to take possession of the disputed land. The appellate court noted the admission in the written statement filed by the respondents herein that in the return filed by the appellant there was disclosure of the factum of Jenobai being in possession of Survey No.77 land as also of the pendency of the suit being Suit No.319A 75 between her and the appellant. That being the factual position Section 11(3) of the said Act mandated that the copy of the draft statement ought to have been served on Jenobai as she was an ‘interested person’ in the land. The acquisition proceedings had to be kept in abeyance in view of the proviso to Section 11(4) of the said Act till the disposal of the suit and that such a judgment of the civil court was binding on the competent authority. The suit was stated to have been decreed for 3.306 hectares out of 17.715 hectares of land recorded in the name of the appellant resultantly leaving 14.399 hectares of land which was within the prescribed limited under Section 7 of the said Act. On the basis of these findings the appeal was allowed and the judgment of the trial court was set aside on the ground that the competent authority had failed to comply with the statutory provisions under Section 11(3) and 11(4) of the said Act. The appellant was declared as the bhumiswami of the surplus land and the respondents were restrained from interfering with his possession of the land It is now the turn of the respondents herein to prefer an appeal under Section 100 of the CPC before the High Court of Madhya Pradesh Gwalior Bench in Second Appeal No.6498. The High Court vide order dated 8.5.2008 framed two substantive questions of law which read “i. Whether the jurisdiction of the Civil Court challenging the order of the Competent Officer is barred under Section 46 of the said Act ii. Whether the judgment and decree of the first appellate court is sustainable under the provisions of the said Act ” On a conspectus of the matter the High Court allowed the appeal The rationale for the same was that after the publication of the draft statement neither the appellant nor Jenobai had filed objections. In the revenue records the appellant’s name was recorded as holder of the entire agricultural land in question. No information was stated to have been provided to the competent authority giving particulars of the suit of Jenobai. The competent authority was found not at fault in the alleged breach of Sections 11(3) and 11(4) of the said Act as the information germane for the same had not been disclosed The appellant at that stage thus approached this Court by the present Special Leave Petition and on 2.3.2009 notice was issued and status quo was directed to be maintained. Subsequently leave was granted on 26.7.2010 and ad interim order was made absolute till the disposal of the appeal 11. On the appeal being taken up for hearing on 16.1.2020 an order was passed recording the factual controversy as to whether the appellant had filed objections giving particulars of the pendency of the civil suit This was so as in terms of Section 9(iv) of the said Act that such particulars were required to be stated. Even on the question of maintainability of the suit it was mentioned that it was necessary to peruse the objections filed by the appellant to determine whether the requirement of Section 9 of the said Act had been fulfilled Thus records of the last ceiling case were directed to be produced by the respondents herein. The records were however not produced and thus on 9.9.2020 an order was passed giving further time but directing that failure to produce the record would result in an adverse inference being drawn against the respondents herein The respondents filed an affidavit on 26.9.2020 stating that the records were untraceable including the objections filed by the appellant It appears that due to carving out of some districts the records could not be traced out. The son of the appellant had stated that he did not have the 13. We have heard learned counsel for the parties albeit in the absence of the aforesaid record which was not produced right till the date of The appellant canvassed that the civil suit filed was maintainable as the bar of jurisdiction of the civil court did not come into play as specified in Section 46 of the said Act in view of the provisions of Sections 11(4) and 11(5) of the said Act read together. Section 46 of the said Act reads as under “46. Bar of jurisdiction of Civil Courts. Save as expressly provided in this Act no Civil Court shall have any jurisdiction to settle decide or deal with any question which is by or under this Act required to be settled decided or dealt with by the competent The plea thus was that the Section begins with a saving clause qua the bar of civil court “Save as expressly provided in this Act…..” The provisions of Section 46 were pleaded to be expressly subject to the provisions of Section 11(5) of the said Act and the observations in Competent Authority Tarana District Ujjainv. Vijay Gupta Ors.1 were relied upon opining that a suit can be filed in a civil court within three months of passing of an order by the competent authority under Section 11(4) of the said Act in view of the provisions of Section 11(5) of the said Act. There was pleaded to be an admission about the disclosure of the appellant regarding the factum of the suit filed by Jenobai in the returns and thus the respondents herein were required to wait for the outcome of the suit and should have also invited objections from Jenobai. The decree in the civil suit between the appellant and Jenobai was thus submitted to be binding on the competent authority 1 1991 SuppSCC 631 16. On the other hand the respondents herein reiterated that the suit filed by Jenobai was a collusive one and the object of the institution was to circumvent the provisions of the said Act. In this behalf it was submitted that the suit under Section 11(5) of the said Act can only be instituted within three months from the date of Section 11(4) order the date of which is not mentioned. However even if the date of the subsequent order under Section 11(6) passed on 31.3.1979 is considered the period of three months elapsed as the suit was filed on 31.8.1979 3.9.1979of the said Act a suit can only be filed for setting aside the order under Section 11(4) of the said Act but no such prayer was made It was urged that after the order under Section 11(6) of the said Act is passed the land vests with the State under Section 12 of the said Act and thus a suit for declaration of title was not maintainable. There was no challenge to the order under Section 11(6) of the said Act and thus the suit was not maintainable. It was also urged that no suit lies against an order under Section 11(6) of the said Act in view of the judgment of this Court in State of Madhya Pradesh & Anr. v. Dungaji 7 SCC 465 19. We have given a thought to the matter in the conspectus of what has been urged before us on the different dates and the proceedings that had been recorded. The matter was taken up on 16.1.2020 and in view of the submissions advanced by the parties the Court required perusal of the record. Thus in the proceedings it was recorded that there was a factual controversy as to whether the appellant in pursuance of the draft statement in the objections filed had given the particulars of the pending civil suit filed by the mother in law of the appellant claiming part of the land held by the appellant. This was considered to be relevant as in terms of Section 9(iv) of the said Act such particulars are mandated to be given and thus the respondents herein being in breach or not of the other succeeding provisions of the Act would depend on this important aspect We also took note of the fact that as per the respondents herein no particulars had been given and the suit was alleged to be collusive. In order to determine the question it was opined that this Court found it necessary to peruse the objections filed by the appellant to come to a 20. On the said date itself this Court also required the pleadings in the civil suit filed by the mother in law Jenobai to be placed on record as also the judgment The appellant complied with the order dated 16.1.2020 by filing these additional documents but the respondents herein did not do the needful. It is in these circumstances that on 9.9.2020 this Court made it clear that in case the records are not filed adverse inference will be drawn. The natural sequitur to this is that the failure to place the aforementioned documents on record shows that there had been proper disclosure about the suit in the return filed under Section 9 of the said Act. The factum of disclosure of the suit could not really be doubted by the respondents herein in view of their own pleadingsthe draft statement is to be published and served on the holder the creditor and “all other persons interested in the land to which it relates.” Once a disclosure is there that Jenobai had filed a suit there has to be mandatorily a notice to her as otherwise any decision would be behind her back and would thus violate the principles of natural justice There is little ambiguity about the aforesaid position as in Section 11(4) it has been stated that in case the competent authority finds that any question has arisen regarding the title of a particular holder which has not been determined by the competent court the competent authority shall proceed to enquire summarily into merits of such question and pass such orders as it thinks fit. Thus the power is vested with the competent authority to determine such conflict of the land holding. This is however subject to a proviso. The proviso clearly stipulates that if such a question is already pending for decision before the competent court the competent authority shall await the decision of the court In our view the embargo came there and then as once the disclosure was made the proceedings should have been kept in abeyance to await the decision in those proceedings. The occasion to pass orders under sub sectionand sub sectionof Section 11 of the said Act did not arise in the present case as in view of the disclosure of Jenobai’s suit Further proceedings should have been kept in abeyance to await the verdict in the suit as per proviso to sub sectionand notice should have been issued to Jenobai. All this has been observed to be in breach by the respondents herein. We are thus of the view that the findings of the appellate court in constructions of these provisions reflects the correct position of law in the given facts of the case The issue of jurisdiction of civil court is no more res integra in view of the judgment in Competent Authority Tarana District Ujjain M.P.).3 where it has been observed in para 4 as under “4. So far as the other question regarding the maintainability of the suit in a civil court is concerned suffice to say that sub sectionof Section 11 of the Act institute a suit in the civil court to have the order set aside. Thus the above provision itself permits the filing of a suit in a civil court and any decision of such court has been made binding on the Competent Authority under the above provision of sub sectionof Section 11 of the Act. It is not in dispute that the suit in the present case was filed within three months as provided under sub sectionof Section 11 of the Act. In the result we do not find any force in this appeal and it is accordingly dismissed with no order as to costs.” 26. We have taken note of the latter proceedings of this Court in State of Madhya Pradesh & Anr. v. DungajiRepresented by Legal Representatives & Anr.4 discussing the scheme of the Act and the requirement of taking recourse to the provisions of appeal and revision under the said Act respect of the same 27. We have also considered the plea of limitation advanced by learned counsel for the respondents albeit no specific issue being framed in In our view the legal position has to be appreciated in the factual context. Thus though there may be a process provided for redressal under the scheme of the Act it is this very scheme of the Act which has been breached by the respondents herein in not complying with the statutory provisions. It can be nobody’s say that Jenobai cannot file a title suit against the appellant. That suit being maintainable and pending and the factum of that suit being disclosed in the returnthe provisions of Section 11 had to be strictly complied with. We say so as the right to property is still a constitutional right under Article 300A of the Constitution of India though not a fundamental right. The deprivation of the right can only be in accordance with the procedure established by law. The law in this case is the said Act. Thus the provisions of the said Act had to be complied with to deprive a person of the land being surplus The provisions of the said Act are very clear as to what has to be done at each stage. In our view once a disclosure was made the matter had to be dealt with under sub sectionof Section 11 of the said Act and in view of the pending suit proceedings between the appellant and Jenobai the proviso came into play which required the respondent authorities to await the decision of the court. Sub section 5 and thereafter sub section 6 would kick in only after the mandate of sub section 4 was fulfilled. In the present case it was not so. Even notice was not issued to Jenobai. She could have clarified the position further The effect of the decree in favour of Jenobai is that the appellant loses the right to hold that land and his total land holding comes within the ceiling limit. If there is no surplus land there can be no question of any proceedings for take over of the surplus land under the said Act 30. We are thus of the view that the impugned order is liable to be set aside and the order of the first appellate court is restored The appeal is accordingly allowed leaving the parties to bear their January 19 2021 Sanjay Kishan Kaul

The evidence which is recorded before the Tribunal has to be given weightage over the contents of the First Information Report: Supreme Court of India

If any evidence before the Tribunal runs contrary to the contents in the First Information Report, the evidence which is recorded before the Tribunal has to be given weightage over the contents of the First Information Report as held by the Hon’ble Supreme Court thorugh the learned bench of Justice R. Subhash Reddy in the case of National Insurance Company Ltd Vs Chamundeswari & Ors [CIVIL APPEAL NO. 6151 OF 2021] (Arising out of Special Leave Petition (C) No.4705 of 2019). The 1st Respondent is wife and the 2nd Respondent is minor son of the deceased Mr. Subhash Babu, who died in a road accident on 14.10.2013. The deceased Mr. Subhash Babu, aged about 35 years was working as Manager HR in a Private Limited Company. On the date of accident, he was driving Maruti car on main road. At that time, the Eicher van was proceeding in front of the car driven by the deceased. It is the case of the respondents–claimants that all of a sudden, the driver of Eicher van has turned towards right side without giving any signal or indicator. In the said accident, driver of the Maruti car, Mr. Subhash Babu, died. In the Claim Petition, filed by the Respondent Nos. 1 and 2 before the Motor Accident Claims Tribunal, respondents claimed compensation of Rs.3 crores. The Claims Tribunal vide order dated 11.12.2017 passed in M.C.O.P. No.842 of 2014 has allowed the claim partly and awarded compensation of Rs.10,40,500/-. On appeal, the High Court by recording a finding that accident occurred only due to the negligence of the driver of the Eicher van and the annual income of the deceased was Rs.12,29,949/-, has awarded a total compensation of Rs.1,85,08,832/-, including the compensation on conventional heads. Aggrieved by the judgment and order of the High Court, the Insurance Company filed this Appeal before Supreme Court. Learned Counsel for the appellant, Mr. K. K. Bhat, submitted that the First Information Report, it was categorically mentioned that accident occurred only due to negligence by the deceased. In spite of the same, such important documentary evidence is ignored by the High Court. On the other hand, Mr. V. Balaji, learned counsel for the respondent submitted that the accident occurred only due to the sheer negligence on the part of the driver of Eicher van and in view of the oral and the documentary evidence on record, a just compensation is awarded by the High Court and there are no grounds to interfere with the same. The hon’ble Supreme Court while observing the evidence on record stated that “It is clear from the evidence on record of PW–1 as well as PW–3 that the Eicher van which was going in front of the car, has taken a sudden right turn without giving any signal or indicator. The evidence of PW–1 & PW–3 is categorical and in absence of any rebuttal evidence by examining the driver of Eicher van, the High Court has rightly held that the accident occurred only due to the negligence of the driver of Eicher van.” and in view of such evidence on record, there is no reason to give weightage to the contents of the First Information Report.

C.A.@ SLP(C) No.47019 REPORTABLE IN THE CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 6151 OF 20 Arising out of Special Leave PetitionNo.47019 National Insurance Company Ltd. ...Appellant Chamundeswari & Ors. ...Respondent(s JUDGMENT R.SUBHASH REDDY J. This appeal is filed by National Insurance Company Ltd. aggrieved by the judgment and order dated 03.08.2018 passed by the High Court of Judicature at Madras in CMA No.1204 of 2018. By the aforesaid order the High Court has partly C.A.@ SLP(C) No.47019 allowed the Civil Miscellaneous Appeal filed by the Respondent Nos. 1 and 2 by enhancing compensation to Rs.1 85 08 832 The 1st Respondent is wife and the 2nd Respondent is minor son of the deceased Mr Subhash Babu who died in a road accident on 14.10.2013. The deceased Mr. Subhash Babu aged about 35 years was working as Manager HR in a Private Limited Company. On the date of accident he was driving Maruti car bearing No.DL 2C P 5414 on NH 47 main road from Perumanallur to Erode At that time the Eicher van bearing Registration No.TN 33 AZ 5868 was proceeding in front of the car driven by the deceased. It is the case of the respondentsclaimants that all of a sudden the driver of Eicher van has turned towards right side without giving any signal or indicator. In the said accident driver of the Maruti car Mr Subhash Babu died and other passengers in the car i.e. 1st Respondentwife 2nd Respondentminor son and sister of the 1st Respondent suffered C.A.@ SLP(C) No.47019 In the Claim Petition filed by the Respondent Nos. 1 and 2 before the Motor Accident Claims Tribunal Additional District Court Tiruppur respondents claimed compensation of Rs.3 crores. The respondents pleaded negligence on the part of the driver of Eicher van as he has taken right turn without giving any signal or indicator as such accident occurred only due to negligence of driver of Eicher van. The appellant and others have appeared before the Claims Tribunal and opposed the claim. The Claims Tribunal vide order dated 11.12.2017 passed in M.C.O.P. No.842 of 2014 has allowed the claim partly and awarded compensation of Rs.10 40 500 with a finding that there was a contributory negligence on the part of drivers of both the vehicles in ratio of 75% and 25% on the part of the deceased and the driver of Eicher van respectively. On appeal the High Court by recording a finding that accident occurred only due to the negligence of the driver of the Eicher van and the annual income of the deceased was C.A.@ SLP(C) No.47019 Rs.12 29 949 has awarded a total compensation of Rs.1 85 08 832 including the compensation on conventional heads. Aggrieved by the judgment and order of the High Court the Insurance Company filed this Appeal before this Court We have heard Mr. K. K. Bhat learned counsel appearing for the AppellantInsurance Company and Mr. V. Balaji learned counsel appearing for the The submission of the learned counsel for the appellant is twofold. Firstly it is submitted that though the Tribunal has correctly apportioned the negligence on the part of the deceased and the driver of Eicher van the same was overturned by the High Court contrary to the evidence on record. Mainly it is contended that in the First Information Report it was categorically mentioned that accident occurred only due to negligence by the deceased. In spite of the same such important documentary evidence is ignored by the High Court. The learned counsel in support of his arguments placed reliance on C.A.@ SLP(C) No.47019 the judgments of this Court in the case of Oriental Insurance Company Limited v. Premlata Shukla and Others1 and in the case of Nishan Singh and Others v. Oriental Insurance Company Limited2 It is further submitted by the learned counsel that the compensation awarded by the High Court is exorbitant in absence of any acceptable evidence on record to show income of the deceased as pleaded in the Claim Petition On the other hand Mr. V. Balaji learned counsel for the respondents submitted that the accident occurred only due to the sheer negligence on the part of the driver of Eicher van. It is submitted that the deceased was driving Maruti car and ahead of them the Eicher van was proceeding and the driver of the said van turned towards right side without any signal or indicator and the said lapse resulted in the accident. It is further submitted that the deceased was working as Manager HR in a Private Limited Company and was earning a sum of 1 2007SCC 476 2 2018SCC 765 C.A.@ SLP(C) No.47019 Rs.1 33 070 per month in spite of the same the High Court has taken income of the deceased at Rs.12 29 949 per annum and awarded the compensation. It is submitted that in view of the oral and the documentary evidence on record a just compensation is awarded by the High Court and there are no grounds to interfere with the It is clear from the evidence on record of PW1 as well as PW3 that the Eicher van which was going in front of the car has taken a sudden right turn without giving any signal or indicator. The evidence of PW1 & PW3 is categorical and in absence of any rebuttal evidence by examining the driver of Eicher van the High Court has rightly held that the accident occurred only due to the negligence of the driver of Eicher van. It is to be noted that PW1 herself travelled in the very car and PW3 who has given statement before the police was examined as eyewitness. In view of such evidence on record there is no reason to give weightage C.A.@ SLP(C) No.47019 to the contents of the First Information Report If any evidence before the Tribunal runs contrary to the contents in the First Information Report the evidence which is recorded before the Tribunal has to be given weightage over the contents of the First Information Report. In the judgment relied on by the appellant’s counsel in the case of Oriental Insurance Company Limited v Premlata Shukla and Others1 this Court has held that proof of rashness and negligence on the part of the driver of the vehicle is therefore sine qua non for maintaining an application under Section 166 of the Act. In the said judgment it is held that the factum of an accident could also be proved from the First Information Report. In the judgment in the case of Nishan Singh and Others v. Oriental Insurance Company Limited2 this Court has held on facts that the car of the appellant therein which crashed into truck which was proceeding in front of the same was driven negligently by not maintaining sufficient distance as contemplated under Road Regulations C.A.@ SLP(C) No.47019 framed under Motor Vehicles Act 1988. Whether driver of the vehicle was negligent or not there cannot be any straitjacket formula. Each case is judged having regard to facts of the case and evidence on record. Having regard to evidence in the present case on hand we are of the view that both the judgments relied on by the learned counsel for the appellant would not render any assistance in support of his case Even with regard to quantum of compensation it is clear from the judgment of the High Court that the accident occurred on 14.10.2013 the High Court has correctly taken into account the salary disclosed by the deceased in Form16 for the Financial Year 2012 2013 and income of the deceased is taken as Rs.12 29 949 per annum for the purpose of determination of loss of dependency. Though it was the claim of the respondentsclaimants that the deceased was earning Rs.1 33 070 per month the same was not accepted and the High Court itself assessed the income of the deceased at Rs.12 29 949 per C.A.@ SLP(C) No.47019 annum. As the deceased was in permanent job and having regard to age of the deceased on the date of the accident the future prospects and the multiplier were correctly applied by the High Court which is in conformity with the judgment of this Court in the Case of Sarla Verma SCC 121 4 2017SCC 680 C.A.@ SLP(C) No.47019 Deposit in a Nationalised bank. The said amount shall be paid to the respondentsclaimants with accrued interest. The balance amount payable by the appellantInsurance Company shall be paid within a period of two months from today …J (R. SUBHASH REDDY …J (HRISHIKESH ROY NEW DELHI October 01 2021

Procedural mechanism to lift an encumbrance from an immovable property under Section 57 of the Transfer of Property Act 1882: Kerala High Court

The object behind Section 57 of the TP Act is indisputable from its tenor that it is proposed to help any gathering to the offer of a resolute property, which is dependent upon an encumbrance, to fructify the deal for its reasonable worth in the wake of getting in-store – for installment to the encumbrancer – the promoted worth of the periodical charge, or the capital entirety charged on the property, together with accidental charges. It subsequently empowers the gatherings to a deal to conjure the locale of the court to satisfy their contracts, despite the encumbrances on the property. The judgment passed by the Kerala High Court (High Court), in its decision in MP Varghese v Annamma Yacob & Ors (MFA No 47/2020)  by Hon’ble Shri Justice Devan Ramachandran The facts of the case were such that the appellant and the subsequent respondent were kin who had gotten the property of their father through an enlisted partition deed in 1980 (Partition Deed). The Partition Deed contained an agreement that both the brothers should pay an amount of INR 500 each to their sister, that is, the principal respondent, inside one year of the Partition Deed, bombing which the primary respondent was permitted to recuperate it, for which reason, the said sums would stand charged on the separate properties of the appellant and the subsequent respondent. While the primary respondent acknowledged the installment from the subsequent respondent, she would not acknowledge installment from the appellant because of her own reasons, because of which the property assigned to him under the Partition Deed (Appellant’s Property) was as yet troubled with this commitment.  The appellant had moved to the District Court, Ernakulam (District Court) under Section 57 for affecting the deal liberated from encumbrance. The District Court refused the appellant’s supplication for release of encumbrance on the Appellant’s Property holding it to be not viable. The appellant council argued that Section 57 of the TPA applied to ‘out of court’ sales as well, that is, sale transaction which is not arranged by the court, as is showed by the utilization of the words ‘or out of court’ in Section 57(a) of the TPA. The council of  respondent presented that Section 57 of the TPA couldn’t make a difference to out of court deals and the appellant should release the obligation as per the provisions of Chapter IV of the TPA which manages home loans of steadfast properties and charges The High Court, while examining Section 57 of the TPA meticulously from both its academic and practical ambits described it as “a very efficacious, substantive and procedural mechanism to facilitate the realization of the deserving and intrinsic value of encumbered estates and other immovable properties The High Court further struck down the wrong understanding by the District Court to the degree that the Section 57 can be conjured solely after the sale is finished and rather explained unequivocally that help of the court can be looked for even while the sale is proposed. The High Court allowed the appeal and set aside the impugned order of the District Court, consequently, permitting the appellant to tender the amount of INR 500 to the first respondent, by depositing it in the District Court; in which event, the same will be entitled to be withdrawn by her. The High Court further declared that on such payment by the appellant, the Appellant’s Property will stand freed from the charge on it, created in pursuance of the terms of the Partition Deed.

IN THE HIGH COURT OF KERALA AT ERNAKULAM THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN WEDNESDAY THE 05TH DAY OF AUGUST 2020 14TH SRAVANA 1942 MFA.No.47 OF 2020 ORDER IN OP 107 2019 DATED 17 12 2019 OF I ADDITIONAL DISTRICT COURT ERNAKULAM M.P.VARGHESE AGED 73 YEARS S O. PATHROSE MADAPPILLY HOUSE MALAYIDOMTHURUTHU PO KIZHAKKAMBALAM BY ADVS. SRI.P.THOMAS GEEVERGHESE SRI.TONY THOMASstrangely appears very rarely to have been invoked in Courts which impression is inevitable because the case law on it is scarce if not none 2. The provision in reference is Section 57 of the TP Act which enables any party to the sale of immovable property burdened by an encumbrance to apply to Court for a declaration that the said property is freed from such encumbrance on deposit of sums to be adjudged by it and for the issuance of an order of conveyance or vesting order proper for giving effect to the sale 3. The apparent fact that this Section though in the TP Act for the past more than a century and quarter has attracted little or no reported judgments anywhere in India obligates me to examine it very closely and carefully from both its academic and practical ambit 4. This Section of the TP Act is with the exception of its last two sub sections almost verbatim of Section 5 of the English Conveyancing MFA 47 20 and Law of Property Act 1881 which reads as below “5.Where land subject to any incumbrance whether immediately payable or not is sold by the court or out of court the court may if it thinks fit on the application of any party to the sale direct or allow payment into court in case of an annual sum charged on the land or of a capital sum charged on a determinable interest in the land of such amount as when invested in government securities the court considers will be sufficient by means of the dividends thereof to keep down or otherwise provide for that charge and in any other case of capital money charged on the land of the amount sufficient to meet the incumbrance and any interest due thereon but in either case there shall also be paid into court such additional amount as the court considers will be sufficient to meet the contingency of further costs expenses and interest and any other contingency except depreciation of investments not exceeding one tenth part of the original amount to be paid in unless the court for special reason thinks fit to require a larger additional amount 2) Thereupon the court may if it thinks fit and either after or without any notice to the incumbrancer as the court thinks fit declare the land to be freed from the incumbrance and make any order for conveyance or vesting order proper for giving effect to the sale and give directions for the retention and investment of the money in court 3) After notice served on the persons interested in or entitled to the money or fund in court the court may direct payment or transfer thereof to the persons entitled to receive or give a discharge for the same and generally may give directions respecting the application or distribution of the capital or income thereof 4) This section applies to sales not completed at the commencement of this act and to sales thereafter made.” 5. After adopting the afore Section of the English Actwith minor modifications like substituting the word land with immovable property or adding that the words in execution of a decree along with sale by court or out of court and MFA 47 20 such other Section 57 of the TP Act through sub sectionsand2 Ch.256) Kekewich J spoke on the utility of the afore extracted Section 5 of the English Act “Until it came into force a purchaser was entitled to object that he did not get his estate in fee because there was a charge it might be only an insignificant charge such as a small legacy payable in future He got off his bargain unless he and the vendor could arrange on some scheme of indemnity.” 9. Needless to say no objection as afore noticed by Kekewich J can now thwart the purchaser since in the event of any such it can be removed by resorting to the provisions here made 10. Later in Wilberforce v. Wilberforce 1 Ch 94) Sargant J. spoke on the utility and purpose of the Section as “Prima facie the object of the whole of S.5 is not to disturb any vested or other rights more than is necessary but to enable a sale to be effected and the property to be transferred to the purchaser notwithstanding there may be on the land a liability for payment of a future sum which would but for the provisions of the section clearly have prevented the sale of the land free from incrumbrance. Of course a purchaser might think fit to take the land subject to the incumbrance but the purchase of land subject to an incumbrance is not usually a desirable investment and the object of the section was to enable the land to be conveyed to the purchaser so that he might get a full and complete title to it.” 11. Further even though the term encumbrance is not specifically defined in the TP Act the English Act provides for it under Section 2(vii) as MFA 47 20 “Incumbrance includes a mortgage in fee or for a less estate and a trust for securing money and a lien and a charge of a portion annuity or other capital or annual sum and incumbrancer has a meaning corresponding with that of incumbrance and includes every person entitled to the benefit of an incumbrance or to require payment or discharge thereof.” 12. Thus moving on the purposive relevance of Section 57 of the TP Act is accentuated by Section 2(d) of it which declares that nothing contained in the Act will save as provided by Section 57 and Chapter IV of this Act effect any transfer by operation of law or in execution of a decree or order of a Court of Competent jurisdiction 13. This assumes importance because Section 5 of the TP Act defines transfer of property to be an act by which a living person conveys property in present or in future to one or more other living persons or to himself . Hence even though transfer of property is defined to mean transfer inter vivos through Section 2(d) which prevails on it transfer by a court or under its orders are unequivocally protected.and MFA 47 20 concluded that in the case of sales by court it can direct payment and in the case of sales out of court it can allow payment 15. As I have said supra the TP Act adopts the spirit and soul of the English Act with very minor lexical variations and Section 57 also provides that in the case of sale of immovable property subject to an encumbrance being sold by a court or in execution of a decree or out of court any party to it can apply for a declaration that the said property is free of such in which event the appropriate court may direct or allow payment sufficient to meet the encumbrance on the property into court. There is thus no doubt that this section is intended to facilitate sale out of court as much as it is for sale by a court or in execution of a decree. 16. In this context a comparison of this section with Section 83 and Order XXXIV Rule 12 of the Code of Civil procedure would also be necessary. Section 83 of the Code of Civil Procedure makes provisions for the discharge of a mortgage on property after it has become due. This Section also provides for the declaration of an encumbered property which is the subject matter of a sale to be free of the encumbrance however with a cardinal difference that the court cannot compel the mortgage to accept the deposit in discharge of the mortgage. As far as Order XXXIV Rule 12 of the CPC is MFA 47 20 concerned it provides that where any property subject to a prior mortgage is ordered to be sold the court may with the consent of the prior mortgagee direct that it be sold free from the mortgage giving to the mortgagee the same interest in the proceeds of the sale as he had in the property sold 17. Ineluctably thus Section 57 of the TP Act is wider in its amplitude than Section 83 or Order XXXIV Rule 12 of the CPC since it permits the court to declare a property free of encumbrance even against the will of the encumbrancer and even in the case of sales not directed by Order XXXIV of the CPC 18. That said however a note of caution in the exercise of power under Section 57 of the TP Act was voiced by the Hon ble High Court of Madras in Mallikarjuna Sastri v. Narasimha Raoto the effect that the section cannot be applied when it comes to a charge or encumbrance already adjudicated by a court and which has become part of a decree or even in a case of adjustment of a decree out of court. This certainly is the golden rule and must guide the minds of courts whenever the section is invoked by a party 19. Now that the legal provisions have been so purveyed I will set out the facts which obligates this Court to decide whether and MFA 47 20 how it comes to pay in this case 20. The appellant who is the petitioner in O.P.No.107 2019 on the files of the I Additional District Court Ernakulam states that he and the respondents are siblings. He says that the properties of their late father were partitioned in the year 1980 through a partition deed Document No.1873 1980 of the Puthencruz SRO whereby certain extents of it were allotted to him and to the second respondent his brother. He says that the said Deed however contained a covenant that both he and his brother the second respondent must pay an amount of Rs.500 each to their sister the first respondent within a year failing which she has been allowed to recover it for which purpose the said amounts would stand charged on the respective properties. 21. The petitioner says that though the first respondent accepted Rs.500 from the second respondent she refused to do so when he offered her the same and therefore that the property allotted to him under the Partition Deed is still burdened with this obligation. He says that this is more so because the stipulations in the Partition Deed make it incumbent on the first respondent to accept the amount of Rs.500 and execute necessary receipt in his favour. MFA 47 20 22. The petitioner submits that in the meanwhile so as to obtain resources for the marriage of his adopted daughter he entered into an agreement for sale of the property obtained by him under the Partition Deed with a certain Sri.Muhammed Raphic N.P. but that on account of the charge of Rs.500 on it as explained above he has been unable to execute the sale deed. He submits that in such circumstances he had no other option but to approach the learned District Court Ernakulam under Section 57 of the TP Act volunteering to deposit the amount of Rs.500 in favour of the first respondent so as to obtain a declaration from the said court that the property is free of the said encumbrance 23. The appellant submits that however on a misdirection as to the scope and amplitude of Section 57 of the TP Act the District Court dismissed his application through the impugned order holding it to be not maintainable 24. It is this order which is assailed by the appellant in this 25. When I noticed the afore singular facts on 15.07.2020 when this appeal was first considered I had directed the first respondent through the order of the said date to file an affidavit stating if she is unwilling to accept the amount of Rs.500 from the MFA 47 20 appellant and if so why. The first respondent has in obedience thereto filed an affidavit dated 29.07.2020 averring that she is unwilling to accept the amount from the appellant since there are certain other personal issues between them and because it has not been offered by him within the time granted in the Partition Deed or even later and further contending that his application under Section 57 of the TP Act is not maintainable 26. I have heard Sri.P.Thomas Geeverghese learned counsel for the appellant and Sri.Shiju Varghese learned counsel for the first 27. Sri.P.Thomas Geeverghese learned counsel for the appellant set forth his arguments in line with the afore narrated factual matrix contending that even in the case of a sale conducted out of court the jurisdiction of the statutorily competent court can be invoked by any party to it. He submitted that this is manifest from the words or out of court in sub sectionto Section 57 of the TP Act and thus asserted that the learned District Judge has erred in issuing the impugned order. He further predicated that since the sum charged on the appellant s property under the partition Deed is only Rs.500 it providing for no interest or other charges even if it had not been paid within the period of one year stipulated therein this MFA 47 20 construes to be the capital sum charged on it and that hence that his client was wholly justified in invoking Section 57 of the TP Act so as to fructify the sale of the property as per the agreement of sale entered by him with a certain Sri.Muhammed Raphic N.P. a copy of which has been produced before the District Court as Exhibit A5 28. The learned counsel for the appellant thus prays that the impugned order be set aside and this Court permit his client to deposit the amount of Rs.500 favouring the first respondent and declare that the property is now free of the said encumbrance adding that it has been clearly averred by his client in the application before the District Court that the first respondent is actuated by confutative intentions because she expects that if the appellant is some how incapacitated from selling the property the same will be inherited by her after his life time since he is unmarried and survived only an 29. In response Sri.Shiju Varghese learned counsel for the first respondent argued that Section 57 of the TP Act cannot be invoked except in the case of sale of immovable property through court and that in other instances the appellant ought to have filed a regular suit. He further submitted that his client and the appellant have deep seated disputes between them and that the former is not MFA 47 20 willing to accept Rs.500 from the latter in such circumstances. He then added that since the amount has now become a charge on the property it not having been paid within the time stipulated in the Partition Deed the appellant must discharge it in the manner as prescribed in Chapter IV of the TP Act and not through the mechanism under Section 57 of it. 30. However in the same breath Sri.Shiju Varghese admitted that the Partition Deed only charges the property to the sum of Rs.500 and nothing more and further that the second respondent who is his client s other brother has already paid her a like sum for which she has issued a receipt to him. On a pointed question from this Court he further conceded that his client has no case that the Partition Deed is void or ineffective on account of the failure of the appellant to tender his share of Rs.500 but that because of the personal rift between them she is not willing to execute a discharge or receipt in his favour. He submits that all this has been stated by his client in the affidavit dated 29.07.2020 filed by her in response to the order of this court dated 15.07.2020 further pointing out that she takes great umbrage to the uncharitable allegation of the appellant that she is expecting to inherit the property after his life time. He thus prays that this appeal be dismissed MFA 47 20 31. From the facts afore noticed and the submissions of the learned counsel it is perspicuous that there is no dispute between the parties that an amount of Rs.500 alone is charged on the property of the appellant as per the Partition Deed in favour of the first respondent. The specific covenant of the said Deed which is extracted under makes this incontestable 32. Hence when the amount of Rs.500 alone stands charged on the property as a capital sum without any further obligation on the appellant towards interest or other incidental expenses it is irrefragible that if the appellant pays it to the first respondent or deposits it in court the said encumbrance would stand extinguished Indubitably it is only on account of this amount being still unpaid whether because the first respondent has refused to accept it or whether the appellant has failed to offer it that the charge on the property still subsists MFA 47 20 33. Pertinently the first respondent does not have a case that any amount more than Rs.500 is due to her under the Partition Deed even as on date nor that the said Deed has been rendered void or ineffective on account of this amount not having been offered to her within the period of one year stipulated therein. She however asserts very strongly that she will not accept this amount from the petitioner solely for the reasons stated by her in the affidavit dated 29.07.2020 the averments in which are as below “3. I painfully submit that my conscience is not willing to accept the money though the same was never tendered to me The reasons for taking such a decision are the following a. Ever since my marriage in 1967 the appellant my elder brother never had any contact with my family. None of the family functions were invited by him b. My husband is an autorickshaw driver aged 78 and the appellant maintains a hostile attitude towards him and our family through out On many occasions he insulted my husband in the presence of our relatives and public c. The Marriage of the appellant s daughter Jyothi was conducted on 17.2.2020. Neither myself nor my other brother the 2 nd respondent d. In 2007 on the 1st death anniversary ceremony of mother the appellant publicly humiliated me and my husband in the presence of our other relatives e. He was dead against our marriage since my husband belongs to a poor family compared to my family. The appellant thereafter never f. I was physically prevented from attending my mother at her last days by the appellant MFA 47 20 g. My daughter in law aged 34 passed away on 16.7.2020 and even after knowing the casualty the appellant had not even made a phone 4. The following facts are also submitted 4.1. On 15.7.2020 the appellant submitted before this Court that the marriage of his daughter could not be conducted due to the encumbrance over the property. The marriage was already solemnized on 17.2.2020 at Kothamangalam 10 days prior to the filing of the Appeal 4.2. The appellant never offered the money and we are not in talking terms since my marriage in 1967 4.3. On 30.11.2019 the Trial Court recorded that the petitioner has no oral evidence whereas it is averred that my counsel refused to cross examine the appellant 4.4. Even though the appellant admitted that the amount is not paid so far it is also averred in the appeal memorandum that the amount is already paid 5. I will not raise any claim over the property owned by the appellant as his sister by way of succession. I don t want an inch of his 34. It is thus luculent that the respondent has no case that the petitioner is legally incompetent to tender Rs.500 to her or that such payment can be refused to be accepted by her for any justified cause Her only assertion is that she is refusing the payment solely because of the personal reasons afore. Of course she also has a contention that since the marriage of the appellant s daughter had been conducted even prior to the Original Petition before the District court had been filed his averment that the property was being sold for such purpose is untrue MFA 47 20 35. In the conspectus of the above the question that emerges is whether in the circumstances ut supra the appellant was justified in invoking Section 57 of the TP Act 36. From the discussion on the law indited in the earlier paragraphs of this judgment there can be little ground for divergence that the provisions of Section 57 of the TP Act would come to play in a case of this nature whether the sale been conducted by the court or in execution of a decree or by parties outside court 37. However as noticed above the learned District Judge has dismissed the appellant s application acceding to the contention of the first respondent stating: It was argued that from above it can be taken that the section encompasses a situation prior to the sale also and since the petitioner intends to sell the property after removing the encumbrance it will apply I do not agree. What is stated is only that the section empowers a party to free an encumbrance before a sale and by no means it can be brought to the case at hand where a direction for payment in a partition deed is sought to be enforced . I am afraid that this view cannot obtain jural imprimatur in the light of the position of law seen above since what is sought for by the petitioner is not to enforce a direction for payment in the Partition Deed but to declare that the property is free of the encumbrance MFA 47 20 subsisting on account of the amount under the Partition Deed remaining unpaid. 38. Further the impugned order seems to travel in the direction that it is only after a sale is over can Section 57 of the TP Act be invoked. This again is misplaced because it is limpid from a mere reading of the said Section that a party to a sale can seek the assistance of the Court at the time when the sale of an encumbered property is proposed which is apodictic from sub section 2(b) of the said Section that enables the court to issue appropriate orders as mentioned therein for giving effect to the sale 39. As far as the present case is concerned the first respondent is refusing to accept the amount of Rs.500 from the appellant or to issue the receipt for discharge of the said encumbrance without any valid legal reason except that on account of the rift between her and the appellant she is unwilling to do so However she has no case that their personal disputes casts any obligation or encumbrance over the property of the appellant Further she only says that her conscience is not willing to accept the money however without showing any cause against its tender or deposit by the appellant. Moreover since the section does not mandate the court to be satisfied of the reasons for the proposed sale MFA 47 20 and hence the contention of the respondent that the assertions of the appellant regarding the necessity of it so as to conduct his daughter s marriage being untrue is irrelevant. All what is necessary for the appellant is to plead and show the factum of a proposed sale and nothing more 40. In such scenario I am of the sure opinion that the learned District Judge has erred in dismissing the application of the appellant under Section 57 of the TP Act holding it to be not maintainable since the appellant has clearly averred therein that he intends to sell his property as per Exhibit A5 sale agreement 41. Axiomatically I am of the considered view that the impugned order must fail and that the appellant is entitled to a declaration under Section 57 of the TP Act since the first respondent has shown no legally acceptable cause whatsoever against such 42. What now survives is whether the Original Petition would need to be remanded to the District Court or if this Court would be justified in issuing the declaration as sought for by the appellant Since the stand of the first respondent is available on record through the affidavit dated 29.07.2020 there arises no reason for further evidence to be led by the parties and this is conceded by Sri.Shiju Varghese also. I am therefore convinced that even if this Court MFA 47 20 remands the Original Petition it would only be a formality since the learned District Court will be obligated in the afore factual narration and the admissions of the first respondent to issue necessary directions and declarations in favour of the appellant within the purlieus of Section 57 of the TP Act Thus in summation I allow this appeal and set aside the impugned order of the learned District Judge consequently permitting the appellant to tender the amount of Rs.500 to the first respondent by depositing it in the District Court in which event the same will be entitled to be withdrawn by her. It is resultantly declared that on such payment by the appellant the petition schedule property will stand freed from the charge on it created as per the terms of the Partition Deed Document No.1873 1980 of the Taking into account the rather exceptional nature of the legal issues presented in this appeal I make or order as to costs and direct the parties to suffer their respective costs Devan Ramachandran Judge

Matter remitted back to the learned Single Judge for disposal afresh on merits and in accordance with law: Karnataka High Court

Without considering or appreciating the facts and circumstances involved in the instant case, as well as the various contentions urged on behalf of the appellants herein and without entering into any discussion on the merits of the matter, the learned Single Judge committed an error in passing the impugned order. This was said in the case of Vidyanidhi Education Trust vs National Commission For Minority [WRIT APPEAL No.1744 OF 2017] by Chief Justice Mr. Abhay S. Oka, and Mr. Justice S.R. Krishna Kumar in the High Court of Karnataka. The facts of the case are that first appellant-Trust, which was established in the year 1996 comprised of persons belonging to linguistic minority community and all the trustees, who were Konkani speaking were administering the Trust, which was running second appellant-Educational Institution, which was a linguistic minority institution. Tthe State Government rejected the claim of the appellants inter alia holding that second appellant cannot claim/seek the status of a minority Educational Institution on the ground that in the absence of the appellants being notified as ‘linguistic minorities’ by the Central Government by issuance of a Notification, second appellant cannot be considered as a minority Educational Institution. Aggrieved by the impugned order, the appellants preferred the aforesaid writ petition before this Court. The petitioner also submitted that Single Judge had committed an error in summarily disposing off the instant petition filed by the appellant. It was submitted that the various grounds and contentions urged by the appellants herein in their petition for the purpose of challenging the impugned order dated 18th June 2014 had neither been urged, much less considered or appreciated by the learned Single Judge in the said order passed in W.P.No.4825/2015 and as such, the said order could not have been made the basis to dispose off the petitions filed by the appellants. After careful consideration to the rival submissions and perused the material on record including the impugned order passed by the learned Single Judge, the Court said that “there was neither any finding nor ruling or decision by the learned Single Judge with regard to the legality, correctness or validity of the impugned order dated18th June 2014, which was also challenged by the present appellants in their writ petition before the learned Single Judge in the light of material on record and the various contentions urged by the appellants”. Furthermore, the Court said that “The material on record also indicates that subsequent to the impugned order passed by the learned Single Judge, there have been various subsequent events including proceedings of the State Government, orders passed by it, decisions/orders passed by this Court etc., all of which have a bearing/impact on the rights and contentions of the appellants, which have obviously not been considered by the learned Single Judge and consequently, it is necessary that even the said subsequent events, orders, decisions etc., would have to be considered while adjudicating upon the dispute in controversy between the parties”

IN THE HIGH COURT OF KARNATAKA BENGALURU DATED THIS THE 22nd DAY OF APRIL 2021 THE HON’BLE MR.ABHAY S. OKA CHIEF JUSTICE THE HON’BLE MR.JUSTICE S.R.KRISHNA KUMAR WRIT APPEAL No.1744 OF 2017(EDN RES 1 . VIDYANIDHI EDUCATION TRUSTHAVING ITS OFFICE AT NO 6437 SHIVANAHALLI YELAHANKA HOBLI BENGALURU 560064 REPRESENTED BY ITS TRUSTEE SRI ASHWIN PAI VIDYASHILP ACADEMY HAVING ITS OFFICE AT NO 6437 SHIVANAHALLI YELAHANKA HOBLI BENGALURU 560064 NOW REPRESENTED BY ITS HEAD OF SCHOOL MS. KALAISELVI 2 . BY MISS. NAYANATHARA ALONG WITH MISS. MANASA. B. RAO FOR SRI. G.L. VISHWANATHA ADVOCATES) 1 . 2 . NATIONAL COMMISSION FOR MINORITY EDUCATIONAL INSTITUTIONS GOVERNMENT OF INDIA GATE NO 4 1ST FLOOR JEEVAN TARA BUILDING NO 5 SANSAD MARG PATEL CHOWK NEW DELHI 110001 REPRESENTED BY ITS DEPUTY SECRETARY THE DIRECTORATE OF URDU & OTHER LINGUISTIC MINORITY EDUCATIONAL INSTITUTIONS NRUPATHUNGA ROAD BENGALURU 560001 REPRESENTED BY ITS DIRECTOR 3 . THE DEPARTMENT OF PUBLIC INSTRUCTIONS NRUPATHUNGA ROAD BENGALURU 560001 REPRESENTED BY ITS COMMISSIONER BY SRI. H. JAYAKARASHETTY ADVOCATE FOR R 1 SRI. S.R. KAMALACHARAN AGA FOR R 2 & R 3) THIS APPEAL IS FILED UNDER SECTION 4 OF THE KARNATAKA HIGH COURT ACT PRAYING TO SET ASIDE THE ORDER PASSED IN THE WRIT PETITION NOS.20603 20604 2016 DATED: 18.01.2017 AND ETC. THIS APPEAL IS BEING HEARD AND RESERVED COMING ON FOR PRONOUNCEMENT OF JUDGMENT THIS DAY S.R.KRISHNA KUMAR J DELIVERED THE FOLLOWING: This appeal takes exception to the impugned order dated 18th January 2017 passed in W.P.Nos.20603 604 2016 by the learned Single Judge whereby the said writ petitions filed by the appellants were disposed off. 2. Briefly stated the facts giving rise to the present appeal are as follows: The appellants filed the aforesaid petitions inter alia contending that first appellant Trust which was established in the year 1996 comprised of persons belonging to linguistic minority community and all the trustees who were Konkani speaking were administering the Trust which was running second appellant Educational Institution which was a linguistic minority institution. It was contended that the appellants were affiliated to the ICSE Board and that on 10th September 2015 the jurisdictional Tahsildar issued a certificate certifying that the mother tongue of the trustees of first appellant Trust was Konkani language and as such the appellants were running a linguistic minority institution. 3. The appellants contended that on 18th June 2014 the State Government passed the impugned order circular Annexure F to the writ petition) constituting a Committee for the purpose of verifying the linguistic religious minority status of an educational institution. As per the said order circular which was issued for the purpose of the Right to Education Act 2009 it was directed that the Committee would not only verify that the management of Educational Institutions were members of a linguistic minority the Committee would also confirm that the admission of the students to such Educational Institutions was not less than 50% of the language religious category of the said Educational Institution. In the petition before the learned Single Judge the appellants challenged the said notification dated 18th June 2014. 4. The appellants also contended that they submitted an application to the Public Education Department of the State Government for a declaration that second appellant Educational Institution was a linguistic minorities school since the management of the said Institution was by the first appellant Trust who belonged to the linguistic minority community. By the impugned Endorsement dated 23rd February 2016 the State Government rejected the claim of the appellants inter alia holding that second appellant cannot claim seek the status of a minority Educational Institution on the ground that in the absence of the appellants being notified as linguistic minorities by the Central Government by issuance of a Notification second appellant cannot be considered as a minority Educational Institution. Aggrieved by the impugned order dated 18th June 2014 and the impugned Endorsement dated 23rd February 2016 both issued by the State Government the appellants preferred the aforesaid writ petition before this Court. 5. During the pendency of the petition before the learned Single Judge it transpired that the aforesaid order circular dated 18th June 2014 was also the subject matter of challenge in other writ petitions W.P.No.4825 2015 and connected matters. However the impugned Endorsement dated 23rd February 2016 which was issued specifically to the appellants herein was obviously not the subject matter of any of the other petitions including W.P.No.4825 2015. After noticing aforesaid W.P.No.4825 2015 had been disposed off vide order dated 16th January 2017 by a learned Single Judge of this Court vide the impugned order dated 18th January 2017 the learned Single Judge disposed off the instant petition also terms of the said order passed W.P.No.4825 2015 dated 16th January 2017. Aggrieved by the impugned order dated 18th January 2017 passed by the learned Single Judge the appellants are before this Court by way of the present appeal. 6. We have heard the learned counsel for appellants as well as learned counsel for first respondent and also learned AGA for second and third respondents and perused the material on record. 7. In addition to reiterating the various contentions urged in the Memorandum of Appeal and referring to the documents produced by the appellants learned counsel for the appellants submit that the learned Single Judge had committed an error in summarily disposing off the instant petition filed by the appellant in terms of the orders passed in W.P.No.4825 2015 and connected matters dated 16th January 2017. In this context learned counsel while inviting our attention to the said order submitted that the facts and circumstances involved in the petitions which were the subject matter of the said order were different from the facts involved in the present appeal and as such the learned Single Judge was not justified in disposing off the instant petitions in terms of the said order. It was submitted that the various grounds and contentions urged by the appellants herein in their petition for the purpose of challenging the impugned order dated 18th June 2014 had neither been urged much less considered or appreciated by the learned Single Judge in the said order passed in W.P.No.4825 2015 and as such the said order could not have been made the basis to dispose off the petitions filed by the appellants. It was also submitted that subsequent to filing of the petitions including during the pendency of the present appeals there have been various subsequent events including proceedings of the State Government orders passed by it decisions orders passed by this Court etc. all of which have a bearing impact on the rights and contentions of the appellants which have not been considered by the learned Single Judge. Learned counsel also submitted that it is not in dispute that in the aforesaid Writ Petition No.4825 2015 the impugned Endorsement dated 23rd February 2016 had not been challenged by the respective petitioners and to appreciate this has resulted in erroneous conclusion which vitiates the impugned order passed by the learned Single Judge. It is therefore contended that the impugned order passed by the learned Single Judge deserves to be set aside. 8. Per contra learned counsel for first respondent as well as learned AGA for second and third respondents while reiterating the various contentions urged in the Statement of Objections and referring to the documents produced by them submit that there is no merit in the appeal and that the same is liable to be dismissed. 9. We have given our careful consideration to the rival submissions and perused the material on record including the impugned order passed by the learned Single Judge. 10. A perusal of the impugned order will indicate that the learned Single Judge has summarily disposed off the petition in terms of the order dated 16th January 2017 passed in W.P.No.4825 2015 and connected matters. In this context it is relevant to state that though the legality validity and correctness of the order dated 18th June 2014 was specifically assailed by the respective petitioners the same was not considered by the learned Single Judge in his aforesaid order dated 16th January 2017 in other words there was neither any finding nor ruling or decision by the learned Single Judge with regard to the legality correctness or validity of the impugned order dated18th June 2014 which was also challenged by the present appellants in their writ petition before the learned Single Judge in the light of material on record and the various contentions urged by the appellants. 11. Under these circumstances we are of the considered opinion that without considering or appreciating the facts and circumstances involved in the instant case as well as the various contentions urged on behalf of the appellants herein and without entering into any discussion on the merits of the matter the learned Single Judge committed an error in passing impugned order summarily disposing off the petition in terms of the order dated 16th January 2017 passed in W.P.No.4825 2015 and connected matters. 12. It is also significant to note that in the aforesaid petitions in W.P.No.4825 2015 and connected matters the impugned Endorsement dated 23rd February 2016 issued by the second respondent rejecting the request of the appellants for grant of linguistic minority status to the appellants was not challenged by the petitioners therein in view of the fact that the said Endorsement was restricted only to the appellants herein. Under these circumstances without considering the claim of the appellants herein qua the said Endorsement dated 23rd February 2016 the learned Single Judge also erred in summarily disposing off the petition filed by the appellants without noticing this aspect of the matter which clearly distinguished the instant from the facts and circumstances obtaining W.P.No.4825 2015 and connected matters. 13. The material on record also indicates that subsequent to the impugned order passed by the learned Single Judge there have been various subsequent events including proceedings of the State Government orders passed by it decisions orders passed by this Court etc. all of which have a bearing impact on the rights and contentions of the appellants which have obviously not been considered by learned Single Judge and consequently it is necessary that even the said subsequent events orders decisions etc. would have to be considered while adjudicating upon the dispute in controversy between the parties. 14. In view of the aforesaid facts and circumstances without expressing any opinion on merits demerits of the rival contentions and to enable adjudication of the dispute in controversy on merits we deem it just and appropriate to set aside the impugned order and remit the matter back to the learned Single Judge for disposal afresh on merits and in accordance with law. 15. In the result we pass the following: i) The appeal is hereby allowed ii) The impugned order dated 18th January 2017 passed in W.P.Nos.20603 604 2016 by the learned Single Judge is hereby set aside and writ petitions are restored to file iii) The writ petitions are remitted back to the learned Single Judge for reconsideration afresh on merits and in accordance with law iv) All rival contentions are kept left open and no opinion is expressed on the same. v) Since the appellants had the benefit of an interim order dated 08.03.2017 during the pendency of the appeal we hereby direct the said interim order dated 08.03.2017 passed in this appeal shall continue for a period of three months from today so as to enable the appellants to make W.P.Nos.20603 604 2016 for appropriate interim orders. Sd CHIEF JUSTICE Sd Bmc Srl.

Orders for Retrieval of dues can’t be initiated against a single director of a company: Delhi High Court

The Delhi HC permitted the writ petition to stand still and the court decided to quash all impugned orders made by the respondent (service tax authority) because it was found to be ultra vires to Sec. 87(b) (i) of the finance act 1994. The bench in the matter of Sanjiv Kumar Mittal vs Deputy Commissioner (TRC), CGST Commissionerate Delhi South & Ors, [W.P. (C) 5590/2020 & CM APPL.20200/2020] was headed by J. Manmohan & J. Sanjeev Narula, who opined that Single director can’t be selectively targeted to make payments in recovery of past dues on behalf of the whole company, it’s against the rule of natural justice. The petitioner was a former director in the respondent’s (no. 6’s) company & he resigned from this post within a year of his appointment (22nd august 2014 to 8th July 2015). The petitioner filed the writ before the honorable Delhi HC challenging the act of the respondent (service tax authority), who initiated several orders selectively targeting only the petitioner for recovery of its tax dues from the company for which they relied upon the finance act of 1994. The council for the petitioner argued that the directors of the company and company are two separate juristic entities, further the show cause notice was not issued to the petitioner but only to the company and that had no relation or reference to the petitioner in his personal capacity. Contradicting the above view, the council for the respondent argued that the directors of the company possess a vicarious liability for all the acts of the company and can’t take the defense of being in good faith. The court here recalled the judgment of the Bacha F. Guzdar, Bombay vs. Commissioner of Income Tax, Bombay, AIR 1955 SC 74, stated that, “…a company and its directors are separate and distinct juristic entities and this distinction cannot be jettisoned unless there is a specific statutory provision to the contrary or till a case for lifting of the corporate veil is made out.” The council for respondent referred to Sec. 9AA of the central excise act 1944 to argue that the impugned order is not ultra vires to Sec.87(b)(i) of the finance act 1994. Opposing the above view the petitioner’s counsel argued that Sec. 87(b) (i) of the finance act only provides for a “garnishee order” and not otherwise. The court here supporting the arguments raised by the petitioner’s council states that, “Section 87(b)(i) of the finance act provides for a garnishee order only – i.e. Provides for attachment of funds of an assessee lying with third parties. There is no provision in the finance act making an ex-director, even if having knowledge of affairs of the company, vicariously or jointly liable for the dues of the company.”

Sanjiv Kumar Mittal vs Deputy CommissionerCgst ... on 6 November 2020 Delhi High Court Sanjiv Kumar Mittal vs Deputy CommissionerCgst ... on 6 November 2020 IN THE HIGH COURT OF DELHI AT NEW DELHI W.P.5590 2020 & CM APPL.20200 2020 SANJIV KUMAR MITTAL ...... Petitioner Through: Ms. Pritha Srikumar Iyer Advocate with Ms. Nikita Garg Advocate versus DEPUTY COMMISSIONERCGST COMMISSIONERATE DELHI SOUTH & ORS. ...... Respondents Through: Mr. Harpreet Singh senior standing counsel with Ms. Suhani Mathur Advocate for R 1 to 4 Ms.Rashmi Advocate for R 5 Reserved on : 21st October 2020 Date of Decision: 06th November 2020 HON BLE MR. JUSTICE MANMOHAN HON BLE MR. JUSTICE SANJEEV NARULA JUDGMENT MANMOHAN J 1. Petitioner who is a former Director of respondent no.6 companyis aggrieved by the attachment of his personal bank account by respondent Service Tax Authorities towards recovery of dues from the assessee company under the Finance Act 1994Cgst ... on 6 November 2020 confirmed the demand and recovery of service tax along with interest and penalties against the 5. It is averred that the attested copy of the aforesaid order in original dated 08th August 2018 was returned undelivered with the remark "refused" by the assessee company and subsequently two demand notices dated 21st May 2019 and 08th November 2019 were issued to the assessee company through the petitioner in his capacity as its Director ARGUMENTS ON BEHALF OF PETITIONER 6. Ms. Pritha Srikumar Iyer learned counsel for petitioner stated that Mr. Ram Mohan Gupta the founder Director of the assessee company had signed an affidavit dated 22nd November 2019 wherein he had admitted that it was at his request that the petitioner was inducted as an Additional Director and that the petitioner was not responsible for the dues of the assessee company 7. She further stated that even though the petitioner had clarified that he was not involved with the assessee company since 08th July 2015 vide his letter dated 26th December 2019 yet the respondent no.1 had issued the impugned letter attachment order dated 08th June 2020 under Section 87(b)(i) of the Finance Act read with Section 174(1) of the Central Goods and Services Tax 2017for recovery of service tax determined against the 8. Learned counsel for the petitioner submitted that the impugned attachment order was beyond the purview of Section 87(b)(i) of the Finance Act as the said provision provides for a garnishee order i.e. attachment of funds of an assessee lying with third parties. According to her the impugned attachment order was without jurisdiction inasmuch as there was no basis for proceeding against the petitioner personally while acting under Section 87(b)(i) of the Finance Act as there was no material to indicate that the funds in the petitioner s personal bank account were due and payable to or held on behalf of the assessee company 9. She also submitted that there was no provision in the Finance Act making Directors personally liable for the tax liabilities of a company or empowering the respondent authorities to recover such liabilities of the company from the personal assets of its Directors 10. She emphasised that under the statutory scheme relating to Service Tax as provided under the Finance Act no proceeding was ever initiated against the petitioner by issuing a show cause notice or otherwise and he was not even granted an opportunity to be heard before the impugned demand notices dated 21st May 2019 and 08th November 2019 or attachment order dated 08th June 2020 were issued. She pointed out that even the show cause notice issued to the assessee company had no reference to the petitioner in his personal capacity ARGUMENTS ON BEHALF OF RESPONDENT Indian Kanoon Sanjiv Kumar Mittal vs Deputy CommissionerCgst ... on 6 November 2020 11. Mr. Harpreet Singh learned senior standing counsel for the respondent stated that the petitioner was a Director in the assessee company i.e. M s Unickon Real Estate Pvt. Ltd. between 22nd August 2014 and 08th July 2015 during which period service tax investigations were continuing having begun on 27th February 2014) and the statements were recorded 12. He submitted that being a Director in a Company a person is deemed to have knowledge of the affairs of the same and a bald assertion that he took up Directorship "in good faith and was not actively involved" cannot be accepted 13. He stated that it is not a matter of dispute that there is evasion of Service Tax by the assessee company as confirmed by the Order in Original dated 08th August 2018. He pointed out that the adjudication proceedings were conducted and held against the assessee company which would essentially mean recovery of dues from not only the assessee company but also from the then Directors and Additional Directors who are deemed to have played an active role in such evasion of 14. Mr. Harpreet Singh submitted that a vicarious liability is cast upon the Directors of the company to pay deposit service tax with the Government exchequer. He stated that Section 87(b)(i) of Chapter V of the Finance Act as amended provides for a mode of recovery of any amount due to the 15. He clarified that as the dues to the Government of India vide the Order in Original had attained finality the recovery provisions of Section 87 of the Finance Act were applicable and they did not envisage any further or separate notice to the petitioner as being claimed 16. Learned counsel for respondents stated that the impugned notice had been issued under Section 87(b)(i) of the Finance Act read with Section 174 of the CGST Act. He submitted that Section 174(2)(e) saves recovery proceedings of tax fine penalty allowing it to be initiated under the CGST Act and imposition thereof under the repealed Acts. Since Section 87(b)(i) was heavily relied upon by learned counsel for respondent the relevant portion of the same is reproduced hereinbelow: Section 87 Where any amount payable by a person to the credit of the Central Government under any of the provisions of this Chapter or of the rules made there under is not paid the Central Excise Officer shall proceed to recover the amount by one or more of the modes mentioned below: b)(i) the Central Excise Officer may by notice in writing require any other person from whom money is due or may become due to such person or who holds or may subsequently hold money for or on account of such person to pay to the credit of the Central Government either forthwith upon the money becoming due or being held or at or within the time specified in the notice not being before the money becomes due or is held so much of the money as is sufficient to pay the amount due from such Indian Kanoon Sanjiv Kumar Mittal vs Deputy CommissionerCgst ... on 6 November 2020 person or the whole of the money when it is equal to or less than that amount 17. Mr. Harpreet Singh repeatedly and vehemently emphasised that the Directors of a company and other persons in management are vicariously liable to pay deposit service tax. In support of his submission he relied upon Section 9AA of the Central Excise Act 1944Section 89 of the current CGST Act and Section 168(2) of the Companies Act 2013 which stipulate that a Director who has resigned shall be liable even after his resignation for the offences committed by the company during his tenure Thus according to him the penal statutory liability is deemed to have been imposed by a statute upon the petitioner in this case under Section 87 of Finance Act in line with Section 9AA of Central Excise Act 1944 and proviso to sub sectionof Section 168 of the Companies Act 2013 COURT S REASONING A COMPANY AND ITS DIRECTORS ARE SEPARATE AND DISTINCT JURISTIC ENTITIES AND THIS DISTINCTION CANNOT BE JETTISONED UNLESS THERE IS A SPECIFIC STATUTORY PROVISION TO THE CONTRARY OR TILL A CASE FOR LIFTING OF THE CORPORATE VEIL IS MADE OUT 18. Having perused the paper book and having heard learned counsel for the parties this Court finds that after completion of investigation a notice was issued to the assessee company a separate legal entity on 24th April 2017 i.e. subsequent to the petitioner s resignation as its Director on 08th July 19. Further the assessment proceedings culminated by way of the Order in Originaldated 08th August 2018 against the assessee company alone 20. It is well settled that a company is a distinct juristic entity separate from its Directors. In Bacha F. Guzdar Bombay vs. Commissioner of Income Tax Bombay AIR 1955 SC 74 the Supreme Court has held as under: 9. It was argued that the position of shareholders in a company is analogous to that of partners inter se. This analogy is wholly inaccurate. Partnership is merely an association of persons for carrying on the business of partnership and in law the firm name is a compendious method of describing the partners. Such is however not the case of a company which stands as a separate juristic entity distinct from the shareholders. In Halsbury s Laws of England Vol. 6p. 234 the law regarding the attributes of shares is thus stated A share is a right to a specified amount of the share capital of a company carrying with it certain rights and liabilities while the company is a going concern and in its winding up. The shares or other interest of any member in a company are personal estate transferable in the manner provided by its articles and are not of the nature of Indian Kanoon Sanjiv Kumar Mittal vs Deputy CommissionerCgst ... on 6 November 2020 21. From the above extract it is apparent that the distinction between a company and its Director cannot be jettisoned unless there is a specific statutory provision to the contrary or till a case for lifting of the corporate veil is made out SECTION 87(b)(i) OF THE FINANCE ACT PROVIDES FOR A GARNISHEE ORDER ONLY i.e PROVIDES FOR ATTACHMENT OF FUNDS OF AN ASSESSEE LYING WITH THIRD PARTIES THERE IS NO PROVISION IN THE FINANCE ACT MAKING AN EX DIRECTOR EVEN IF HAVING KNOWLEDGE OF AFFAIRS OF THE COMPANY VICARIOUSLY OR JOINTLY LIABLE FOR THE DUES OF THE COMPANY 22. Though Section 174(2) of CGST Act saves any duty or tax that is due or may become due under the repealed Act including Chapter V of the Finance Act yet there is no provision in the Finance Act making the Directors personally liable for service tax liabilities of a company 23. It is clarified that Section 89 of the current CGST Act is confined only to liabilities assessed under the CGST Act and cannot be used to fasten personal liability on Directors for company dues determined under the Finance Act. After all no new liability can be fastened under the CGST Act for a period prior to its enactment as it does not have retrospective operation 24. This Court is in agreement with the submission of learned counsel for petitioner that the impugned attachment order is beyond the purview of Section 87(b)(i) of the Finance Act as the said provision provides for a garnishee order only i.e. provides for attachment of funds of an assessee lying with third parties. Accordingly Section 87(b)(i) of the Finance Act does not entitle the revenue to attach personal bank accounts of a director like the petitioner for recovery of dues of the assessee company on the assumption that money is due or may become due from the Petitioner to the assessee company. This perspective is wholly misconceived contrary to the basic tenets of liability of the Company law discussed in the preceding paras 25. We have also contrasted the provisions of the Finance Act and the Central Excise Act to the extent the same are applicable to Service Tax with Section 179 of the Income Tax Act 1961 and Section 18 of the Central Sales Tax Act 1956 which for quick reference are reproduced hereinbelow A) Section 179 of the Income Tax Act 1961 179. Liability of directors of private company in liquidation.Notwithstanding anything contained in the Companies Act 1956where any tax due from a private company in respect of any income of any previous year or from any other company in respect of any income of any previous year during which such other company was a private company cannot be recovered then every person who was a director of the private company at any time during the relevant previous year shall be jointly and severally liable for the payment of such tax unless he proves that the non recovery cannot be attributed to any gross neglect misfeasance or breach of duty on his part in relation to the affairs of the company Indian Kanoon Sanjiv Kumar Mittal vs Deputy CommissionerCgst ... on 6 November 2020 2) Where a private company is converted into a public company and the tax assessed in respect of any income of any previous year during which such company was a private company cannot be recovered then nothing contained in sub sectionshall apply to any person who was a director of such private company in relation to any tax due in respect of any income of such private company assessable for any assessment year commencing before the 1st day of April 1962 Explanation. For the purposes of this section the expression "tax due" includes penalty interest or any other sum payable under the Act B) Section 18 of the Central Sales Tax Act 1956 18. Liability of directors of private company in liquidation. Notwithstanding anything contained in the Companies Act 1956when any private company is wound up after the commencement of this Act and any tax assessed on the company under this Act for any period whether before or in the course of or after its liquidation cannot be recovered then every person who was a director of the private company at any time during the period for which the tax is due shall be jointly and severally liable for the payment of such tax unless he proves that the non recovery cannot be attributed to any gross neglect misfeasance or breach of duty on his part in relation to the affairs of the company The aforenoted provisions firstly pertain to companies in liquidation and pertinently begin with a non obstante clause. The said provisions specifically render a Director jointly and severally liable for tax dues assessed against private companies unless he proves that the non recovery cannot be attributed to any gross neglect misfeasance or breach of duty on his part in relation to the affairs of the company. However there is no such provision viz a viz Service Tax and the absence thereof is determinative. Levy and collection of tax must be with the authority of law by virtue of Article 265 of the Constitution. Consequently the impugned action against the petitioner is without jurisdiction 26. In Sunil Parmeshwar Mittal vs. Deputy CommissionerCentral Excise Mumbai Ors. 2005Mah. LJ 837 the Bombay High Court has held as under: 28. Thus notices issued to the petitioners were not only in breach of principles of natural justice but the same were in violation of section 11 A of the Excise Act. At this juncture it will not be out of place to mention that even under the provisions of the Companies Act the petitioners are not liable to discharge the liability of the company if any of which they were directors in the past. As soon as a company is incorporated it constitutes an independent juristic person in the eyes of law as distinct from its members constituting it. Even private limited company consisting of only two members has nonetheless a separate legal entity. It is entirely different from its members. From the date of its incorporation a company is endowed with certain special rights and privileges and unlike the partnership firm or a Hindu undivided family is not a mere aggregate of members. It can carry on business and can acquire and hold property in its corporate name and has other special advantages e.g. to contract with all its members and others. In short it becomes a body corporate Indian Kanoon Sanjiv Kumar Mittal vs Deputy CommissionerCgst ... on 6 November 2020 capable of exercising all functions of an incorporated company having a perpetual succession. It remains in existence irrespective of the changes in its members until it is wound up and dissolved under the provisions of the Companies Act. The characteristic of company limited by shares is that it enjoys the privilege of limited liability i.e. liability of its member is limited to the extent of the face value of the shares subscribed by each member and the amount remaining unpaid on them for the time being. Thus considering effect of incorporation of a company and its independent juristic existence a former director of the company cannot be held responsible for payment of the liabilities of the company in absence of any specific provision. No contrary provision to persuade us not to take a view taken hereunder was brought to our notice. In this view of the matter we have no hesitation to hold and declare that petitioners herein cannot be held liable to pay outstanding dues of the central excise duty sought to be demanded from them. We therefore quash and set aside the impugned last demand notice dated 1st October 2003 holding it to be without jurisdiction and without authority of law and make the rule absolutely in terms prayer clauseandwith no order as to costs 27. Consequently in the absence of a specific provision and given a company s separate legal personality the petitioner ex Director even if having knowledge of affairs of the company is not vicariously or jointly liable for the dues of the company. The onus of proof shall remain on the department respondents to show that a Director is personally liable for the dues of the company at the stage of issuing show cause notice under Section 73 of the Finance Act SECTION 9AA OF THE CENTRAL EXCISE ACT 1944 AND SECTION 168(2) OF THE COMPANIES ACT 2013 DEAL WITH OFFENCES COMMITTED BY A COMPANY WHICH IS DISTINCT FROM CIVIL LIABILITY TO PAY TAX 28. The reliance upon Section 9AA of the Central Excise Act 1944 and Section 168(2) of the Companies Act 2013 is untenable in law as these provisions deal with offences committed by a company which is distinct from civil liability to pay tax THE IMPUGNED ORDER IS IN VIOLATION OF PRINCIPLES OF NATURAL JUSTICE 29. This Court is also of the view that any show cause notices issued to the assessee company during the adjudication proceedings does not amount to notice to the petitioner in his personal capacity Admittedly no notice was ever issued to the petitioner personally prior to the passing of the impugned demand notices dated 21st May 2019 and 09th November 2019 and or the attachment order dated 08th June 2020 Indian Kanoon Sanjiv Kumar Mittal vs Deputy CommissionerCgst ... on 6 November 2020 30. In fact during the course of final hearing this Court had put a pointed question to the Principal Commissioner CGST as to whether the respondents would like to give a fresh notice to the petitioner clearly mentioning as to how the petitioner was liable for tax dues of the assessee company. However the Principal Commissioner informed this Court that the department has no material against the petitioner other than the fact that he was a Director of the assessee company 31. Consequently the impugned order is in violation of principles of natural justice 32. This Court is further of the view that recovery cannot be selectively initiated against one of the Directors only i.e. the petitioner 33. For the aforesaid reasons the present writ petition is allowed without costs and the Demand notices dated 21st May 2019as well as 08th November 2019and attachment order dated 08th June 2020are quashed. Any action taken by the respondents in pursuance to the impugned notices order and OIO dated 08th August 2018 against the petitioner are also set aside MANMOHAN J SANJEEV NARULA J NOVEMBER 06 2020 rn js Indian Kanoon

Transit anticipatory bail allowed to facilitate the approaching of the competent court of jurisdiction: The High Court of Bombay at Goa

Limited relief of protection can be granted to the Applicants only to facilitate their approaching the competent Court of jurisdiction for seeking anticipatory bail after considering the possibility that the accused may be apprehended or arrested by some other competent jurisdiction, it cannot be concluded that the apprehension is misplaced or imaginary. The High Court of Bombay at Goa led by the single bench including Justice Mr Manish Pitale in the cases of Ketan Kanakia v. State of Goa[CRMAB/748/2021] and Jignesh Prakashchandra Pandya v. State of Goa[CRMAB/749/2021]. the Applicants approached this hon’ble court projecting extreme urgency in the matter for the reason that both the Applicants apprehend arrest in connection with crimes registered at Koregaon Park Police Station, Pune for offences under Section 384, 385, 420 read with Sections 34 and 120-B of the Indian Penal Code (IPC). The learned counsel appearing for the Applicants contended that they are seeking limited relief of protection till they approach the competent Court of jurisdiction for seeking anticipatory bail in connection with the crimes alleged against them. For the applicant, Mr Ketan Kanakia in CRMAB no. 748 of 2021, reliance is placed on a medical certificate issued by a Consultant Physician certifying that the Applicant is suffering from ailments and has been advised to rest till 24.11.2021. Mr Jignesh, the applicant in No. 749 submitted that he will require protection for a brief period in order to facilitate the approaching of the competent court for seeking anticipatory bail. Mr S. G. Bhobe, the Public Prosecutor pointed out that since the FIR is registered at Pune in Maharashtra, provided that the respondent state would not have much to say in the matter. Mr Bhobe submitted that even if the limited relief sought by the Applicant is to be granted, appropriate conditions need to be imposed, including a condition that would ensure that the Applicants do not misuse the limited relief that may be granted by this Court. The court after a perusal of the judgements N. K. Nayar & Ors. vs. State of Maharashtra & Ors. , Shantanu Shivlal Muluk vs. The State of Maharashtra and Shrikant Gopilal Rathi & Ors. vs. State of Maharashtra & Ors., show that limited relief of protection can be granted to the Applicants only to facilitate their approaching the competent Court of jurisdiction for seeking anticipatory bail. The court directed “This Court is not going into the merits of the matter or the entitlement of the Applicants for grant of anticipatory bail in any manner. But, at the same time, since there is a possibility that the Applicants may be apprehended or arrested in connection with the said FIR if the Maharashtra Police take assistance of the local police in the State of Goa, it cannot be said that the apprehension is misplaced or imaginary.”

CRMAB 748 749 2021 F.DOC IN THE HIGH COURT OF BOMBAY AT GOA CRIMINAL MISC. APPLICATIONNOS.748 AND 749 OF 2021 NO.748 OF 2021Ketan Kanakia Versus State of Goa Thr. Public Prosecutor CRIMINAL MISC. APPLICATIONNO.749 OF 2021A N D Jignesh Prakashchandra Pandya … Applicant Versus State of Goa Thr. Public Prosecutor Mr. I. Agha and Ms. Valencia Fernandes Advocate for the Mr. S. G. Bhobe Public Prosecutor for the Respondent State CORAM: MANISH PITALE J 3rd November 2021 In these applications the Applicants have approached this Court projecting extreme urgency in the matter for the reason that both the Applicants apprehend arrest in connection with Crime no 143 2021 registered at Koregaon Park Police Station Pune State of Maharashtra for offences under Section 384 385 420 read with Sections 34 and 120 B of the Indian Penal Code1380 3rd November 2021 CRMAB 748 749 2021 F.DOC State would not have much to say in the matter. But it is submitted that even if the limited relief sought by the Applicant is to be granted appropriate conditions need to be imposed including a condition that would ensure that the Applicants do not misuse the limited relief that may be granted by this Court A perusal of the Judgments and Orders upon which the learned Counsel for the Applicants has placed reliance show that limited relief of protection can be granted to the Applicants only to facilitate their approaching the competent Court of jurisdiction for seeking anticipatory bail. This Court is not going into the merits of the matter or the entitlement of the Applicants for grant of anticipatory bail in any manner. But at the same time since there is a possibility that the Applicants may be apprehended or arrested in connection with the said FIR if the Maharashtra Police take assistance of the local police in the State of Goa it cannot be said that the apprehension is misplaced or Hence in the facts and circumstances of the present case the applications are conditionally allowed in the following terms a) The applicants are granted protection from coercive action or arrest only for a period of three weeks from today provided i) The Applicants during this period shall not leave the State of Goa except to travel to the State of Maharashtra for moving such applications before the competent Court of jurisdiction 3rd November 2021 CRMAB 748 749 2021 F.DOC ii) The Applicant shall inform the concerned Police Station i.e. the Koregaon Park Police Station Maharashtra about the Order passed today by this Court iii) Needless to say the Applicants shall not act in any manner that would be prejudicial to the investigation that may be carried out by the concerned Police Officers in respect of the aforesaid FIR Applications are disposed of in the above terms MANISH PITALE J 3rd November 2021

Reasonable Extension can be Granted in Exceptional Circumstances in CIRP: National Company Law Appellate Tribunal, Principal Bench, New Delhi

A reasonable extension of the CIRP period must be considered where there are extraneous circumstances, as was observed by the NATIONAL COMPANY LAW APPELLATE TRIBUNAL, PRINCIPAL BENCH, NEW DELHI, before the bench consisting of the Justice Ashok Bhushan, Chairperson; Justice Jarat Kumar Jain, Member (Judicial); and Dr. Alok Srivastava, Member (Technical) in the matter of Whispering Tower Flat Owner Welfare Association vs. Abhay Narayan Manudhane, Resolution Professional of the Corporate Debtor, Bank of India and Housing Development and Infrastructure Limited (HDIL) [Company Appeal (AT) (Insolvency) No. 896 of 2021], on 4.1.22. In the present case, three appeals have been filed against same judgment dated 29.09.2021 passed by the National Company Law Tribunal, Mumbai Bench, rejecting the I.A. No.2118 of 2021 filed by the Resolution Professional seeking extension of Corporate Insolvency Resolution Process (CIRP). The appellant is an Association formed by the Homebuyers of the flats proposed to be constructed and delivered by the Corporate Debtor of a Project titled “Whispering Towers” located at Village Nahur, Taluka Kurla. In the aforesaid project almost 1500 flats were to be constructed. The other two appeals deal with the two appellants; Appellant No.1 – Majestic Towers Flat Owners Association is an Association of 290 allottees, who purchased flats in the project known as “Majestic Towers” at Bandra, Mumbai. Appellant No.2-Galaxy Apartment is an Association of Homebuyers comprising 96 allottees of ‘F Wing’ of the Project – “Galaxy Apartments” situated at Kurla, Mumbai. All the appellants are aggrieved by the rejection of Application No.2118 of 2020 filed by Resolution Professional before the Adjudicating Authority for extension of CIRP period. There being common question of facts and law, all the Appeals were heard together and were being decided by this common judgment. The Learned Counsel for the appellants, submitted that in event the Corporate Debtor is thrown to liquidation, the most sufferer will be the Homebuyers, who are thousands in numbers in different Projects and belong to lower middle class Society, who by collecting necessary finances and after taking loans from different Banks have made payments to the Corporate Debtor for allotment of flats. It was only 8th September, 2021 that CoC agreed to explore possibility of Project Wise Resolution, hence, reasonable time ought to have been allowed by the Adjudicating Authority by extending the CIRP period. He further submits that with regard to whole Project, when CIRP proceedings were initiated, not a single Resolution Plan was received, whereas, after the decision dated 8th September, 2021, 25 applications have been received, evidencing interest in the Project wise Resolution. It was further contended that the tribunal previously had overlooked certain important precedents with respect to the matter at hand. The Learned Counsel for the respondents, on the other hand, submitted that the Resolution Professional is not opposing the present appeal and would govern itself by any orders passed by this Tribunal. The Resolution Professional has also relied on Committee of Creditors’ decision dated 8th September, 2021 and has stated that with regard to eight Projects as noted in the decision of CoC, 25 Expression of Interests have been received. It was further submitted that minimum number of 70 days are required to run the process. The National Company Law Appellate Tribunal, Principal Bench, New Delhi, after perusing the facts and arguments, as well as placing reliance upon precedents, held that the object of the IB Code is the resolution of the insolvency of a Corporate Debtor. Efforts of all stakeholders has to be towards resolution of insolvency. There can be no dispute that the law mandates that CIRP proceedings have to be concluded within 330 days, however the same can be extended in exceptional circumstances. It was observed that it would be in the interest of all stakeholders that the Corporate Debtor will be back on its foot instead of being sent into liquidation. It was further held that time taken in legal proceedings is largely due to factors owing to which the fault cannot be ascribed to the litigants before the Adjudicating Authority. It was noted that in the present case, it’s the case of Appellant (Company Appeal (AT) (Insolvency) No. 896 of 2021) that I.A. No.827 of 2021 was filed praying that Tribunal may direct the Respondent to form a special Resolution Plan for the “Whispering Towers Project” by seeking Resolution Applicants specifically for the said Project and create Special Purpose Vehicle for completion of the said Project to enable the members of his Intervener Association to get possession of their homes, which Application remained pending. The tribunal upheld the view that Adjudicating Authority ought to have given reasonable extension of period for proceeding further with Resolution Project Wise for which 25 Expression of Interests have already been received with the Resolution Professional. Thus, the appeal was allowed.

NATIONAL COMPANY LAW APPELLATE TRIBUNAL PRINCIPAL BENCH NEW DELHI Company Appeal(Insolvency) No. 8921 Arising out of Order dated 29.09.2021 passed by the Adjudicating Authority National Company Law Tribunal) Mumbai Bench Court III in I.A. 2118 2021 in C.P.(IB) 27(MB) 2019) Appellant IN THE MATTER OF: Whispering Tower Flat Owner Welfare Association B 704 Runwal Pride CHSL Behind R Mall LBS Marg MulundMumbai 400080 Through Dr. Haresh Manglani R o 604 Mulund Devi CHSL BP Singh Road Mulund West Mumbai 400080. For Appellant: Abhay Narayan Manudhane Resolution Professional of the Corporate Debtor 1204 Marker Chamber V Jamnalal Bajaj Road Nariman Point Mumbai 400021. Bank of India Through the Chief General Manager Star House C 5 “G” Block Bandra Kurla Complex BandraMumbai 400051. Housing Development and Infrastructure LimitedThrough the Resolution Professional Wadhawan House Plot No.32 A Union Park Road No.5 BandraMumbai 400050. Respondents Mr. Soumya Roop Sanyal Ms. Heena Gopal Rohra Advocates. Company Appeal(Insolvency) Nos.896 980 & 10421 For Respondents: Mr. Shahdab Jan Ms. Prerna Wagh Ms. Meghna Rao Advocates for R 1(Insolvency) No. 9821 Arising out of Order dated 29.09.2021 passed by the Adjudicating Authority National Company Law Tribunal) Mumbai Bench Court III in I.A. 2118 2021 in C.P.(IB) 27(MB) 2019) IN THE MATTER OF: 1. Majestic Towers Flat Owners Association Through its President Mr. Chandrakishore Kolindewala P3 13 Deep Sadan CHS Ltd. Sundernagar SV Road MaladMumbai 400064. Galaxy Apartment F Wing Welfare Association Through its President Mr. Sanjay Chandrakant Kangne C o Satish Adsul Shop No.3 Building No.28 Viswadarshan CHS Nehru Nagar Mumbai 400024. Housing Development and Infrastructure LimitedThrough its Resolution Professional Abhay Narayan Manudhane 201 Shubh Ashish 129 Model town AndheriMumbai Maharashtra 400053. Bank of India Through its Assistant General Manager Star House C 5 “G” Block Bandra Kurla Complex BandraMumbai 400051. Appellants Company Appeal(Insolvency) Nos.896 980 & 10421 Rakesh Wadhawan Shareholder HDIL Wadhawan House 32 A Golf Links Union Park BandraMumbai 400052. Respondents For Appellants: Mr. Sunil Fernandes Mr. Darpan Sachdeva Mr. Shubham Sharma Advocates. For Respondents: Mr. Shahdab Jan Ms. Prerna Wagh Ms. Meghna Rao Advocates for R 1(Insolvency) No. 10421 Arising out of Order dated 29.09.2021 passed by the Adjudicating Authority National Company Law Tribunal) Mumbai Bench Court III in I.A. 2118 2021 in C.P.(IB) 27(MB) 2019) IN THE MATTER OF: Sarang Kumar Wadhawan Presently in judicial custody At Mumbai Central Prison Mumbai Abhay Narayan Manudhane Resolution Professional of Housing Development and Infrastructure Limited 1204 1221 Maker Chamber V Jamnalal Bajaj Road Nariman Point Mumbai 400021. Respondent Appellant For Appellants: Ms. Disha Shah and Mr. Subir Kumar For Respondents: Mr. Shahdab Jan Ms. Prerna Wagh Ms. Meghna Rao Advocates for R 1(Insolvency) Nos.896 980 & 10421 ASHOK BHUSHAN J. JUDGMENT These three Appeals have been filed against same judgment dated 29.09.2021 passed by the National Company Law Tribunal Mumbai Bench rejecting the I.A. No.2118 of 2021 filed by the Resolution Professional seeking extension of Corporate Insolvency Resolution Process The Appellant in Company Appeal(Insolvency) No. 8921 is an Association formed by the Homebuyers of the flats proposed to be constructed and delivered by the Corporate Debtor of a Project titled “Whispering Towers” located at Village Nahur Taluka Kurla. In the aforesaid project almost 1500 flats were to be constructed. In Company Appeal(Insolvency) No. 9821 there are two Appellants. Appellant No.1 Majestic Towers Flat Owners Association is an Association of 290 allottees who purchased flats in the project known as “Majestic Towers” at Bandra Mumbai. Appellant No.2 Galaxy Apartment is an Association of Homebuyers comprising 96 allottees of ‘F Wing’ of the Project “Galaxy Apartments” situated at Kurla Mumbai. Company Appeal(Insolvency) No. 10421 has been filed by the Appellant Ex Promoter Director of the Corporate Debtor Housing Development & Infrastructure Limited. Company Appeal(Insolvency) Nos.896 980 & 10421 5. All the Appellants are aggrieved by the rejection of Application No.2118 of 2020 filed by Resolution Professional before the Adjudicating Authority for extension of CIRP period. There being common question of facts and law all the Appeals are heard together and are being decided by this common judgment. On an Application filed by M s Bank of India under Section 7 of the Insolvency and Bankruptcy Code 2016 the Corporate Insolvency Resolution Process was initiated by an order dated 20th August 2019 passed by the Adjudicating Authority against the Corporate Debtor namely M s Housing Development & Infrastructure Ltd. The Corporate Debtor a Real Estate Company started several multi storied Housing Project. The Company pursuant to grant of license by various statutory Authorities launched several Housing Projects. After admission of the Application under Section 7 on 29th August 2019 Interim Resolution Professional was appointed who was also approved as Resolution Professional by the Committee of Creditors (Insolvency) Nos.896 980 & 10421 re run of the CIRP and explore the possibility of Project wise Resolution and put the same for e voting. The CoC approved division of the assets of the Corporate Debtor into eight Project for the purpose of exploring possibility of partial piecemeal resolution. Resolution Professional was authorized to explore the possibility of re run the process by inviting Expression of Interest for entire Company as a going concern with an option to submit Resolution Plan for one or more Project individually or jointly with other Projects. Resolution Professional was authorized to take necessary action in the above regard. After CoC’s decision dated 08.09.2021 the Resolution Professional filed an I.A. No.21121 wherein after narrating the sequence of event prayed for extension of CIRP period. In the Application it was mentioned by the Resolution Professional that the CIRP period was to come to an end till 15th September 2021 and was extendable till 30th September 2021. The details of eight Projects were also mentioned in the Application for which Project wise Resolution was sought for. After the CoC’s decision dated 8th September 2021 Resolution Professional invited Expression of Interest for rehabilitation of the Corporate Debtor Project Wise. In response to which 25 Expression of Interests were received by the Resolution Professional. The Application filed by Resolution Professional came consideration before the Adjudicating Authority and Adjudicating Authority noticed that Committee of Creditors has decided on 8th September 2021 to Company Appeal(Insolvency) Nos.896 980 & 10421 go for Project Wise Resolution but observation of the Adjudicating Authority was that it was because of the pressure from the Homebuyers that CoC agreed to explore the possibility of Resolution Plan of the Corporate Debtor by dividing the total assets into eight Projects. The Adjudicating Authority observed that even after more than 730 days there is no sight of completion of CIRP and the RP and CoC merely want to explore the possibility of Resolution. With these observations the Application was The submission of the learned Counsel for the Appellant is that it was on the request made by Homebuyers the Resolution Professional included Agenda for Project Wise Resolution which initially at two times could not receive approval of the CoC but ultimately in CoC meeting dated 8th September 2021 it was approved. It is submitted that in event the Corporate Debtor is thrown to liquidation the most sufferer will be the Homebuyers who are thousands in numbers in different Projects and belong to lower middle class Society who by collecting necessary finances and after taking loans from different Banks have made payments to the Corporate Debtor for allotment of flats. It was only 8th September 2021 that CoC agreed to explore possibility of Project Wise Resolution hence reasonable time ought to have been allowed by the Adjudicating Authority by extending the CIRP period. He further submits that with regard to whole Project when CIRP proceedings were initiated not a single Resolution Plan was received whereas after the decision dated 8th September 2021 25 Company Appeal(Insolvency) Nos.896 980 & 10421 applications have been received evidencing interest in the Project wise 10. Learned Counsel for the Appellant submits that Adjudicating Authority has not considered the ratio laid down by Hon’ble Supreme Court in Committee of Creditors of Essar Steel India Ltd. vs. Satish Kumar Gupta and Ors.8 SCC 531. The learned Counsel for the Appellant has also relied on a judgment of this Tribunal in Company Appeal Insolvency) No. 9219 Flat Buyers Association Winter Hills 77 Gurgaon vs. Umang Realtech Pvt. Ltd through IRP & Ors. 11. The learned Counsel appearing for Resolution Professional candidly submitted that the Resolution Professional is not opposing the present Appeal and would govern itself by any orders passed by this Tribunal. The Resolution Professional has also relied on Committee of Creditors’ decision dated 8th September 2021 and has stated that with regard to eight Projects as noted in the decision of CoC 25 Expression of Interests have been received. It is further submitted that minimum number of 70 days are required to run the process. 12. We have considered the submissions of learned Counsel for the parties and have perused the record. 13. The first two Appeals have been filed by the Homebuyers Association of Project Whispering Towers Flat Owners Welfare Association and Majestic Towers Flat Owners Association with Galaxy Apartment F Wing Welfare Association who are allottees of different flats in the above two Projects Company Appeal(Insolvency) Nos.896 980 & 10421 namely Whispering Towers and Majestic Towers Projects of the Corporate Debtor. Homebuyers as a class of voters have about 10% voting shares in the Committee of Creditors. 14. The object of the IB Code is the resolution of the insolvency of a Corporate Debtor. Efforts of all stakeholders has to be towards resolution of insolvency. There can be no dispute that the law mandates that CIRP proceedings have to be concluded within 330 days. Hon’ble Supreme Court after noticing the above requirement of 330 days in Section 12 laid down in8 SCC 531 Committee of Creditors of Essar Steel India Ltd. vs. Satish Kumar Gupta and Ors. that normally as per law insolvency resolution process has to be completed within 330 days maximum but in exceptional cases the period can be extended by Adjudicating Authority Appellate Tribunal. In paragraph 127 of the judgment following has been laid down: “127. Both these judgments in Atma Ram Mittal 4 SCC 284] and Sarah Mathew 2 SCC 62 :1 SCC721] have been followed in Neeraj Kumar Sainy v. State of U.P. 14 SCC 136 : 8 SCEC 454] SCC paras 29 and 32. Given the fact that the time taken in legal proceedings cannot possibly harm a litigant if the Tribunal itself cannot take up the litigant s case within the requisite period for no fault of the litigant a provision which mandatorily requires the CIRP to end by a certain date — without any Company Appeal(Insolvency) Nos.896 980 & 10421 exception thereto — may well be an excessive interference with a litigant s fundamental right to non arbitrary treatment under Article 14 and an excessive arbitrary and therefore unreasonable restriction on a litigant s fundamental right to carry on business under Article 19(1)(g) of the Constitution of India. This being the case we would ordinarily have struck down the provision in its entirety. However that would then throw the baby out with the bath water inasmuch as the time taken in legal proceedings is certainly an important factor which causes delay and which has made previous statutory experiments fail as we have seen from Madras Petrochem4 SCC 1 : 2 SCC 478] . Thus while leaving the provision otherwise intact we strike down the word “mandatorily” as being manifestly arbitrary under Article 14 of the Constitution of India and as being an excessive and unreasonable restriction on the litigant s right to carry on business under Article 19(1)(g) of Constitution. The effect of this declaration is that ordinarily the time taken in relation to the corporate resolution process of the corporate debtor must be completed within the outer limit of 330 days from the insolvency commencement date including extensions and the time taken in legal proceedings. However on the facts of a given case if it can be shown to the Adjudicating Authority and or Appellate Tribunal under the Code that only a short period is left for completion of the insolvency resolution process beyond 330 days and that it would be in the interest of all stakeholders that the corporate debtor be put back on its feet instead of being sent into liquidation and that the time taken in legal Company Appeal(Insolvency) Nos.896 980 & 10421 proceedings is largely due to factors owing to which the fault cannot be ascribed to the litigants before the Adjudicating Authority and or Appellate Tribunal the delay or a large part thereof being attributable to the tardy process of the Adjudicating Authority and or the Appellate Tribunal itself it may be open in such cases for the Adjudicating Authority and or Appellate Tribunal to extend time beyond 330 days. Likewise even under the newly added proviso to Section 12 if by reason of all the aforesaid factors the grace period of 90 days from the date of commencement of the Amending Act of 2019 is exceeded there again a discretion can be exercised by the Adjudicating Authority and or Appellate Tribunal to further extend time keeping the aforesaid parameters in mind. It is only in such exceptional cases that time can be extended the general rule being that 330 days is the outer limit within which resolution of the stressed assets of the corporate debtor must take place beyond which the corporate debtor is to be driven into liquidation.” 15. The Hon’ble Supreme Court in the above case has held that it would be in the interest of all stakeholders that the Corporate Debtor will be back on its foot instead of being sent into liquidation. It was further held that time taken in legal proceedings is largely due to factors owing to which the fault cannot be ascribed to the litigants before the Adjudicating Authority Appellate Tribunal. In the present case it’s the case of Appellant(Insolvency) No. 8921) that I.A. No.8221 was filed praying that Tribunal may direct the Respondent to form a special Resolution Plan for the “Whispering Towers Project” by seeking Resolution Company Appeal(Insolvency) Nos.896 980 & 10421 Applicants specifically for the said Project and create Special Purpose Vehicle for completion of the said Project to enable the members of his Intervener Association to get possession of their homes which Application remained pending. 16. We have noted above that in the Corporate Insolvency Resolution Process no Resolution Plan was received. The Committee of Creditors deliberated on the request of the Resolution Professional to undertake Project Wise Resolution. It is useful to quote following extract from the Minutes of the Committee of Creditors’ Meeting dated 8th September 2021: “The Chairperson stated that in order to achieve maximization of value assets projects of the CD can be divided into various verticals groups projects based on the viability security interest. The Chairperson reiterated that in 13th CoC meeting held on 30th January 2021 the RP proposed project wise resolution comprising of 7 projects verticals and suggested that on same line CoC members can divide assets in 7 or more groups. The subject matter was discussed when representative of LIC suggested that HDIL towers may be considered as separate group verticals as they have exclusive charge on this asset. After discussion the CoC decided to consider 8 verticals for project wise resolution wherein the assets which are not covered under any of the verticals can be clubbed under one residual category. The indicative list of assets projects is as follows: 1. Majestic Towers 2. Whispering Towers 3. Premier Exotica Company Appeal(Insolvency) Nos.896 980 & 10421 4. Galaxy Apartment 5. BKC Inspire 6. Paradise City 7. HDIL Towers8. Rest of the Company and assets not included above The CoC members suggested that RP be authorized to increase the numbers of Project9s0 if required based on the viability security interest in specific asset group of The Chairperson further stated that re run of CIRP and project wise resolution will be subject to grant of further time by Hon’ble NCLT for which the necessary Application will be filed by the RP. Timeline for re run of CIRP was also displayed at the meeting. On a query regarding powers of Hon’ble NCLT for extension beyond timeline prescribed under Section 12 of the Code the Legal Advisor stated that the Hon’ble NCLT has inherent powers under Rule 11 of NCLT Rules to grant or pass orders on any matter not expressly covered under any Section of Code as may be required depending on the facts and circumstances of each case. Based on the views of the CoC members it was decided to consider re run of the CIRP and explore possibility of project wise resolution and put the same for e voting. The Chairperson further stated that liquidation of the CD as proposed earlier will not be put up for e voting. The Members of the CoC took note of the same and the Chairperson informed that re run of CIRP and possibility of project wise resolution would be put up for e voting as Item B 1 below. Company Appeal(Insolvency) Nos.896 980 & 10421 The Chairperson that proposal regarding extension exclusion further time by Hon’ble NCLT would be put for e voting as Item B 2.” Item No.B 1 was taken up for consideration and it was resolved that Committee of Creditors approves division of assets of the Corporate Debtor into 8 project for the purpose of exploring possibility of partial piecemeal resolution. The Resolution Professional invited Expression of Interest and it has been submitted by Resolution Professional that 25 Expression of Interests have been received but on account of refusal of extension by Adjudicating Authority no further steps could be taken. 18. From the materials on the record it is clear that CIRP period along with extensions granted from time to time was to come to an end on 15th September 2021 30th September 2021 and in the Application filed by Resolution Professional further extension was sought. There is no doubt that maximum period of 330 days has already come to an end in the month of September 2021. The Adjudicating Authority made observation that even after 730 days there is no sight of completion of CIRP and RP and COC merely want to explore the possibility of Resolution. Adjudicating Authority lost sight that after extension given from time to time the period expired only in the month of September 2021. The Adjudicating Authority after noticing the Resolution of the CoC dated 8th September 2021 observed that the said Resolution has been taken because of the pressure from the Homebuyers. The Resolution taken on 8th September 2021 as Company Appeal(Insolvency) Nos.896 980 & 10421 extracted above was with regard to Project Wise Resolution dividing entire assets into eight Projects. This Project Wise Resolution became possible only after 8th September 2021. The Committee of Creditors whose commercial wisdom has to be given due weight rightly took the decision for Project Wise Resolution. 19. No Resolution Applicant is ready to undertake huge real estate Project which has amply been proved when Expression of Interest for Project Wise Resolution was called 25 Applicants have already shown their interest in different Projects. The Adjudicating Authority failed to give due weight to the Resolution decision of the CoC dated 8th September 2021 and erred in not allowing even a reasonable period for proceeding further with Project Wise Resolution. 20. The Hon’ble Supreme Court time and again reminded that the object of IBC is to resolve the insolvency resolution process and liquidation is to be adopted as a last resort. 21. The learned Counsel for the Appellant has also relied on the judgment of this Tribunal in Company Appeal(Insolvency) No. 926 of 2019 wherein this Tribunal has also observed that Corporate Insolvency Resolution Process against real estate Company is limited to project as per approved Plan. 22. We in the facts of the present case are of the view that Adjudicating Authority ought to have given reasonable extension of period for proceeding Company Appeal(Insolvency) Nos.896 980 & 10421 further with Resolution Project Wise for which 25 Expression of Interests have already been received with the Resolution Professional. In view of the above discussion we allow the Appeal and set aside the order of the Adjudicating Authority dated 29.09.2021 allow the Application being I.A. No.21121 in C.P.(IB) 27(MB) 2019 filed before the Adjudicating Authority and grant extension of 90 days from the date of this order during which period the Resolution Professional and the Committee of Creditors may complete the Project Wise Resolution as decided in their meeting on 8th September 2021. No order as to costs. Justice Ashok Bhushan] Justice Jarat Kumar Jain] MemberDr. Alok Srivastava] MemberNEW DELHI 4th January 2022 Company Appeal(Insolvency) Nos.896 980 & 10421

Second appeal U/s 24 TN Recognized Private Schools (Regulation) Act available even with minimal changes in service conditions: Madras High Court

The language employed in Section 24 is that a teacher or other person or the educational agency are entitled to prefer second appeal. Therefore, even in respect of minor punishment falling under Section 23(b), the educational agency or the teacher or other person may file a second appeal. These were held by the High Court of Madras through the bench of Justice S.M Subramaniam in the case A. Thilakam v. The Joint Director/ Appellate Authority & Anr.(W.P.(MD) No.20302 of 2019 and W.M.P.(MD) No.16911 of 2019) The crux of the case is the petitioner is working as a Secondary Grade Teacher in the 2nd respondent-School, which is a Government Aided School. The appointment of the petitioner was approved by the competent Educational Authority and the petitioner is working under the management of the 2nd respondent. the petitioner was imposed with an order of punishment on certain personal vengeance and extraneous circumstances. Several instances are stated in the affidavit for the purpose of assailing the impugned orders. The Learned counsel for the petitioner argued that the power of judicial review of the High Court under Article 226 of the Constitution of India is to ensure the process through which a decision is taken by the competent authority in consonance with the provisions of the statute or rules, but not the decision itself. Therefore, the scope of adjudication of disputed facts is limited and such adjudication can be done in extraordinary circumstances where it is possible to form an opinion.  The counsel also submitted that the aggrieved person has to exhaust the statutory remedies provided under the Tamil Nadu Recognised Private Schools (Regulation) Act, 1973 (hereinafter referred to as “the Act” for brevity) for the better appreciation of facts. This apart, the factual findings recorded by the competent authority or the statutory authorities by conducting a full- fledged enquiry would be of greater assistance to the High Court for the purpose of exercise of judicial review under Article 226 of the Constitution of India. Thus, the aggrieved person need not be deprived of an opportunity of an effective adjudication under the provisions of the Act. The single-judge bench of Justice S.M Subramaniam categorically stated that the appeal remedy before the tribunal under Section 24 extends to any alteration of service conditions in Section 23 after exhausting the right to seek relief before the competent authority, i.e, the first appeal. Thus stating “In the present case, the first appeal was decided by the Joint Director of Elementary Education (Aided Schools). Under these circumstances, the petitioner has to approach the Tribunal constituted for the purpose of adjudication of Second Appeal under Section 24 of the Act. The writ petition was instituted in the year 2019. Therefore, the petitioner need not be unnecessarily driven to the Tribunal for the purpose of filing a fresh appeal, as this Court is inclined to transfer the writ petition before the Tribunal for disposal of the case by re-numbering as Second Appeal under Section 24 of the Act. These being the factum established, this Writ Petition stands transferred to the Principal Sub Court/Tribunal, Pudukkottai District constituted under Section 24 of the Tamil Nadu Recognized Private Schools (Regulation) Act, 1973 for adjudication and disposal and the Tribunal is requested to dispose of the matter as expeditiously as possible. The Registry, Madurai Bench of Madras High Court, Madurai is directed to transfer all the case papers to the Principal Sub Court/Tribunal, Pudukkottai District within a period of two weeks from today.”

W.P.(MD) No.203019BEFORE THE MADURAI BENCH OF MADRAS HIGH COURTDATED : 08.02.2022CORAM THE HONOURABLE MR.JUSTICE S.M.SUBRAMANIAMW.P.(MD) No.203019andW.M.P.(MD) No.169119A.Thilakam ... Petitioner vs 1.The Joint Director Appellate Authority Elementary EducationDirectorate of Elementary Education Chennai 600 006.2.M.C.T.M. Memorial Primary School Rep. by its Secretary Namunasamuthiram Pudukkottai District.... RespondentsPetition filed under Article 226 of the Constitution of India praying for issuance of Writ of Certiorarified Mandamus to call for the records relating to the impugned order issued by the 1st respondent in Na.Ka.No.014924 H4 2019 dated 06.08.2019 read with order dated 25.01.2011 issued by the 2nd respondent and quash the same and consequently direct the respondents to pay all the consequential benefits payable to the petitioner.___________https: www.mhc.tn.gov.in judis W.P.(MD) No.203019For Petitioner:Mr.T.Antony Arul RajFor R1:Mr.G.V.Vairam Santhosh Additional Government Pleader O R D E RThe order passed by the 1st respondent dated 06.08.2019 read with order dated 25.01.2011 issued by the 2nd respondent are sought to be quashed in the present writ petition.2.The writ on hand has been instituted questioning the punishment imposed. The petitioner is working as a Secondary Grade Teacher in the 2nd respondent School which is a Government Aided School. The appointment of the petitioner was approved by the competent Educational Authority and the petitioner is working under the management of the 2nd respondent.3.Learned counsel appearing for the petitioner urged this Court by stating that the petitioner was imposed with an order of punishment on ___________https: www.mhc.tn.gov.in judis W.P.(MD) No.203019certain personal vengeance and extraneous circumstances. Several instances are stated in the affidavit for the purpose of assailing the impugned orders. However High Court cannot conduct an elaborate enquiry in respect of such disputed facts. Disputed facts are to be adjudicated with reference to the documents and evidences in original.4.The power of judicial review of the High Court under Article 226 of the Constitution of India is to ensure the process through which a decision is taken by the competent authority in consonance with the provisions of the statute or rules but not the decision itself. Therefore the scope of adjudication of disputed facts is limited and such adjudication can be done in extraordinary circumstances where it is possible to form an opinion. Otherwise the aggrieved person has to exhaust the statutory remedies provided under the Tamil Nadu Recognised Private SchoolsAct 1973for the better appreciation of facts. This apart the factual findings recorded by the competent authority or the statutory authorities by conducting a full ___________https: www.mhc.tn.gov.in judis W.P.(MD) No.203019fledged enquiry would be of greater assistance to the High Court for the purpose of exercise of judicial review under Article 226 of the Constitution of India. Thus the aggrieved person need not be deprived of an opportunity of an effective adjudication under the provisions of the Act.5.The importance of the appellate remedy contemplated under the Act need not be undermined. The legislative intent is to ensure that the aggrieved person get an opportunity for effective adjudication of documents and evidences including oral evidences if required. Therefore such a valuable opportunity is to be availed for the purpose of arriving finality in respect of disputed facts.6.In the event of entertaining a writ petition before complete adjudication of facts and circumstances there is a possibility of omission error or otherwise in the matter of disputed facts. Therefore in all circumstances the aggrieved person must be permitted to exhaust the statutory remedy which is available to redress the grievances in an effective ___________https: www.mhc.tn.gov.in judis W.P.(MD) No.203019manner. Thus the rule is to prefer an appeal and entertaining a writ petition is an exception.7.Let us now consider the scope of the Act. Section 20 of the Act provides appointment of teachers and other employees in private schools . Section 21 provides teachers and other persons employed in private schools to be governed by Code of Conduct . Sub Sectionof Section 21 contemplates that every teacher and every other person employed in any private school shall be governed by such Code of Conduct as may be prescribed and if any teacher or other person so employed violates any provision of such Code of Conduct he shall be liable to such disciplinary action as may be prescribed. Sub Sectionstates that the school committee may define the standards of conduct to be observed by teachers and other persons employed in the private school. Therefore the school is empowered to provide Code of Conduct for enforcement and in the event of violation disciplinary proceedings may be initiated.___________https: www.mhc.tn.gov.in judis W.P.(MD) No.2030198.Section 22 denotes dismissal removal or reduction in rank or suspension of teachers or other persons employed in private schools . Accordingly an order of suspension may be issued.9.Pertinently Section 23 provides appeal against orders of punishment imposed on teachers and other persons employed in private schools . Section 23 of the Act reads as follows: “23.Appeal against orders of punishment imposed on teachers and other persons employed in private schools. Any teacher or other person employed in any private school who is dismissed removed or reduced in rank or whose appointment is otherwise terminated or(b) whose pay or allowances or any of whose conditions of service are altered or interpreted to his disadvantage by any order may prefer an appeal against such order to such authority or officer as may be prescribed and different such authorities or officer as may be prescribed for different classes of private schools.___________https: www.mhc.tn.gov.in judis W.P.(MD) No.20301910.Therefore an appeal shall lie under Section 23 if any order passed by the Original Authority regarding pay or allowances or any of whose conditions of service are altered or interpreted to his disadvantage. The usage of words “pay or allowances” widely cover varieties of punishment including the minor punishment of stoppage of increment or recovery or otherwise. Explanation to Section 23 further clarifies that the expression “order” includes any order made on or after the date of the commencement of the Act in any disciplinary proceeding which was pending on that date. Any disciplinary proceedings including the pay and allowances or alteration of services conditions are in interpretation made to the disadvantage of the person. Thus reading of Section 23 unambiguously provides that an appeal under Section 23 shall be filed by an aggrieved person if any order passed affecting the service conditions of the teachers or the persons employed in private schools.11.Section 24 contemplates second appeal and the caption made in Section 23 is adopted in Section 24 of the Act. Accordingly any order passed under Section 23 is appealable under Section 24 as it is a second ___________https: www.mhc.tn.gov.in judis W.P.(MD) No.203019appeal. Once the first appeal is provided under Section 23 of the Act covering any order passed including the order regarding pay and allowances which all are minor in nature then Second Appeal against the First Appeal cannot be denied under the established principles of law. Even the statute indicates the same as Section 24 unambiguously stipulates that if any appeal under Section 23 was against the dismissal removal or reduction in rank or termination of appointment of teacher or other persons employed in private schools such teacher or other person or the educational agency aggrieved by any order may prefer an appeal to the Appellate Tribunal or Tribunal.12.The language employed in Section 24 is that a teacher or other person or the educational agency are entitled to prefer second appeal. Therefore even in respect of minor punishment falling under Section 23(b) the educational agency or the teacher or other person may file a second appeal. Section 23 further clarifies that aggrieved person by any order may in any such appeal may prefer appeal against the order to the Tribunal. Thus any person aggrieved by any order passed in the first appeal is entitled ___________https: www.mhc.tn.gov.in judis W.P.(MD) No.203019to file a second appeal under Section 24 of the Act. The second appeal is not restricted with reference to the dismissal removal or reduction in rank or termination of appointment alone. The caption mentioned in the Sections 23 and 24 alone cannot be looked into for the purpose of interpretation of Sections 23 and 24. A constructive interpretation with reference to the scope and language employed as a whole must be considered for the purpose of entertaining an appeal either under Section 23 or a second appeal under Section 24 of the Act. It is needless to state that Section 23 provides first appeal and Section 24 provides second appeal. Section 23 clarifies that any teacher or other person employed in any private school is aggrieved from and out of the order passed with reference to the pay or allowances or any of the disadvantage prefer an appeal in the event of passing any order by the appellate authority under Section 23 and such orders are appealable under Section 24 i.e. Second Appeal. It is not as if first appeal can be filed against all orders and second appeal is restricted only for the termination removal or reversion in rank. Once the first appeal is entertained and an order is passed on merits then the second appeal would lie against all such ___________https: www.mhc.tn.gov.in judis W.P.(MD) No.203019orders under Section 24 of the Act before the Tribunal constituted. Therefore it is unambiguously clear that against the order passed by the Original Authority School Management the first appeal lies before the competent authority under Section 23 of the Act and the Second Appeal lies before the Tribunal under Section 24 of the Act. The respective jurisdictional Principal Sub Courts are designated as Tribunal for the purpose of entertaining Second Appeal under Section 24 of the Act. Thus all such orders passed under Section 23 of the Act are appealable orders and the Second Appeal would lie under Section 24 of the Act before the Tribunal constituted for adjudication of the disputes.13.In the present case the first appeal was decided by the Joint Director of Elementary EducationNo.203019Tribunal for disposal of the case by re numbering as Second Appeal under Section 24 of the Act. These being the factum established this Writ Petition stands transferred to the Principal Sub Court Tribunal Pudukkottai District constituted under Section 24 of the Tamil Nadu Recognised Private SchoolsAct 1973 for adjudication and disposal and the Tribunal is requested to dispose of the matter as expeditiously as possible. The Registry Madurai Bench of Madras High Court Madurai is directed to transfer all the case papers to the Principal Sub Court Tribunal Pudukkottai District within a period of two weeks from today.14.With the above observations and directions this Writ Petition stands disposed of. No costs. Consequently connected miscellaneous petition is closed.08.02.2022Internet : YesIndex : YesNote: Mark a copy of this order to The Principal Sub Judge Pudukkottai District. abr___________https: www.mhc.tn.gov.in judis W.P.(MD) No.203019S.M.SUBRAMANIAM J.abrTo1.The Joint Director Appellate Authority Elementary EducationDirectorate of Elementary Education Chennai 600 006.2.The Principal Sub Court Tribunal Namunasamudram Pudukkottai.W.P.(MD) No.20301908.02.2022___________

This Court does not enter into credibility of the evidence with a view to substitute its own opinion for that of the High Court: Supreme Court

It is well settled law that this Court does not normally reappreciate the evidence unless the assessment of the High Court is vitiated by an error of law or procedure or is based on error of record, misreading of evidence or is inconsistent with the evidence. This Court does not enter into credibility of the evidence with a view to substitute its own opinion for that of the High Court as held by the Hon’ble Supreme Court through the learned bench led by Justice L. Nageswara Rao in the case of Viram @ Virma v. The State of Madhya Pradesh (Criminal Appeal No. 31 of 2019)( Criminal Appeal No.32 of 2019). The brief facts of the case are that These Criminal Appeals are directed against the judgment of the High Court of Madhya Pradesh at Gwalior by which the conviction of the Appellants under Sections 147, 302/149, 325/149, 324/149, 323/149 and their sentences were upheld. On the oral report given by Solal son of Girdhari (PW-10), FIR No.48 of 1995 was registered at Police Station Kumbhraj, Guna, Madhya Pradesh. The informant Solal son of Girdhari stated that Babulal Lodha had an altercation with Shriram and others during the day time on 19.08.1995. After sunset, the appellants armed with lathi, ballam, spear and sword attacked Shankarlal (PW-11) and Babulal Lodha. The informant along with others rushed to rescue Shankarlal (PW-11) and Babulal. The appellants assaulted the informant and others who reached the place of incident with farsa, spear and sword and inflicted injuries on their heads, legs, back and other parts of the body. The Appellants were charged under Section 302 and 324 IPC, alternatively under Sections 147, 302/149, 324/149, 329/149 IPC. There was a total of 21 accused apart from the two juveniles Ram Narayan and Kanhaiya Lal. 14 witnesses were examined on behalf of the prosecution. On a consideration of the evidence adduced by the prosecution, the Trial Court held the accused guilty of committing offences under Section 147, 302/149 for committing murder of Babulal and under Sections 325/149, 324/149, 323/149 for voluntarily causing hurt to others. The accused were sentenced to life imprisonment for the offence punishable under Section 302 read with 149 IPC, 3 years rigorous imprisonment under Section 325/149, 2 years rigorous imprisonment under section 324/149 and six months for each count under Section 323/149 IPC. The Trial Court observed that the inconsistencies in the testimonies of the injured eye-witnesses are trivial and their evidence cannot be rejected on that ground. The High Court dismissed the appeals filed by the Appellants by holding that there was no error committed by the Trial Court. The discrepancies in the statements made by the witnesses in Court were held to be minor in nature on the basis of which the Appellants cannot be said to be not guilty. The attack made by all the accused on the deceased Babulal and the injured witnesses has been narrated by them in one voice, though with some minor variations. After the perusal of the facts and arguments by the learned counsels, the Hon’ble Court held, “In the instant case, the fatal injury was caused by a hard and blunt weapon on the left parietal bone. Therefore, the conviction of the Appellants under Section 302/149 is not justified. However, there is abundant evidence on record to show that the Appellants attacked the deceased and the injured witnesses with deadly weapons. Therefore, the Appellants are liable to be convicted under Section 326 read with 149 IPC. The conviction of the Appellants under Sections 325/149, 324/149, 323/149 is confirmed. We are informed that the Appellants have undergone a sentence of four and half years. In the facts and circumstances of the case, we are of the opinion that a sentence of seven years under Section 326/149 would meet the ends of justice. While upholding the judgment of the High Court regarding the conviction and sentence of the Appellants, we convert the conviction and sentence from life imprisonment to seven years. The Appeals are partly allowed.”

Non Reportable IN THE CRIMINAL APPELLATE JURISDICTION Criminal Appeal No. 319 Viram @ Virma .... Appellant The State of Madhya Pradesh …. Respondent W I T H Criminal Appeal No.319 JUDGMENT L. NAGESWARA RAO J. 1. These Criminal Appeals are directed against the judgment of the High Court of Madhya Pradesh at Gwalior by which the conviction of the Appellants under Sections 147 302 149 325 149 324 149 323 149 and their sentences were upheld. On the oral report given by Solal son of GirdhariFIR No.495 was registered at Police Station Kumbhraj Guna Madhya Pradesh. The informant Solal son of Girdhari stated that Babulal Lodha son of Prabhulal Lodha and Shankarlal had an altercation with Shriram and others during the day time on 19.08.1995. After sunset Shriram Sarpanch Biram 1 | P a g e Devlal Gyarasiram Shrilal Gangaram Kamarlal Ramesh Nathulal Laxminarayan Sholal son of Gopal Lodhi Kanhaiyalal Moolchand Navneet Ram Daula Bhima Hiralal Dhurya Bansilal Hazari Parmanand Bala Bux son of Balram Ram Narayan Lodha armed with farsa lathi ballam spear and sword attacked Shankarlaland Babulal Lodha. The informant along with RodibaiShantibaiPana BaiBabulal S o Girdhari PW 6) Bala Bux Panchulaland Kesharbai PW 9) rushed to rescue Shankarlal and Babulal son of Prabhulal Lodha. Shriram Devlal Gyarasi Shrilal Kamarlal Ramesh @ Barya Nathulal Sholal son of Gopal Lodhi Kanhaiyalal Daula @ Daulatram Bhima Hira Lal Hazari Parmanand Bala Bux son of Balram Ramnarayan Laxmi Narayan and Viram @ Virma assaulted the informant and others who reached the place of incident with farsa spear and sword and inflicted injuries on their heads legs back and other parts of the body. The Appellants were charged under Section 302 and 324 IPC alternatively under Sections 147 302 149 324 149 329 149 IPC. There were a total of 21 accused apart from the two juveniles Ram Narayan and Kanhaiya Lal. 14 witnesses were examined on behalf of the prosecution. 2 | P a g e On a consideration of the evidence adduced by the prosecution the Trial Court held the accused guilty of committing offences under Section 147 302 149 for committing murder of Babulal and under Sections 325 149 324 149 323 149 for voluntarily causing hurt to RodibaiShantibai Pana Bai Babulal S o Girdhari PW 6) Bala BuxPanchulaland KesharbaiSolal son of Girdhariand Shankarlalthe other witnesses reached the place of occurrence after the accused assaulted Babulal son of Prabhulal and Shankarlal. However the Trial Court found that the oral testimony of Shankarlalis creditworthy and there is sufficient corroboration from the ocular evidence of the other injured witnesses. The Trial Court observed that the inconsistencies in the testimonies of the injured eye witnesses are trivial and their evidence cannot be rejected on that ground. According to the Trial Court a cumulative reading of the oral testimony of the injured eye witnesses conclusively proved that the accused inflicted a 3 | P a g e fatal injury on the head of the deceased Babulal. The injury certificates and the oral testimonies of Dr. A.D. Bhindurkar PW 13) and Dr. Sitaram Singhwas scrutinized by the Trial Court and the submission on behalf of the defence that there is a contradiction between the ocular testimony of the witnesses and the medical evidence was rejected. The High Court dismissed the appeals filed by the Appellants by holding that there was no error committed by the Trial Court. The discrepancies in the statements made by the witnesses in Court were held to be minor in nature on the basis of which the Appellants cannot be said to be not guilty The attack made by all the accused on the deceased Babulal and the injured witnesses has been narrated by them in one voice though with some minor variations. DaulalBhimaHazariBala Bux son of BalramMool Chandand Hira Lalhave died. Vanshilal Navneet Ram Dhurya Shrilal Kamarlal Ramesh Nathulal Sholal son of Gopal LodhiViramand Shriramare before this Court in the above Appeals. The Appellants contended that the depositions of all the witnesses is not supported by medical evidence in respect of the nature of injuries number of injuries and the nature of weapons that were used by the accused. Reliance was placed 4 | P a g e on judgments of this Court in Amar Singh v. State of Punjab1 and Ram Narain Singh v. State of Punjab2 to submit that the incongruity in the statements of the eye witnesses and the medical evidence is vital and the accused are entitled for acquittal. The Appellants submitted that only Shankarlal was a witness to the assault on the deceased and all the other injured eye witnesses admittedly arrived at the scene of occurrence later. Therefore their evidence cannot be relied upon by the prosecution to convict the Appellants under Section 302 read with 149 IPC. Yet another point raised on behalf of the Appellants is that the ingredients of Section 149 IPC have not been made out and the Appellants could not have been convicted with the aid of Section 149 IPC. The learned Senior Counsel appearing for the Appellant contended that in any event conviction under Section 302 149 is harsh and excessive and an alternate conviction under Section 326 149 may be imposed if the Court is inclined to uphold the judgment of the High Court. The case of the prosecution is that interference with the judgments of the Courts below is unwarranted in view of the abundant evidence on record. Shankarlalis an eye witness to the murder of Babulal. The other injured eye witnesses corroborated the statement of PW 11. The 11 SCC 679 24 SCC 497 5 | P a g e inconsistencies and discrepancies in the evidence of all the eye witnesses are trivial and cannot be resorted by the Appellants to their benefit. Though there are certain inconsistencies between the oral testimony of the witnesses and medical evidence the Appellants cannot seek reversal of the judgments of the Courts below in view of the overwhelming oral evidence on record. It is well settled law that this Court does not normally re appreciate the evidence unless the assessment of the High Court is vitiated by an error of law or procedure or is based on error of record misreading of evidence or is inconsistent with the evidence. This Court does not enter into credibility of the evidence with a view to substitute its own opinion for that of the High Court3. Having scrutinised the record of the courts below we are of the considered view that there is no error committed by them. The death of deceased Babulal was caused due to the attack by the Appellants. However the submission of the Appellants that there is a contradiction in the oral testimonies and the medical evidence requires consideration. Shankarlalwho is an injured witness stated that he has seen the accused persons beating the deceased Babulal. According to him Shriram gave a sword blow on the head of Babulal. DhurilalRamesh4 SCC 158 6 | P a g e 9) Bala Bux son of Balramand others gave farsa blow to Babulal. When confronted with the statement recorded by the Police under Section 161 Cr. P.C. the said witness submitted that he had stated to the Police about the aforementioned covert acts and he is not aware as to why this has not been mentioned in his statement. The other witnesses corroborated the statement of PW 11 and also spoke about the injuries caused to them by the Appellants Dr. A.D. Bhindurkar stated that the deceased was brought to the hospital at 03:15 AM on 20.08.1995 and he found the following injuries on his person: 1. “A torn wound in Y shape measuring 8 cm x 1.2 cm x 1.5 cm located on the skin in the region of left parietal bone which appears to have been inflicted by hard and blunt 2. A bluish mark along with abrasion measuring 1 x 0.5 cm · located towards rear side on the joint of right elbow which appears to have been inflicted by hard and blunt 3. A bluish mark along with abrasion measuring 2 x 2 cm below left knee in the front region which appears to have been inflicted by hard and blunt weapon 4. A bluish mark measuring 8 x 3 cm located on left side of chest towards front which appears to have been inflicted by hard and blunt weapon. 7 | P a g e 5. A bluish mark on multiple areas measuring 12 cm x 3 cm located on the back which appears to have been inflicted by hard and blunt weapon.” Dr. A.D. Bhindurkar was of the opinion that injury No.1 was fatal and all the other injuries are simple in nature. He has also stated that the injuries were likely to have been inflicted by truncheon or luhangi. Babulal son of Prabhulal Lodha succumbed to the injuries suffered by him. According to PW 13 the injuries were caused by hard and blunt weapon. Sriram who was carrying a sword RameshDaulal @ Daulatramand Mool Chandwere carrying farsas and Sholal son of Gopal Lodhiwas armed with a ballam. The remaining accused were having sticks in their hands. Apart from some minor aberrations in the testimony of the injured eye witnesses they were consistent in speaking about the weapons that were used by the accused. The oral evidence discloses that there was an indiscriminate attack by the accused on the deceased and the other injured eye witnesses. As found by the Courts below there is a contradiction between the oral testimony of the witnesses and the medical evidence. In Amar Singh v State of Punjab this Court examined the point relating to inconsistencies between the oral evidence and the 8 | P a g e medical opinion. The medical report submitted therein established that there were only contusions abrasions and fractures but there was no incised wound on the left knee of the deceased as alleged by a witness. Therefore the evidence of the witness was found to be totally inconsistent with the medical evidence and that would be sufficient to discredit the entire prosecution case In the instant case the fatal injury was caused by a hard and blunt weapon on the left parietal bone. There is no corresponding injury to the weapons used by RameshDaulal @ Daulatram Mool Chandand Shriram A 20). Therefore the conviction of the Appellants under Section 302 149 is not justified. However there is abundant evidence on record to show that the Appellants attacked the deceased and the injured witnesses with deadly weapons Therefore the Appellants are liable to be convicted under Section 326 read with 149 IPC. 11. The conviction of the Appellants under Sections 325 149 324 149 323 149 is confirmed. We are informed that the Appellants have undergone a sentence of four and half years In the facts and circumstances of the case we are of the opinion that a sentence of seven years under Section 326 149 would meet the ends of justice. 9 | P a g e 12. While upholding the judgment of the High Court regarding the conviction and sentence of the Appellants under Sections 325 149 324 149 323 149 and the sentence imposed for such offences we convert the conviction under Sections 302 149 to 326 149 and sentence from life imprisonment to seven years. Needless to say that we are not expressing any view on the validity of Section 149 IPC which question is left open. 13. The Appeals are partly allowed. [L. NAGESWARA RAO B. V. NAGARATHNA New Delhi November 23 2021 10 | P a g e

Amendment to plaint will be allowed in a liberal manner unless they cause any prejudice to the defendants or change the complexion of the suit: High Court of Himachal Pradesh

Over time, it has been observed that courts should be extremely liberal in granting prayer for amendment of the plaint and written statement unless the irreparable loss is caused to the other side. Amendments necessary for deciding controversy will be allowed at any stage of the suit especially if by way of amendment capacity to institute the suit is being clarified and the amendment in no manner would change the nature of the suit. This auspicious judgment was passed by the High Court of Himachal Pradesh in the matter of RITESH SHARMA V. PARDEEP KUMAR SAMANTAROY AND ANOTHER & ANR. [CIVIL MISCELLANEOUS PETITION (u/Article 227) No. 213 of 2020] by Honourable DR. Justice Sandeep Sharma. This instant petition is filed under Art. 227 and is directed against an order dated 18.12.2019 passed by learned Civil Judge, Dalhousie, District Chamba whereby an application under Order VI Rule 17 CPC, for amendment of the plaint was allowed. Certain undisputed facts emerge from the pleadings available on record as the plaintiff filed suit for permanent prohibitory and mandatory injunction restraining respondents from interfering in any manner in the suit land. However, later after the respondents argued about the ownership of the suit land and the land next to it and also raised objections with regard to the competence of the plaintiff to institute the suit and details of the suit property.  Later, the plaintiff filed an application under Order VI Rule 17 CPC for amending his plaint since, despite due diligence, he inadvertently mentioned the name of the church as “Saint John Church” whereas, its real name was “Sadhu Sunder Singh Chapel”. Besides this, the submitted words “and the shops” as mentioned in the description of suit property were also required to be deleted by him. Additionally, he sought to attach photographs, he failed to attach previously, as material on record to demonstrate his ownership and possession. Also, by way of this amendment, he sought to clarify his capacity to file the suit since he prayed that amendments sought by way of application are necessary for proper adjudication of the case. Defendants opposed this amendment since it would amount to changing the nature of the suit and thereby also introducing a new plaintiff however the Learned Civil Judge allowed these amendments and hence, the defendants are praying to quash the order allowing the amendment. The Court after hearing learned counsel for the parties and perusing the material available on record observed that, “this court finds no illegality or infirmity in the impugned order, as such, no interference is called for.” Since, as per the Gurbhaksh Singh & Ors vs. Buta Singh & Anr  2018 AIR (SC) 2635 it is, “well settled that power to allow an amendment is wide and can be exercised at any stage of proceedings in the interest of justice, provided that party seeking amendment is able to show that pleading sought to be incorporated by way of the amendment could not be pleaded at first instance at the time of filing suit/written statement, despite due diligence.” Additionally, the court relied on the principles laid down by the SC in Chakreshwari Construction Private Limited vs. Manohar Lal, (2017)5 SCC 212 and stated that “while considering an application under Order VI, Rule 17 CPC for amendment of the plaint is required to see whether the proposed amendment, if denied, would, in fact, lead to injustice or lead to multiplicity of litigation. Similarly, it is also required to be seen by the court, while considering an application under Order VI, Rule 17 CPC, that whether an application for amendment is bona fide or mala fide and amendment, if allowed, would fundamentally change the nature and character of the suit.” Also, in this case, the application of amendment was filed immediately after the defendant’s objection thus showing that there was no mala fide intention. The court stated that, “settlement of issues and nature of amendment if permitted is not such, that it would change the nature and characteristic of the suit, rather, amendment, if allowed, would enable learned court below to decide the controversy inter se parties in a most effective.”

Hig h C o urt of H.P on 03 04 HCHP IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA CMPMO No. 2120 Decided on: March 31 2021 _____________________________________________________________ Ritesh Sharma .. Petitioner Versus Pardeep Kumar Samantaroy and another ….Respondents _____________________________________________________________ Coram: Hon’ble Mr. Justice Sandeep Sharma Judge. Whether approved for reporting 1 yes. _____________________________________________________________ For the petitioner : Mr. Vivek Singh Attri Advocate. For the respondents : Mr. Aman Sood Advocate. _____________________________________________________________ Sandeep Sharma Judge:(oral) Instant petition filed under Art. 227 of the Constitution of India is directed against order dated 18.12.2019 passed by learned Civil Judge Dalhousie District Chamba whereby an application having been filed by respondent plaintiffunder Order VI rule 17 CPC praying therein for amendment of plaint came to be allowed. 2. For having a bird’s eye view of the matter certain undisputed facts emerge from the pleadings available on record are that plaintiff filed suit for permanent prohibitory and mandatory injunction restraining respondents defendantsfrom interfering in any manner in the suit land comprised Khata Khatauni No.268 375 Khasra No. 1 Whether the reporters of the local papers may be allowed to see the judgment Hig h C o urt of H.P on 03 04 HCHP 2 Kita 26 measuring 1 42 30 hectares situate at Mauja Bakrota Tehsil Dalhousie Chamba Himachal Pradesh2635). 9. Similarly Hon’ble Apex Court in Chakreshwari Construction Private Limited vs. Manohar Lal “63. On critically analyzing both the English and Indian cases some basic principles emerge which ought to be taken into consideration while allowing or rejecting the application for amendment: whether the amendment sought is imperative for proper and effective adjudication of the case whether the application for amendment is bona fide or mala fide the amendment should not cause such prejudice to the other side which cannot be compensated adequately in terms of money. refusing amendment would in fact lead to injustice or lead to multiple litigation. Hig h C o urt of H.P on 03 04 HCHP 6whether the proposed amendment constitutionally or fundamentally changes the nature and character of the case and as a general rule the court should decline amendments if a fresh suit on the amended claims would be barred by limitation on the date of application. These are some of the important factors which may be kept in mind while dealing with application filed under Order 6 Rule 17. These are only illustrative and not exhaustive.” 10. It is quite apparent from the aforesaid exposition of law that court while considering application under Order VI rule 17 CPC for amendment of plaint is required to see whether proposed amendment if denied would in fact lead to injustice or lead to multiplicity of litigation. Similarly it is also required to be seen by the court while considering application under Order VI rule 17 CPC that whether application for amendment is bona fide or mala fide and amendment if allowed would fundamentally change the nature and character of the suit. 11. This Court in Rajeev Kumar Singhal vs. Mukul Garh and others 2019Him. L.R.899 has held that courts should be extremely liberal in granting prayer for amendment unless irreparable loss is caused to the other side. 12. In the case at hand it is not in dispute that the application seeking amendment of plaint came to be filed Hig h C o urt of H.P on 03 04 HCHP 7 immediately after filing of written statement by the defendants wherein defendants specifically took objection with regard to authorization and capacity of the plaintiff to file the suit. As has been observed above court while exercising power under Order VI rule 17 CPC can proceed to allow amendments which are necessary for deciding the controversy inter se parties 13. In the case at hand plaintiff filed suit for permanent prohibitory and mandatory injunction qua Khata Khatauni No. 268 375 Khasra Nos. Kita 26 measuring 01 42 30 Hectare situate at Mauza Bakrota Tehsil Dalhousie District Chamba Himachal Pradesh. By way of amendment plaintiff seeks to amend description of the suit property and also wants to clarify his capacity to file the suit. Since the plaintiff has specifically filed suit qua Khasra numbers as detailed herein above amendment as sought for if allowed would in no manner amount to changing the nature of suit. Perusal of original plaint itself suggests that plaintiff has filed suit for permanent prohibitory injunction restraining the defendants from interfering in the suit property which stands entered in the record of rights in the name of Church of England Khyber House which contains St. John Church and the shops and the houses adjoining it. If the amendment to the name and description of the suit property is allowed suit property remains same in Khata Hig h C o urt of H.P on 03 04 HCHP 8 Khatauni No. 268 375. Plaintiff has claimed in the application that the description of property has been inadvertently mentioned as St. John Church and the shops and the houses adjoining to it. Since the defendants resisted the plaint on the ground that the suit has been filed by an incompetent and unauthorized person claiming himself to be the Chairman Church of English Jnana Mission Property plaintiff with a view to clarify aforesaid aspect of the matter sought permission to amend the plaint. As per plaintiff is he is Bishop Diocese of Amritsar Chairman of Church of England Janana Mission Property at Khyber House Upper Bakrota Tehsil Dalhousie District Chamba. Though in the case at hand suit stands filed in the name of Bishop Diocese of Amritsar Chairman of Church of England Janana Mission Property at Khyber House whereas it ought to be Chairman of Amritsar Diocesan Trust Association which owns and possesses Church of England Jnana Mission Property. By way of amendmentplaintiff wants to clarify his capacity to institute the suit and the amendment if permitted in no manner would change the nature of the suit. Plaintiff has averred in application that he was unable to mention the photographs which he wants to place on record to show his ownership of the suit property. Since plaintiff has filed suit for permanent prohibitory and mandatory injunction photographs Hig h C o urt of H.P on 03 04 HCHP 9 intended to be placed on record may be necessary to demonstrate possession of the plaintiff over the suit property. In the case at hand plaintiff by way of amendment wants to amend description of suit property and his authorization to file the suit. Since Khasra Numbers of the suit property would remain the same despite there being amendment allowed qua description of the suit property and authorization of plaintiff no serious prejudice can be said to be caused to the defendants in case amendment is allowed. 14. In the case at hand amendment has been sought before settlement of issues and nature of amendment if permitted is not such that it would change the nature and characteristic of the suit rather amendment if allowed would enable learned court below to decide the controversy inter se parties in a most effective manner. 15. Having perused the amendment proposed by the plaintiff in its entirety this court is in full agreement with learned court below that proposed amendment if allowed would not cause any prejudice to the defendants and in no manner change complexion of the suit.. 16. Consequently in view of the detailed discussion supra the impugned order is upheld as a result whereof present petition is dismissed. Hig h C o urt of H.P on 03 04 HCHP 10 Pending applications if any are disposed of. Interim direction if any is vacated. Judge March 31 2021

Bail granted to accused when Special Public Prosecutor fails to produce credible evidence against the accused: High Court of Delhi.

The counsel of the petitioner pointed out that the petitioner deserves to be released on bail because the other three accused persons were granted bail by the same court, and these three accused had the same role as that of the petitioner. But the Special Public Prosecutor could not prove that the role of the petitioner was different than that of the other three person’s accused. Hence the court decided that the Petitioner deserved to be released on Bail. A single judge bench comprising of Hon’ble Justice Suresh Kumar Kait in the matter of Imran Vs. NCT Delhi State (CRL.M.A. 9734/2021), dealt with an issue where the petitioner has approached the court through a bail application, seeking bail. In the present case, an FIR was registered against the petitioner at Khajuri Khas, New Delhi. The petitioner was behind the bars since 20th March 2020. The petitioner thereby approached the court seeking bail under Sections 147/148/149/302/153A/505/120B/ 34 of IPC. A notice was issued and the Special Public Prosecutor for the Respondent (State) accepted the notice. The counsel of the petitioner submitted before the hon’ble court, that the petitioner deserved to be released on bail, as there was no electronic evidence such as CCTV footage or mobile record, that can establish the presence of the petitioner in the crime spot. The counsel also submitted that twelve names of accused persons were given by two official eyewitnesses. In which seven accused persons were granted bail by the learned trial court and four of the accused out of the twelve were granted bail by the same court. Further, the counsel pointed out that the role assigned to the petitioner was the same as that of three other accused persons, to whom the same court granted bail. The Special Public Prosecutor opposed this and submitted before the court that another eye witness- Sandeep Kumar in his statement recorded under section 161 Cr.P.C, gave four names of accused persons which included the petitioner’s name. After hearing both the counsels, the court decided- “that the petitioner deserved to be released on bail because other 11 accused persons were granted bail and the Special Public Prosecutor was unable to distinguish the role assigned to petitioner in this FIR case”.  Thereby the court directed the release of the petitioner on bail, upon his furnishing a personal bond of the sum of RS. 20,000/-, with one surety in the like amount, that would confirm that upon this bail the petitioner will not influence the prosecution case during trial. Also, the petitioner shall not directly or indirectly tamper with any evidence or influence any witnesses. Further, the petitioner has to appear before the trial court as and when called for.

IN THE HIGH COURT OF DELHI AT NEW DELHI Date of decision: 05.07.2021 BAIL APPLN. 2221 2021 & CRL.M.A. 9734 2021 Through: Mr. Abdul Gaffar Advocate Petitioner NCT DELHI STATE Through: Mr. Rajat Nair & Mr. Amit Mahajan Respondent Special Public Prosecutors with Mr.Shantnu Sharma & Mr.Dhruv Pande Advocates & Inspector Vikas HON BLE MR. JUSTICE SURESH KUMAR KAIT JUDGMENT The hearing has been conducted through video conferencing. The present petition has been preferred by the petitioner seeking bail in FIR No. 119 2020 under Sections 147 148 149 302 153A 505 120B 34 IPC registered at police station Khajuri Khas New Delhi. Petitioner is behind bars since 20.03.2020 in this FIR case. Notice issued. 3. Mr. Rajat Nair learned Special Public Prosecutor for respondent No.1 State accepts notice. BAIL APPLN. 2221 2021 4. Learned counsel for petitioner submits that petitioner has been falsely implicated in this case and there is no electronic evidence like CCTV footage or mobile location record to establish his presence at the crime spot. The investigation in this case is complete and charge sheet has already been filed. Learned counsel also submits that the petitioner has been arrested in this case on the basis of statement of two official eye witnesses i.e. Constable Anil and Constable Bhupinder who are planted witnesses and have named 12 accused persons including that of petitioner. It is next submitted that out of 12 accused persons 07 accused personshave been granted bail by this Court. Learned counsel for petitioner also submits that the role attributed to petitioner is similar to the one assigned to accused Jubair @ Zubair and Iqbal who have been granted bail by this Court and therefore petitioner also deserves to be released on bail. On the contrary the present petition is opposed by learned Special Public Prosecutor for respondent State while drawing attention of this Court to the statement of another eye witness Sandeep Kumar recorded under BAIL APPLN. 2221 2021 Section 161 Cr.P.C. wherein he has named four accused persons and name of petitioner appears at serial No.4 as mentioned by him. Upon hearing counsel representing both the sides and perusal of material placed on record I find that 11 accused persons have already been granted bail and the learned Special Public Prosecutor is unable to distinguish the role assigned to petitioner in this FIR case. Pertinently charge sheet has already been filed and trial is in progress which will take In the light of afore noted facts I am of the view that petitioner substantial time. deserves to be released on bail. Accordingly without commenting on the merits of the case petitioner is directed to be released on bail forthwith upon his furnishing personal bond in the sum of Rs.20 000 with one surety in the like amount to the satisfaction of the trial court Duty Magistrate while making it clear that any observation made herein shall not influence the prosecution case during trial. 10. The petitioner shall not directly or indirectly influence any witness or tamper with the evidence and will appear before the trial court as and when 11. With aforesaid directions the present petition is disposed of while BAIL APPLN. 2221 2021 making it clear that any observation made herein shall not influence the trial of the prosecution case. 12. Pending application also stands disposed of. 13. A copy of this order be transmitted to the trial court and Jail Superintendent concerned for information and compliance. JUDGE SURESH KUMAR KAIT) JULY 05 2021 BAIL APPLN. 2221 2021

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./64/2020] 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.” The court opined that “the prosecution has failed to establish the foundational facts. The testimony of the prosecutrix is also found to be full of contradictions and hence, unreliable. From the impugned judgement and order, we find that the conviction of the accused based on presumption drawn under sections 29 & 30(2) of the POCSO. Therefore, we are of the view that in the absence of cogent evidence brought on record to prima facie establish the foundational facts, the conviction of the accused cannot be based solely on presumption of guilt, premised on the precincts of the doctrine of reverse burden.”

Page No.# 1 19 THE GAUHATI HIGH COURT HIGH COURT OF ASSAM NAGALAND MIZORAM AND ARUNACHAL PRADESH) Case No. : Crl.A. 64 2020 MANIRUL ISLAM @ MANIRUL ZAMAN S O LATE ABDUL AWAL R O VILL. KHUDRAKUCHI P.O. AND P.S. KALGACHIA DIST. BARPETA ASSAM PIN 781319 THE STATE OF ASSAM AND ANR REPRESENTED BY PP ASSAM S O LATE AKASH ALI R O VILL. KHUDRAKUCHI P.O. AND P.S. KALGACHIA DIST. BARPETA PIN 78131 For the Appellant : Mr. N.J. Das Adv For the Respondent: Mr. M. Phukan APP Assam THE HON’BLE MR. JUSTICE SUMAN SHYAM THE HON’BLE MR. JUSTICE MIR ALFAZ ALI Date of hearing : 22 03 2021 Date of judgement : 09 04 2021 JUDGEMENT AND ORDERand sentencing him under Section 4 of the POCSO to undergo rigorous imprisonment for a period 12 years and also to pay fine of Rs 2 000 in default to suffer simple imprisonment for another 3months 3. The facts of the case briefly stated are that on 26 11 2016 one Nazrul Islam i.e the uncle of the victim girl had lodged an ejahar before the In Charge Barbhita Police Outpost in the district of Barpeta informing that on 10 10 2016 at about 5 p.m. the accused No.1 appellant acting in a conspiracy with the accused nos. 3 4 and 5 had forcibly taken away his niece to the house of the accused no. 1 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. Based on the ejahar dated 26 11 2016 G.D. entry No. 460 dated 26 11 2016 was made in the Barbhita Police Outpost and the ejahar was forwarded to Kalgachia Police Station for registering a case under the appropriate provisions of law. Accordingly Kalgachia Police Station Case No. 880 2016 was registered under Section 120(B) 34 of the IPC read with Section 4 of the POCSO Act and the Officer in Charge of Barbhita Police Outpost took up the matter for investigation 4. During the course of investigation the I.O. had recorded the statements of the witnesses drew sketch map and sent the victim girl for medical examination. The statement of the victim was also recorded under Section 164 Cr.P.C. However the accused could not be arrested. Upon completion of investigation the I.O. had laid charge sheet against the accused Manirul Islam under Section 4 of the POCSO showing him as an absconder. However no material was found against the other accused persons and hence they were not sent up for trial. It appears that after submission of charge sheet by the Police the accused had entered appearance in the Court of the learned Special Judge Barpeta. Thereafter charge Page No.# 3 19 under section 4 of the POCSO was framed against the accused and the same was read over and explained to him. However since the accused had pleaded not guilty and claimed to be tried the matter went up for trial 5. During the course of trial the prosecution side had examined as many as 6was 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. Accordingly the accused was sentenced as 7. By referring to the materials available on record Mr. N.J. Das learned counsel appearing 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 Mr. Das had relied upon the decision rendered in the case of Subash Deb Vs. State of Tripura reported in 2009GLT 84 and State of Andhra Pradesh Vs. M. Madhusudhan Rao reported in 15 SCC 582 to argue that the impugned judgement and order dated 22 11 2019 is unsustainable in the eye of law on such count alone 8. The learned counsel for the appellant further submits that there are contradictions in the testimony of the prosecutrix which were proved by the I.O. According to the Mr. Das the doctor had found the age of the victim to be between 18 years and 20 years and there was no evidence available to the contrary. Since the parents of the victim were not examine nor had the prosecution examined the seizure witnesses of Ext. A hence the Birth Certificate Ext A) would not have any probative value in this case even if the said document is held to be admissible in evidence. In support of his aforesaid submission Mr. Das has relied upon Page No.# 4 19 two decisions of the Supreme Court viz. Ram Prasad Sarma Vs. State of Bihar reported in 1970 AIR 326 and State of Bihar Vs. Radha Krishna Singh and others reported in 1983 AIR 684 9. Contending that mere marking of a document as an exhibit does not amount to its proof Mr. Das has relied upon another decision of the Supreme Court rendered in the case of LIC of India and another Vs. Ram Pal Singh Bisen reported in 2010(4) SCC 491 to contend that merely by exhibiting the Birth Certificate as Ext A the prosecution cannot absolve itself of the duty to prove the contents of the said document in accordance with law 10. To sum up his argument Mr. Das has relied upon a recent decision of this Court in the case of Mrinal Das Vs. State of Assam reported in 2017(5)GLT 626 to argue that conviction of the accused cannot be based on the sole testimony of the prosecutrix if the same is not found to be trustworthy. 11. Mr. M. Phukan learned APP Assam appearing for the State on the other hand has argued that in this case the prosecution has succeeded in establishing 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. The testimony of the PW 1 and the victim i.e PW 2 finds due corroboration from the medical evidence brought on record. By referring to Section 29 and 30 of the POCSO Act 2012 the learned APP submits that in a case where the accused is prosecuted for offence committed under section 3 5 7 and 9 of the POCSO Act the court is empowered to draw presumption of guilt of the accused. Therefore having regard to the facts and circumstances of the case as well as the evidence brought on record the learned Special Judge has rightly held that the accused was guilty and sentenced him under Section 4 of the POCSO Act 2012. In such view of the matter no interference with the impugned judgement and order dated 22 11 2019 by this Court is called for 12. We have taken note of the submissions advanced by the learned counsel representing for both the parties and have also carefully gone through the materials available 13. The occurrence allegedly took place on 10 10 2016 but the ejahar in this case was admittedly lodged on 26 11 2016 i.e. after a delay of about 46 days. The informant Nazrul Islamwho is the uncle of the prosecutrix has deposed that the accused had forcefully taken away his Nieceto his house and committed rape against her will on the basis Page No.# 5 19 of a conspiracy hatched by the accused along with three other accused persons named in the FIR viz. Nurjahan Abu Taleb Noyse Ali. As per the ejahar dated 26 11 2016 the incident took place on 10 10 2016 at about 5 p.m 14. The PW 1 has also deposed that when he enquired from his nieceshe told him that while returning home from the house of her maternal grandmother she was forcefully pulled up by the accused Manirul from near his house and committed rape on her by wrapping her mouth with a “gamocha”. PW 1 has stated that at the time of the incident the age of the victim was 14 years. This witness had also produced Ext. A which was the photocopy of the Birth Certificate of the victim compared with the original. During his cross examination the PW 1 has stated that the accused had also visited the house of his niece earlier being a neighbour but he had denied that they were trying to get the victim girl married to the accused by force and that on the date of the incident his niece had voluntarily gone to the house of the accused she was sleeping in the bed of the accused but the accused was not present in the house. PW 1 has also denied the suggestion that while his niece was sleeping on the bed of the accused the mother of the accused had abused her as a result of which his niece came back home and said that she was assaulted and threatened by the mother of the accused 15. The victim was examined as PW 2.The prosecutrix has deposed that the incident occurred on 10 10 2016 at about 10 p.m. while she was returning home from the house of her maternal grandmother. At that time the accused had pulled her from the road to his residence and committed rape on her by wrapping her mouth with a “gamocha”. Then she came home weeping and narrated the incident to her uncle Nazrul Islamin the house of Amzad Ali wherein he was also present. However since the victim was a minor the villagers decided not to marry the girl with the accused. Thereafter the uncle of the victim had filed the case During his cross examination PW 3 had stated that during the village meeting the accused on being asked had denied that he had any physical relation with the girl. Although the uncle of the girl had conveyed his no objection to the marriage proposal between the victim and the accused yet considering her minority the members of the society did not allow the 18. PW 4 Sri Sona Miah is another neighbour of the informant. In his deposition this witness had stated that the village meeting was called after one or two days of the incident Although the meeting discussed about the marriage of the victim with the accused but the accused has denied his involvement and the father of the victim also refused to give his daughter in marriage due to her underage. In his cross examination PW 4 had stated that the victim girl had visited the house of the accused to charge her mobile phone and was sleeping in the bed of the accused for which his mother had abused her 19. PW 5 is the Doctor who had conducted medical examination on the victim. On examination of the victim the following observations were made by the doctor : “On X ray examination her age is found above 18 years and below 20 years. There is no recent sign of sexual intercourse. No injury marks on her body. Victim is not suffering from any physical and mental disability and no foreign body found on her cloth as well as private part Exhibit 2 is the medical report and exhibit 2(1) is my signature Normally the hymen is torn due to sexual assault or fall or injury suffered due to Page No.# 7 19 20. PW 6 is the I.O. in this case. He has deposed that after receiving the FIR from Nazrul Islamhe had made G.D. entry no. 460 dated 26 11 2016 and forwarded the ejahar to the Kalgachia Police Station for registering a case. PW 6 has confirmed that he had carried out investigation in this case and had visited the place of occurrence. The I.O. has stated that he drew a sketch map recorded the statement of the witnesses including the victim sent her for medical examination at Barpeta FAAMCH and had also collected the medical report. However the accused could not be arrested by him. During his cross examination the IO has stated that he had sent the victim for medical examination after 11 days of receiving the FIR. The IO had also stated that the victim did not state before him that the accused had committed rape on her by wrapping her mouth with a “gamocha” nor did PW 4 state before him that he had heard about the incident from Nazrul 21. As per the ejahar dated 26 11 2016 the incident occurred on 10 10 2016 at about 5 p.m. pursuant to a conspiracy hatched by the accused with the other three FIR named accused persons. However the victim had deposed that the incident occurred on 10 10 2016 at about 10 p.m. at night. In the ejahar it has been mentioned that the accused had conspired with co accused Nurjahan Abu Taleb and Noyse Ali forcefully took his neice to his house and committed rape. However according to the prosecutrix the co accused Nurjahan Abu Taleb and Noyse Ali i.e. the accused nos. 2 3 and 5 had gathered in the place when there was hue and cry raised after the incident. Although the PW 1 had deposed that the accused had wrapper a "gamocha" around her mouth and committed rape on her she did not say so to the I.O. or in her statement recorded under section 164 Cr.P.C. In her statement recorded under section 164 Cr.P.C the prosecutrix had stated that the incident took place in the evening but in her deposition the time of the incident has been mentioned as 10 p.m From the above it would become evident that there are a number of material contradictions in the version of the prosecutrix making her testimony un trust worthy 22. In her statement recorded under Section 164 Cr.P.C. the victim has stated as “About 2 months from today when I was returning from the house of my maternal uncle Monirul Islam committed rape upon me. I was forcefully taken to his house and committed rape. The incident took place in the evening.” follows : Page No.# 8 19 23. The expression "rape" is defined in section 375 of the Indian Penal Code which is pari mataria with section 3 of the POCSO. The basic difference between the two sections is that while section 375 IPC applies in case of women section 3 of the POCSO will be applicable only in case of children. For an offence to come under section 3 of the POCSO it must be shown that there was penetrative sexual offence on the victim. However from the statement of the victim recorded under section 164 Cr. P.C it would be apparent that her statement is vague and cryptic. The same does not give proper particulars of the act allegedly committed by the accused nor does it give any details as regard circumstances under which the accused had committed rape on her. Therefore it is evident that even while recording her statement under section 164 Cr.P.C the victim was economical with truth thereby giving an impression that she was reluctant to divulge the whole truth 24. The PW 4 has deposed that the prosecutrix had visited the house of the accused to charge her mobile and was sleeping on his bed as a result of which the mother of the accused had abused her. PW 4 has also mentioned about the ‘village Mel’ held 1 or 2 days after the incident. The testimony of this witness appears to be reliable. His version also finds corroboration from the evidence of PW 3 who has also stated about the Village Mel held in the house of Amzad Ali and in the meeting the mother of the accused had told that she had hurled abuses on the girl for sleeping on the bed of her son and charging her mobile Therefore if the testimonies of these witnesses are to be believed than it becomes apparent that on the day of the occurrence the victim girl had voluntarily gone to the house of the accused sat on his bed and tried to charge her mobile and then she was rebuked by the mother of the accused. Thereafter she came home and complained about the matter to her uncle. We find no justification not to believe the above version coming out from the evidence adduced by the PWs 3 and 4 25. From the opinion of the doctoralthough it is seen that the hymen of the victim was found to be torn yet according to the doctor’s opinion the same can be either due to sexual assault or fall or injury suffered due to accident. The doctor also found that there was no sign of any sexual intercourse or other injury on the private parts of the victim Therefore medical report of the victim in our opinion did not cogently establish sexual penetrative assault on the prosecutrix 26. As per section 2(d) of the POCSO Act a "child" means a person below the age of Page No.# 9 19 eighteen years. Therefore for attracting the provisions of the POCSO the age of the victim on the date of occurrence must be below eighteen years. In the instant case the learned counsel for the appellant has argued that the prosecution has failed to establish that the victim was a minor girl below the age of 18 years on the date of occurrence. The learned Trial Court has however held to the contrary by placing reliance on Ext A 27. From a close scrutiny of the materials available on record we find that Ext A is the photocopy compared with original of the Birth Certificate issued by the Department of Health Services Govt. of Assam certifying that the accused was born on 25 08 2001. This certificate was apparently seized by the IO in presence of two seizure witnesses viz. Usman Gani and Habibur Rahman. However none of the seizure witnesses have been examined by the prosecution during the course of the trial. The Birth Certificate was in fact exhibited by the informant who is the uncle of the victim. The prosecution had neither examined the parents of the prosecutrix nor called any official from the Health Department so as to prove the contents of Ext A. There is also no explanation for not doing 28. A Birth Certificate issued by the Health Department of the State Government is a part of the public record. Section 35 of the Evidence Act 1872 deals with relevancy of entry in public record which reads as follows : “35. Relevancy of entry in public recordmade in performance of duty.—An entry in any public or other official book register or record or an electronic record] stating a fact in issue or relevant fact and made by a public servant in the discharge of his official duty or by any other person in performance of a duty specially enjoined by the law of the country in which such book register or recordis kept is itself a relevant fact.” 29. From a plain reading of Section 35 it would be apparent that an entry made in any public or other official book register or record is required to be proved by a public servant who had made the entry in discharge of his official duty or by any other persons in performance of his duty especially enjoined by law. In the instant case as noted above no such officer of the department was summoned by the prosecution as a witness to prove Ext 30. It also appears from Ext A that the subjectwas born on 25 08 2001 but Page No.# 10 19 the Birth Certificate was issued on 12 07 2012 i.e. after a period of almost 11 years. As per Section 13(3) of the Registration of Births and Deaths Act 1969 any birth or death which had not been registered within one year of its occurrence can be registered only on an order made by a Magistrate of the First Class or a Presidency Magistrate after verifying the correctness of the birth or death and on payment of prescribed fee. 31. In the case of LIC of India and anotherthe Supreme Court has held that admission of documents in evidence does not amount to its proof. Under the law of Evidence it is necessary to prove the contents of documents either by primary or secondary evidence. At the most admission of documents may amount to admission of its content but not its truth. 32. In the present case the prosecution had made an attempt to prove the document Ext A through PW 1 and it appears that the defense side did not raise any objection when the document was marked as an exhibit. Therefore in so far the admissibility of Ext A is concerned the said question must be answered in favour of the prosecution. That however would not automatically absolve the prosecution from the requirement in law to establish the truthfulness of its contents. The PW 1 being the informant in this case had nothing to do with the birth of the child or the Department of Health Services Assam. Therefore in our opinion he was not competent to prove the contents of Ext. A. Viewed from that perspective the PW 1 could not have vouched for the truthfulness of the contents of Ext A Therefore in the light of the doctor s opinionwhich is to the effect that the age of the victim was between 18 years to 20 years we are of the view that the prosecution has failed to show that the victim was below 18years on the date of occurrence 33. The next issue which has caught the attention of this court is the unusual delay of 46 days in lodging the FIR. According to the witnesses examined by the prosecution the marriage proposal did not go through on account of the fact that the victim girl was still a minor. Thereafter there was no action in the matter for nearly 46 days. It was only after the lapse of about 46 days from the alleged occurrence that an ejahar was lodged by the uncle of the victim. The reason for such delay has been cited as the "village meeting". But we find from the evidence on record more particularly the testimony of PW 4 that the village meeting was called after 1 or 2 days of the occurrence and the marriage proposal of the accused with the victim girl was also turned down in that meeting itself. If that be so what Page No.# 11 19 then was the reason for the delay of 46 days in lodging the FIR There is not even an iota of evidence on record to throw light on that. It is also not the case of the prosecution that the accused had in any manner threatened the victim with consequences resulting in delay in lodging the FIR 34. Law is firmly settled that delay in lodging FIR would not make the prosecution case improbable if the delay is properly explained. However un reasonable delay in lodging FIR without any plausible explanation would undoubtedly give rise to suspicion as regard the prosecution case raising a question mark on the trust worthiness of the prosecution version. 35. There is evidence available on record to indicate that the victim and the accused were known to each other and that the victim used to visit the house of the accused quite often. It also appears that talk of marriage of the victim and the accused was going on for quite some time but the marriage proposal had fizzled out in the meeting held in the house of Amzad Ali apparently due to the tender age of the girl. There is no evidence to show that the alleged rape committed by the accused on the victim was the subject matter of discussion in the village meeting. Moreover it is also not clear that if the accused had in fact raped the victim forcefully then why would her parents solicit the hands of the accused in a marriage proposal with the victim. In the above circumstances the un explained delay in lodging the FIR viewed in the light of the plea taken by the accused of false accusation in our opinion would be sufficient to give rise to a reasonable suspicion that the FIR was the fall out of the marriage proposal between the parties turning sour 36. In the case of Raju and others Vs. State of Madhya Pradesh reported in 2008) 15 SCC1 33 the Supreme Court had made the following observations in para 11: “11. It cannot be lost sight of that rape causes the greatest distress and humiliation to the victim but at the same time a false allegation of rape can cause equal distress humiliation and damage to the accused as well. The accused must also be protected against the possibility of false implication particularly where a large number of accused are involved. It must further be borne in mind that the broad principle is that an injured witness was present at the time when the incident happened and that ordinarily such a witness would not tell a lie as to the actual assailants but there is no presumption or any basis for assuming that the statement of such a witness is always correct or without any embellishment or exaggeration.” Page No.# 12 19 37. In another decision of the Apex Court in the case of Raja and others Vs State of Karnataka reported in10 SCC 506 it has been observed that though generally the testimony of a victim of rape or non consensual physical assault ought to be accepted as true and unblemished but it will still be subjected to judicial scrutiny lest casual routine and automatic acceptance thereof may result in unwarranted conviction of the person charged Relying on the aforesaid decision of the Supreme Court a learned Single Judge of this Court in the case of Mrinal Dashas observed as follows : “26. There is no doubt about the principle of appreciation of evidence that in a case of sexual assault the testimony of the prosecutrix must be given primary consideration and her testimony should not be viewed with suspicion unless there are compelling circumstances requiring the court to seek corroboration or support from other independent source. But the principle that prosecution needs to prove its case beyond reasonable doubt and that the reliability of a witness depends on its credibility and trustworthiness equally applies even in case of sexual assault. It cannot be said that whatever is stated by the victim of sexual assault being the solitary witness has to be relied by the court notwithstanding any infirmities in the testimony of such witness.” 38. Having observed as above this court is conscious of the fact that the charge framed against the accused in this case is under sections 3 4 of the POCSO . Section 29 & 30 of the POCSO permits the Court to draw rebuttable presumption as to the culpability of an accused being prosecuted under the provisions of the Act. In a trial conducted under the Cr.P.C the accused can remain silent and the burden would be upon the prosecution to prove the charge beyond reasonable doubt by leading cogent evidence. However an exception to this general rule has been introduced in case of prosecution under the POCSO. In view of sections 29 and 30 of the POCSO Act there would be reverse onus upon the accused to displace any presumption of guilt. 39. Section 29 of the POCSO Act is reproduced herein below for ready reference : “29. Presumption as to certain offences. Where a person is prosecuted for committing or abetting or attempting to commit any offence under sections 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 Page No.# 13 19 40. Section 30 of the POCSO Act reads as follows : “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 2) For the purposes of this section a fact is said to be proved only when the Special Court believes it to exist beyond reasonable doubt and not merely when its existence is established by a preponderance of probability Explanation. In this section "culpable mental state" includes intention motive knowledge of a fact and the belief in or reason to believe a fact.” 41. POCSO was enacted by the Parliament on 19 06 2012 with the object to protect children from offences of sexual assault sexual harassment and pornography. The Act which came into force with effect from 20 06 2012 on being published in the Gazette of India provides for setting up Special Courts for trial of offences under the Act. Although section 376 of IPC contains penal provision to award punishment for rape yet the Legislative intent behind bringing such a Special Statute appears to be to tackle the growing cases of sexual harassment on children. In order to provide better teeth to the prosecution sections 29 and 30 have been inserted in the POCSO empowering the court to draw presumption of guilt against the accused. However insertion of sections 29 & 30 has also raised questions as to the parameters following which power under the said provisions is to be exercised by the Special Court to draw presumption of guilt 42. The doctrine of reverse burden is not peculiar to the POCSO. There are a number of other Legislations in India which contains such provisions. Sections 35 and 54 of the Narcotics Drugs and Psychotropic Substances Act 1985are an example. While dealing with challenge made to the validity of section 35 and 54 of the NDPS in so far as it imposes reverse burden upon the accused the Apex Court has observed in the case of Noor Aga Vs State of Punjab reported in16 SCC 417 as follows : Page No.# 14 19 “58. Sections 35 and 54 of the Act no doubt raise presumptions with regard to the culpable mental state on the part of the accused as also place burden of proof in this behalf on the accused but a bare perusal the said provision would clearly show that presumption would operate in the trial of the accused only in the event the circumstances contained therein are fully satisfied. An initial burden exists upon the prosecution and only when it stands satisfied the legal burden would shift. Even then the standard of proof required for the accused to prove his innocence is not as high as that of the prosecution. Whereas the standard of proof required to prove the guilt of accused on the prosecution is "beyond all reasonable doubt" but it is `preponderance of probability ‘on the accused. If the prosecution fails to prove the foundational facts so as to attract the rigours of Section 35 of the Act the actus reus which is possession of contraband by the accused cannot be said to have been established.” 43. While upholding the constitutional validity of sections 35 and 54 of the NDPS Act the Apex Court has however reiterated that more serious the offence the stricter would be the degree of proof to convict the accused. It was also observed that an initial burden would lie upon the prosecution and only when it stands satisfied the legal burden would shift upon the accused. What follows from the above decision is that notwithstanding the concept of reverse burden envisaged by section 35 and 54 of the NDPS Act the burden upon the prosecution to prove the foundational fact would still exist. 44. In a decision rendered by the High Court of Judicature at Calcutta in the case of Sohid Hossain Biswas Vs. State of West Bengalit was held that establishing the foundational facts by leading evidence by the prosecution is an essential pre requisite before the statutory presumption under Section 29 of the POCSO Act is triggered so as to shift the onus on the accused to prove the contrary 45. Taking a similar view the learned Single Judge of the Bombay High Court in the case of Navin Dhaniram Baraiye Vs. the State of Maharashtrahas observed as follows : “A perusal of the above quoted provision does show that it is for the accused to prove Page No.# 15 19 the contrary and in case he fails to do so the presumption would operate against him leading to his conviction under the provisions of the POCSO Act. It cannot be disputed that no presumption is absolute and every presumption is rebuttable. It cannot be countenanced that the presumption under Section 29 of the POCSO Act is absolute. It would come into operation only when the prosecution is first able to establish facts that would form the foundation for the presumption under Section 29 of the POCSO Act to operation. Otherwise all that the prosecution would be required to do is to file a charge sheet against the accused under the provisions of the said Act and then claim that the evidence of the prosecution witnesses would have to be accepted as gospel truth and further that the entire burden would be on the accused to prove to the contrary. Such a position of law or interpretation of the presumption under Section 29 of the POCSO act cannot be accepted as it would clearly violate the constitutional mandate that no person shall be deprived of liberty except in accordance with procedure established by law.” 46. In the case of Dharmender Singh @ Saheb Vs. The Statethe Delhi High Court was called upon to consider bail application filed by an accused prosecuted under the POCSO. One of the issues which arose for consideration of the Court was as to whether presumption of guilt of the accused under Section 29 of the POCSO would arise at the pre trial stage or whether the same would arise only after commencement of trial by framing charges. The learned Single Judge has held that presumption of guilt engrafted in section 29 would get triggered only once trial begins i.e after charges are framed against the accused but not before that. It would come into operation only when the prosecution is first able to establish the facts that would form the foundation for the presumption under Section 29 of the POCSO Act to operate. The relevant observations made by the Learned Single Judge in Dharmender Singhare reproduced herein below for ready reference: “51. Only when the trial court frames charges does it form a prima facie opinion that there is a case for the accused to answer and defend. At the stage of framing charges the trial court may decide not to frame charges against an accused under any of the Page No.# 16 19 sections mentioned in section 29 but under some other provision or it may not frame charges against all accused persons under those sections. So the presumption under section 29 cannot arise before charges are framed. 52. If the presumption of guilt is taken to arise even before charges are framed say when a court is considering a bail application then the court will have to afford to the accused an opportunity to prove that he has not committed the offence which would require the court to conduct a mini trial even when it is only considering a bail plea What then would remain to be done during the trial itself In the opinion of this court it is not the purport of section 29 that a mini trial should be conducted at the stage of deciding a bail application. No such concept is known to law. Requiring production and analysis of evidence to form an opinion on the merits of the allegations and to BAIL APPL. No. 1559 2020 express a view on such evidence is certainly not within the remit of a court considering a bail plea.” 47. However in Badri Nath Vs. Union Territory of J & K and othersthe learned Single Judge of Jammu and Kashmir High Court has taken a contrary view and has held that the presumption under Section 29 would come into play even at the pre trial stage thereby disagreeing with the views expressed by the Delhi High Court in the case of Dharmender SinghGLT 403 learned Single Judge of this Court had the occasion to interpret sections 29 and 30 of the POCSO. In the aforesaid decision the Learned Single Judge has elaborately dealt with various facets of the law on the issue and upon a thread bare analysis of the judicial pronouncements and legal literature available on the subject including the law laid down by the Supreme Court in the case of Noor Agahas held that the prosecution would be under an obligation to lay down the foundational facts before presumption can be drawn against the accused under Section 29 and 30 of POCSO Having held as above certain broad principles applicable in a proceeding under the POCSO for drawing presumption under Section 29 and 30 have been laid down in paragraph 71 which are reproduced herein below for ready reference : Page No.# 17 19 “71. In the light of the discussions above the following legal positions emerge in any proceeding under the POCSO Act A) The prosecution has to prove the foundational facts of the offence charged against the accused not based on proof beyond reasonable doubt but on the basis of preponderance of probability B) Accordingly if the prosecution is not able to prove the foundational facts of the offence based on preponderance of probability the presumption under Section 29 of the Act cannot be invoked against the accused C) If the prosecution is successful in establishing the foundational facts and the presumption is raised against the accused the accused can rebut the same either by discrediting the prosecution witnesses through cross examination or by adducing his own evidence to demonstrate that the prosecution case is improbable based on the principle of preponderance of probability. However if it relates to absence of culpable mental state the accused has to prove the absence of such culpable mental state beyond reasonable doubt as provided under Section 30(2) of the Act D) However because of legal presumption against the accused it may not suffice by merely trying to discredit the evidence of the prosecution through cross examination and the defence may be required to adduce evidence to dismantle the legal presumption against him and prove that he is not guilty. The accused would be expected to come forward with more positive evidence to establish his innocence to negate the presumption of guilt.” 49. From a minute examination of the ratio laid down in the aforesaid decisions rendered by the different High Courts we are of the view that the decisions rendered in case of Sohid Hossain Biswas(supra) Navin Dhaniram Baraiya(supra) Dharmendra Sighand Bhupen Kalitaon the issue of applicability of sections 29 and 30 of POCSO is based on the correct proposition of law. In all these decision the Courts have expressed the opinion that reverse burden on the accused under sections 29 & 30 of Page No.# 18 19 POCSO would operate during trial and that too after the prosecution establishes the foundational facts. 50. Section 31 of the POCSO provides that the Code of Criminal Procedure 1973 Cr.P.C] shall apply to a proceeding before the Special Court and for the purpose of the said provisions the Special Court shall be deemed to be the Court of Sessions and the person conducting prosecution before a Special Court shall be deemed to be a Public Prosecutor. As per section 225 of Cr.P.C trial is to be conducted by Public Prosecutor. Section 226 of Cr.P.C provides that the prosecutor is to open the case by describing the charge brought against the accused and by stating what evidence he proposes to prove the guilt of the accused Therefore it is axiomatic that even in a case coming under the POCSO formal charge has to be framed and the prosecution would be required to lead evidence to prove the charge. 51. From the above it becomes apparent that mere insertion of sections 29 and 30(2 in the POCSO does not altogether relieve the prosecution of the burden of proof contemplated under sections 101 and 102 of the Evidence Act but merely lessen the burden on the prosecution by shifting the onus upon the accused . However such reverse onus would shift upon the accused only when the prosecution succeeds in prima facie establishing the charge by adhering to the standard of proof of preponderance of probability. It is only then the accused would have to displace the presumption of guilt. What therefore follows is that conviction in a proceeding initiated under the POCSO cannot be based solely on presumption of guilt of the accused under sections 29 &30 of the Act. For the above reasons we find our selves in agreement with the guiding principles laid down in paragraph 71 of Bhupen Kalitaformulating the parameters to be satisfied for drawing presumption of guilt by the Court under sections 29 and 30(2) of POCSO 52. Coming to the facts of this case we are of the opinion that the prosecution has failed to establish the foundational facts. The testimony of the prosecutrix is also found to be full of contradictions and hence unreliable. From the impugned judgement and order we find that the conviction of the accused on the basis of presumption drawn under sections 29 30(2) of the POCSO. Therefore we are of the view that in the absence of cogent evidence brought on record to prima facie establish the foundational facts conviction of the accused cannot be based solely on presumption of guilt premised on the precincts of the doctrine of Page No.# 19 19 53. In view of the foregoing discussions we hold that the impugned judgement and order dated 22 11 2019 passed by the learned Special Judge Barpeta in Special POCSO Case No. 72 2018 is unsustainable in law. The same is accordingly set aside 54. The appeal stands allowed 55. The appellant accused is hereby acquitted 56. He shall be forthwith released from jail if not wanted in connection with any other Send back the LCR JUDGE JUDGE

All orders as may be passed by the Family Court in exercise of its jurisdiction under Section 7 of the Hindu Marriage Act, which have a character of an intermediate order, and are not merely interlocutory orders: The High Court of Delhi

The object of Section 125 Cr.P.C is to prevent vagrancy and destitution of a deserted wife by providing her for the food, clothing and shelter by a speedy remedy. The object of Section 125 Cr.P.C is to bring down the agony and financial suffering of a women who left her matrimonial home so that some arrangements could be made to enable her to sustain herself and her child. The aforesaid has been established by the Delhi High Court while deciding the case of Urvashi Aggarwal & Ors. v. Inderpaul Aggarwal [CRL.REV.P. 549/2018 & CRL.M.A. 11791/2018 (Stay)] which was heard by a single judge bench comprising Justice Subromonium Prasad  on 14th June 2021. The facts of the case are as follows. The petitioner no. 1 and respondent got married in 1997 and had two children. Later, they faced certain disputes in their marriage and the husband instituted a suit for divorce. During its pendency, the petitioner filed a petition seeking maintenance. After a perusal of the income statements of both the parties, it was decided that, the respondent had to pay 12.5% to each of the child out of his gross income less minimum statutory deductions it was directed that from the date of birth of his son from the second marriage, the share of the respondent shall be 10% each for 2 kids, from the wedlock with the petitioner No.1, as his entire salary was apportioned to five shares (two for the respondent, one each for the three kids). This order has been challenged in the instant petition. The learned counsel for the respondent has taken the primary objection stating that the present application is not maintainable and is barred under Section 397(2) Cr.P.C inasmuch as the order granting interim maintenance is an interlocutory order. On the contrary, the counsel for petitioner placed reliance on the judgment of Manish Aggarwal v. Seema Aggarwal, 2012 SCC Online Del 4816 for the accurate definition of interlocutory orders and was of the opinion that “All orders as may be passed by the Family Court in exercise of its jurisdiction under Section 7 of the said Act, which have a character of an intermediate order, and are not merely interlocutory orders, would be amenable to the appellate jurisdiction under sub-section (1) of Section 19 of the said Act.” It is contended by the learned counsel for the petitioners that each of the child is entitled to full 25% of the amount of the salary earned by the respondent. It is further contended by the learned counsel for the petitioners that the learned Family Court has also erred in limiting the maintenance to be given to the petitioner No.2/son till he attains the age of the majority and that the responsibility of a father to take care of his child does not cease after the child attains majority if the child is not able to sustain himself.

IN THE HIGH COURT OF DELHI AT NEW DELHI Date of decision: 14th JUNE 2021 IN THE MATTER OF: + CRL.REV.P. 549 2018 & CRL.M.A. 11791 2018URVASHI AGGARWAL & ORS. ..... Petitioners Through Mr. Praveen Suri and Ms. Komal Chibber Advocates INDERPAUL AGGARWAL ..... Respondent Through Mr. Digvijay Rai and Mr. Aman Yadav Advocates HON BLE MR. JUSTICE SUBRAMONIUM PRASAD SUBRAMONIUM PRASAD J. The present revision petition is directed against the order dated 21.04.2018 passed by the Additional Principal Judge Family court Tis Hazari Delhi declining maintenance to the petitioner No.1 wife and granting maintenance only to the petitioner Nos.2 and 3 herein. The facts leading to the present petition are as under: The petitioner No.1 got married to the respondent herein on 11.11.1997. Out of the wed lock two children i.e. the petitioner Nos. 2 and 3 were born on 14.8.2000 and 14.8.2002 respectively. Disputes arose between petitioner No.1 and the respondent herein. Petitioner No.1 wife filed a petition under Section 125 Cr.P.C for grant of maintenance. CRL REV PET 549 2018 The respondent husband instituted a suit for divorce. During the pendency of the divorce petition the petitioner No.1 filed a petition under Section 24 of the Hindu Marriage Act 1955 seeking maintenance. The Family Court declined maintenance to the petitioner No.1 and granted maintenance of Rs.7 000 per month to the two children which was later enhanced to Rs.13 000 per month. A decree of divorce was granted on 28.11.2011. The petitioner No.1 filed MAT. APP. No.6 2012 challenging the decree of divorce which is pending before this Court. This Court vide order dated 25.03.2015 directed the respondent to pay maintenance of Rs. 15 000 each to the respondent Nos.2 and 3. The respondent has married again and has got a child from the second marriage. A perusal of the material on record shows that the petitioner No.1 and the respondent are both Government employees. The petitioner No.1 at the time when the impugned order was passed was working as an Upper Divisional Clerk in Delhi Municipal Corporation and the respondent is working as a Joint General Managerwith the Airports Authority of India. The monthly income of the petitioner No.1 in the affidavit filed by her in the year 2016 is shown as Rs.43 792 per month and she has stated that her monthly expenditure is Rs.75 000 . She also stated that her net income is Rs.37 762 per month. On the other hand according to the affidavit dated 06.02.2016 filed by the respondent he was earning a gross salary of Rs.96 089 per month. CRL REV PET 549 2018 The petitioner No.1 moved an application for grant of interim maintenance claiming a sum of Rs.40 000 per month. The learned Family Court after considering various factors came to the conclusion that since the petitioner No.1 is earning sufficiently for herself she is not entitled to any maintenance. As far as petitioner Nos. 2 and 3 are concerned the learned Family Court apportioned the income of the respondent into 4 shares out of which two shares have been given to the respondent and one share each i.e. 25% has been given to the two children. Out of 25% for each children as directed by the Family Court the respondent had to pay 12.5% to each of the child out of his gross income less minimum statutory deductions which were to be computed by the employer of the respondent. The learned Family Court has said that the petitioner No.2 i.e. the son of the parties would be entitled for maintenance till he attains the age of majority and the petitioner No.3 i.e. the daughter would be entitled for the maintenance till she gets employment or gets married whichever is earlier. The learned Family Court further said that since the respondent has to maintain his son born from his second marriage it was directed that from the date of birth of his son from the second marriage the share of the respondent shall be 10% each for 2 kids from the wedlock with the petitioner No.1 as his entire salary was apportioned to five shares two for the respondent one each for the three kids). It has been held that since the second wife of the respondent herein is also working she has the liability to bear 50% of the cost of her son thereby making the share of the respondent herein as 10% towards the child CRL REV PET 549 2018 from the second marriage. The order dated 21.04.2018 reads as under: “8. Interim maintenance to petitioner no. 1 is declined at this stage as she is able bodied and earning sufficiently for herself and as regards the standard of living behoving with the status of the respondent the same are questions of fact and triable issues and would be looked into when it would be decided finally after trial whether petitioner no. 1 is entitled for maintenance or not. 9. As regards petitioner no. 2&3 are concerned the income of the respondent has to be apportioned in four shares @25% i.e. two for himself and one each for the children and from that 25% share for each kid 50% thereof has to be contributed by the respondent for each kid. So the respondent is liable to pay 12.5% each to both the children as his share out of his gross income minus minimum statutory deductions which would be computed by the employer of the respondent However amount of reimbursement obtained by the respondent for which he has spent from his own pocket will not be calculated for the purposes of apportionment of the share in favour of the children. The petitioner no. 2 and 3 would be entitled to 12.5 % each per month as share of the respondent in the aforesaid manner from the date of application till the pendency of the case. The son of the parties shall be entitled for the maintenance till he attains the age of majority and the daughter till she gets employment or gets married whichever is earlier. The respondent has no liability to maintain his mother in law and sister in law being under no such legal obligation. The mother of the respondent being pensioner as father of the respondent was a government employee the respondent has no obligation to maintain her financially. 10. Since the respondent in this case has the liability to CRL REV PET 549 2018 maintain his son born from his present wedlock it is ordered that from the date of birth of his son from second wedlock the share of the respondent shall be 10% each for 2 kids from the wedlock with the petitioner as his entire salary in the above terms needs to be apportioned to five shares Cr.P.C inasmuch as the order granting interim maintenance is an interlocutory order. The said argument has been rebutted by the learned counsel for the petitioners. The learned counsel for the petitioners places reliance on the judgment of this Court in Manish Aggarwal v. Seema Aggarwal 2012 SCC OnLine Del 4816 which reads as under: “17. Interim maintenance had been granted under Section 125 Cr. P.C. and the issue arose whether a revision petition could be preferred against that order as it was alleged to be interlocutory in nature. It was held interim maintenance was an the order of CRL REV PET 549 2018 the Cr. P.C. and of Haryana intermediate or quasi final order. Analogy was drawn from Section 397(2) of in Amarnath v. State 137 : AIR 1977 SC 2185 qua the said provision was relied upon. Thus an order which substantially affects the rights of an accused and decides certain rights of the parties was held not to be an interlocutory order so as to bar revision. However orders summoning witnesses adjourning cases passing orders for bail calling for reports and such other steps in the aid of pending proceedings would amount interlocutory orders against which no revision would be maintainable under Section 397(2) of the Cr. P.C. On the contrary those orders which decide matters of moment and which affect or adjudicate the rights of the accused or a particular aspect of trial could not be labeled as interlocutory orders. The Madhya Pradesh High Court held that an application for interim maintenance is a separate proceeding to be disposed of much earlier than the final order in the main case. Qua the said issue the matter is finally decided by the order passed by reference to the second proviso to Section 125(1) of the Cr. P.C. Such orders were thus intermediate or quasi final orders. Thus if an order does not put an end to the main dispute but conclusively decides the point in issue it can certainly not be said to be an interlocutory order. The judgement drew strength also from the observations of the Supreme Court in Madhu Limaye v. State of Maharashtra 4 SCC 551 : AIR 1978 SC 47 where the Supreme Court the expression “interlocutory order” has been understood and taken to mean as a converse of the term final order. But the interpretation and the universal application of the principle that what is not a “final order” must be an nor justified. In V.C. Shukla v. State 1980 SCR 380 that ordinarily and generally CRL REV PET 549 2018 the Supreme Court held that the term “interlocutory order” used in the Cr. P.C. has to be given very liberal construction in favour of the accused in order to ensure complete fairness of trial and revisional power could be attracted if the order was not purely interlocutory but intermediate or quasi final. 26. We thus conclude as under: i) In respect of orders passed under Sections 24 to 27 of the HM Act appeals would lie under Section 19(1) of the said Act to the Division Bench of this Court in view of the provisions of sub sectionof Section 19 of the said Act such orders being in the nature of intermediate orders. It must be noted that sub section of Section 19 of the said Act is applicable only in respect of sub section and not sub sectionof Section 19 of the said Act. ii). No appeal would lie under Section 19(1) of the said Act qua proceedings under Chapter 9 of the Cr. P.C.in view of the mandate of sub sectionof Section 19 of the said Act. iii). The remedy of criminal revision would be available qua both the interim and final order under Sections 125 to 128 of the Cr. P.C. under sub section 4) of Section 19 of the said Act. iv). As a measure of abundant caution we clarify that all orders as may be passed by the Family Court in exercise of its jurisdiction under Section 7 of the said Act which have a character of an intermediate order and are not merely interlocutory orders would be amenable to the appellate jurisdiction under sub CRL REV PET 549 2018 sectionof Section 19 of the said Act.” In view of the above this issue is no longer Res Integra and stands covered fully in favour of the petitioners and the revision petition is maintainable. It is contended by the learned counsel for the petitioners that after holding that each of the child is entitled to 25% of the amount of the income of the respondent the learned Family Court ought not to have further apportioned the amount and limited the liability of the respondent only to 12.5% of the amount of the salary earned by the respondent. It is contended by the learned counsel for the petitioners that each of the child is entitled to full 25% of the amount of the salary earned by the respondent. It is further contended by the learned counsel for the petitioners that the learned Family Court has also erred in limiting the maintenance to be given to the petitioner No.2 son till he attains the age of the majority. It is contended by the learned counsel for the petitioners that Section 125 Cr.P.C has to be interpreted in such a manner that the object of Section 125 Cr.P.C is achieved. It is further contended by the learned counsel for the petitioners that the responsibility of a father to take care of his child does not cease after the child attains majority if the child is not able to sustain himself. Per contra the learned counsel for the respondent contends that there is no infirmity in the order of the learned Family Court and that it is a well reasoned order. It is contended by the learned counsel for the respondent that the total amount paid by the respondent to the petitioner Nos.2 and 3 till date is about Rs. 29 25 825 which is much more than the amount which has been directed by the learned Family Court. It is also submitted by the CRL REV PET 549 2018 learned counsel for the respondent that apart from the salary the petitioner No.1 has got several properties and has got income from other sources and is not only confined to her salary. Heard Mr. Praveen Suri learned counsel for the petitioners and Mr. Digvijay Rai learned counsel for the respondent and perused the material on record. The purpose of Section 125 Cr.P.C has been laid down by the Supreme Court in several judgments. The object of Section 125 Cr.P.C is to prevent vagrancy and destitution of a deserted wife by providing her for the food clothing and shelter by a speedy remedy. The object of Section 125 Cr.P.C is to bring down the agony and financial suffering of a women who left her matrimonial home so that some arrangements could be made to enable her to sustain herself and her child 2 SCC 316 and Bhuwan Mohan Singh v. Meena 6 SCC 353). Since the purpose of granting interim maintenance is to ensure that the wife and the children are not put to starvation the Courts while fixing interim maintenance are not expected to dwell into minute and excruciating details and facts which have to be proved by the parties. 10. The contention of the learned counsel for the petitioners that after recording that both the children are entitled to 25% each of the amount of the salary earned by the respondent the learned Family Court ought not to have further apportioned the amount and limited the liability of the respondent only to 12.5% of the amount of the salary earned by the respondent cannot be accepted. The balance has to be taken care of by the CRL REV PET 549 2018 wife i.e. the petitioner No.1 herein who is also earning and is equally responsible for the child. The respondent has married again and has a child from the second marriage. This Court cannot shut its eyes to the fact that the respondent has equal responsibility towards the child from the second marriage. The further reduction of the amount after the birth of the child from the second marriage of the respondent also cannot be found fault with and the reasoning given by the Family Court does not warrant any interference at this juncture. 11. The learned Family Court refused to grant maintenance to the petitioner No.1 herein on the ground that the petitioner No.1 is working as an Upper Division Clerk in Delhi Municipal Corporation and is earning sufficiently for herself. The learned Family Court further held that as regards the standard of living which was being enjoyed by the petitioners when the marriage subsided is a question of fact and would be looked into when the case is decided finally after both the parties lead evidence. 12. The petitioner No.1 is working as an Upper Division Clerk in Delhi Municipal Corporation earning about Rs.60 000 per month. The records indicate that the respondent has filed his salary certificate which shows that his gross monthly income as on November 2020 is Rs.1 67 920 . The two children are living with the mother. After attaining the age of majority the entire expenditure of the petitioner No.2 is now being borne by the petitioner No.1. The petitioner No.1 has to take care of the entire expenditure of the Petitioner No.2 who has now attained majority but is not earning because he is still studying. The learned Family Court therefore failed to appreciate the fact that since no contribution is being made by the respondent herein CRL REV PET 549 2018 towards the petitioner No.2 the salary earned by the petitioner No.1 would not be sufficient for the petitioner No.1 to maintain herself. This Court cannot shut its eyes to the fact that at the age of 18 the education of petitioner No.2 is not yet over and the petitioner No.2 cannot sustain himself. The petitioner No.2 would have barely passed his 12th Standard on completing 18 years of age and therefore the petitioner No.1 has to look after the petitioner No.2 and bear his entire expenses. It cannot be said that the obligation of a father would come to an end when his son reaches 18 years of age and the entire burden of his education and other expenses would fall only on the mother. The amount earned by the mother has to be spent on her and on her children without any contribution by the father because the son has attained majority. The Court cannot shut its eyes to the rising cost of living. It is not reasonable to expect that the mother alone would bear the entire burden for herself and for the son with the small amount of maintenance given by the respondent herein towards the maintenance of his daughter. The amount earned by the petitioner No.1 will not be sufficient for the family of three i.e. the mother and two children to sustain themselves. The amount spent on the petitioner No.2 will not be available for the petitioner No.1. This Court is therefore inclined to grant a sum of Rs.15 000 per month as interim maintenance to the petitioner No.1 from the date of petitioner No.2 attaining the age of majority till he completes his graduation or starts earning whichever is earlier. The instant petition was filed in the year 2008. The learned Family is directed to dispose of the petition as expeditiously as possible preferably within 12 months of the receipt of a copy of this order. CRL REV PET 549 2018 13. Accordingly the revision petition is allowed in part and disposed of along with the pending application. SUBRAMONIUM PRASAD J. JUNE 14 2021 CRL REV PET 549 2018

A driver holding an LMV licence does not need separate endorsement to drive any vehicle of such weight class: High Court of Jammu and Kashmir

A driver holding a Light Motor Vehicle licence does not need any separate endorsement to drive any type of transport vehicle that is within this weight class. This was upheld by a bench of the Jammu and Kashmir High Court consisting of Justice Vinod Chatterji Koul in the case of National Insurance Company Ltd. v Aijaz Ahmad Shah [Mac. App No. 49/2020, CM No. 3774/2020] on 22nd June 2021. On 9th August 2015, an accident was caused by rash and negligent driving by an offending Tata Mazda car, which was insured with the appellant National Insurance Co. Ltd. Aksa Aijaza 14 year old child who was boarding another vehicle on the side of the road, died as a result of the accident. The victim’s family who are the respondents in this case, prayed for the grant of compensation in the amount of Rs.1 crore before Motor Accident Claims Tribunal for the loss they suffered. The Tribunal found that the claimants were entitled to a compensation amount of Rs. 11,30,010 along with 6% interest per annum from the insurance company till realization. The appellants immediately took the matter to the High Court of Jammu and Kashmir. The appellant contended that the offending driver had a LMV driving licence which only authorised him to drive a Light Motor Vehicle and not a transport vehicle that would require a PSV endorsement.  The appellants thus stated that the offending driver’s licence should be considered as invalid and the insurance company should not have to pay the compensation granted to the victim. The High Court cited the case of Mukund Dewangan v Oriental Insurance Company Limited [4 SCC 298 of 2016], where the Supreme Court of India declared that if a driver holds a licence to drive a light motor vehicle, he is authorised to drive any transport vehicle belonging to that weight class without any separate endorsement. It was found that the offending vehicle in this case weighed less than 7500kg which fell in the weight class of light motor vehicle.

HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR Mac. App. No. 49 2020 CM no. 3774 2020 National Insurance Co. Ltd. Aijaz Ahmad Shah and Others Reserved on: 23.04.2021 Pronounced on: 22.06.2021 Through: Mr. Nissar Ahmad Dendru Advocate Through: Mr. Shuja ul Haq Advocate HON’BLE MR JUSTICE VINOD CHATTERJI KOUL JUDGE 1. Impugned in this Appeal is Award dated 06.10.2018 passed by Motor Accident Claims Tribunal Anantnagon a Claim petition bearing File no. 42 Claim titled Aijaz Ahmad Shah and others v. Ashraf Ali Dar and others directing appellant Insurance Company to pay compensation in the amount of Rs. 11 30 010 along with 6% interest per annum from the date of institution of claim till realization on the grounds made mention of therein. 2. A claim petition as is discernible from perusal of the file was filed by respondents 1 to 4 before the Tribunal on 01.09.2015 averring therein that deceased Aksa Aijaz aged 14 years died in an accident which took place on 09.08.2015 at Manzhama K.P. Road Anantnag due to rash and negligent driving of driver of offending vehicle bearing Registration no.JK01G 2177which was insured with appellant Insurance Company Claimants Respondents 1 to 4 in their claim petition prayed for grant of compensation in the amount of Rs.1.00 Crore. 3. Appellant Insurance Company resisted the claim petition before the Tribunal. Their stand was that driver of offending vehicle was not 2 Mac. App. No. 49 2020 holding valid and effective driving licence and vehicle was being plied without valid and effective vehicular documents. It was also stated that accident was outcome of two vehicles as deceased was driving the bus and collided with offending vehicle. 4. The Tribunal in view of pleadings of parties framed Issues for determination which are: Whether on 09.08.2015 the deceased namely Aksa Aijaz while boarding a vehicle Tata 407 at Mazhama K.P. Road was hit by the offending vehicle bearing registration No. JK01G 2177 driven rashly and negligently by respondent No.1 causing critical injuries to the deceased who succumbed to her injuries at Jaglatmandi Hospital OPP In case issue No.1 is decided in affirmative then whether petitioners are entitled for compensation if so to what extent and from whom Whether respondent No.1 i.e. driver of the offending vehicle was not having valid and effective D L and owner knowing about it had engaged and permitted him to ply the offending vehicle and thereby committed breach of policy conditions OPR3 5. Claimants in support of their claim before the Tribunal produced and examined four witnesses besides claimant respondent no.1. Appellant Insurance Company did not produce any witness in rebuttal to claim of claimants. By virtue of impugned Award the Tribunal found claimants entitled to compensation in the amount Rs.11 30 010 along with 6% interest per annum from the date of institution of claim till realization. This is how the instant Appeal has come up before this Court. 6. According to learned counsel for appellant Insurance Company liability to satisfy the Award has been wrongly mulcted upon appellant. Appellant Insurance Company no doubt was insurer of offending vehicle but as per contract of insurance liability of appellant Insurance Company would arise only when owner insured would not commit any breach of terms and conditions of policy of insurance. The owner insured respondent no.6 herein is stated to have allowed offending vehicle to be plied by respondent no.5 who was having invalid driving licence to drive offending vehicle and therefore liability ought to have been fastened upon owner of offending vehicle. It is contended that finding on Issue no.3 is bad in law as Tribunal has not taken into account the fact that respondent no.5 as driver of offending vehicle was 3 Mac. App. No. 49 2020 having authorization to drive only LMVand not a medium passenger motor vehicle. The medium passenger motor vehicle excludes within its definition the light motor vehicle and thus driver was not authorized to drive a medium passenger motor vehicle. Learned counsel also avers that the Tribunal while relaying upon the judgment of the Supreme Court in Mukund Dewangan v. Oriental Insurance Company Limited4 SCC 298 holding that a person having light motor vehicle authorization can drive any sort of light motor vehicle and no PSV endorsement is required in the said driving licence is incorrect. 7. The above contentions of learned counsel for appellant Insurance Company when examined in the context of impugned Award more particularly when the Tribunal while deliberating upon and deciding Issue no.3 has taken care of all the aspects of the matter that were required to be looked into by it while rendering the Award. 8. It is pertinent to mention here that the Supreme Court in National Insurance Company limited v. Annappa Irappa Nesara 2008 AIR SC Weekly 906 has been held that a driver who has a valid licence to drive a light motor vehicle can drive light goods vehicle as well. The similar view has also been reiterated and followed by this Court in National Insurance Company v. Rameez Ahmad 2015SLJ 45. That apart the Supreme Court in Mukund Dewangan has held that ‘Light motor vehicle’ as defined in section 2(21) of the Act would include a transport vehicle as per the weight prescribed in section 2(21) read with section 2(15) and 2(48). Such transport vehicles are not excluded from the definition of the light motor vehicle by virtue of Amendment Act No.54 1994. A transport vehicle and omnibus the gross vehicle weight of either of which does not exceed 7500 kg. would be a light motor vehicle and also motor car or tractor or a road roller ‘unladen weight’ of which does not exceed 7500 kg and holder of a driving licence to drive class of “light motor vehicle” as provided in section 10(2)(d) is competent to drive a transport vehicle or omnibus the gross vehicle weight of which does not exceed 7500 kg or a motor car or tractor or 4 Mac. App. No. 49 2020 road roller the “unladen weight” of which does not exceed 7500 kg. That is to say no separate endorsement on the licence is required to drive a transport vehicle of 60 light motor vehicle class as enumerated above. A licence issued under section 10(2)(d) continues to be valid after Amendment Act 54 1994 and 28.3.2001 in the form. The effect of the amendment made by virtue of Act No. 54 1994 w.e.f. 14th November 1994 while substituting clausestoof section 10(2) which contained “medium goods vehicle” in section 10(2)(e) medium passenger motor vehicle in section 10(2)(f) heavy goods vehicle in section 10(2)(g) and “heavy passenger motor vehicle” in section 10(2)(h) with expression transport vehicle as substituted in section 10(2)(e) related only to the aforesaid substituted classes only. It does not exclude transport vehicle from the purview of section 10(2)(d) and section 2(41) of the Act i.e. light motor vehicle. The effect of amendment of Form 4 by insertion of “transport vehicle” is related only to the categories which were substituted in the year 1994 and the procedure to obtain driving licence for transport vehicle of class of “light motor vehicle” continues to be the same as it was and has not been changed and there is no requirement to obtain separate endorsement to drive transport vehicle and if a driver is holding licence to drive light motor vehicle he can drive transport vehicle of such class without any endorsement to that effect. The relevant portion of the judgement is reproduced hereunder: “43. Section 10(2)tolays down the classes of vehicles to be driven not a specific kind of motor vehicles in that class. If a vehicle falls into any of the categories a licence holder holding licence to drive the class of vehicle can drive all vehicles of that particular class. No separate endorsement is to be obtained nor provided if the vehicle falls in any of the particular classes of section 10(2). This Court has rightly observed in Nagashetty that in case submission to the contrary is accepted then every time an owner of a private car who has a licence to drive a light motor vehicle attaches a roof carrier to his car or a trailer to his car and carries goods thereon the light motor vehicle would become a transport vehicle and the owner would be deemed to have no licence to drive that vehicle. It would lead to absurd results. Merely because a trailer is added either to a tractor or to a motor vehicle it by itself does not mean that driver ceased to have valid driving licence. In our considered opinion even if such a vehicle is treated as transport vehicle of the light motor vehicle class legal position would not change and driver would still have a valid driving licence to drive transport vehicle of light motor vehicle class whether it 5 Mac. App. No. 49 2020 is a transport vehicle or a private car tractor attached with trolley or used for carrying goods in the form of transport vehicle. The ultimate conclusion in Nagashettyis correct however for the reasons as explained by us. 44. In Natwar Parikh & Co. Ltd. v. State of Karnataka & Ors.7 SCC 364 this Court was concerned with the taxation under the Karnataka Motor Vehicles Taxation Act 1957 and question arose whether the tractor along with trailer for transporting goods was to constitute distinct category of goods carrier which requires permission under Section 2(14) of the Motor Vehicles Act 1957 and absence thereof would render it liable to tax under Section 3(2). This court held that the tractor when attached with the trailer carrying goods would become a transport vehicle for the purpose of taxation. This Court has discussed the question thus: “Section 2(28) is a comprehensive definition of the words "motor vehicle". Although a “trailer” is separately defined in Section 2(46) to mean any vehicle drawn or intended to be drawn by a motor vehicle it is still included in the definition of the words "motor vehicle" under Section 2(28). Similarly the word "tractor" is defined in Section 2(44) to mean a motor vehicle which is not itself constructed to carry any load. Therefore the words "motor vehicle" have been defined in the comprehensive sense by the legislature. Therefore we have to read the words "motor vehicle" in the broadest possible sense keeping in mind that the Act has been enacted in order to keep control over motor vehicles transport vehicles etc. A combined reading of the aforestated definitions under Section 2 reproduced hereinabove shows that the definition of motor vehicle" includes any mechanically propelled vehicle apt for use upon roads irrespective of the source of power and it includes a trailer. Therefore even though a trailer is drawn by a motor vehicle it by itself is a motor vehicle the tractor trailer would constitute a “goods carriage” under Section 2(14) and consequently a “transport vehicle” under Section The test to be applied in such a case is whether the vehicle is proposed to be used for transporting goods from one place to another. When a vehicle is so altered or prepared that it becomes apt for use for transporting goods it can be stated that it is adapted for the carriage of goods. Applying the above test we are of the view that the tractor trailer in the present case falls under Section 2(14) as a "goods carriage" and consequently it falls under the definition of "transport vehicle" under Section 2(47) of the MV Act 1988.” There is no dispute with the aforesaid proposition that tractor if drawing a trailer with goods would constitute goods carrier and consequently would be a transport vehicle. The aforesaid discussion was with respect to taxation and not with respect to the competence of driver holding light motor vehicle licence to drive the tractor attached with trailer trolley carrying goods. The driver had the competence to drive such a vehicle tractor with a trailer carrying goods being of light motor vehicle category transport vehicle which is the question involved in the instant case. Therefore the decision renders no help with the cause espoused by the 45. Transport vehicle has been defined in section 2(47) of the Act to mean a public service vehicle a goods carriage an educational institution bus or a private service vehicle. Public service vehicle has been defined in section 2(35) to mean any motor vehicle used or adapted to be used for the carriage of passengers for hire or reward and includes a maxicab a motor cab contract carriage and stage carriage. Goods carriage which is also a transport vehicle is defined in section 2(14) to mean a motor vehicle constructed or adapted for use solely for the carriage of goods or any 6 Mac. App. No. 49 2020 motor vehicle not so constructed or adapted when used for the carriage of It was rightly submitted that a person holding licence to drive light motor vehicle registered for private use who is driving a similar vehicle which is registered or insured for the purpose of carrying passengers for hire or reward would not require an endorsement as to drive a transport vehicle as the same is not contemplated by the provisions of the Act. It was also rightly contended that there are several vehicles which can be used for private use as well as for carrying passengers for hire or reward. When a driver is authorised to drive a vehicle he can drive it irrespective of the fact whether it is used for a private purpose or for purpose of hire or reward or for carrying the goods in the said vehicle. It is what is intended by the provision of the Act and the Amendment Act 54 1994. 46. Section 10 of the Act requires a driver to hold a licence with respect to the class of vehicles and not with respect to the type of vehicles. In one class of vehicles there may be different kinds of vehicles. If they fall in the same class of vehicles no separate endorsement is required to drive such vehicles. As light motor vehicle includes transport vehicle also a holder of light motor vehicle licence can drive all the vehicles of the class including transport vehicles. It was pre amended position as well the post amended position of Form 4 as amended on 28.3.2001. Any other interpretation would be repugnant to the definition of "light motor vehicle" in section 2(21) and the provisions of section 10(2)(d) Rule 8 of the Rules of 1989 other provisions and also the forms which are in tune with the provisions. Even otherwise the forms never intended to exclude transport vehicles from the category of light motor vehicles and for light motor vehicle the validity period of such licence hold good and apply for the transport vehicle of such class also and the expression in Section 59 10(2)(e) of the Act Transport Vehicle would include medium goods vehicle medium passenger motor vehicle heavy goods vehicle heavy passenger motor vehicle which earlier found place in section 10(2)(e) to and our conclusion is fortified by the syllabus and rules which we have discussed. Thus we answer the questions which are referred to us thus: i) Light motor vehicle as defined in section 2(21) of the Act would include a transport vehicle as per the weight prescribed in section 2(21) read with section 2(15) and 2(48). Such transport vehicles are not excluded from the definition of the light motor vehicle by virtue of Amendment Act No.54 1994. ii) A transport vehicle and omnibus the gross vehicle weight of either of which does not exceed 7500 kg. would be a light motor vehicle and also motor car or tractor or a road roller unladen weight of which does not exceed 7500 kg. and holder of a driving licence to drive class of "light motor vehicle" as provided in section 10(2)(d) is competent to drive a transport vehicle or omnibus the gross vehicle weight of which does not exceed 7500 kg. or a motor car or tractor or road roller the "unladen weight" of which does not exceed 7500 kg. That is to say no separate endorsement on the licence is required to drive a transport vehicle of 60 light motor vehicle class as enumerated above. A licence issued under section 10(2)(d) continues to be valid after Amendment Act 54 1994 and 28.3.2001 in the form. iii) The effect of the amendment made by virtue of Act No.54 1994 w.e.f. 14.11.1994 while substituting clauses to of section 10(2) which contained "medium goods vehicle" in section 10(2)(e) medium passenger motor vehicle in section 10(2)(f) heavy goods vehicle in section 10(2)(g) and "heavy passenger motor vehicle" in section 10(2)(h) with expression transport vehicle as substituted in section 10(2)(e) related only to the aforesaid substituted classes only. It does not exclude transport vehicle 7 Mac. App. No. 49 2020 from the purview of section 10(2)(d) and section 2(41) of the Act i.e. light motor vehicle. iv) The effect of amendment of Form 4 by insertion of "transport vehicle" is related only to the categories which were substituted in the year 1994 and the procedure to obtain driving licence for transport vehicle of class of "light motor vehicle" continues to be the same as it was and has not been changed and there is no requirement to obtain separate endorsement to drive transport vehicle and if a driver is holding licence to drive light motor vehicle he can drive transport vehicle of such class without any endorsement to that effect.” In view of the above reproduced excerpt of the judgement in Mukund Dewangan there is no substance in the submission of learned counsel for appellant qua validity of driving licence of offending vehicle. Thus the Tribunal has rightly decided Issue no.3 against appellant Insurance Company. 10. Contention of learned counsel for appellant qua quantum of compensation and computation thereof that is also misconceived inasmuch as the Tribunal has been conservative in computing the compensation and also in view of law laid down by the Supreme Court in catena of cases including National Insurance Company v. Pranay Sethi AIR 2017 SC 5157 Arvind Kumar Mishra v. New India Assurance Co. Ltd. 10 SCC 254 and M. R. Krishna Murthi Vs. The New India Assurance Company Ltd. & Others 1 ACC 730 SC). Resultantly impugned Award need not be interfered with and Appeal on hand is liable to be dismissed. 11. For the reasons discussed above the instant Appeal is dismissed. Interim direction if any shall stand vacated. 12. Record of the Tribunal if summoned received be sent down along with copy of this judgement. Vinod Chatterji Koul) Judge 22.06.2021 Whether the order is reportable: Yes No.

The burden of proof lies upon the respondent to establish the charge of cruelty; it has a very wide purview and differs in every other matrimonial case -High court of New Delhi

The burden of proof lies upon the respondent to establish the charge of cruelty; it has a very wide purview and differs in every other matrimonial case -High court of New Delhi Cruelty is defined under section 13 of Hindu Marriage Act, 1955, which is a ground for dissolution of marriage may be defined as willful and unjustifiable conduct of such character as to cause danger to life, limb or health, bodily or mental, or as to give rise to a reasonable apprehension of such a danger in such cases the onus of proof lies on the respondent who had subject his/her spouse to cruelty. In the case of RAHUL KESARWANI VS SUNITA BHUYAN (MAT.APP.(F.C.) 75/2020) the judgement passed by the division bench of HON’BLE JUSTICE VIPIN SANGHI & HON’BLE MR. JUSTICE JASMEET SINGH dealt with the issue mentioned above. In this case the parties have stayed together only for two months in which period the respondent (wife) has been subjected to Dowry harassment and cruelty by the husband and his family members after and since then were living separately for 11 years .The respondent herein filed for the dissolution of marriage in the Family court and was granted the same. Aggrieved by the order the petitioner filed an application for setting aside the dissolution order and contended that the claims made by the wife are completely baseless there is no instances of dowry torture, without any evidentiary proof the family court is faulty giving its verdict in the favor of the wife hence such order should be set aside. The learned counsel for the petitioner stated that the marriage between the parties was not cohabited and she was tortured severely by the husband and family members produced the document in which the petitioner herein has accepted the dowry torture and has asked for forgiveness, the parties were living separately since 11 years and the husband was also a patient of Bipolar disorder which was concealed at the time of marriage. The learned counsel for respondent stated that there are no evidentiary proofs against the petitioner (husband and hence it cannot be stated that the respondent was subjected to cruelty by mere presumption and request the hon’ble court to set aside the dissolution order. The division bench of the Hon’ble High Court of Delhi noted the judgement in Naveen Kohli v. Neelu Kohli, ((2006) 4 SCC 558) which states- “when parties have separated for a sufficient length of time it is significant that the marriage has breakdown and in case of cruelty burden lies upon the respondent to establish the charge of cruelty. The question is as to what is the standard of proof to be applied in order to judge whether the burden has been discharged or not.” The hon’ble Court perused the facts and arguments presented and opined that “this is a case of the ground of irretrievable breakdown of marriage and the ground of cruelty on account of subsequent facts the court doesn’t found itself to be inclined to set aside the dissolution of marriage therefore, the present appeal is dismissed.”

IN THE HIGH COURT OF DELHI AT NEW DELHI Reserved on: 05.08.2021 Pronounced on: 01.12.2021 MAT.APP.(F.C.) 75 2020 RAHUL KESARWANI .....Appellant Through: Mr. Abhey Narula Advocate SUNITA BHUYAN HON BLE MR. JUSTICE VIPIN SANGHI HON BLE MR. JUSTICE JASMEET SINGH Through: Respondent in person .....Respondent JUDGMENT JASMEET SINGH J 1. The present appeal has been filed by the Appellant under Section 19 of the Family Courts Act 1984 read with Section 28 of the Hindu Marriage Act 1955 challenging the judgment and decree dated 30.11.2019 whereby the petition filed by the Respondent for dissolution of Marriage under Section 13(1)(ia) and of the Hindu Marriage Act 1955 has been allowed and the marriage between the parties has been dissolved. 2. At the very outset it must be noted that we on 15.07.2021 had interacted with the parties to explore the possibility of a mediated settlement. However it was of no avail. 3. The necessary facts giving rise to the present appeal are that the Appellant husband and the Respondent wife got married on 06.05.2011 at Delhi according to Hindu rites and ceremonies. The parties resided MAT.APP.(F.C.) 75 2020 together at J1 226 DDA Flats Kalkaji New Delhi till 10.07.2011 after which the respondent left the matrimonial home. 4. On 01.09.2012 the Respondent filed a petition under Section 13(1)(ia) and 13(iii) of the Hindu Marriage Act 1955. In the petition the Respondent claimed that the parties did not consummate their marriage that there were dowry demands by the appellant and his family members that the appellant fought with her constantly that the appellant used to torture her that he did not spend any amount towards household expenses and lastly that he was suffering from a Bi Polar disorder which he concealed from her before marriage. 5. The Family Court found that: the respondent wife has brought sufficient material on record and given specific incidents of cruelty on the part of ii. The respondent proved that the appellant was abusive and was in the habit of picking up quarrels frequently. iii. The appellant abused the respondent making the allegations that she was having sexual relationship with her brother and father. iv. The appellant was a patient of "PSYCHOMOTOR ACTIVITY BIOLAR DISORDER AND PERSONALLITY DISORDER MULTIPLETRAIT". v. The appellant did not show any interest whatsoever establishing conjugal relationship with the respondent. vi. The appellant used respondent before relatives domestic helps. MAT.APP.(F.C.) 75 2020 vii. The appellant had assaulted beaten and tortured the respondent continuously accusing her of bad character suspecting of her viii. The appellant did not have physical intimacy with the respondent having affairs. for long. ix. On 10.07.2011 when the respondent told the appellant that house rent and other bills for two months have not been paid the appellant asked the respondent to bring Rs. 1.0 lac from her mother and when she refused the appellant threw utensils and glasses on the floor. x. The appellant threatened the respondent to butcher her with a knife. The respondent was scared of him. After 10.07.2011 the parties did not have any conjugal relationship. xi. The conduct of the appellant by no stretch of imagination could be termed as ordinary wear and tear of matrimonial life. The appellant subjected the respondent with continuous ill treatment. The contemporaneous evidences in the form of complaints filed by the respondent with the police against the behaviour of the appellant were relied upon. The above series of acts incidents would constitute the mental cruelty which is a ground for divorce under Section 13(1)(ia)of Hindu Marriage Act. 6. The main contentions of the Appellant in this appeal are as under : MAT.APP.(F.C.) 75 2020 That the Family Court has not adjudicated the matter based on pleadings and has given findings on issues which were neither pleaded nor proved. ii) That the Respondent was not a reliable witness. The averments made in her petition are false to her knowledge and there exist many inconsistencies between the averments in the petition filed by her and the statements made by her in the Cross examination before the Family Court. iii) That the Respondent before the Family Court did not press her claim for divorce on the ground of unsound mind. However the Family Court still proceeded to deal with the same. iv) That in the investigation conducted by the Police in FIR No.198 2012 it was concluded that no offence of dowry demand or harassment was made out against the parents of appellant or the appellant himself and the same was never challenged by the Respondent. v) It is alleged by the Appellant that the Family Court had contradicted itself in the judgment while noting that it is the case of the Respondent that the parties did not have conjugal relations since the first day of marriage but later observed that it is in fact not the case of the Respondent that they did not have physical intimacy during their marriage. vi) That the Family Court relied on three alleged incidents of 10.07.2011 21.10.2011 and 26.12.2011 in deciding the matter which had not even been pleaded by the Respondent by way of her evidence. MAT.APP.(F.C.) 75 2020 The Family Court held that making allegations against the character of the spouse is cruelty but did not substantiate how the Respondent had proved that in her Petition. viii) The Family Court has failed to give any reasons as to how the Respondent has proved her allegations relating to the alleged abuse against her character or aspersions of infidelity. ix) That the Family Court erred in law and on facts by finding that prior medical condition of the Appellant entitled Respondent to a divorce. x) That the Family Court had not given any reasoning as to why without any documentary evidence being proved on record or with any third party affirmation the respondent had successfully proved her case. 7. We have heard Learned Counsel for the Appellant and have gone through the impugned judgment and the documents placed on record before us. 8. The Appellant has stated that the Respondent was not a reliable witness and the Family Court erred in relying upon her statements. However we do not agree with this submission of the Appellant as not only had the Respondent substantiated and supported her claims by way of her Evidence Affidavit and Written Submissions besides being cross examined before the Family Court. The Family Court has considered the said aspect in the impugned judgment as follows: “40. I agree with the contention of Ld. Counsel for the respondent that in the evidence affidavit the petitioner has narrated some facts incidents that the respondent burnt her with cigarette once fractured her hand by beating her with chimta MAT.APP.(F.C.) 75 2020 her parents in law refused to interfere even when she told them that the respondent was getting anti social people at home which facts she has not stated in her petition or the replication and that in view of the law laid down in the case Prakash Ratan lal the evidence beyond pleadings must be rejected but besides above there is enough direct and circumstantial evidence which substantiate the allegations of the petitioner that she was subjected to mental & physical cruelty as discussed in the preceding paras. In the instant case she has given the specific instances how she was subjected to mental & physical No specific reason has been pointed out by the appellant to claim that the Respondent was not a reliable witness. Her cross examination by the appellant does not show that she faltered or could not withstand the same. No specific contradictions have been brought forth by the appellant in the testimony of the Respondent to support his submissions that the Respondent has not a truthful and reliable witness. It is a well settled proposition that pleadings and evidence have to be read as a whole and no single instance can be picked and read in isolation. The impugned judgment in above paragraph has noted that there are factual instances found in the evidence which are not pleaded in pleadings. However those incidents are not the fulcrum of the findings of the Family Court that the Respondent has been subject to mental and physical cruelty by the Appellant. One incident not having been pleaded or having certain inconsistencies cannot make an individual an unreliable witness. The test of unreliable witness has been laid down in Kuria v State of Rajasthan12 SCC 433 which states: MAT.APP.(F.C.) 75 2020 too much on “30. This Court has repeatedly taken the view that the discrepancies or improvements which do not materially affect the case of the prosecution and are insignificant cannot be made the basis for doubting the case of the prosecution. The courts may such discrepancies or not concentrate improvements. The purpose is to primarily and clearly sift the chaff from the grain and find out the truth from the testimony of the witnesses. Where it does not affect the core of the prosecution case such discrepancy should not be attached undue significance. The normal course of human conduct would be that while narrating a particular incident there may occur minor discrepancies. 34. Where the witness is wholly unreliable the court may discard the statement of such witness but where the witness is wholly reliable or neither wholly reliable nor wholly unreliable the court may base its judgment on the statement of such witness. Of course in the latter category of witnesses the court has to be more cautious and see if the statement of the witness is corroborated.” The facts of the present case do not meet the said test. We do note there was indeed a minor inconsistency in the statement of the Respondent wife during her cross examination relating to the payment of Household expenses. However the same is a minor aberration and does not make the Respondent wife an unreliable witness. Minor aberrations are normal to occur and cannot be a reason to discard the entire testimony of a witness. 9. Further the grievance of the Appellant as to why the Family Court adjudicated on the ground of unsound mind when the same was not pressed by the Respondent is again irrelevant for us. The divorce petition was filed under two grounds i.e. Section 13(1)(ia) and Section MAT.APP.(F.C.) 75 2020 13(iii) of the Hindu Marriage Act 1955. The Family Court had to deal with both the grounds in the impugned judgment as neither of these grounds were withdrawn by the Respondent wife. However the same has no bearing on the matter as the Respondent wife failed to prove the necessary ingredients of Section 13(1)(iii) before the Family Court and the divorce was granted on the sole ground of „cruelty‟. It was made clear by the Family Court that there was no finding related to the unsoundness of mind of the Appellant and that issue was decided in favour of the Appellant. The Family Court in paragraph 47 held : “47. Now the question arises whether the respondent was incurably of unsound mind Although the petitioner has placed a document Ex. RWI PIO i.e. the discharge summary of the respondent but from this document no inference can be drawn that the respondent was incurably of unsound mind or it cannot reasonably be expected to live her with him. He was admitted in Rehab Centre where he was treated for "PSYCHOMOTOR PERSONALLITYDISORDER MULTIPLE TRAIT". There is no document to that effect that his disease was such that it cannot be cured. I am of the view that petitioner has failed to prove the necessary ingredients of Section 13 (iii) of the Hindu Marriage Act.” ITY Thus aforesaid cannot be a reason for the Appellant to seek the setting aside of the judgment on this ground. 10. The Appellant has claimed in his appeal that the Respondent admitted herself that there is nothing on record to prove that he or his family demanded money or any form of dowry from her and the FIR registered by her in that respect has been closed. Yet at the same time he has also admitted in his cross examination the fact that his mother MAT.APP.(F.C.) 75 2020 had asked for dowry. The Family Court Judge noted in the judgment that : “42. …. It is also significant to note that in the matrimonial proceedings strict rule of evidence is not followed. In the email Ex. RWl P11 he has admitted that in February 2011 when he was on ship he had asked the petitioner to arrange wine from his friends and colleagues. He has also admitted that he had written an email Ex. RW1 P12 dated 29.12.2011 wherein he had mentioned that his mother had demanded dowry from her. I do not find force in the contention of the respondent that he had written these mails at the behest of the petitioner as he wanted to save the marriage. ExRW1 P 12 reads as under: “dear milli meri saari gaitiyon ko maaf kardo meri mummy ne jo kuch bhi kaha use chod do mere parivar se tumhara koi Rishta nahin rahega tumse dowry maangi… maine tumhe pehle bhi bataya tha ki meri mummy ka nature theek nahin hai….unse zyada batein mat kiya karo …” emphasis supplied) Rather by way of her Evidence Affidavit the Respondent had proved that the Appellant and his family had demanded dowry from her family both at the time of marriage and after the marriage and she has even placed on record email chats between herself and the Appellant establishing the same. The respondent in her Evidence Affidavit had “14.I say that I got married with the respondent on 6 May 2011 at Golden Fiesta AISF Building venue and all expenses were borne by my family. I state that soon after the time of marriage the Respondent and the other family members particularly the parents were not happy and were cribbing that they wanted a car which was not given by my family however the marriage got over and the next day the I along with the Respondent reached MAT.APP.(F.C.) 75 2020 the rented accommodation at Govindpuri in Kalkaji with lots of present such as gold rings chain suits golden cufflinks many utensils in silver along with bedding clothes bed furniture washing machine kitchenware etc. 15. I say that the worst stared from the next day of marriage i.e. 7th May 2011 onwards the parents of the Respondent were also residing then in the rented house at Kalkaji also the sister was present during the early days after the marriage I have been harassed by my in laws and husband. My mother in law along with my husband was harassing me for dowry. 17.I say that from very inception of their marriage the respondent and his family members started cursing me for not bring sufficient and adequate dowry according to their economic standard and further told that the dowry at the time of marriage by my parents were Sub standard products and that is why the respondent started finding fault in every work done by me and started rebuking and using most abusive and filthy language for me and my parents without any reasonable cause and cursed me for not bringing sufficient dowry and cash to make them rich and to raise prestige of my in laws and economic standard.” Pertinently the Learned Family Court has not mentioned even the factum of the registration of the said FIR and the Appellant has not been able to prove that there was no dowry demand whatsoever. Simply stating that there was no dowry demand is not sufficient to establish the innocence of the Appellant especially when he himself has accepted that his mother did demand dowry. Thus we cannot accept this argument of the Appellant. A fact which had been admitted by the Appellant needed no further proof or corroboration by the Respondent under Section 58 of the Indian Evidence Act which reads as under: MAT.APP.(F.C.) 75 2020 “58 Facts admitted need not be proved. —No fact need to be proved in any proceeding which the parties thereto or their agents agree to admit at the hearing or which before the hearing they agree to admit by any writing under their hands or which by any rule of pleading in force at the time they are deemed to have admitted by their pleadings: Provided that the Court may in its discretion require the facts admitted to be proved otherwise than by such admissions.” 11. The Appellant has stated that there are several inconsistencies and contradictions in the judgment passed by the Learned Family Court. It was argued by the Appellant that in the judgment the Family Court first observed that the parties did not have conjugal relations since the first day of marriage but later stated that it was not the case of the Respondent that they did not have physical intimacy. This submission is meritless. Paragraph 36 of the impugned judgment states that it is the case of the petitioner before it that there was no healthy physical relationship. The Family Court had simply noticed the case of the Respondent wife and rather had made no independent observation with regard to the consummation of their marriage. 12. Further the Appellant has claimed that the Family Court took into account three incidences which were not even pleaded by the Respondent. The factum that the incidents of 10.07.2011 21.10.2011 and 26.12.2011 were not pleaded by the Respondent wife in her petition but disclosed only in the Evidence Affidavithas duly been appreciated by the Family Court in paragraph 40 of the Impugned Judgment. The Family Court however has not relied on any of these incidents to come to the conclusion of the Respondent wife being MAT.APP.(F.C.) 75 2020 subjected to cruelty and hence the Appellant cannot have any reason to challenge the judgment on this ground. 13. The Family Court also held that the Appellant suspecting the Respondent‟s character and making allegations of infidelity and illicit relationships amounted to cruelty. The Appellant denied making any such allegations or statements. However the Family Court in the Impugned judgment has found the same in favour of the Respondent wife. 14. On this aspect we are of the view that the grievance of the Appellant is justified. Apart from the self serving statement of the Respondent which was denied by the Appellant and her controverted testimony she did not lead any other independent evidence on this aspect. 15. We may however observe that even if this allegation is taken as not established against the Appellant there were other matrimonial misconducts which were clearly established against him which were sufficient to establish the ground of cruelty under Section 13(1)(ia) against him. 16. The Appellant contends that the Family Court observed that a prior medical condition of his would entitle the Respondent wife to a decree of divorce. However that is not the position on record. The above disorder of the Appellant has only been referred to in passing and has not been made basis for granting divorce to the Respondent. In Paragraph 51 of the Impugned Order the Family Court noted the opposite andobserved: “It is true that mental disorder in itself is not a ground for divorce and it is necessary for the party to show that the other MAT.APP.(F.C.) 75 2020 spouse has been suffering continuously and intermittently from mental disorder and this mental disorder should be of such a kind and to such an extent that he cannot be reasonably be expected to live with her and that the petitioner has failed to prove that the respondent has been suffering from mental disorder to that extent but it is not in dispute that he suffered from "PSYCHOMOTOR ACTIVITY BIPOLAR DISORDER AND PERSONALLITY DISORDER MULTIPLE TRAIT and for which he was treated in Hope Foundation. It was a material information which he had concealed from the respondent before the marriage.” As per the Appellant‟s own admission in his Evidence Affidavit he did seek medical assistance in a Rehabilitation Centre called Hope Foundation and was treated for irritability and depression. A perusal of the discharge summary of the Appellant from Hope Foundation shows that the Appellant was treated for Bipolar Affective Disorder and was admitted twice between 24th October 8th November 2008. The summary states that he suffered from extreme agitation irritability and violent behaviour. However that disorder has not been made the basis for coming to the finding of cruelty and thus needs no further 17. The last aspect argued by the appellant is that the Family Court without any documentary evidence or third party affirmation has granted divorce to the Respondent wife. 18. We do not agree with this submission of the appellant. The numerous complaints and specific incidents of cruelty both mental and physical show the true conduct of the Appellant which cannot be expected in any healthy matrimonial relationship. Therefore the submission of the Appellant that no instance of cruelty has been established does not MAT.APP.(F.C.) 75 2020 impress us. This Court in MAT APP 5 2020 titled „Laxmi v. Kanhaiya Lal’ has stated : “When the marriage sours the vows that the couple takes at the time of marriage are a casualty. We take it that neither of the parties to a marriage enters into the matrimonial bond only to break it later. If the said bond breaches there are bound to be some underlying reasons for the same. In some cases those reasons may come to the surface and the court may be able to see them. In others they may remain latent for myriad reasons. Those reasons would invariably be attributable to both the parties as it takes two to fight. And when the fight goes to the point of them filing cases against each other the situation becomes messy and bitter for both of them. Unless the situation is diffused early and the parties decide to reconcile and call a truce with passage of time the void between them only increases and the feeling of love and warmth in their relationship begins to fade. What is left is only a feeling of hurt hatred disrespect disregard and bitterness for the other. These negative feelings and thoughts are bound to give rise to mental trauma harassment and cause immense cruelty to one if not both the parties. It is well known and medically established that constant feeling of sorrow hatred stress pain hurt and the like do also manifest in the form of serious diseases such as heart diseases diabetes cancer etc.72 American Psychologist 578. MAT.APP.(F.C.) 75 2020 accommodate tolerate has gone down. Materialism has increased. The capacity to forget and forgive and move on is less. Stresses of life have increased with increased competition and faster pace of life. These factors are leading to matrimonial breakdowns. The conduct of the parties to a marriage cannot be described in black and white. There is a lot of grey and it is not always possible to pin pointedly say that one spouse is the villain while the other is the victim. Both may be villains and victims at the mere continuation of the relationship between the warring spouses causes immense emotional and psychological trauma to the parties which would in itself tantamount to cruelty by both parties upon the other.” time. In such situations the same The ratio of the above judgment is squarely applicable to the facts of this case and relying on the same we cannot believe the ipse dixit of the Appellant. 19. The Appellant has argued that for setting aside the judgment: a) There must be non appreciation of evidence to a such material degree which changes outcome of the verdict or b) Some evidence must have been misread mis appreciated or misconstrued in such a way which if read in proper perspective changes the entire verdict or c) Some material evidence has totally been omitted to have been It is argued that the Appellant has been able to meet the above tests. If the contradictions and misappreciations are of a minor nature or do not change the essence of the case of the concerned party the minor aberrations are to be ignored by Appellate Court. To justify interference there must be such substantial inconsistencies and MAT.APP.(F.C.) 75 2020 contradictions of material facts that if seen in the proper perspective they would change the entire essence of the judgement. Inconsistencies of such a minor nature neither change the thread nor the essence of the judgment. The contradictions pointed out by the Appellant are not so serious as to change the finding persuading us to set aside the impugned judgment nor are they so grave that they violate the 20. We may now notice the findings of the Family Court in the Impugned principles of natural justice. “32. …..Although the respondent in his written statement had stated that he has no permanent source of income he was doing a revalidation course for renewal of his licence but no such suggestions were given by him during the cross examination of the petitioner PWl. Her testimony shows that the respondent did not correctly inform her about his profile. 37. PWl petitioner has deposed that the respondent used to abuse and fight with her on petty issues. She has denied that there was no incident of mental and physical violence by the respondent. She has stated that she did not file the complaint since she wanted to save her marriage. I find force in this contention. It is seen that a woman at the initial stage of marriage bears the mental and physical violence to save her matrimonial life. When the other party crosses his Limit then the woman goes for a complaint against that person. In this case she had made the complaint only on 21.10.2011 when she was harassed slapped and beaten. She again lodged a complaint on 26.12.2011 when she was abused and the respondent and his friends forcefully entered her house. She has placed on record the complaints. She has stated that the respondent had assaulted her several times. Although she had called the police on 100 number but every time the respondent gave an assurance that he would not repeat such act in future. MAT.APP.(F.C.) 75 2020 interest whatsoever the respondent. He used 41. It is pertinent to note that the respondent had filed a petition for restitution of conjugal rights which was registered vide 26 2013 but in his testimony he has stated that he doesn t want to live with the petitioner. This goes to show that he had filed the petition only to create evidence in his favour so that he may take benefit later. 45. On a careful appreciation of the evidence in the given facts & circumstances I am of the view that the petitioner has brought sufficient material and given specific incidents of cruelty on the part of the respondent. She has proved that the respondent was abusive and was in the habit of picking up quarrels frequently. He abused her making the allegations that she was having sexual relationship with her brother and father. He was a patient of PSYCHOMOTOR ACTIVITY BIPOLAR DISORDER AND PERSONALLITY DISORDER MULTIPLE TRAIT". He did not in establishing conjugal show any relationship with respondent before relatives domestic helps. He assaulted beat and tortured her continuously accusing her of bad character suspecting of her having affairs. He did not have physical intimacy with the petitioner for long. He used to beat and torture her. On 10.07.2011 when she told him that house rent and other bills for two months have not been paid he asked her to bring Rs. 1.0 lac from her mother and when she refused he threw utensils and glasses on the floor. He threatened her to butcher her with a knife. She was scared of him. After 10.07.2011 they did not have any conjugal relationship. The conduct of the respondent by no stretch of imagination can be termed as ordinary wear and tear of matrimonial life. He subjected the petitioner with continuous ill treatment. The contemporaneous evidences which are in the form of complaints filed by the petitioner with the police against the behaviour of the respondent also support her case. The above series of acts incidents would constitute the mental cruelty which is a ground for divorce under Section 13(ia) of Hindu Marriage MAT.APP.(F.C.) 75 2020 48. In the instant case the conduct complained of was grave and weighty. It can safely be concluded that the petitioner spouse cannot be reasonably expected to live with the respondent spouse. It was something more serious than ordinary wear and tear of the married life. Their relationship had deteriorated to such an extent due to the conduct of the respondent that it became impossible for them to live together without mental agony torture or distress which make the petitioner spouse entitle to secure divorce. It is clearly borne out that the respondent has caused mental pain of such a magnitude that it has severed the bond between the wife and the husband. I am of the view that the requirement of Section 13 (ia) of Hindu Marriage Act stands fulfilled. The issue no. 1 is accordingly decided in favour of the petitioner and against the respondent. Issue no. 2 is not proved by the petitioner.” 21. The above findings are founded upon the pleadings in the petition made by the Respondent proved by way of the Evidence Affidavit and sustained in the extensive Cross Examination of the Appellant.. 22. The term cruelty as envisaged in the Hindu Marriage Act 1955 is not and cannot be exhaustively defined. However the same can be inferred from a long line of judicial decisions. 23. In the case of Samar Ghosh v Jaya Ghosh 4 SCC 511 it was held: “On proper analysis and scrutiny of the judgments of this Court and other Courts we have come to the definite conclusion that there cannot be any comprehensive definition of the concept of mental cruelty within which all kinds of cases of mental cruelty can be covered. No court in our considered view should even attempt to give a comprehensive definition of mental cruelty. Human mind is extremely complex and human behaviour is equally complicated. Similarly human ingenuity has no bound therefore to assimilate the entire human behaviour in one definition is almost impossible. What is cruelty in one case may MAT.APP.(F.C.) 75 2020 not amount to cruelty in other case. The concept of cruelty differs from person to person depending upon his upbringing level of sensitivity educational family and cultural background financial position social status customs traditions religious beliefs human values and their value system. Apart from this the concept of mental cruelty cannot remain static it is bound to change with the passage of time impact of modern culture through print and electronic media and value system etc. etc. What may be mental cruelty now may not remain a mental cruelty after a passage of time or vice versa. There can never be any strait jacket formula or fixed parameters for determining mental cruelty in matrimonial matters. The prudent and appropriate way to adjudicate the case would be to evaluate it on aforementioned factors in consideration.” facts and circumstances while its peculiar 24. In N.G Dastane v. S. Dastane 2 SCC 326 it was observed as : The enquiry therefore has to be whether the conduct charges as cruelty is of such a character as to cause in the mind of the petitioner a reasonable apprehension that it will be harmful or injurious for him to live with the respondent." 25. It has also been observed by the Supreme Court and other Courts that no straitjacket formula can be applied to cases of cruelty in matrimonial dispute. In Samar Ghoshit was observed that there can be no fixed parameter in determining cruelty. In most of the cases cruelty is inflicted by one party and felt by another in a variety of circumstances. What may constitute cruelty in one matter may not constitute cruelty in another. Each case and relationship must be viewed separately and its own totality. 26. The matrimonial disputes between a husband and a wife cannot be expected to and are incapable of following strict parameters of MAT.APP.(F.C.) 75 2020 evidence. In cases where there are allegations of cruelty specially mental cruelty such as Dowry Demand violent abusive behaviour starving the spouse of affection resources and emotional support there can be no set parameters that the court can follow. Matrimonial issues are generally confined to the bedroom and the matrimonial home away from public eye and gaze. A lot of times these cases do not have any independent or impartial witnesses. The doctrine of preponderance of probabilities has to be applied while evaluating the evidence and the court must decide the matter based on the overall picture that emerges from the undisputed and uncontroverted facts and circumstances and those established by documentary or other evidence. 27. In the case of Sheenu Mahendru v. Sangeeta SCC Online Utt 376 the Court observed: “The burden lies upon the respondent to establish the charge of cruelty. The question is as to what is the standard of proof to be applied in order to judge whether the burden has been discharged or not. The rule which governs matrimonial cases is that a fact could be established if it is proved by a preponderance of probabilities. Proof beyond a reasonable doubt is a proof of a higher standard which generally governs criminal trials or trials involving inquiry into issues of a quasi criminal nature. Such proof beyond a reasonable doubt could not in matters of pure civil nature especially matrimonial matters.” 28. In the present case the Family Court correctly employed the standard of proof of preponderance of probabilities. The facts which emerge from the record are that: i) The parties lived together only for a period of 64 days. MAT.APP.(F.C.) 75 2020 The parties have been living separately for a decade now iii) The Respondent walked out in 2011 and filed for divorce under Section 13(1)(ia) and Section 13(1)(iii) of the Hindu Marriage Act 1955 iv) It was accepted by the Appellant that he indeed was admitted to the Hope Foundation and was treated for Bipolar Disorder. v) The Appellant has admitted in his email that his mother had demanded dowry from the Respondent. vi) The Appellant himself refused to reside with the Respondent or file for divorce by mutual consent. 29. Upon a perusal of the pleadings and evidence led by the parties before the Family Court we find that the Appellant husband has not been able to substantiate any of his grounds of challenge. The Family Court has discussed and appreciated the evidence before it and we find no perversity in the impugned judgment. The number of incidents pleaded and duly proved by the Respondent before the Family Court are sufficient to hold the Appellant guilty of marital cruelty. These instances cannot be said to be the ordinary wear and tear of day to day 30. The parties cohabited together only for a period of 64 days and have been living separately since 10.07.2011. It has been a decade since the parties have lived together and the entire substratum of marriage has perished. Even when the parties were in fact living together there were many allegations of dowry demand cruelty and abuse. There are MAT.APP.(F.C.) 75 2020 several allegations and counter allegations in the Family Court record which display the heightened animosity between the parties. 31. As noted by the Hon‟ble Supreme Court in Sivasankaran v Santhimeenal SCC Online SC 702: “20. In view of the legal position which we have referred to aforesaid these continuing acts of the respondent would amount to cruelty even if the same had not arisen as a cause prior to the institution of the petition as was found by the Trial Court. This conduct shows disintegration of marital unity and disintegration of the marriage. In fact there was no initial integration itself which would allow disintegration afterwards. The fact that there have been continued allegations and litigative proceedings and that can amount to cruelty is an aspect taken note of by this court The marriage having not taken of from its inception and 5 years having been spent in the Trial Court it is difficult to accept that the marriage soon after the decree of divorce within 6 days albeit 6 years after the initial inception of marriage amounts to conduct which can be held against the 21. In the conspectus of all the aforesaid facts this is one case where both the ground of irretrievable breakdown of marriage and the ground of cruelty on account of subsequent facts would favour the grant of decree of divorce in favour of the appellant.” 32. Further it has also been observed by the Supreme Court in Naveen Kohli v. Neelu Kohli 4 SCC 558 : “72. Once the parties have separated and the separation has continued for a sufficient length of time and one of them has presented a petition for divorce it can well be presumed that the marriage has broken down. The court no doubt should seriously make an endeavour to reconcile the parties yet if it is found that the breakdown is irreparable then divorce should not be withheld. The consequences of preservation in law of the MAT.APP.(F.C.) 75 2020 unworkable marriage which has long ceased to be effective are bound to be a source of greater misery for the parties. 73. A law of divorce based mainly on fault is inadequate to deal with a broken marriage. Under the fault theory guilt has to be proved divorce courts are presented with concrete instances of human behaviour as they bring the institution of marriage into disrepute. 74. We have been principally impressed by the consideration that once the marriage has broken down beyond repair it would be unrealistic for the law not to take notice of the fact and it would be harmful to society and injurious to the interests of the parties. Where there has been a long period continuous separation it may be fairly surmised that the matrimonial bond is beyond repair. The marriage becomes a fiction though supported by a legal tie. By refusing to sever that tie the law in such cases does not serve the sanctity of marriage on the contrary it shows scant regard for the feelings and emotions of the parties. 87. The High Court ought to have visualised that preservation of such a marriage is totally unworkable which has ceased to be effective and would be a greater source of misery for the parties. 88. The High Court ought to have considered that a human problem can be properly resolved by adopting a human approach. In the instant case not to grant a decree of divorce would be disastrous for the parties. Otherwise there may be a ray of hope for the parties that after a passage of time the parties may psychologically and emotionally settle down and start a new chapter in life.” 33. The continuation of the marriage between the parties would cause undue harm to not only the Respondent wife but also Appellant husband. There has been a complete breakdown of marriage. MAT.APP.(F.C.) 75 2020 34. It is clear from a bare perusal of the matter at hand that the marriage is beyond repair. The continuity of this marriage is fruitless and is rather causing grief and harm to both the parties. 35. In this view of the matter we do not find ourselves inclined to grant the Appellant‟s prayer against the dissolution of marriage and find no infirmity in the impugned order dated 30.11.2019. 36. Accordingly the present appeal is dismissed being devoid of merits. JASMEET SINGH J VIPIN SANGHI J DECEMBER 01 2021 „ms‟ MAT.APP.(F.C.) 75 2020

It cannot be considered enough to hold that the deceased had committed suicide due to any act of depression and not because of the alleged maltreatment and cruelty meted out to her by the applicant for dowry demands: The High Court of Delhi

In the case of suicidal death of the wife, the mere contention that she suffered from a mental illness would not be sufficient to prove that the death was a consequence of the same and not because of the cruelty meted out to her for the demands of dowry within 7 years of her marriage. The aforesaid has been established by the Delhi High Court in the case of Rajesh Lal v. State Govt. of NCT of Delhi [BAIL APPLN.2979/2020] which was decided by a single judge bench comprising Justice Anu Malhotra on 14th June 2021. The facts of the case are as follows. The applicant is the spouse of the deceased and was married to her in 2019 at the Rosary Church Kingsway Camp, Delhi according to the Christian rites and ceremonies. The applicant contended that it was a simple marriage performed without any demand of dowry and that there was no dowry demand made by the applicant’s side neither before the marriage nor after the marriage. The applicant further submitted that his spouse Maclina was suffering from a mental disorder namely somniloquy i.e. sleep talking disorder and she often used to scream during her sleep. The applicant further submitted that he had made enquiries from the brother of the deceased Godson, who had told him that the deceased was suffering from depression and was taking the treatment from their family doctor before marriage. The deceased had to be sent to her parental home on several occasions because of her mental condition. On one such day in 2020, wife (since deceased) unfortunately hung herself to death at her parental home and that the applicant was shocked to hear of the same but his agony was enhanced when the brother and father of the deceased did not permit him to join the last ritual and burial ceremony and that instead of consoling him on account of the demise of his wife, the father of the deceased i.e. the complainant made a false complaint to the police falsely alleging that they had given Rs.5 lacs to the applicant at the time of the marriage along with certain other gold articles and had spent around Rs.25 lacs in the marriage and further alleged that the deceased was subjected to harassment and cruelty on demands of dowry though it has been submitted by the applicant that it is well known that dowry demand is not known in Christian Society. The applicant further submits that the deceased was admittedly suffering from a mental disorder i.e. somniloquy i.e. a sleeping talking disorder, for which, she was getting medicines and it can be presumed that the ailment/ disorder was around 30 years back and that chances of the suicide by the deceased due to the mental disorder cannot be ruled out. The State submitted that during the investigation, the CDR of the mobile number of the deceased Macklina, and the accused Rajesh Lal had been obtained and after CDR analysis it has been found that applicant had talked to the deceased on 26-02-2020 at 08.12pm for the time interval of 95 seconds and that the complainant in his statement had also stated that Rajesh Lal had called his daughter Macklina and his daughter told him that she was coming to him but the applicant said that if she came near him, he would stab her with a knife.

IN THE HIGH COURT OF DELHI AT NEW DELHI BAIL APPLN.2979 2020 Judgment reserved on : 22.03.2021 Date of decision : 14.06.2021 RAJESH LAL ..... Applicant Through: Mr. Niraj Jha Adv. STATE GOVT. OF NCT OF DELHI Respondent Through: Mr. Kewal Singh Ahuja APP for State with Investigating Officer Ms. Aka Singh Adv. for complainant HON BLE MS. JUSTICE ANU MALHOTRA ANU MALHOTRA J. The applicant vide the present application has sought the grant of regular bail in relation to the FIR No.42 2020 PS Sonia Vihar under Sections 304B 498A 34 of the Indian Penal Code 1860 which FIR is indicated to have been registered on 29.02.2020. The applicant is the spouse of the deceased and was married to her on 30.10.2019 at the Rosary Church Kingsway Camp Delhi according to the Christian rites and ceremonies. The applicant contends that it was a simple marriage performed without any demand of dowry and that there was BAIL APPLN.2979 2020 Digitally SignedBy:SUMIT GHAISigning Date:14.06.202117:38Signature Not Verified no dowry demand made by the applicant’s side neither before the marriage nor after the marriage. The applicant further submits that there was only a moderate gathering in the marriage. The applicant further submits that his spouse Maclina was suffering from a mental disorder namely somniloquy i.e. sleep talking disorder and she often used to scream during her sleep. The applicant further submits that the family of the deceased had not disclosed of this mental disease of the deceased to the applicant’s family before the marriage of the applicant to Maclina since deceased) According to the applicant because of the mental illness Maclina was unable to behave normally and was reluctant to engage herself with the family members of the applicant and was unable to take part in post marriage rituals and confined herself often in her room and was reluctant to come out despite requests of his family members. The applicant further submits that whenever he asked the deceased about the details and reasons for her disorder she used to become angry and sometimes furious and sometimes used to throw household articles. The applicant further submits that he had made enquiries from the brother of the deceased Godson who had told him that the deceased was suffering from depression and was taking the treatment from their family doctor before marriage. The applicant submits that on 07.11.2019 the complainant that is an apparent reference to the father of the deceased named Shri Jerome George s o Shri Max Well George visited the applicant’s house on the request of the applicant and that the applicant and his mother had told the BAIL APPLN.2979 2020 Digitally SignedBy:SUMIT GHAISigning Date:14.06.202117:38Signature Not Verified complainant about the unnatural behavior of Maclina on which the complainant i.e. the father of Maclina requested the applicant to send her to her parental home after every 15 days as she was suffering from depression. It is submitted by the applicant that the brother of the deceased had also asked the applicant to send the deceased to her parental home for getting treatment from their family doctor to which the applicant had said that he would take the deceased to some good hospital for treatment to which the brother of the deceased had however refused. The applicant further submits that in the first week of December 2019 Mr. Godson the brother of the deceased had again taken back the deceased to her parental home for treatment and at that time the applicant discussed enquired from the deceased about her episode of panic and sleeping disorder again. The applicant submits that on 04.01.2020 there was a wedding of the applicant’s relative but that the deceased refused to go for the same and that the applicant had dropped her at her parental home and that when the deceased was there the brother of the deceased Mr. Godson had got her treated from a doctor named Dr.D.K. Gautam and when the deceased had come back Mr. Godson had handed over the prescription related to the deceased to the applicant and had also handed over the additional medicines which the applicant had refused to administer to the deceased. The applicant submits that the medicines prescribed by Dr. Gautam were Vernol and Zapiz which are meant for depression and panic attacks. The copy of the prescription of Dr. DK Gautam was submitted by the applicant along with the application. It has been BAIL APPLN.2979 2020 Digitally SignedBy:SUMIT GHAISigning Date:14.06.202117:38Signature Not Verified submitted through the application that around 26.01.2020 the deceased was feeling restless and uneasy and that the applicant for the same took her to the Institute of Human Behavior & Allied Sciences IHBAS) where the doctor prescribed her medicines i.e. Ibuprofene and Zolphibem for removal of uneasiness and that when the brother of the deceased came to know about this that the applicant took the deceased to the IHBAS he got angry with the applicant as he had taken her without prior information to him to which the applicant told him that Maclina was his wife and it was his duty to provide her with the best medical treatment to which Mr. Godson had stated that even if they got married the deceased with the applicant they had not sold the deceased to the applicant. The applicant further submits that he informed of this incident to his wife and she objected the manner of conversation by Mr. Godson with the applicant which was also reflected from the transcript between the deceased and her younger sister Twinkle. It has been submitted further by the applicant that in February 2020 the maternal uncle of the applicant named Chhote Lal was seriously ill and was at the 4th stage of cancer so the applicant’s mother used to go to her native place at Jahangirpur Jewar Gautam Budh Nagar UP to take care of her brother and she was thus with him during most of February 2020. The applicant further submits that he requested his wifeto visit his ailing maternal uncle at Jahangirpur Jewar Gautam Budh Nagar UP along with the applicant in February 2020 but she refused to go owing to her mental illness as she was not ready to be embarrassed before the family of the applicant’s maternal BAIL APPLN.2979 2020 Digitally SignedBy:SUMIT GHAISigning Date:14.06.202117:38Signature Not Verified uncle and thus the applicant along with his mother had again visited his maternal uncle by dropping the deceased at her parental home on It is submitted by the applicant that even after 11.02.2020 when the deceased was residing with her parents there was a smooth and loving affection in existence between his wife and himself and they remained in touch through social media and used to talk almost everyday and that they were enjoying a romantic relationship and were very affectionate to each other which the applicant submits would be evident from the chats through whatsapp as well as Instagram conversation between the deceased and the applicant besides certain audio conversations. The applicant further submits that his maternal uncle expired on 27.02.2020 and because of this he along with his mother and other family members had to go his native place to attend the burial and other death related ceremonies. It is submitted by the applicant that in the second half of February 2020 the North East Part of Delhi was badly hit by the riots and thus it was not safe for the applicant to travel and it was thought that the deceased should stay at her parental home. The applicant further submits that on 28.02.2020 around 11:15pm his wife unfortunately hung herself to death at her parental home and that the applicant was shocked to hear of the same but his agony was enhanced when the brother and father of the deceased did not permit him to join the last ritual and burial ceremony and that instead of consoling him on account of the demise of his wife the father of the deceased i.e. the complainant made a false complaint BAIL APPLN.2979 2020 Digitally SignedBy:SUMIT GHAISigning Date:14.06.202117:38Signature Not Verified to the police falsely alleging that they had given Rs.5 lacs to the applicant at the time of the marriage along with certain other gold articles and had spent around Rs.25 lacs in the marriage and further alleged that the deceased was subjected to harassment and cruelty on demands of dowry though it has been submitted by the applicant that it is well known that dowry demand is not known in Christian Society. The applicant further submits that the complainant had named the applicant his mother Smt. Pushpa Lal and sister Anjali Wadhva and cousin sister Nidhi as accused and that Anjali Wadhwa was granted interim protection by this Court vide order dated 29.03.2020 which continues and that the other co accused Smt. Pushpa Lal and Nidhi were likewise granted protection. The applicant’s prayer for grant of anticipatory bail is indicated to have been declined by the learned trial Court as well as by this Court vide order dated 28.07.2020 in Bail Appln.1601 2020. The applicant further submits that after his prayer seeking grant of anticipatory bail was declined by this Court he surrendered on 06.08.2020 and was sent to judicial custody on 07.08.2020 and has been incarcerated since then. The applicant further submits that he is suffering from tuberculosis and he is living with one kidney by birth and which would be reflected through the medical documents and furthermore this Court at the time of consideration of the Bail Appln.16012020 had even directed the police to submit the status report indicating the mobile call report between the applicant and the deceased and the police had filed a status report regarding the CDR of mobile numbers between the applicant and the deceased. The application filed by the applicant BAIL APPLN.2979 2020 Digitally SignedBy:SUMIT GHAISigning Date:14.06.202117:38Signature Not Verified before the learned trial Court seeking grant of regular bail is indicated to have been declined vide order dated 01.09.2020. The applicant further submits that he is a is a peace loving citizen and there is no legal evidence connecting him with the unfortunate suicidal death of the deceased Maclina and that the allegations in the FIR do not bring forth any ingredients of the alleged commission of offences punishable under Section 498 A of the Indian Penal Code 1860 nor under Section 304 B of the Indian Penal Code 1860 as admittedly the FIR does not speak of demand of dowry prior to the marriage and it has been submitted by the applicant that it does not appeal to a prudent mind that the person seeking the dowry would not raise the demand of dowry prior to the marriage and would ask for the same after the marriage. Inter alia the applicant submits that there are no averments in the FIR in relation to entrustment of any Istridhan of the deceased with the applicant and there is no allegation that the applicant had misused the dowry articles and used the same for his Inter alia the applicant submits that the allegations in the FIR are vague and there is no corroboration of the same through the investigation conducted and that there is no specific date time and month of any dowry demand mentioned in the FIR. The applicant further submits that admittedly the deceased had committed the suicide in her parental home after 17 days of the separation of the deceased and the applicant as on 11.02.2020 the deceased was brought by the applicant to her parental home which is admitted and the deceased committed suicide on 28.02.2020 at her parental home BAIL APPLN.2979 2020 Digitally SignedBy:SUMIT GHAISigning Date:14.06.202117:38Signature Not Verified and thus there remains no room of any cruelty or harassment by the applicant. The applicant further submits that Section 304B of the Indian Penal Code 1860 itself requires as necessary ingredients that soon before the death of the deceased she was subjected to cruelty or harassment by the applicant or any relative of the applicant for or in connection with any demand for dowry which had not even been remotely brought forth in the instant case. 11. The applicant further submits that the deceased was admittedly suffering from a mental disorder i.e. somniloquy i.e. a sleeping talking disorder for which she was getting medicines and it can be presumed that the ailment disorder was around 30 years back and that chances of the suicide by the deceased due to the mental disorder cannot be ruled out. It is also submitted by the applicant that there was not a single complaint that has been lodged by the complainant or the deceased before any authority prior to the demise of the deceased and that itself was an indication that there was no cruelty of any kind meted out by the applicant to the deceased. It is submitted by the applicant that the real reason for the false allegation levelled against him was because he had taken the deceased to IHBAS for a proper treatment for which the family of the complainant was angry with him as they did not want to disclose the mental disorder of the deceased as that would create difficulty in the marriage of the younger sister of the deceased. 12. The applicant further submits that he is the only son of his mother aged 70 years suffering from several old age ailments and there is no one to look after her and that all allegations levelled in the BAIL APPLN.2979 2020 Digitally SignedBy:SUMIT GHAISigning Date:14.06.202117:38Signature Not Verified FIR are wholly false and that the contention of the complainant that a sum of Rs.25 lacs was spent in the marriage of the deceased to the applicant is difficult to believe as the status of the complainant was not that he could spend such a huge amount. Inter alia the applicant submits that there is no approximate link between cruelty harassment and the death in the instant case and thus there is no live link that exists between the demise of the deceased and any allegations levelled against him. The applicant has also submitted that the complainant had taken the mobile phone of the deceased after 4 days of her marriage that no in relation that mobile number 8377873801 had been carried out by the Investigating Agency. Inter alia the applicant has submitted that there are observations in the order dated 28.07.2020 of this Court in para 26 in Bail Appln. 1601 2020 which read to the effect: 26. During the course of the proceedings on 10.07.2020 in as much as the averments made in the petition were to the effect that the petitioner had made no telephone call to the deceased at all on 26.02.2020 as was also submitted vide paragraph 8(xix) of the petition as it was informed on behalf of the State on 10.07.2020 in reply to a specific Court query in relation to the CDR details of the mobile of the deceased after instructions from the Investigating Officer of the case that she has called for CDR details of the mobile of the deceased and that the same would be verified within a period of three days and the status report thereafter dated 10.07.2020 was submitted by the State and subsequently the State also submitted the status report dated 14.07.2020 under the signatures of the SHO PS Sonia Vihar wherein it was stated to the effect: In continuation of earlier status report it is submitted the CDR of mobile number of deceased BAIL APPLN.2979 2020 Digitally SignedBy:SUMIT GHAISigning Date:14.06.202117:38Signature Not Verified Maclina and petitioner Rajesh Lal 9716461035) has been obtained. After CDR analysis it has been found that petitioner talked on the mobile of deceased Maclina on 26.02.2020 at 8.12 PM for the time interval 95 seconds. Complainant of the case Sh Jerome George has already stated in his statement that on 26.02.2020 Rajesh Lal called her daughter Maclina and her daughter said that I am coming to you but Rajesh Lal said that if you come near me then I will stab you with a knife." it was thus contended on behalf of the State respondent that there were no circumstances or grounds whatsoever for the grant of anticipatory bail to the applicant and that vide order dated 04.07.2020 the learned ASJ 02 KKD Courts Delhi had not considered it appropriate to grant the anticipatory bail to the applicant rightly.” and it has been submitted by the applicant that no investigation had been conducted by the police in relation to as to on whose name the mobile number 9250603808 stood. It is submitted further by the applicant that as per the status report dated 14.07.2020 submitted to the Court and from the True Caller App the said numbers stand registered in the name of Guru Ji Kalu and not in the name of the deceased and thus reliance in relation thereto cannot be placed on the status report of the IO. 14. The response of the State through its status report dated the charge sheet under Sections 304B 498A 34 of the Indian Penal Code 1860 was filed on 04.10.2020. Apparently the investigation in the matter is complete. The status report and the copy of the charge sheet placed on record indicates that the complainant i.e. the father of the deceased had BAIL APPLN.2979 2020 Digitally SignedBy:SUMIT GHAISigning Date:14.06.202117:38Signature Not Verified alleged through the FIR that he had given a sum of Rs.5 lacs in cash a gold chain for the groom one gold ring and one watch and one gold chain and one gold ring to the groom s mother and he had also given his daughter Macklina one gold necklace 2 gold rings 1 gold chain 2 sets of tops 1 pair of gold kundals 1 set of anklets and one set of toerings apart from furniture items cupboard refrigerator washing machine AC LED TV microwave a set of 101 steel utensils a set of 51 steel utensils and clothing as dowry and gifts to all guests and he had also been given a sum of Rs.25 lacs in the marriage. The complainant had alleged that despite having given so much dowry to his daughter s husband i.e. the applicant her mother in law sister in law Anjali and the applicant’s aunt s daughter Nidhi started taunting his daughter and used to ask her to get gold jewellery for everyone a refrigerator and money for enabling Rajesh Lal i.e. the applicant herein to start a business and when his daughter refused to get dowry then they used to beat her and that they were all involved in beating her and they used to lock his daughter in a room and did not give her food. The complainant had alleged further through the FIR that his son in law the applicant had beaten his daughter in relation to the dowry and dropped her daughter at his house and all this had been told to him by his daughter after which the son of the complainant Mr. Godson had made the applicant understand and on 13.01.2020 Mr. Godson had dropped Maclina at her matrimonial home but even thereafter the spouse kept demanding dowry and on 11.02.2020 all four of them had dropped his daughter at his house at Sonia Vihar. The complainant had alleged through the FIR that when Mr. Rajesh BAIL APPLN.2979 2020 Digitally SignedBy:SUMIT GHAISigning Date:14.06.202117:38Signature Not Verified Lal the applicant came to drop his daughter he tried to make him understand that he was unable to give any more dowry but the applicant did not listen to him and had left and on 26.02.2020 the applicant had called his daughter and when her daughter told him that she was coming to him the applicant said that if she came near him then he would stab her with a knife and after this his daughter started staying silent. Inter alia as per the FIR on 28.02.2020 he was sitting with his daughters on the first floor when his daughter said that she was going to take a bath and it was around 11:45 at that time and when his daughter did not come back after half an hour he went with his younger daughter Twinkle George to the 2nd Floor and when he reached there he saw that his daughter Macklina had committed suicide by hanging from the ceiling hang with the help of a stole and he had got her down with the help of his daughter Twinkle after cutting the stole and had called his son Godson and asked him to come home and his son came home after 20 25 minutes and made a PCR call. 15. The State has further submitted that during the course of investigation the statements of other family members of the deceased i.e. her brother Godson and sister Twinkle were recorded who corroborated the statement of their father Mr. Jerome George. The statement of Md. Akhtar s o Abdul Jabbar a family friend was recorded who had also stated that Maclina had told him that her husband Rajesh was pressurizing her to do the job and likewise Vimal Joshi W o Kailash Chand a neighbour had also stated that Maclina had told her that she was not happy with her marriage as her in laws BAIL APPLN.2979 2020 Digitally SignedBy:SUMIT GHAISigning Date:14.06.202117:38Signature Not Verified are demanding dowry. It is submitted by the State that the post mortem collected from the GTB hospital showed that the death was due to asphyxia as a result of antemortem hanging. 16. The State further submits that during the investigation the CDR of the mobile number of the deceased Macklina number 9250603808 and the accused Rajesh Lal number 9716461035 had been obtained and after CDR analysis it has been found that applicant had talked to the deceased on 26 02 2020 at 08.12pm for the time interval of 95 seconds and that the complainant in his statement had also stated that on 26 02 2020 Rajesh Lal had called his daughter Macklina and his daughter told him that she was coming to him but the applicant said that if she came near him he would stab her with a knife. It is also submitted by the State that the phone used by Maclina had been sent to the FSL for establishing the details of the conversation between Maclina and the accused Rajesh Lal and that the FSL result was awaited and the bills articles of dowry and furniture were also reported to have been verified by the Investigating Agency inclusive of the bills regarding the marriage party at Signature Garden as well as the aspect of Maclina having been taken by her husband to IHBAs for a check up on 27.01.2020 & 29.01.2020. The State has vehemently opposed the prayer made by the applicant seeking grant of regular bail. Written and oral submissions were made on behalf of either side. The applicant submits that the factum that the complainant even after the incident on 28.02.2020 when he found that his daughter had hung herself did not call the Ambulance and rather called his son who came after 25 minutes and called the PCR and not called the BAIL APPLN.2979 2020 Digitally SignedBy:SUMIT GHAISigning Date:14.06.202117:38Signature Not Verified ambulance reflected against the veracity of the prosecution version. It has been submitted by the applicant that the height of the deceased was 5 feet as per record and the height of the floor with the roof was not mentioned and that the same thus brought forth the improbability of the commission of the alleged suicide. The applicant submits further that it could not have been ruled out that no noise had been made in the room where the suicide was committed it was not heard by the complainant and his daughter and it has been thus submitted that the entire prosecution version is faulty and defective and one sided especially as the factum of the deceased suffering from somniloquy is brought forth through the record as also the aspect of her suffering from depression. It is submitted by the applicant further that in as much as the charge sheet has been filed there is no scope of his tampering and influencing the prosecution witnesses and no useful purpose would be served by his continuous incarceration in as much as he is languishing in jail since 06.08.2020. 18. On a consideration of the submissions that have been made on behalf of either side the factum that the deceased hung herself on 28.02.2020 i.e. within seven years from the date of her marriage which is 30.10.2019 in terms of Section 113A of the Indian Evidence Act 1873 the requisite adverse presumption in terms of Section 304B of the Indian Penal Code 1860 has essentially to be drawn against the applicant at this stage especially as the complainant has averred categorically to the effect that the applicant had made a phone call to the deceased on 26.02.2020 at 8:12 pm which has been verified as per the CDR details of the mobile number 9250603808 and of the BAIL APPLN.2979 2020 Digitally SignedBy:SUMIT GHAISigning Date:14.06.202117:38Signature Not Verified applicant 9716461035 and qua which the complainant had also stated in his statement on 26.02.2020 the applicant had called his daughter and when his daughter told him that she was coming to him he said that if she came near him he would stab her with a knife are aspects which cannot be overlooked. The aspect of the deceased suffering from depression that is sought to be brought forth by the applicant cannot presently at this stage be considered enough to hold that the deceased had committed suicide due to any act of depression and not because of the alleged maltreatment and cruelty meted out to her by the applicant for dowry demands. The contention of the applicant that there is no live link between the alleged dowry demand and the demise of the deceased on the date 28.02.2020 presently without the cross examination of the witnesses of the prosecution cannot be determined and as observed hereinabove the conversation between the applicant and Mr. Godson the brother of the deceased indicate very strained relations between the applicant and his in laws family and furthermore the statement made by the neighbours of the deceased also indicate allegedly that the deceased was not happy with the relations with the applicant and his family members who used to harass her for dowry demands and beat her for the same. In the circumstances of the case as observed hereinabove the requisite presumption in terms of Section 113A of the Indian Evidence Act 1873 has essentially to be drawn against the applicant at this stage in view of the demise of the deceased within seven years from the date of her marriage and thus it is not considered appropriate to grant bail to the applicant. The bail application is declined. BAIL APPLN.2979 2020 Digitally SignedBy:SUMIT GHAISigning Date:14.06.202117:38Signature Not Verified 20. Nothing stated hereinabove shall however amount to any expression on the merits or demerits of the trial. JUNE 14th 2021 vm ANU MALHOTRA J. BAIL APPLN.2979 2020 Digitally SignedBy:SUMIT GHAISigning Date:14.06.202117:38Signature Not Verified

Testimony of relative of the deceased is to be considered true – Supreme Court

In the case of Karulal & Ors Vs State of Madhya Pradesh [Criminal Appeal No. 316 of 2011] Supreme Court held that if the witnesses are otherwise trustworthy, past enmity by itself will not discredit any testimony. The deceased with his son was grazing the field. His son suddenly heard his father cry out and saw the appellants attacking his father with axe, sword, farsa, lathi, etc. Hearing the noise, daughter and wife of the deceased also came to the spot and the appellants fled the scene. When the son of the deceased was taking his father to the hospital, the cart was stopped by the appellants who also threatened to kill of they lodged a complaint. On the way deceased died and within four hours of the incident a report was lodged. The appellants were convicted under Section 148, 302 read with Section 149 of the Indian Penal Code, 1860 and sentenced to life imprisonment with fine of Rs.1,000/- each and in default to undergo six months further rigorous imprisonment. For the conviction under Section 148 IPC, the accused were sentenced to 3 years rigorous imprisonment with fine of Rs.3,000/- each. The present appeal was filed against this conviction. The appellant claimed that they were falsely implicated and that the testimony of the deceased’s son and daughter should be discarded as they are the children of the deceased. Court considered the law on evidentiary value of a related witness which was discussed in the case of Dalip Singh & Ors. Vs. State of Punjab AIR 1953 SC 364 as, “A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause such as enmity against the accused, to wish to implicate him falsely. Ordinarily, a close relative would be the last to screen the real culprit and falsely implicate an innocent person.” Further the case of Khurshid Ahmed vs. State of Jammu and Kashmir (2018) 7 SCC 429 was relied on where it was held, “There is no proposition in law that relatives are to be treated as untruthful witnesses. On the contrary, reason has to be shown when a plea of partiality is raised to show that the witnesses had reason to shield actual culprit and falsely implicate the accused.”

IN THE CRIMINAL APPELLATE JURISDICTION Criminal Appeal No. 3111 Karulal & Ors The State of Madhya Pradesh JUDGMENT Hrishikesh Roy J This Appeal has been preferred by 5 accused namely Karulal(A 5) Amra(A 6) Kachru(A 7) Suratram(A 8) and Bhagirath(A 9). They challenge the judgment and order dated 23.6.2009 in Criminal Appeal No.1637 of 1999 whereby the Madhya Pradesh High Court Indore Bench approved the conviction of the appellants under Section 148 302 read with Section 149 of the Indian Penal Code 1860 was grazing cattle nearby. Bhawarlal suddenly heard his father cry out and saw that Amra Kachru Karu Surtaram Lalu who is now dead) and Bhagirath were attacking his father with axe sword farsa lathi etc. On hearing commotion Shyambaidaughter of the deceased and Bhawarlalson of Kaniram and Babulalalso reached the spot. On seeing them the accused ran away. Bhawarlal then arranged a bullock cart and took his injured father towards Narayangarh. When they were crossing the houses of the accused Badambai Munnabai Ramibai Sitabai and Veniram s o Kachru blocked the cart and tried to prevent PW3 from lodging the report and they also threatened to kill. But as other persons gathered around the cart could proceed towards Narayangarh. On the way Madhavji died Bhawarlal and Babulal reached Narayangarh Police Station with the dead body and lodged report at about 11.55 AM within four hours of the incident. The distance between the police station and the spot is about 8 Kilometres. On completion of the investigation charge sheet was filed against six accused under Sections 148 302 read with Section 149 of the IPC. Four others namely Badambai Munnabai Ramibai and Sitabai were charged under Section 506 IPC as they allegedly obstructed and threatened the Informant when they were proceeding with the injured in the bullock cart. On evaluating the evidence against the 4 ladies charged under Section 506 IPC the Trial judge held that this charge of obstruction and threat to kill the Informant has not been proved and accordingly ordered for their acquittal. 5. Then the evidence against the accused who were charged under Section 148 302 read with Section 149 IPC was considered. To prove its case the prosecution examined 15 witnesses of whom PW 1 witnessed the arrest of the accused. Four others i.e Kishanlal(PW6) Prabhulal Bhawarlal(PW9) s o Kaniram and Nanuram(PW13) had turned hostile and did not support the case of the prosecution. Dr. P.N Shrivastavhad performed the autopsy on the body of the deceased and noted the following nine injuries on his person 1) Incise wound 4” x 2” x 1 2" on left side of head with some pointed object. 2) Compound fracture on right tumor and swelling around it which was hard and appeared to have been afflicted by some blunt object 3) Compound fracture of right Radioulna bone caused by some blunt object. 4) Compound fracture of left Tumor wound caused by a hard blunt object 5) Cut wound on upper left arm 2” x 1” x 1 2" left Brachial bone with cut with dried blood inflicted with some sharp object 6) Compound fracture of left “Alna” with dried blood caused with some hard blunt object 7) Cut wound measuring 2x2x1” on right ankle with dried blood with some hard and blunt object resulting in cut veins 8) Compound fracture or right Tibia and Fabula with some hard and blunt object Cut wound 2 x 2 1 2” on left thigh with cut veins and cut Femoral Artery with dried blood caused with some hard and cutting object. According to the Doctor the death was result of the bleeding following the injuries inflicted by hard blunt and sharp edged weapons and shock. He further opined during cross examination as under “Death of Madhav was caused as a cumulative effect of various injuries caused to his body Injuries to the Tibia Fabula Radius and Alna and Humor bone shall not be fatal unless those are various serious. No fracture was found in the injury listed at no.1. If any person falls in the Nullah and suffers injuries from the rocks lying underneath and if his hands and feet come in contact with those rocks fracture to Fabula Tibia Radius and Alna are possible as a result thereof.” Bhawarlal Babulal and Shyamkalabai PW12) were the eyewitnesses of the incident. In his testimony Bhanwar Lal son of the deceased stated that on 18.8.1993 morning he was grazing his oxen in the nearby field when he heard the anguished cry of Madhavji and while running towards his father the PW3 saw Lala Karu Amra Kachru Surat Ram and Bhagirath attacking his father. His sister Shyam Kala Lala and Amra were armed with lathis Surat Ram was holding knife Kachru had a sword Karuji was holding an axe having edges like Farsa Bhagirath too was holding an axe. The son rushed home and arranged a bullock cart where the injured Madhavji was placed and then they proceeded to the Narayangarh police station where he lodged the FIR. The PW3 also mentioned that injured Madhavji had told him in the field itself before he went to fetch the bullock cart that Lala Amru Kachru Surat Ram and Bhagirath had assaulted him. Shyam Kala Bai is the daughter of the deceased. While heading towards field she heard shrieks for help from her father who was shouting that Lalaji’s sons were attacking him. She rushed to the place of occurrence and saw her brother Bhanwar Lal PW3) and Babu Lal(PW11) also reaching the spot. She saw her father in an injured condition and the accused running away with various weapons in their hand. She accompanied her injured father in the bullock cart with her brother and stated that Madhavji expired on the way On the day of the incident Babu Lal was walking towards his village after spending the night in the residence of the deceased. In the morning he had tea with Madhavji who then went ahead to his field While proceeding a little later the witness heard Madhavji shouting that he was being killed. When the PW11 rushed to the field he noticed the accused attacking Madhavji with lethal arms. Madhavji had suffered a head injury from an axe blow apart from other injuries to his hands and feet. The witness placed the injured on the bullock cart driven by the sonbeing armed with lethal weapons illegally assembled in order to attack the deceased Madhavji. While adverting to the eyewitness PW3 and PW12 the Court highlighted the third eyewitness PW11) who was not related. The trial Court also discussed the slight inconsistency in the evidence of PW3 and noted that his examination in chief and cross examination was conducted after long gap of one and a half years. His testimony as an eyewitness was however found to be consistent with the other two eyewitnesses 11. Similarly the evidence of Shyam Kala Bai and they corroborated each other on all material particulars 12. On the defence version of Ram Singh and Mangi Lal who projected that Madhavji suffered the injury on account of an accidental fall into the Nullah the learned Trial Court noted that the DW2 who was the Chowkidar of the village never visited the place of occurrence nor he reported about the alleged accident of Madhavji to the police which he ought to have done in normal course of his duty as the village Chowkidar. Likewise the evidence of DW1 was found to be untrustworthy as he claimed to have accompanied Bhanwar Lal to the police station but in the related Exhibit there was no mention of DW1 accompanying the complainant Bhanwar Lal. 13. On the possibility of the injuries being caused through a fall the evidence of Dr. P.N.Shrivastav PW2) was discussed vis à vis the testimony of the two DWs. The learned trial Judge noted that Dr. Shrivastav has merely accepted that injuries could be sustained through a fall from some height. But it was then specifically recorded by the learned judge that the Doctor never stated that the injuries were the result of accidental fall. In fact the defence never suggested that the injuries were not the result of the violent attack by the accused on the person of Madhavji Accordingly it was concluded that the injuries on the vital parts were inflicted by the accused in furtherance of their common objective. 14. As the accused pleaded false implication due to old enmity with the deceased’s family this aspect was considered in detail. On evaluation of the evidence of the eyewitnesses and the post mortem report the defence plea of false implication was found to be untrue. It was then held that the accused persons had intentionally caused the fatal injuries on the deceased Madhavji and accordingly they were convicted under Section 302 read with 149 IPC and were sentenced to life imprisonment with fine of Rs.1 000 each and in default to undergo six months further rigorous imprisonment. For the conviction under Section 148 IPC the accused were sentenced to 3 years rigorous imprisonment with fine of Rs.3 000 each. It may again be noted that amongst the six charged accused Lala died during the trial. 15. The High Court in the appeal rejected the plea of the appellants attempt to discredit the three eyewitnesses by observing that while it may be possible that the eyewitnesses may not have witnessed the actual assault but as they immediately reached the field on hearing the shrieks of Madhavji their testimony on the accused being armed with lethal weapons and fleeing the spot soon after the assault cannot be discarded. The High Court found consistency in the testimony of the eyewitnesses and noted that the injuries attributed by the eyewitnesses to the accused is corroborated by the medical evidence. It was then concluded that there is no infirmity in the judgment of conviction rendered by the learned Trial Court and the appeal against conviction was accordingly dismissed. 16. Before us the learned counsel for the appellant Mr. T. Mahipal submits that the evidence of PW3 and PW12 should be discarded as they are the children of the deceased. He then submits that because of past enmity the appellants were falsely implicated. The counsel also refers to few of the witnesses not supporting the prosecution version. 17. On the other hand Ms. Ankita Chaudhary the learned Dy. AG for the State of Madhya Pradesh argues that the evidence of the 3 eyewitnesses conclusively support the prosecution case. She then submits that medical evidence and injuries corroborate the oral testimonies. According to the learned counsel bitter relationship of the two groups provide a clear motive for the accused to attack the victim 18. Let us now consider the law on evidentiary value of a related witness. Commenting on the aspect Justice Vivian Bose in Dalip Singh & Ors. Vs. State of Punjab1 rightly opined that “25. We are unable to agree with the learned Judges of the High Court that the testimony of the two eye witnesses requires corroboration. If the foundation for such an observation is based on the fact that the witnesses are women and that the fate of seven men hangs on their testimony we know 1 AIR 1953 SC 364 of no such rule. If it is grounded on the reason that they are closely related to the deceased we are unable to concur. This is a fallacy common to many criminal cases and one which another Bench of this Court endeavoured to dispel in Rameshwar vs The State of Rajasthan. We find however that it unfortunately still persists if not in the judgments of the Courts at any rate in the arguments of counsel.” 26. A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause such as enmity against the accused to wish to implicate him falsely. Ordinarily a close relative would be the last to screen the real culprit and falsely implicate an innocent person .” 19. It may further be noted that Babu Lal(PW11)is an unrelated witness. His testimony substantially supports the evidence of PW3 and PW12 in all material particulars. In any case being related to the deceased does not necessarily mean that they will falsely implicate innocent persons. In this context it was appropriately observed by Justice H.R. Khanna in State of Uttar Pradesh vs. Samman Dass2 “23 ….It is well known that the close relatives of a murdered person are most reluctant to spare the real assailant and falsely involve another person in place of 20. Again in a later decision of this Court in Khurshid Ahmed vs. State of Jammu and Kashmir3 one of us Justice N.V. Ramana on the issue of evidence of a related witness was justified in declaring that “31. There is no proposition in law that relatives are to be treated as untruthful witnesses. On the contrary reason has to be shown when a plea of partiality is raised to show that the witnesses had reason to shield actual culprit and falsely implicate the accused3 SCC 201 37 SCC 429 21. The learned counsel for the appellant next refers to the defence version of the injuries being caused through a fall on the Nullah and the old enmity being the cause for implicating the accused. On this issue we may benefit by adverting to the observation of Justice Faizan Uddin in Sushil & Ors. Vs. State of U.P.4 where the learned Judge so correctly observed “8 ….It goes without saying that enmity is a double edged weapon which cuts both ways. It may constitute a motive for the commission of the crime and at the same time it may also provide a motive for false implication. In the present case there is evidence to establish motive and when the prosecution adduced positive evidence showing the direct involvement of the accused in the crime motive assumes importance. The evidence of interested witnesses and those who are related to the deceased cannot be thrown out simply for that reason. But if after applying the rule of caution their evidence is found to be reliable and corroborated by independent evidence there is no reason to discard their evidence but it has to be accepted as reliable .” 22. If the witnesses are otherwise trustworthy past enmity by itself will not discredit any testimony. In fact the history of bad blood gives a clear motive for 4Supp 1 SCC 363 the crime. Therefore this aspect does not in our assessment aid the defence in the present matter. 23. The appellant’s counsel also submitted that few of the witnesses had not supported the prosecution case and were declared to be hostile. But there are enough material evidence and trustworthy testimonies which clearly support the case against the accused and the prosecution need not fail on this count alone. Some witness may not support the prosecution story for their own reasons and in such situation it is necessary for the Court to determine whether the other available evidence comprehensively proves the charge. In this case it is seen that the prosecution version is cogent and supported by three eyewitnesses who have given a consistent account of the incident. Their testimonies are corroborated by the medical evidence. The learned Trial Judge had elaborately discussed the evidence of both sides and came to a logical conclusion which inspires confidence. We are therefore of the view that the hostile witnesses will not affect the conviction of 24. Proceeding on the above basis and on careful examination of the manner in which the learned Trial Judge analysed the evidence and rendered his verdict the conviction of the appellants according to our assessment was rightly ordered and correctly upheld by the High Court. It is declared accordingly. 25. In the result the appeal stands dismissed. [N.V. RAMANA [SURYA KANT [HRISHIKESH ROY OCTOBER 09 2020 Page 1

A deputed employee can be repatriated back to his home department at any time: High Court of Jammu and Kashmir

A government employee who has been deputed to another department does not have the vested right to continue in the deputed department for as long as he likes and his employers have the right to repatriate him back to the home department whenever they please. This was held in the judgement passed by a single member bench of the High Court of Jammu and Kashmir consisting of Justice Ali Mohammad Magrey in the case of Mushtaq Ahmad Bhat v Jammu and Kashmir [WP(C) No. 618/2021] pronounced on the 24th of August 2021. The petitioner, Mushtaq Ahmad Bhat was a government employee of the Union Territory of Jammu and Kashmir. He had been deputed to a post at the J&K Cement industry which comes under the Jammu and Kashmir Industries limited. The petitioner stated that he rose to a high level at his deputed post due to his dedication and perseverance. However his dreams were shattered when Jammu and Kashmir Industries Limited which used to make huge profits began incurring huge losses leading to it being declared a sick industry. As a result of this numerous staff members from the Jammu and Kashmir Industries Limited were adjusted or deployed in other Government Departments so as to reduce the JKIL’s expenditure on account of salary for these employees. The petitioner is one of these employees that were repatriated and he filed the present petition impugning the order of repatriation. The government took up the matter with the Industries and Commerce Department and deployed the surplus staff in other departments only after obtaining the requite ‘No Objection’ from the Industries and Commerce Department. In the light the, the respondents pointed out that their action was completely legal and followed all necessary steps of procedure. The petitioner however contended that despite having served the respondents and discharging his duties to the best satisfaction of his superiors, he was forced to leave his deputation and be repatriated back to his home department. It was observed by the Court that “The basic principle underlying deputation itself is that the person concerned can always and at any time be repatriated to his parent department to serve in his substantive position therein at the instance of either of the departments and there is no vested right in such a person to continue for long on deputation or get absorbed in the department to which he had gone on deputation.”. This view was mirrored by the Supreme Court of India in the case of Kunal Nanda v Union of India & Anr [AIR 2000 Supreme court 2076] and by the High Court of Jammu & Kashmir in the case of Dr. Mohammad Deen v State of J&K & Others [KLJ 2000 640].

HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT SRINAGAR Serial No.04 Regular Cause List WP(C) No. 618 2021 CM No. 1852 2021 c w WP(C) No. 248 2021 892 2021 Mushtaq Ahmad Bhat & Ors. Dated: 24th of August 2021. ….. Petitioner(s) Through: Mr S. A. Makroo Senior Advocate with Mr Danish Yousuf Advocate. Union Territory of Jammu and Kashmir & Ors. Through: Mr Mohammad Rais ud Din Ganai Government Advocate. ….. Respondent(s) Hon’ble Mr Justice Ali Mohammad Magrey Judge. WP(C) No. 618 2021 CM No. 1852 2021: Impugned herein this Petition is Government Order No. 255 JK(GAD) of 2021 dated 22nd of March 2021 whereby the Petitioners employees of Jammu and Kashmir Industries Limited have been repatriated to their parent Organization immediately. The Petitioners claim to have been employed in the J&K Cements Limited on various posts. It is stated that the Petitioners rose to their respective levels by the dint of their hard work and were aspiring to achieve higher levels in the JKI Limited but their dreams were shattered when the JKI Limited once a profit making Organization and premier in the field of WP(C) No. 618 2021 c w WP(C) No. 248 2021 Industries suffered losses thereby resulting in the Organization having been declared as a ‘Sick Industry’. Accordingly the list of surplus staff is stated to have been furnished to the General Administration Department of the Government of Jammu and Kashmir with the request that the said surplus staff be adjusted deployed in other Government Departments so that the expenditure on account of monthly establishment salary cost may be reduced. The Government in the General Administration Department as stated took up the matter with the Industries & Commerce Department and after obtaining the requisite ‘No Objection’ from them deployed the aforesaid surplus staff in various Government Departments. It is pleaded that the Petitioners are discharging their duties in the said Government Departments to the best satisfaction of their superior Officers however in terms of the Government Order No. 255 JK(GAD) of 2021 dated 22nd of March 2021 the Petitioners stand repatriated to their parent Organization. It is this Government Order that the Petitioners have called in question before this Court through the medium of the instant Petition. Heard the learned counsel for the parties perused the pleadings on record and considered the matter. It is admitted position that the Petitioners have been deputed to various Government Departments by the competent authority upon their declaration as surplus staff of the JKI Limited. There is also no dispute with regard to the implication of Article 52(C) of Jammu and Kashmir Civil Service Regulations 1956 SR to the cases of the employees who have been deputed to various non Government Organizations including Corporations WP(C) No. 618 2021 c w WP(C) No. 248 2021 Companies Autonomous Bodies etc. but the Court has to only consider as to what is wrong with the decision of the Respondents in issuing the impugned Government Order thereby repatriating the Petitioners to their parent Organization Department. What is thus required to be seen in terms of the applicable laws governing the subject is as to whether the Petitioners have any right to claim continuation in the Government Departments where they have been deputed as ‘Deputationists’ or to put in other words whether the decision taken by the Respondents seeking repatriation of the Petitioners to their parent Department from the Departments where they have been deputed is illegal or unwarranted uncalled for. The aforesaid moot question can be answered by the application of the provisions of Article 52 of the Jammu and Kashmir Civil Service Regulations 1956 itself which in no uncertain terms emphasize that the reversion of a ‘Deputationist’ can be at any stage either by the lending or the borrowing Department and that a ‘Deputationist’ has no vested right to remain on the cadre of the Department where deputed. There thus is nothing wrong in repatriation of the Petitioners on the cadre posts of their parent Department which they were holding in substantive position. Apart from the above provisions of the Jammu and Kashmir Civil Service Regulations 1956 the law on the subject of repatriation reversion of ‘Deputationists’ is no more res integra. In ‘Kunal Nanda v. Union of India & Anr. AIR 2000 Supreme Court 2076 while dealing with the issue as involved herein this Petition Hon’ble the Supreme Court has observed as under: WP(C) No. 618 2021 c w WP(C) No. 248 2021 “… The basic principle underlying deputation itself is that the person concerned can always and at any time be repatriated to his parent department to serve in his substantive position therein at the instance of either of the departments and there is no vested right in such a person to continue for long on deputation or get absorbed in the department to which he had gone on deputation.” A similar view was also taken by a Coordinate Bench of our own High Court in the case of ‘Dr. Mohammad Deen v. State of JK & Ors. KLJ 2000 640’ while following the law laid down by the Apex Court of the country in Kunal Nanda’s caseNo. 248 2021 CM No. 892 2021: Although this Petition is shown to be clubbed with the aforementioned Petition however the Registry has not tagged the same with the file. Accordingly this Petition is directed to be delinked and listed separately on 17th of December 2021. Registry to place a copy of this Order on each file. Judge August 24th 2021 Whether the Order is reportable Yes No. Yes No. Whether the Order is speaking

It is the duty of the Court to protect life and liberty of a major girl who, out of her own volition, wants to reside separately from her father: High Court of J&K and Ladakh

No law or religion gives a license to a father to harass or intimidate his major daughter just because she does not accede to wishes of her father to marry a particular person. It is not open to a father or relatives of a girl to take law into their own hands as stated by the Hon’ble High Court of J&K and Ladakh through a learned bench of Hon’ble Mr. Justice Sanjay Dhar in the case of Anjum Afshan & Ors. Vs. State Of J&K & Ors [OWP No.83/2019 (WP(C) No.203/2019]. Petitioners filed the writ petition seeking a direction upon respondents to ensure safety of their life and honour. A further direction asked the official respondents to proceed against the private respondents in accordance with law. The case of the petitioners, in brief, was that the petitioner No.1 entered into wedlock with petitioner No.2 out of her free will and volition against the wishes of her father i.e., respondent No.7. According to petitioner, respondent No.7, father of the petitioner No.1, is a person of ill repute who has entered into wedlock four times and has divorced the mother of petitioner No.1. It was further averred that the respondent No.7 wanted to give petitioner No.1 in marriage to an illiterate truck driver and the same was resisted by petitioner No.1 who is stated to have lodged a complaint with Women’s Commission in this regard. The petitioners were stated to have approached this Court by way of several writ petitions including OWP No.1064/2017 and OWP No.546/2016, which are pending before this Court. It is alleged that private respondents i.e., respondents No.6 to 9, invaded the house of the petitioners and raised a hue and cry over there and in case petitioners are not protected from the said respondents, they apprehend that they will be killed. The Hon’ble High Court after have heard learned counsel for parties and perused the material on record, stated that “It is not in dispute that the petitioners No.1 and 2 are major and it is also not in dispute that they have entered into a wedlock out of their own will and volition. The question whether learned Sub Judge, Sopore, was justified in passing an order of restraint on marriage of petitioner No.1 is left to be decided in appropriate proceedings. However, one thing is clear that even if petitioner No.1 has violated the said order, it is not open to respondent No.7 and his associates to harass the petitioners or to intimidate them. The proper course for them is to approach the concerned court seeking action for breach of its order. No law or religion gives a license to a father to harass or intimidate his major daughter just because she does not accede to wishes of her father to marry a particular person. It is not open to a father or relatives of a girl to take law into their own hands. It is the duty of the Court to protect life and liberty of a major girl who, out of her own volition, wants to reside separately from her father.”

IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT SRINAGAR Reserved on: 25.10.2021 Pronounced on:10.11.2020 OWP No.83 2019No.203 2019 ANJUM AFSHAN & ORS. ...PETITIONER(S) Through: Mr. S. H. Thakur Advocate. STATE OF J&K & ORS. Through: Mr. Sheikh Feroz Dy. AG vice Mr. B. A. Dar Sr. AAG for R1 to R6. Mr. M. S. Reshi Advocate for R7 to R9. CORAM: HON’BLE MR. JUSTICE SANJAY DHAR JUDGE Petitioners have filed the instant writ petition seeking a direction upon respondents to ensure safety of their life and honour. A further direction asking the official respondents to proceed against the private respondents in accordance with law has also been sought. The case of the petitioners in brief is that the petitioner No.1 has entered into wedlock with petitioner No.2 out of her free will and volition against the wishes of her father i.e. respondent No.7. According to petitioner respondent No.7 father of the petitioner No.1 is a person of ill repute who has entered into wedlock four 2 times and has divorced the mother of petitioner No.1. It is further averred that the respondent No.7 wanted to give petitioner No.1 in marriage to an illiterate truck driver and the same was resisted by petitioner No.1 who is stated to have lodged a complaint with Women’s Commission in this regard. The petitioners are stated to have approached this Court by way of several writ petitions including OWP No.1064 2017 and OWP No.546 2016 which are pending before this Court. It is alleged that private respondents i.e. respondents No.6 to 9 invaded the house of the petitioners and raised a hue and cry over there and in case petitioners are not protected from the said respondents they apprehend that they will be killed. The petition has been resisted by respondents No.7 to 9 by filing a reply thereto. In their reply it has been averred that the petitioner No.1 has managed to enter into a wedlock with petitioner No.2 by suppressing the fact that there is already a restraint order passed by learned Sub Judge Sopore whereby she has been restrained from contracting marriage. According to the said respondents as per Shariat consent of father his very important for marriage of daughter and without the consent of father marriage is incomplete. It is further averred that as father it is responsibility of respondent No.7 to watch welfare of his daughter. 3 I have heard learned counsel for parties and perused the material on record. It is not in dispute that the petitioners No.1 and 2 are major and it is also not in dispute that they have entered into a wedlock out of their own will and volition. The question whether learned Sub Judge Sopore was justified in passing an order of restraint on marriage of petitioner No.1 is left to be decided in appropriate proceedings. However one thing is clear that even if petitioner No.1 has violated the said order it is not open to respondent No.7 and his associates to harass the petitioners or to intimidate them. The proper course for them is to approach the concerned court seeking action for breach of its order. No law or religion gives a license to a father to harass or intimidate his major daughter just because she does not accede to wishes of her father to marry a particular person. It is not open to a father or relatives of a girl to take law into their own hands. It is the duty of the Court to protect life and liberty of a major girl who out of her own volition wants to reside separately from her father. For the foregoing reasons the writ petition is allowed to the extent that the respondents No.1 to 6 are directed to ensure that the petitioners are not harassed at the behest of respondents No.7 to 9 and it is also directed that they shall be given proper security as 4 and when the official respondents are approached by petitioners in Judge Whether the order is speaking: Yes No Whether the order is reportable: Yes No this regard. “Bhat Altaf PS”

Imposing a pre-condition to pay a sum of money for being released on bail is unreasonable: Bombay High Court

In order for an individual to avail a release on bail, imposition of payment of a certain sum as a pre-condition is unreasonable. A single-judge bench comprising of Justice Sarang V. Kotwal while adjudicating the matter in Vijaykumar Deshraj Sethi v. Senior Police Inspector, Malegaon Camp police station, Malegaon and others; [CRIMINAL APPLICATION NO. 70 OF 2021], modified a bail order passed by a Malegaon session judge. An FIR was lodged by the respondent wherein he stated that he was engaged in the medical profession and he wanted to purchase an MRI machine. The applicant told him that he was in a position to import an MRI machine which cost about one crore. The respondent entered into an agreement with the applicant. In furtherance of the agreement, the respondent initially paid him about 25 lakhs. Despite receiving the advance, the applicant did not supply the machine. The counsel representing the applicant stated that this case was a mere breach of contract and no offense of cheating and misappropriation is made out. Therefore, the applicant deserves to be released on bail. The counsel representing the respondent submitted that the respondent is deprived of his legitimate amount. She contended that this is purely a civil dispute. However, she demanded that before the applicant is released on bail, he must submit the amount of 25 lakhs which he received as an advance. The counsel representing the applicant stated that the pre-condition of remitting 25 lakhs in order to get a bail is unreasonable. The Court upon considering the facts of the case, set aside the operative part of the order by the lower court and instead released the applicant on bail by imposing certain conditions. The Court remarked; “Therefore, for more than one year and three months the Applicant was unable to avail of that order because of the onerous pre-condition of depositing Rs.25 Lakhs…imposing Rs.25 Lakhs as a pre-condition in the operative part was not permissible. There is absolutely no discussion in the order as to why such condition was imposed; It appears that since the FIR mentions that Rs.25 Lakhs were paid by the informant, the condition was imposed that Rs.25 Lakhs should be deposited. This is prejudging the issue without trial. It is well settled in different judgments of Hon’ble Supreme Court that such conditions should not be imposed”

on 05 05 2021 on 10 05 : 1 : 10.APPLN 70 21.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYCRIMINAL APPELLATE JURISDICTIONCRIMINAL APPLICATION NO.70 OF 2021Shri Vijaykumar Deshraj Sethi .... ApplicantVersus1. Senior Police Inspector Malegaon Camp police station Malegaon2. State of Maharashtra &3. Vilas Asaram Chordia .... Respondents Mr. Rajat Vinod Dighe Advocate for the Applicant.Smt. A.A. Takalkar APP for the Respondent State. CORAM:SARANG V. KOTWAL J.DATE:05th MAY 2021 3 SCC 22 theHon’ble Supreme Court has observed that the conditions forthe grant of bail ought not be so strict as to be incapable ofcompliance thereby making the grant of bail illusory.16.In the case of M.D. Dhanapal Vs. Staterepresented by the Inspector of Police as reported in6SCC 743 the Hon’ble Supreme Court in Paragraph 6 hasobserved that it is well settled that bail cannot be madeconditional upon heavy deposits beyond the financial capacityof an Applicant for bail. . In this case the bail order was passed on 8.1.2020and the Applicant could not avail of it for more than a year.17.In another case of Dilip Singh Vs. State of MadhyaPradesh and another as reported in2 SCC 779 theWWW.LIVELAW.IN on 05 05 2021 on 10 05 : 7 : 10.APPLN 70 21.odtHon’ble Supreme Court in Paragraph 4 has held that aCriminal Court exercising jurisdiction to grantbail anticipatory bail is not expected to act as a recoveryagent to realise the dues of the complainant and that too without any trial.18.In this view of the matter the condition ofimposition of Rs.25 Lakhs at this stage cannot be sustained.Learned Counsel for the Applicant stated that the Applicant isready and willing to furnish local solvent sureties. Therefore the following order is passed:ORDER(i) The operative part of the order dated 8.1.2021 passed bythe Additional Sessions Judge 3 Malegaon in CriminalBail Application No.12 2020 is set aside. Instead theApplicant shall be released on bail on followingconditions.(ii) The Applicant is directed to be released on bail inconnection with C.R.No.113 2019 registered withWWW.LIVELAW.IN on 05 05 2021 on 10 05 : 8 : 10.APPLN 70 21.odtMalegaon Camp Police Station District Nashik on hisfurnishing a PR bond in the sum of Rs.50 000 with one or two local solventsureties in the like amount.(iii) The Applicant shall deposit his passport if any with theinvestigating officer before being released on bail.(iv) The Applicant shall furnish his residential address andcontact number before being released on bail.(v) The Applicant shall attend the concerned police stationon first Monday of every month to mark his presencebefore the concerned police station till framing of thecharges.(vi) The Applicant shall attend the trial Court on every singledate except when prevented by a reasonable cause.(vii) The Application is disposed of accordingly. (SARANG V. KOTWAL J.)Deshmane (PS)WWW.LIVELAW.IN

Courts not to interfere in matter of CISF transfers, expect in exceptional cases: High Court of Jharkhand

High Courts do not usually interfere in matters of Paramilitary transfers; however exceptions can be made only in the rarest or rare cases where there is no alternative.  A single-member bench of the High Court of Jharkhand consisting of Justice Dr. S.N. Pathak dealt with this matter in the case of Mukesh Singh C.I.F.F. No. 942294301 v The Union of India [W.P. (S) No. 1482 of 2021] on 8th June 2021. The petitioner, Mukesh Singh is working for the Central Industrial Security Force and is presently posted at the CISF Unit in Jadugoda. His wife has conceived using I.V.F. Technology at Jamshedpur where she needs to visit for regular consultation of the doctors. Her expected date of delivery is 2nd September 2021; however on 13th April 2020 he was issued a transfer order. The petitioner mentioned that he is conscious of the fact that the high court does not usually interfere with transfer orders in the CISF, however in the present scenario and special circumstances he humbly prays for the Court to stay the transfer order for three months on the grounds of the doctor’s advice that his wife needed complete bed rest and he is the only person who can look after her.  The respondents vehemently opposed the contention.

IN THE HIGH COURT OF JHARKHAND AT RANCHI Petitioner W.P.No. 14821 Mukesh Singh C.I.S.F. No. 942294301 The Union of India represented through Home Secretary Department of Home New Delhi. The Director General CISF CGO Complex New Delhi Senior Commandant CISF Unit UCIL Jadogoda East Singhbhum Deputy Commandant CISF Unit UCIL Jadogoda East Singhbhum. CORAM: THE HON BLE MR. JUSTICE DR. S.N.PATHAK Through: Video Conferencing) … Respondents For the Petitioner For the Respondents Mr. Jitesh Kumar Advocate Mr. Rajiv Sinha ASGI 03 08.06.2021 Learned counsel for the petitioner undertakes to remove the defects within a period of two weeks. The petitioner has approached this Court for staying the order of transfer dated 13.04.2020 and subsequent relieving order dated 05.03.2021 Annexure 4 & 5 respectively) for one year due to the reasons that his wife is on family way and has conceived through I.V.F. Technology and as per the advice of treating Doctor she needs extra care. Learned counsel for the petitioner submits that petitioner was appointed in CISF and at present posted at CISF Unit UCIL Jadugoda East Singhbhum and his wife is on family way and has conceived through I.V.F. Technology at Jamshedpur. Expected date of delivery as per Ultrasound report is 02 11.09.2021 and she is in regular consultation of doctors of IVF care at Jamshedpur. Learned counsel further argues that he is very conscious of the fact that usually transfer orders are not interfered by the Hon’ble Court but in present scenario and special circumstances the prayer of the petitioner is fit to be entertained on the specific ground that as per the advice of Doctor his wife needs complete bed rest and he is only person to look after her way and as such the transfer order may kindly be stayed for 3 months only. On the other hand Mr. Rajiv Sinha learned ASGI vehemently opposes the contention of the learned counsel for the petitioner and submits that already earlier the order of relieving has been amended on 05.03.2021 and the petitioner has been asked to join the transferred post on or before 10.06.2021. However in compelling circumstances as expected date of delivery as per Ultrasound 2 report of his wife is 02 11.09.2021 the petitioner may approach the Competent Authority for extension of his relieving period for three months only. Be that as it may having gone through the rival submissions of the parties this Court is of the considered view that admittedly the transfer is an incident of service and the petitioner being a Member of Para Military Force has to maintain discipline and obey the orders of the superior authority. In the instant case as the wife of the petitioner is on family way and has conceived through IVF Technology and expected date of delivery as per Ultrasound report is 02 11.09.2021 and petitioner is only person to look after her wife. Under such special circumstances petitioner is directed to file a fresh representation before the Competent Authority i.e. respondent No.3 within three days from today along with a copy of this Order. After receipt of the same the respondent No.3 shall give sympathetic consideration to the case of the petitioner and pass an appropriate order staying the relieving order of the petitioner till 1st week of October 2021 and further a date may be fixed for relieving to the petitioner for joining the transferred place after 1st week of October 2021. This order has been passed in special circumstances it will not be treated as a precedent for other transfer matter. Accordingly writ petition stands disposed of. punit

“Respondent addressed the query by providing the information regarding the agenda and minutes of the Board Meeting…”: SEBI, Part 3.

The appellant, vide query number 5, sought the following information- “Share the criteria under which grandfathering provision was provided to existing RIA above 50 years of age.” The respondent, in response to the query, informed that the information sought by the appellant is available at para (ii) of the minutes of the SEBI Board Meeting dated February 17, 2020. The respondent also provided the link for accessing the said minutes. The appellant, in her appeal, submitted that irrelevant information was provided. Similar observations were made by the Hon’ble CIC in the matter of Prem Prakash Prajapati vs. CPIO, Railways, RDSO (order dated January 07, 2020). In view of the said observations, the respondent did not have an obligation to provide such clarification/explanation under the RTI Act. Notwithstanding the same, it was noted that the respondent has guided the appellant to access the minutes of the relevant SEBI Board meeting dealing with the extant issue. Accordingly, it was found that no interference is warranted at this stage. The appellant, vide query number 6, sought the following information- “Share all the documents related to the minutes of meeting in which the public comments related to Consultation Paper on the Review of Regulatory Framework for Investment Advisers on January 2020 were discussed.” In response to query number 6, the respondent observed that the query is vague and not specific and accordingly, the same cannot be construed as seeking “information”, as defined under section 2(f) of the RTI Act, 2005. However, the respondent provided the link for accessing the agenda and minutes of the Board Meeting dated February 17, 2020 wherein amendments to SEBI (Investment Advisers) Regulations, 2013 were discussed and approved by SEBI Board. The appellant, in her appeal, submitted that irrelevant information was provided. It was noted that the Hon’ble CIC in Ms. Sarika Jain against National Hydroelectric Power Corporation Limited held that “As regards the first part i.e. copies of all documents in relation to the contracts mentioned in the RTI application, the Commission finds that the term “all” used by the Appellant here is very vague and does not pin point the particular document she wants to obtain from the Respondents. The Appellant is, therefore, advised to be more specific and identify the documents she wants to obtain from the Respondents ……..” In view of these observations, the respondent did not have an obligation to respond to such vague and non- specific query. Notwithstanding the above, it was noted that the respondent has addressed the query by providing the information regarding the agenda and minutes of the Board Meeting dated February 17, 2020. Further, the respondent also provided the link for accessing the same. Accordingly, it was did not find any deficiency in the response.

Appeal No. 43721 BEFORE THE APPELLATE AUTHORITY Under the Right to Information Act 2005) SECURITIES AND EXCHANGE BOARD OF INDIA Appeal No. 43721 CPIO SEBI Mumbai The appellant had filed an application dated July 02 2021under the Right to Information Act 2005of the RTI Act as the same relates to personal information the disclosure of which has no relationship to any public activity or interest and may cause unwarranted invasion into the privacy of the officials. However the respondent informed that the objective of the working group is given at point 2.7 page 2 of the report for public comments. The respondent also provided the link for accessing the said report on the SEBI website. The appellant in her appeal submitted that she had asked for the list and not their personal records such as phone numbers id details etc. Appeal No. 43721 I have perused the query and the response provided thereto. On consideration I find that the requested information pertains to personal information relating to details such as names of persons who were part of the group which worked and floated the Consultation Paper on the Review of Regulatory Framework for Investment Advisers on January 2020. I am of the opinion that even disclosing the names may reveal the identity of the persons and may cause unwarranted invasion of their privacy. In this context the Hon’ble Supreme Court in the matter of Central Public Information Officer Supreme Court of India Vs. Subhash Chandra Agarwalheld that: “ 59. Reading of the aforesaid judicial precedents in our opinion would indicate that personal records including name address physical mental and psychological status marks obtained grades and answer sheets are all treated as personal information. Similarly professional records including qualification performance evaluation reports ACRs disciplinary proceedings etc. are all personal information. Medical records treatment choice of medicine list of hospitals and doctors visited findings recorded including that of the family members information relating to assets liabilities income tax returns details of investments lending and borrowing etc. are personal information. Such personal information is entitled to protection from unwarranted invasion of privacy and conditional access is available when stipulation of larger public interest is satisfied. This list is indicative and not exhaustive...". Further no larger public interest would be served in disclosing the information as sought by the appellant. In view of the same I agree with response of the respondent that the requested information is exempt from disclosure under section 8(1)(j) of the RTI Act. 6. Without prejudice to the above I note that the respondent has guided the appellant to access the objective of the working group which is available on the SEBI website. Accordingly I do not find any deficiency in the response. 7. Query number 2 The appellant vide query number 2 sought the criteria on the basis of which people were shortlisted to become part of the group which worked and floated the Consultation Paper on the Review of Regulatory Framework for Investment Advisers on January 2020. The respondent in response to query number 2 informed that the information sought by the appellant is exempt under Section 8(1)(a) of the RTI Act as the same pertains to the internal functioning of SEBI and relates to the systems and procedures followed by SEBI. Further the said information is strategic in nature disclosure of which may hamper the decision making by SEBI in its supervisory and regulatory role. The appellant in her appeal inter alia submitted that the information was sought in order to maintain transparency about criteria for shortlisting. Appeal No. 43721 9. On perusal of the query and the response provided thereto I note that the respondent denied the disclosure of information by invoking Section 8(1)(a) of the RTI Act. In this regard I am of the opinion that the information sought by the appellant may be strategic in nature and may relate to the internal functioning of SEBI. Further I note that the such strategic information if disclosed may hamper SEBI’s supervisory and regulatory role. I therefore find that such information is exempted from disclosure under Section 8(1)(a) of the RTI Act. In view of these observations I find no deficiency in the respondent’s response. 10. Query number 5 the appellant vide query number 5 sought the following information “Share the criteria under which grandfathering provision was provided to existing RIA above 50 years of age.” 11. The respondent in response to the query informed that the information sought by the appellant is available at paraof the minutes of the SEBI Board Meeting dated February 17 2020. The respondent also provided the link for accessing the said minutes. The appellant in her appeal submitted that irrelevant information was provided. 12. On perusal of the query it appears that the query is in the nature of seeking clarification explanation from the respondent. It is understood that the respondent is not supposed to create information or to interpret information or to solve problems raised by the appellant or to furnish replies to situational queries or to furnish clarification under the provisions of RTI Act. Similar observations were made by the Hon’ble CIC in the matter of Prem Prakash Prajapati vs. CPIO Railways RDSOof the RTI Act 2005. However the respondent provided the link for accessing the agenda and minutes of the Board Meeting dated February 17 2020 wherein amendments to SEBI Appeal No. 43721 Regulations 2013 were discussed and approved by SEBI Board. The appellant in her appeal submitted that irrelevant information was provided. I have perused the query and the response provided thereto. On consideration I am inclined to agree with the response of the respondent that the query is vague and not specific. In this context I note that the Hon’ble CIC in Ms. Sarika Jain against National Hydroelectric Power Corporation Limited held that “As regards the first part i.e. copies of all documents in relation to the contracts mentioned in the RTI application the Commission finds that the term "all" used by the Appellant here is very vague and does not pin point the particular document she wants to obtain from the Respondents. The Appellant is therefore advised to be more specific and identify the documents she wants to obtain from the Respondents ..” In view of these observations the respondent did not have an obligation to respond to such vague and non specific query. 16. Notwithstanding the above I note that the respondent has addressed the query by providing the information regarding the agenda and minutes of the Board Meeting dated February 17 2020. Further the respondent also provided the link for accessing the same. Accordingly I do not find any deficiency in the response. In view of the above observations I find that there is no need to interfere with the decision of the respondent. The Appeal is accordingly dismissed. Place: Mumbai Date: August 11 2021 ANAND BAIWAR APPELLATE AUTHORITY UNDER THE RTI ACT SECURITIES AND EXCHANGE BOARD OF INDIA

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 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 complained, informing that the accused had forcibly taken away his niece to the house and committed rape on her against her will. In the complaint, 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 complaint 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 19 THE GAUHATI HIGH COURT HIGH COURT OF ASSAM NAGALAND MIZORAM AND ARUNACHAL PRADESH) Case No. : Crl.A. 64 2020 MANIRUL ISLAM @ MANIRUL ZAMAN S O LATE ABDUL AWAL R O VILL. KHUDRAKUCHI P.O. AND P.S. KALGACHIA DIST. BARPETA ASSAM PIN 781319 THE STATE OF ASSAM AND ANR REPRESENTED BY PP ASSAM S O LATE AKASH ALI R O VILL. KHUDRAKUCHI P.O. AND P.S. KALGACHIA DIST. BARPETA PIN 78131 For the Appellant : Mr. N.J. Das Adv For the Respondent: Mr. M. Phukan APP Assam THE HON’BLE MR. JUSTICE SUMAN SHYAM THE HON’BLE MR. JUSTICE MIR ALFAZ ALI Date of hearing : 22 03 2021 Date of judgement : 09 04 2021 JUDGEMENT AND ORDERand sentencing him under Section 4 of the POCSO to undergo rigorous imprisonment for a period 12 years and also to pay fine of Rs 2 000 in default to suffer simple imprisonment for another 3months 3. The facts of the case briefly stated are that on 26 11 2016 one Nazrul Islam i.e the uncle of the victim girl had lodged an ejahar before the In Charge Barbhita Police Outpost in the district of Barpeta informing that on 10 10 2016 at about 5 p.m. the accused No.1 appellant acting in a conspiracy with the accused nos. 3 4 and 5 had forcibly taken away his niece to the house of the accused no. 1 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. Based on the ejahar dated 26 11 2016 G.D. entry No. 460 dated 26 11 2016 was made in the Barbhita Police Outpost and the ejahar was forwarded to Kalgachia Police Station for registering a case under the appropriate provisions of law. Accordingly Kalgachia Police Station Case No. 880 2016 was registered under Section 120(B) 34 of the IPC read with Section 4 of the POCSO Act and the Officer in Charge of Barbhita Police Outpost took up the matter for investigation 4. During the course of investigation the I.O. had recorded the statements of the witnesses drew sketch map and sent the victim girl for medical examination. The statement of the victim was also recorded under Section 164 Cr.P.C. However the accused could not be arrested. Upon completion of investigation the I.O. had laid charge sheet against the accused Manirul Islam under Section 4 of the POCSO showing him as an absconder. However no material was found against the other accused persons and hence they were not sent up for trial. It appears that after submission of charge sheet by the Police the accused had entered appearance in the Court of the learned Special Judge Barpeta. Thereafter charge Page No.# 3 19 under section 4 of the POCSO was framed against the accused and the same was read over and explained to him. However since the accused had pleaded not guilty and claimed to be tried the matter went up for trial 5. During the course of trial the prosecution side had examined as many as 6was 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. Accordingly the accused was sentenced as 7. By referring to the materials available on record Mr. N.J. Das learned counsel appearing 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 Mr. Das had relied upon the decision rendered in the case of Subash Deb Vs. State of Tripura reported in 2009GLT 84 and State of Andhra Pradesh Vs. M. Madhusudhan Rao reported in 15 SCC 582 to argue that the impugned judgement and order dated 22 11 2019 is unsustainable in the eye of law on such count alone 8. The learned counsel for the appellant further submits that there are contradictions in the testimony of the prosecutrix which were proved by the I.O. According to the Mr. Das the doctor had found the age of the victim to be between 18 years and 20 years and there was no evidence available to the contrary. Since the parents of the victim were not examine nor had the prosecution examined the seizure witnesses of Ext. A hence the Birth Certificate Ext A) would not have any probative value in this case even if the said document is held to be admissible in evidence. In support of his aforesaid submission Mr. Das has relied upon Page No.# 4 19 two decisions of the Supreme Court viz. Ram Prasad Sarma Vs. State of Bihar reported in 1970 AIR 326 and State of Bihar Vs. Radha Krishna Singh and others reported in 1983 AIR 684 9. Contending that mere marking of a document as an exhibit does not amount to its proof Mr. Das has relied upon another decision of the Supreme Court rendered in the case of LIC of India and another Vs. Ram Pal Singh Bisen reported in 2010(4) SCC 491 to contend that merely by exhibiting the Birth Certificate as Ext A the prosecution cannot absolve itself of the duty to prove the contents of the said document in accordance with law 10. To sum up his argument Mr. Das has relied upon a recent decision of this Court in the case of Mrinal Das Vs. State of Assam reported in 2017(5)GLT 626 to argue that conviction of the accused cannot be based on the sole testimony of the prosecutrix if the same is not found to be trustworthy. 11. Mr. M. Phukan learned APP Assam appearing for the State on the other hand has argued that in this case the prosecution has succeeded in establishing 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. The testimony of the PW 1 and the victim i.e PW 2 finds due corroboration from the medical evidence brought on record. By referring to Section 29 and 30 of the POCSO Act 2012 the learned APP submits that in a case where the accused is prosecuted for offence committed under section 3 5 7 and 9 of the POCSO Act the court is empowered to draw presumption of guilt of the accused. Therefore having regard to the facts and circumstances of the case as well as the evidence brought on record the learned Special Judge has rightly held that the accused was guilty and sentenced him under Section 4 of the POCSO Act 2012. In such view of the matter no interference with the impugned judgement and order dated 22 11 2019 by this Court is called for 12. We have taken note of the submissions advanced by the learned counsel representing for both the parties and have also carefully gone through the materials available 13. The occurrence allegedly took place on 10 10 2016 but the ejahar in this case was admittedly lodged on 26 11 2016 i.e. after a delay of about 46 days. The informant Nazrul Islamwho is the uncle of the prosecutrix has deposed that the accused had forcefully taken away his Nieceto his house and committed rape against her will on the basis Page No.# 5 19 of a conspiracy hatched by the accused along with three other accused persons named in the FIR viz. Nurjahan Abu Taleb Noyse Ali. As per the ejahar dated 26 11 2016 the incident took place on 10 10 2016 at about 5 p.m 14. The PW 1 has also deposed that when he enquired from his nieceshe told him that while returning home from the house of her maternal grandmother she was forcefully pulled up by the accused Manirul from near his house and committed rape on her by wrapping her mouth with a “gamocha”. PW 1 has stated that at the time of the incident the age of the victim was 14 years. This witness had also produced Ext. A which was the photocopy of the Birth Certificate of the victim compared with the original. During his cross examination the PW 1 has stated that the accused had also visited the house of his niece earlier being a neighbour but he had denied that they were trying to get the victim girl married to the accused by force and that on the date of the incident his niece had voluntarily gone to the house of the accused she was sleeping in the bed of the accused but the accused was not present in the house. PW 1 has also denied the suggestion that while his niece was sleeping on the bed of the accused the mother of the accused had abused her as a result of which his niece came back home and said that she was assaulted and threatened by the mother of the accused 15. The victim was examined as PW 2.The prosecutrix has deposed that the incident occurred on 10 10 2016 at about 10 p.m. while she was returning home from the house of her maternal grandmother. At that time the accused had pulled her from the road to his residence and committed rape on her by wrapping her mouth with a “gamocha”. Then she came home weeping and narrated the incident to her uncle Nazrul Islamin the house of Amzad Ali wherein he was also present. However since the victim was a minor the villagers decided not to marry the girl with the accused. Thereafter the uncle of the victim had filed the case During his cross examination PW 3 had stated that during the village meeting the accused on being asked had denied that he had any physical relation with the girl. Although the uncle of the girl had conveyed his no objection to the marriage proposal between the victim and the accused yet considering her minority the members of the society did not allow the 18. PW 4 Sri Sona Miah is another neighbour of the informant. In his deposition this witness had stated that the village meeting was called after one or two days of the incident Although the meeting discussed about the marriage of the victim with the accused but the accused has denied his involvement and the father of the victim also refused to give his daughter in marriage due to her underage. In his cross examination PW 4 had stated that the victim girl had visited the house of the accused to charge her mobile phone and was sleeping in the bed of the accused for which his mother had abused her 19. PW 5 is the Doctor who had conducted medical examination on the victim. On examination of the victim the following observations were made by the doctor : “On X ray examination her age is found above 18 years and below 20 years. There is no recent sign of sexual intercourse. No injury marks on her body. Victim is not suffering from any physical and mental disability and no foreign body found on her cloth as well as private part Exhibit 2 is the medical report and exhibit 2(1) is my signature Normally the hymen is torn due to sexual assault or fall or injury suffered due to Page No.# 7 19 20. PW 6 is the I.O. in this case. He has deposed that after receiving the FIR from Nazrul Islamhe had made G.D. entry no. 460 dated 26 11 2016 and forwarded the ejahar to the Kalgachia Police Station for registering a case. PW 6 has confirmed that he had carried out investigation in this case and had visited the place of occurrence. The I.O. has stated that he drew a sketch map recorded the statement of the witnesses including the victim sent her for medical examination at Barpeta FAAMCH and had also collected the medical report. However the accused could not be arrested by him. During his cross examination the IO has stated that he had sent the victim for medical examination after 11 days of receiving the FIR. The IO had also stated that the victim did not state before him that the accused had committed rape on her by wrapping her mouth with a “gamocha” nor did PW 4 state before him that he had heard about the incident from Nazrul 21. As per the ejahar dated 26 11 2016 the incident occurred on 10 10 2016 at about 5 p.m. pursuant to a conspiracy hatched by the accused with the other three FIR named accused persons. However the victim had deposed that the incident occurred on 10 10 2016 at about 10 p.m. at night. In the ejahar it has been mentioned that the accused had conspired with co accused Nurjahan Abu Taleb and Noyse Ali forcefully took his neice to his house and committed rape. However according to the prosecutrix the co accused Nurjahan Abu Taleb and Noyse Ali i.e. the accused nos. 2 3 and 5 had gathered in the place when there was hue and cry raised after the incident. Although the PW 1 had deposed that the accused had wrapper a "gamocha" around her mouth and committed rape on her she did not say so to the I.O. or in her statement recorded under section 164 Cr.P.C. In her statement recorded under section 164 Cr.P.C the prosecutrix had stated that the incident took place in the evening but in her deposition the time of the incident has been mentioned as 10 p.m From the above it would become evident that there are a number of material contradictions in the version of the prosecutrix making her testimony un trust worthy 22. In her statement recorded under Section 164 Cr.P.C. the victim has stated as “About 2 months from today when I was returning from the house of my maternal uncle Monirul Islam committed rape upon me. I was forcefully taken to his house and committed rape. The incident took place in the evening.” follows : Page No.# 8 19 23. The expression "rape" is defined in section 375 of the Indian Penal Code which is pari mataria with section 3 of the POCSO. The basic difference between the two sections is that while section 375 IPC applies in case of women section 3 of the POCSO will be applicable only in case of children. For an offence to come under section 3 of the POCSO it must be shown that there was penetrative sexual offence on the victim. However from the statement of the victim recorded under section 164 Cr. P.C it would be apparent that her statement is vague and cryptic. The same does not give proper particulars of the act allegedly committed by the accused nor does it give any details as regard circumstances under which the accused had committed rape on her. Therefore it is evident that even while recording her statement under section 164 Cr.P.C the victim was economical with truth thereby giving an impression that she was reluctant to divulge the whole truth 24. The PW 4 has deposed that the prosecutrix had visited the house of the accused to charge her mobile and was sleeping on his bed as a result of which the mother of the accused had abused her. PW 4 has also mentioned about the ‘village Mel’ held 1 or 2 days after the incident. The testimony of this witness appears to be reliable. His version also finds corroboration from the evidence of PW 3 who has also stated about the Village Mel held in the house of Amzad Ali and in the meeting the mother of the accused had told that she had hurled abuses on the girl for sleeping on the bed of her son and charging her mobile Therefore if the testimonies of these witnesses are to be believed than it becomes apparent that on the day of the occurrence the victim girl had voluntarily gone to the house of the accused sat on his bed and tried to charge her mobile and then she was rebuked by the mother of the accused. Thereafter she came home and complained about the matter to her uncle. We find no justification not to believe the above version coming out from the evidence adduced by the PWs 3 and 4 25. From the opinion of the doctoralthough it is seen that the hymen of the victim was found to be torn yet according to the doctor’s opinion the same can be either due to sexual assault or fall or injury suffered due to accident. The doctor also found that there was no sign of any sexual intercourse or other injury on the private parts of the victim Therefore medical report of the victim in our opinion did not cogently establish sexual penetrative assault on the prosecutrix 26. As per section 2(d) of the POCSO Act a "child" means a person below the age of Page No.# 9 19 eighteen years. Therefore for attracting the provisions of the POCSO the age of the victim on the date of occurrence must be below eighteen years. In the instant case the learned counsel for the appellant has argued that the prosecution has failed to establish that the victim was a minor girl below the age of 18 years on the date of occurrence. The learned Trial Court has however held to the contrary by placing reliance on Ext A 27. From a close scrutiny of the materials available on record we find that Ext A is the photocopy compared with original of the Birth Certificate issued by the Department of Health Services Govt. of Assam certifying that the accused was born on 25 08 2001. This certificate was apparently seized by the IO in presence of two seizure witnesses viz. Usman Gani and Habibur Rahman. However none of the seizure witnesses have been examined by the prosecution during the course of the trial. The Birth Certificate was in fact exhibited by the informant who is the uncle of the victim. The prosecution had neither examined the parents of the prosecutrix nor called any official from the Health Department so as to prove the contents of Ext A. There is also no explanation for not doing 28. A Birth Certificate issued by the Health Department of the State Government is a part of the public record. Section 35 of the Evidence Act 1872 deals with relevancy of entry in public record which reads as follows : “35. Relevancy of entry in public recordmade in performance of duty.—An entry in any public or other official book register or record or an electronic record] stating a fact in issue or relevant fact and made by a public servant in the discharge of his official duty or by any other person in performance of a duty specially enjoined by the law of the country in which such book register or recordis kept is itself a relevant fact.” 29. From a plain reading of Section 35 it would be apparent that an entry made in any public or other official book register or record is required to be proved by a public servant who had made the entry in discharge of his official duty or by any other persons in performance of his duty especially enjoined by law. In the instant case as noted above no such officer of the department was summoned by the prosecution as a witness to prove Ext 30. It also appears from Ext A that the subjectwas born on 25 08 2001 but Page No.# 10 19 the Birth Certificate was issued on 12 07 2012 i.e. after a period of almost 11 years. As per Section 13(3) of the Registration of Births and Deaths Act 1969 any birth or death which had not been registered within one year of its occurrence can be registered only on an order made by a Magistrate of the First Class or a Presidency Magistrate after verifying the correctness of the birth or death and on payment of prescribed fee. 31. In the case of LIC of India and anotherthe Supreme Court has held that admission of documents in evidence does not amount to its proof. Under the law of Evidence it is necessary to prove the contents of documents either by primary or secondary evidence. At the most admission of documents may amount to admission of its content but not its truth. 32. In the present case the prosecution had made an attempt to prove the document Ext A through PW 1 and it appears that the defense side did not raise any objection when the document was marked as an exhibit. Therefore in so far the admissibility of Ext A is concerned the said question must be answered in favour of the prosecution. That however would not automatically absolve the prosecution from the requirement in law to establish the truthfulness of its contents. The PW 1 being the informant in this case had nothing to do with the birth of the child or the Department of Health Services Assam. Therefore in our opinion he was not competent to prove the contents of Ext. A. Viewed from that perspective the PW 1 could not have vouched for the truthfulness of the contents of Ext A Therefore in the light of the doctor s opinionwhich is to the effect that the age of the victim was between 18 years to 20 years we are of the view that the prosecution has failed to show that the victim was below 18years on the date of occurrence 33. The next issue which has caught the attention of this court is the unusual delay of 46 days in lodging the FIR. According to the witnesses examined by the prosecution the marriage proposal did not go through on account of the fact that the victim girl was still a minor. Thereafter there was no action in the matter for nearly 46 days. It was only after the lapse of about 46 days from the alleged occurrence that an ejahar was lodged by the uncle of the victim. The reason for such delay has been cited as the "village meeting". But we find from the evidence on record more particularly the testimony of PW 4 that the village meeting was called after 1 or 2 days of the occurrence and the marriage proposal of the accused with the victim girl was also turned down in that meeting itself. If that be so what Page No.# 11 19 then was the reason for the delay of 46 days in lodging the FIR There is not even an iota of evidence on record to throw light on that. It is also not the case of the prosecution that the accused had in any manner threatened the victim with consequences resulting in delay in lodging the FIR 34. Law is firmly settled that delay in lodging FIR would not make the prosecution case improbable if the delay is properly explained. However un reasonable delay in lodging FIR without any plausible explanation would undoubtedly give rise to suspicion as regard the prosecution case raising a question mark on the trust worthiness of the prosecution version. 35. There is evidence available on record to indicate that the victim and the accused were known to each other and that the victim used to visit the house of the accused quite often. It also appears that talk of marriage of the victim and the accused was going on for quite some time but the marriage proposal had fizzled out in the meeting held in the house of Amzad Ali apparently due to the tender age of the girl. There is no evidence to show that the alleged rape committed by the accused on the victim was the subject matter of discussion in the village meeting. Moreover it is also not clear that if the accused had in fact raped the victim forcefully then why would her parents solicit the hands of the accused in a marriage proposal with the victim. In the above circumstances the un explained delay in lodging the FIR viewed in the light of the plea taken by the accused of false accusation in our opinion would be sufficient to give rise to a reasonable suspicion that the FIR was the fall out of the marriage proposal between the parties turning sour 36. In the case of Raju and others Vs. State of Madhya Pradesh reported in 2008) 15 SCC1 33 the Supreme Court had made the following observations in para 11: “11. It cannot be lost sight of that rape causes the greatest distress and humiliation to the victim but at the same time a false allegation of rape can cause equal distress humiliation and damage to the accused as well. The accused must also be protected against the possibility of false implication particularly where a large number of accused are involved. It must further be borne in mind that the broad principle is that an injured witness was present at the time when the incident happened and that ordinarily such a witness would not tell a lie as to the actual assailants but there is no presumption or any basis for assuming that the statement of such a witness is always correct or without any embellishment or exaggeration.” Page No.# 12 19 37. In another decision of the Apex Court in the case of Raja and others Vs State of Karnataka reported in10 SCC 506 it has been observed that though generally the testimony of a victim of rape or non consensual physical assault ought to be accepted as true and unblemished but it will still be subjected to judicial scrutiny lest casual routine and automatic acceptance thereof may result in unwarranted conviction of the person charged Relying on the aforesaid decision of the Supreme Court a learned Single Judge of this Court in the case of Mrinal Dashas observed as follows : “26. There is no doubt about the principle of appreciation of evidence that in a case of sexual assault the testimony of the prosecutrix must be given primary consideration and her testimony should not be viewed with suspicion unless there are compelling circumstances requiring the court to seek corroboration or support from other independent source. But the principle that prosecution needs to prove its case beyond reasonable doubt and that the reliability of a witness depends on its credibility and trustworthiness equally applies even in case of sexual assault. It cannot be said that whatever is stated by the victim of sexual assault being the solitary witness has to be relied by the court notwithstanding any infirmities in the testimony of such witness.” 38. Having observed as above this court is conscious of the fact that the charge framed against the accused in this case is under sections 3 4 of the POCSO . Section 29 & 30 of the POCSO permits the Court to draw rebuttable presumption as to the culpability of an accused being prosecuted under the provisions of the Act. In a trial conducted under the Cr.P.C the accused can remain silent and the burden would be upon the prosecution to prove the charge beyond reasonable doubt by leading cogent evidence. However an exception to this general rule has been introduced in case of prosecution under the POCSO. In view of sections 29 and 30 of the POCSO Act there would be reverse onus upon the accused to displace any presumption of guilt. 39. Section 29 of the POCSO Act is reproduced herein below for ready reference : “29. Presumption as to certain offences. Where a person is prosecuted for committing or abetting or attempting to commit any offence under sections 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 Page No.# 13 19 40. Section 30 of the POCSO Act reads as follows : “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 2) For the purposes of this section a fact is said to be proved only when the Special Court believes it to exist beyond reasonable doubt and not merely when its existence is established by a preponderance of probability Explanation. In this section "culpable mental state" includes intention motive knowledge of a fact and the belief in or reason to believe a fact.” 41. POCSO was enacted by the Parliament on 19 06 2012 with the object to protect children from offences of sexual assault sexual harassment and pornography. The Act which came into force with effect from 20 06 2012 on being published in the Gazette of India provides for setting up Special Courts for trial of offences under the Act. Although section 376 of IPC contains penal provision to award punishment for rape yet the Legislative intent behind bringing such a Special Statute appears to be to tackle the growing cases of sexual harassment on children. In order to provide better teeth to the prosecution sections 29 and 30 have been inserted in the POCSO empowering the court to draw presumption of guilt against the accused. However insertion of sections 29 & 30 has also raised questions as to the parameters following which power under the said provisions is to be exercised by the Special Court to draw presumption of guilt 42. The doctrine of reverse burden is not peculiar to the POCSO. There are a number of other Legislations in India which contains such provisions. Sections 35 and 54 of the Narcotics Drugs and Psychotropic Substances Act 1985are an example. While dealing with challenge made to the validity of section 35 and 54 of the NDPS in so far as it imposes reverse burden upon the accused the Apex Court has observed in the case of Noor Aga Vs State of Punjab reported in16 SCC 417 as follows : Page No.# 14 19 “58. Sections 35 and 54 of the Act no doubt raise presumptions with regard to the culpable mental state on the part of the accused as also place burden of proof in this behalf on the accused but a bare perusal the said provision would clearly show that presumption would operate in the trial of the accused only in the event the circumstances contained therein are fully satisfied. An initial burden exists upon the prosecution and only when it stands satisfied the legal burden would shift. Even then the standard of proof required for the accused to prove his innocence is not as high as that of the prosecution. Whereas the standard of proof required to prove the guilt of accused on the prosecution is "beyond all reasonable doubt" but it is `preponderance of probability ‘on the accused. If the prosecution fails to prove the foundational facts so as to attract the rigours of Section 35 of the Act the actus reus which is possession of contraband by the accused cannot be said to have been established.” 43. While upholding the constitutional validity of sections 35 and 54 of the NDPS Act the Apex Court has however reiterated that more serious the offence the stricter would be the degree of proof to convict the accused. It was also observed that an initial burden would lie upon the prosecution and only when it stands satisfied the legal burden would shift upon the accused. What follows from the above decision is that notwithstanding the concept of reverse burden envisaged by section 35 and 54 of the NDPS Act the burden upon the prosecution to prove the foundational fact would still exist. 44. In a decision rendered by the High Court of Judicature at Calcutta in the case of Sohid Hossain Biswas Vs. State of West Bengalit was held that establishing the foundational facts by leading evidence by the prosecution is an essential pre requisite before the statutory presumption under Section 29 of the POCSO Act is triggered so as to shift the onus on the accused to prove the contrary 45. Taking a similar view the learned Single Judge of the Bombay High Court in the case of Navin Dhaniram Baraiye Vs. the State of Maharashtrahas observed as follows : “A perusal of the above quoted provision does show that it is for the accused to prove Page No.# 15 19 the contrary and in case he fails to do so the presumption would operate against him leading to his conviction under the provisions of the POCSO Act. It cannot be disputed that no presumption is absolute and every presumption is rebuttable. It cannot be countenanced that the presumption under Section 29 of the POCSO Act is absolute. It would come into operation only when the prosecution is first able to establish facts that would form the foundation for the presumption under Section 29 of the POCSO Act to operation. Otherwise all that the prosecution would be required to do is to file a charge sheet against the accused under the provisions of the said Act and then claim that the evidence of the prosecution witnesses would have to be accepted as gospel truth and further that the entire burden would be on the accused to prove to the contrary. Such a position of law or interpretation of the presumption under Section 29 of the POCSO act cannot be accepted as it would clearly violate the constitutional mandate that no person shall be deprived of liberty except in accordance with procedure established by law.” 46. In the case of Dharmender Singh @ Saheb Vs. The Statethe Delhi High Court was called upon to consider bail application filed by an accused prosecuted under the POCSO. One of the issues which arose for consideration of the Court was as to whether presumption of guilt of the accused under Section 29 of the POCSO would arise at the pre trial stage or whether the same would arise only after commencement of trial by framing charges. The learned Single Judge has held that presumption of guilt engrafted in section 29 would get triggered only once trial begins i.e after charges are framed against the accused but not before that. It would come into operation only when the prosecution is first able to establish the facts that would form the foundation for the presumption under Section 29 of the POCSO Act to operate. The relevant observations made by the Learned Single Judge in Dharmender Singhare reproduced herein below for ready reference: “51. Only when the trial court frames charges does it form a prima facie opinion that there is a case for the accused to answer and defend. At the stage of framing charges the trial court may decide not to frame charges against an accused under any of the Page No.# 16 19 sections mentioned in section 29 but under some other provision or it may not frame charges against all accused persons under those sections. So the presumption under section 29 cannot arise before charges are framed. 52. If the presumption of guilt is taken to arise even before charges are framed say when a court is considering a bail application then the court will have to afford to the accused an opportunity to prove that he has not committed the offence which would require the court to conduct a mini trial even when it is only considering a bail plea What then would remain to be done during the trial itself In the opinion of this court it is not the purport of section 29 that a mini trial should be conducted at the stage of deciding a bail application. No such concept is known to law. Requiring production and analysis of evidence to form an opinion on the merits of the allegations and to BAIL APPL. No. 1559 2020 express a view on such evidence is certainly not within the remit of a court considering a bail plea.” 47. However in Badri Nath Vs. Union Territory of J & K and othersthe learned Single Judge of Jammu and Kashmir High Court has taken a contrary view and has held that the presumption under Section 29 would come into play even at the pre trial stage thereby disagreeing with the views expressed by the Delhi High Court in the case of Dharmender SinghGLT 403 learned Single Judge of this Court had the occasion to interpret sections 29 and 30 of the POCSO. In the aforesaid decision the Learned Single Judge has elaborately dealt with various facets of the law on the issue and upon a thread bare analysis of the judicial pronouncements and legal literature available on the subject including the law laid down by the Supreme Court in the case of Noor Agahas held that the prosecution would be under an obligation to lay down the foundational facts before presumption can be drawn against the accused under Section 29 and 30 of POCSO Having held as above certain broad principles applicable in a proceeding under the POCSO for drawing presumption under Section 29 and 30 have been laid down in paragraph 71 which are reproduced herein below for ready reference : Page No.# 17 19 “71. In the light of the discussions above the following legal positions emerge in any proceeding under the POCSO Act A) The prosecution has to prove the foundational facts of the offence charged against the accused not based on proof beyond reasonable doubt but on the basis of preponderance of probability B) Accordingly if the prosecution is not able to prove the foundational facts of the offence based on preponderance of probability the presumption under Section 29 of the Act cannot be invoked against the accused C) If the prosecution is successful in establishing the foundational facts and the presumption is raised against the accused the accused can rebut the same either by discrediting the prosecution witnesses through cross examination or by adducing his own evidence to demonstrate that the prosecution case is improbable based on the principle of preponderance of probability. However if it relates to absence of culpable mental state the accused has to prove the absence of such culpable mental state beyond reasonable doubt as provided under Section 30(2) of the Act D) However because of legal presumption against the accused it may not suffice by merely trying to discredit the evidence of the prosecution through cross examination and the defence may be required to adduce evidence to dismantle the legal presumption against him and prove that he is not guilty. The accused would be expected to come forward with more positive evidence to establish his innocence to negate the presumption of guilt.” 49. From a minute examination of the ratio laid down in the aforesaid decisions rendered by the different High Courts we are of the view that the decisions rendered in case of Sohid Hossain Biswas(supra) Navin Dhaniram Baraiya(supra) Dharmendra Sighand Bhupen Kalitaon the issue of applicability of sections 29 and 30 of POCSO is based on the correct proposition of law. In all these decision the Courts have expressed the opinion that reverse burden on the accused under sections 29 & 30 of Page No.# 18 19 POCSO would operate during trial and that too after the prosecution establishes the foundational facts. 50. Section 31 of the POCSO provides that the Code of Criminal Procedure 1973 Cr.P.C] shall apply to a proceeding before the Special Court and for the purpose of the said provisions the Special Court shall be deemed to be the Court of Sessions and the person conducting prosecution before a Special Court shall be deemed to be a Public Prosecutor. As per section 225 of Cr.P.C trial is to be conducted by Public Prosecutor. Section 226 of Cr.P.C provides that the prosecutor is to open the case by describing the charge brought against the accused and by stating what evidence he proposes to prove the guilt of the accused Therefore it is axiomatic that even in a case coming under the POCSO formal charge has to be framed and the prosecution would be required to lead evidence to prove the charge. 51. From the above it becomes apparent that mere insertion of sections 29 and 30(2 in the POCSO does not altogether relieve the prosecution of the burden of proof contemplated under sections 101 and 102 of the Evidence Act but merely lessen the burden on the prosecution by shifting the onus upon the accused . However such reverse onus would shift upon the accused only when the prosecution succeeds in prima facie establishing the charge by adhering to the standard of proof of preponderance of probability. It is only then the accused would have to displace the presumption of guilt. What therefore follows is that conviction in a proceeding initiated under the POCSO cannot be based solely on presumption of guilt of the accused under sections 29 &30 of the Act. For the above reasons we find our selves in agreement with the guiding principles laid down in paragraph 71 of Bhupen Kalitaformulating the parameters to be satisfied for drawing presumption of guilt by the Court under sections 29 and 30(2) of POCSO 52. Coming to the facts of this case we are of the opinion that the prosecution has failed to establish the foundational facts. The testimony of the prosecutrix is also found to be full of contradictions and hence unreliable. From the impugned judgement and order we find that the conviction of the accused on the basis of presumption drawn under sections 29 30(2) of the POCSO. Therefore we are of the view that in the absence of cogent evidence brought on record to prima facie establish the foundational facts conviction of the accused cannot be based solely on presumption of guilt premised on the precincts of the doctrine of Page No.# 19 19 53. In view of the foregoing discussions we hold that the impugned judgement and order dated 22 11 2019 passed by the learned Special Judge Barpeta in Special POCSO Case No. 72 2018 is unsustainable in law. The same is accordingly set aside 54. The appeal stands allowed 55. The appellant accused is hereby acquitted 56. He shall be forthwith released from jail if not wanted in connection with any other Send back the LCR JUDGE JUDGE

Expression “reasonable delay” clarified under Section 58 of Chapter 6 of the Act: Patna High Court

The non- implementation of the Act holds adverse consequence on the dispensation of administration of justice. The present case deals with the answers to – “Why is it that the owners of the property are forced to approach this Court for release of the vehicles or property? Is it that there is no mechanism under the Act for initiating confiscatory proceedings at the earliest? Is it that there is insufficient infrastructure with the State Government for ensuring implementation of the provisions of the Act?” This matter was taken before the Hon’ble the Chief Justice and Hon’ble Mr. Justice S. Kumar in the matter of Manoj Purwe versus The State of Bihar and Others [Civil Writ Jurisdiction Case No.6400 of 2020]. Despite of the observations made by the court, the appropriate authorities did not take any action in initiating the proceedings for confiscation of the property under the Act. Thus the litigants were forced to approach this Court by way of filing separate petitions. The petitioner prayed before this court to issue a writ petition to direct the respondents to release the Three Wheeler Passenger Vehicle which was seized in relation with Exercise case for the offence under section 30(a) of Bihar Prohibition and Exercise Act 2016 added by the Bihar Prohibition and Exercise act 2018; and to grand reliefs for which the petitioner was entitled in relation with the release of the vehicle. The court made a reference to the Bihar Prohibition and Exercise Act, 2016 which states that “(hereinafter referred to as the Act) prohibits the manufacture, storage, distribution, transportation, possession, sale, purchase and consumption of any intoxicant or liquor, unless so allowed in terms of the Act. (Section 13). In addition to the penalty imposed for committing such an offence, Section 56 of the Act lays down the procedure for confiscation of “things” used for in the commission of such an offence”. This court made following directions to the parties in the case of Md. Shaukat Ali Vs. The State of Bihar & Ors CWJC No.20598 of 2019: “Without adjudicating the petitioner’s petition on merits, we are of the considered view that interest of justice would be best met, if the petition is disposed of.” The court held that “We only hope and expect that the Authorities under the Act shall take appropriate action at the earliest and in accordance with law, within the time schedule fixed, failing which the vehicle/property/things liable for confiscation shall be deemed to have been released without any further reference to this Court”.

IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.64020 Manoj Purwe Son of Dashrath Purwe Resident of Village and P.O. Chak Mehsi Police Station Kalyanpur District Samastipur ... Petitioner The State of Bihar through the Principal Secretary Department of Excise Govt. of Bihar Patna The District Magistrate Darbhanga The Excise Superintendent of Police Darbhanga The Station Head Officer Darbhanga Police Station District ... Respondent s Mr.Narayan Singh Advocate Mr.Vivek Prasad GP 7 For the Petitioner s For the Respondent s CORAM: HONOURABLE THE CHIEF JUSTICE and HONOURABLE MR. JUSTICE S. KUMAR Per: HONOURABLE THE CHIEF JUSTICE Date : 06 11 2020 counsel for the State Heard learned counsel for the petitioner and learned Petitioner has prayed for the following reliefs: “I. To issue a writ in the nature of mandamus to direct the respondents to release the Three Wheeler Passenger Vehicle bearing Registration No. BR07PB8105 Chassis Engine Patna High Court CWJC No.64020 dt.06 11 2020 S9A8944424 which has been seized in connection with Excise Case bearingG.O. Case No.156 2020 P.R. Case No. 419 20 dated 04.02.2020 for the offence under section 30(a) of Bihar Prohibition and Excise Act 2016 added by the Bihar Prohibition and Excise II. To grant any other reliefs for which petitioner is entitled to have in connection with release of Learned counsel for the petitioner prays that the petition be disposed of in terms of order dated 9th January 2020 passed in CWJC No. 205919 titled as Md. Shaukat Ali Vs. The State of Bihar and subsequent order dated 14th January 2020 passed in CWJC No.171619 titled as Umesh Sah Versus the State of Bihar & Ors. and order dated 29.01.2020 passed in CWJC No.2050 of 2020 titled as Bunilal Sah objection to the same. Learned counsel for the respondents has no The Bihar Prohibition and Excise Act 2016 hereinafter referred to as the Act) prohibits the manufacture storage distribution transportation possession sale purchase and consumption of any intoxicant or liquor unless so allowed in terms of the Act.Any intoxicant liquor material still utensil implement apparatus in respect of or by means of which such offence has been committed b) any intoxicant or liquor unlawfully imported transported manufactured sold or brought along with or in addition to any intoxicant liable to confiscation under clausec) any receptacle package or covering in which anything liable to confiscation under clauseis found and the other contents if any of such receptacle package or covering d) any animal vehicle vessel or other conveyance used for carrying the same e) Any premises or part thereof that may have been used for storing or manufacturing any liquor or intoxicant or for committing any other offence under this Act Explanation. The word “premises” include the immovable structure all moveable items within the structure and the land on which the premises is Patna High Court CWJC No.64020 dt.06 11 2020 Under section 58 power to issue an order of confiscation vests with the District Collector Authorized officer who upon receipt of the report of the seizing officer detaining such propertyis required to pass an order. This Court has been flooded with several petitions solely on account of non initiation of such proceedings of confiscation or passing of illegal orders with respect thereto Also on account of lack of parties pursing the remedies so provided under the Act. Consequently the court was faced with the following fact situations: where despite seizure no proceedings for confiscation under Section 58 were initiated the parties after obtaining interim relief for release of “things” under orders passed in different set of writ petitions did not participate in the confiscatory proceedings where the order of confiscation was neither communicated nor the parties made aware of such fact thus precluding them from filing appeal under Section 92 and Revision under Section 93 of the Act proceedings initiated under Section 92 93 were not concluded within a reasonable time either on account of inaction on the part of the authority(s Patna High Court CWJC No.64020 dt.06 11 2020 or on account of non cooperation of the private parties be it for passing several orders. Resultantly this Court from time to time has been In CWJC No.3245 of 2017 titled as Manish Kumar Chaudhary versus the State of Bihar & Ors. this Court vide order dated 18.01.20202 issued following directions: “As such as mutually prayed for the present writ petition is being disposed of on the following mutually agreed terms: Interim order dated 07.03.2017 passed in the instant writ petition directing release of the propertyshall continue to remain in operation till such time proceedings up to the stage of initiation of confiscatory proceedings and its culmination as also filing and culmination of the proceedings in the appeal as the case may be. This however would be subject to the petitioner(s) fully cooperating and not transferring alienating the property to any person or creating third party rights. It goes without saying that the property shall be maintained and retained in its original condition and not destroyed in any manner or its character changed. b) Wherever proceedings for confiscation have not started the Appropriate Authority constituted under the Act shall positively initiate the same within a period of four weeks from today. In any event petitioner undertakes to appear in the office of the concerned concerned District Magistrate on the 10th of February 2020 and apprise him of the passing of the order. The said Officer shall Patna High Court CWJC No.64020 dt.06 11 2020 forthwith and not later than four weeks from today initiate the proceedings and after compliance of principles of natural justice take a decision thereupon within a period of In the event of the authority arriving at the conclusion directing confiscation of the property the petitioner shall positively file the appeal within the statutory period as envisaged under Section 92 of the Bihar Prohibition and Excise Act 2016 and the appellate authority shall positively decide the same within a period of two months Wherever confiscatory proceedings already stand concluded and if the petitioner so desires within four weeks from today or within the statutory period of limitation as the case may be positively file an appeal which shall be adjudicated on its own merit The issue of limitation shall not be raised by the State or come in the petitioner’s way of decision on merits. The said proceedings shall positively be concluded within a period of two months from the date of filing Petitioner undertakes to fully cooperate in all such proceedingsWhere appeal already stands filed petitioner shall appear before the said Authority on the 20th February 2020 and apprise him of the passing of the order. The Appellate Authority shall positively decide the same within a period of two months thereafter. g) With the decision in the appeal it shall be open for either of the parties to take recourse to such remedies as are available in accordance with law including approaching this Court on the same and subsequent cause of action. h) If the petitioner fails to cooperate does not or makes an endeavour of in any one of the Patna High Court CWJC No.64020 dt.06 11 2020 proceedings referred to supra it shall be open for the authority to take a decision with regard to the property including taking back possession and putting it on sale in terms of the Act with the interim order deemed to have been vacated If the appellant chooses not to prefer an appeal within the said statutory period or as directed herein it shall be open for the authority to take a decision with regard to the property including taking back possession and putting it on sale in terms of the Act and the interim order passed in the instant petition shall be deemed to have been j) With the outcome of the Special Leave PetitionNo.297416 titled as State of Bihar & Ors. etc. Vs. Confederation of Indian Alcoholic Beverage Companies Anr. parties including the petitioner would be at liberty to take recourse to such remedies as are permissible in law.” In CWJC No.20598 of 2019 titled as Md Shaukat Ali Vs. The State of Bihar & Ors. this Court vide order dated 09.01.2020 issued the following directions: “Without adjudicating the petitioner’s petition on merits we are of the considered view that interest of justice would be best met if the petition is disposed of in the following terms: a) Since the vehicle in question stands seized in relation to the FIR which stood registered long ago in case confiscation proceeding has not been initiated it must be initiated within a period of 15 days from today and that confiscation proceeding stands initiated we direct the appropriate authority under the Act to forthwith ensure that such proceedings be concluded not later than 30 days. b) The petitioner undertakes to make himself available in the office of the concerned appropriate authority empowered under Section 58 of the Act i.e. District Collector in his her office on Patna High Court CWJC No.64020 dt.06 11 2020 24.01.2020 at 10:30 A.M c) We further direct the appropriate authority to positively conclude the confiscation proceeding within next thirty days on appearance of the petitioner. If for whatever reason such proceeding cannot be concluded in that event it shall be open for the authority to take such measures as are permissible in law for release of the vehicle in question by way of interim measure on such terms as may be deemed appropriate considering the attending facts and circumstances of the case d) If eventually the appropriate authority arrives at a conclusion that the property is not liable to be confiscated it shall be open for the petitioner to seek damages in accordance with law and have appropriate the erring initiated against Learned counsel for the petitioner states that the certified copy of the order shall be made available to the concerned District Collector on the date so fixed. For future guidance where parties have not approached this Court we issue the following direction: The expression “reasonable delay” used in Section 58 of Chapter VI of the Act in our considered view necessarily has to be within a reasonable time and with dispatch which period in our considered view three months time is sufficient enough for any authority to adjudicate any issue more so when we are dealing with confiscatory proceedings.” These directions were reiterated in CWJC No.171619 titled as Umesh Sah Versus The State of Bihar & Ors. by this Court vide order dated 14.01.2020. Since the respondents had failed to comply with the several orders passed by this court in CWJC No.20520 titled as Bunilal Sah @ Munilal Sah versus the State of Bihar & Ors. vide order dated 29.01.2020 by recording the entire history directed the State to file an affidavit as to why Patna High Court CWJC No.64020 dt.06 11 2020 proceedings for contempt be not initiated. Such order dated 29.01.2020 in toto reads as under: “It is seen that despite our order dated 9thof January 2020 passed in C.W.J.C. No. 20598 of 2019 titled as Md. Shaukat Ali Vs. The State of Bihar& Ors. and the order dated 14thof January 2020 passed in C.W.J.C. No. 171619 titled as Umesh Sah Vs. The State of Bihar& Ors. the State has not initiated proceedings under the provisions of the Bihar Prohibition and Excise Act 2016. It is a matter of record that this legislation has generated huge litigation. The docket of the Court be it the trial court or the High Court is now choked solely on account of such legislation. In the High Court itself on an average 400 bail applications are being filed every day some of which are pertaining to the said Statute. Position in the lower courts is worse. Before the trial courts i.e. the Sessions Courts more than 1 75 000 challans stand filed in relation to the said Statute. Before this Court on an average more than 5000 writ petitions are being filed annually for release of vehicles properties seized under the said Act. It has been the continued practice of this Court since the year 2017 that in the writ petitions the vehicles unless the situation so warrants are normally being released subject to fulfilment of certain conditions. This perhaps is done only to protect the property from being destroyed for there is no mechanism under the Statute or with the administration for protecting the property seized in relation to the crime registered under the said Statute. Property is left to the vagaries of weather resulting into national loss. This we say for the reason that proceedings for confiscation as envisaged under Section 58 were never initiated by the authority which under the Act is the District Magistrate Collector. It is only as a result of inaction on the part of such authorities that the owners of the vehicles properties are constrained to approach this Court for its release. When the matter in C.W.J.C. No. 205919and in 17165 of 2019(Umesh Sah Vs. The State of Bihar& Ors.)of the Bihar Prohibition and Excise Act 2016 It is continued practice of this Court that in cases of drunken driving no recovery from the vehicle recovery of less than commercial quantity where ex facie vehicle is not liable to be confiscated where there is inordinate delay in initiating proceedings for confiscation of the vehicle etc. this Court has been directing the State to provisionally release vehicle property subject to initiation conclusion finalisation of the confiscatory proceedings as the case may be. Reference can be made to the judgments orders passed by different co ordinate Benches of this Court viz: i) Judgement dated 22.03.2018 passed in CWJC No.50418 titled as Diwakar Kumar Singh versus The State of Bihar & Ors. ii) order dated 31.07.2018 passed in CWJC No.13162 of 2018 titled as Rajesh Kumar Pandit @ Rajesh Pandit Vs. The State of Bihar iii) order dated 31.07.2018 passed in CWJC No.142418 titled as Amar Kumar Vs The State of Bihar & Ors. iv) order dated 12.02.2018 passed in CWJC No.24318 titled as Mahendra Manjhi Vs. The State of Bihar & Ors. v) judgement dated 12.02.2018 passed in CWJC No.24718 titled as Laxman Das Lakshman Ravidas Vs. The State of Bihar & Ors. vi) order dated 11.09.2017 passed in CWJC No.13158 of 2017 titled as Sanjay Kumar Versus The State of Bihar & Ors. vii) order dated 27.03.2018 passed in CWJC No.55218 titled as Bikash Kumar Vs The State of Bihar & Ors. viii) order dated 27.03.2018 passed in CWJC No.5528 of 2018 titled as Bikash Kumar Versus The State of Bihar & Ors. Patna High Court CWJC No.64020 dt.06 11 2020 ix) order dated 01.05.2018 passed in CWJC No.7755 of 2018 titled as Anandi Prasad Versus The State of Bihar & Ors. x) order dated 01.05.2018 passed in CWJC No.76418 titled as Suraj Ram Versus The State of Bihar & Ors. xi) order dated 07.08.2018 passed in CWJC No.154318 titled as Kalesar Chaudhari Versus the State of Bihar & Ors. xii) judgement dated 18.01.2019 passed in CWJC No.12119 titled as Raushan Kumar @ Raushan Kumar Singh Versus The State of Bihar & Ors. xiii) judgement dated 29.01.2019 passed in CWJC No.16219 titled as Asharfi Kumar @ Rakesh Kumar Versus the State of Bihar Ors. xiv) judgement dated 08.02.2019 passed in CWJC No.23819 titled as Avinash Kumar Versus the State of Bihar & Ors. xv) judgement dated 29.01.2019 passed in CWJC No.16419 titled as Roshan Kumar Versus The State of Bihar & Ors. and xvi) judgement dated 22.01.2019 passed in CWJC No.1314 of 2019 titled as Shanti Devi Versus The State of Bihar & Ors In fact in CWJC No. 5049 of 2018 titled as Diwakar Kumar Singh Versus the State of Bihar & Ors the Court issued the following directions: “That apart in the confiscation proceedings the confiscating authority shall take note of the provisions of Section 56 of the Bihar Prohibition and Excise Act 2016 and record a positive finding after hearing the petitioner as to whether when the petitioner is found or the vehicle is found to be used by a person in drunken condition and no liquor is seized from the vehicle or when the vehicle is not used for transportation of liquor whether the provision of Section 56 of the Act will apply. It shall be mandatory for the confiscating authority to decide this issue before passing any order on the confiscation proceedings. The confiscating authority shall consider the provision of Section 56 of the Act apply his mind and pass a speaking order with regard to confiscation initiated Without deciding the aforesaid issue as a preliminary issue further proceedings in the confiscation proceedings shall be prohibited. Patna High Court CWJC No.64020 dt.06 11 2020 We further request the office of the Advocate General to communicate this order to all the District Magistrates in the State of Bihar who would be mandated to pass an appropriate order in such cases where the vehicle has been confiscated under Section 56 of the Act only on the allegation that the vehicle was being driven in a drunken condition and no liquor was seized from the vehicle nor the vehicle used for transportation or carriage of liquor. The issue shall be decided by each and every District Magistrate before proceeding in the confiscation proceedings where the allegation is about the vehicle being driven in a drunken condition and no liquor was found from the possession of the vehicle. It shall be the duty of the Advocate General to communicate this order to each and every District Magistrate and inform the Registrar General of this Court. In spite thereof if we find that the District Magistrates are passing confiscation order without addressing this issue first we may consider initiating contempt proceedings against the concerned District It is further seen that in CWJC No.150019 titled as Shobha Devi Versus The State of Bihar & Ors. the Court observed as under: “6. On examination of aforesaid fact particularly allegation of the petitioner that in a court proceeding before the learned Special Judge Excise a false information was given we are of the opinion that the court of learned Special Judge Excise would be competent court to pass an appropriate order in view of provisions contained in Section 340 of the Code of Criminal Procedure 1973 7. Accordingly the petitioner is granted liberty to file appropriate petition before the learned Special Judge Excise for prosecuting the concerned 8. So far as claim of compensation is concerned obviously on going through the material on record since there was no recovery of liquor from the vehicle and it was a case in which the occupants of the vehicle were alleged to be in drunken condition and were creating nuisance though were liable to be arrested. In any event the vehicle was not required to be seized since it was not liable to be confiscated 9. In such situation we are of the opinion that it is a fit case in which we may direct to pay Patna High Court CWJC No.64020 dt.06 11 2020 adequate compensation to the petitioner being owner of the vehicle to the tune of Rs.75 000 however Sri Kumar Manish learned Standing Counsel 5 requests for granting an opportunity for obtaining detailed instruction and filing counter affidavit in the matter. The request of Sri Kumar Manish S.C. 5 is allowed for filing counter affidavit so that final order may be passed 10. It goes without saying that before filing counter affidavit the respondent no. 4 Superintendent of Police Darbhanga may conduct a preliminary inquiry regarding the conduct of the police officer who had seized the vehicle of the petitioner and state all those facts in its counter affidavit which must be filed by 29th of November 2019. The affidavit must be sworn by the Superintendent of Police himself 11. It further goes without saying that if after considering all the facts including counter affidavit which is proposed to be filed the Court comes to the conclusion that the petitioner is entitled for claim of amount of compensation which has been referred hereinabove the said compensation amount must be recovered from the pocket of the police officer who was responsible for such illegal seizure.” Despite the same only before this Court when matters of similar nature came up for hearing on 16thof December 2019 the learned Advocate General assisted by Shri Vikash Kumar learned Standing Counsel 11 and Shri Vivek Prasad learned Government Pleader 7 vehemently opposed the petitions for release of the vehicles. Consequently the writ petitions were disposed of with the directions to the appropriate authorities to positively initiate conclude confiscatory proceedings within a period of 30 45 days Without adjudicating the petitioner’s petition on merits we are of the considered view that interest of justice would be best met if the petition is disposed of in the following terms: a) Since the vehicle in question stands seized in relation to the FIR which stood registered long ago in case confiscation proceeding has not been initiated it must be initiated within a period of 15 days from today and that confiscation proceeding stands initiated we direct the appropriate authority under the Act to forthwith ensure that such proceedings be concluded not later than 30 days. b) The petitioner undertakes to make Patna High Court CWJC No.64020 dt.06 11 2020 himself available in the office of the concerned appropriate authority empowered under Section 58 of the Act i.e. District Collector in his her office on 24.01.2020 at 10:30 A.M c) We further direct the appropriate authority to positively conclude the confiscation proceeding within next thirty days on appearance of the petitioner. If for whatever reason such proceeding cannot be concluded in that event it shall be open for the authority to take such measures as are permissible in law for release of the vehicle in question by way of interim measure on such terms as may be deemed appropriate considering the attending facts and circumstances of the case d) If eventually the appropriate authority arrives at a conclusion that the property is not liable to be confiscated it shall be open for the petitioner to seek damages in accordance with law and have appropriate the erring initiated against Learned counsel for the petitioner states that the certified copy of the order shall be made available to the concerned District Collector on the date so fixed. For future guidance where parties have not approached this Court we issue the following direction: The expression “reasonable delay” used in Section 58 of Chapter VI of the Act in our considered view necessarily has to be within a reasonable time and with dispatch which period in our considered view three months time is sufficient enough for any authority to adjudicate any issue more so when we are dealing with confiscatory proceedings. We clarify that we have not adjudicated the writ petition on merits and it shall be open for the parties to take all stand in the adjudicatory proceedings and wherever parties are aggrieved it shall be open to them to initiate appropriate proceeding before the appellate Learned counsel for the State also undertakes to communicate the order to the concerned appropriate authority i.e. District Magistrate empowered under Section 58 of the Act.” C.W.J.C. No 171619 order dated 14.1.2020 bearing Registration No. BR 06G 4211 which has been seized in connection with Taukauliya P.S.Case No. 7018 for the offences punishable under Sections 272 273 34 of the Indian Penal Code and Sections 30(a) 38(1) 41(1)of the Bihar Prohibition and Excise Act 2016. It is continued practice of this Court that in cases of drunken driving no recovery from the vehicle recovery of less than commercial quantity where ex facie vehicle is not liable to be confiscated where there is inordinate delay in initiating proceedings for confiscation of the vehicle etc. this Court has been directing the State to provisionally release vehicle property subject to initiation conclusion finalisation of the confiscatory proceedings as the case may be. Reference can be made to the judgments orders passed by different co ordinate Benches of this Court viz: i) Judgement dated 22.03.2018 passed in CWJC No.50418 titled as Diwakar Kumar Singh versus The State of Bihar & Ors. ii) order dated 31.07.2018 passed in CWJC No.13162 of 2018 titled as Rajesh Kumar Pandit @ Rajesh Pandit Vs. The State of Bihar iii) order dated 31.07.2018 passed in CWJC No.142418 titled as Amar Kumar Vs The State of Bihar & Ors. iv) order dated 12.02.2018 passed in CWJC No.24318 titled as Mahendra Manjhi Vs. The State of Bihar & Ors. v) judgement dated 12.02.2018 passed in CWJC No.24718 titled as Laxman Das Lakshman Ravidas Vs. The State of Bihar & Ors. vi) order dated 11.09.2017 passed in CWJC No.13158 of 2017 titled as Sanjay Kumar Versus The State of Bihar & Ors. vii) order dated 27.03.2018 passed in CWJC No.55218 titled as Bikash Kumar Vs The State of Bihar & Ors. viii) order dated 27.03.2018 passed in Patna High Court CWJC No.64020 dt.06 11 2020 CWJC No.5528 of 2018 titled as Bikash Kumar Versus The State of Bihar & Ors. ix) order dated 01.05.2018 passed in CWJC No.7755 of 2018 titled as Anandi Prasad Versus The State of Bihar & Ors. x) order dated 01.05.2018 passed in CWJC No.76418 titled as Suraj Ram Versus The State of Bihar & Ors. xi) order dated 07.08.2018 passed in CWJC No.154318 titled as Kalesar Chaudhari Versus the State of Bihar & Ors. xii) judgement dated 18.01.2019 passed in CWJC No.12119 titled as Raushan Kumar @ Raushan Kumar Singh Versus The State of Bihar & Ors. xiii) judgement dated 29.01.2019 passed in CWJC No.16219 titled as Asharfi Kumar @ Rakesh Kumar Versus the State of Bihar xiv) judgement dated 08.02.2019 passed in CWJC No.23819 titled as Avinash Kumar Versus the State of Bihar & Ors. xv) judgement dated 29.01.2019 passed in CWJC No.16419 titled as Roshan Kumar Versus The State of Bihar & Ors. and xvi) judgement dated 22.01.2019 passed in CWJC No.1314 of 2019 titled as Shanti Devi Versus The State of Bihar & Ors In fact in CWJC No. 5049 of 2018 titled as Diwakar Kumar Singh Versus the State of Bihar & Ors the Court issued the following directions: “That apart in the confiscation proceedings the confiscating authority shall take note of the provisions of Section 56 of the Bihar Prohibition and Excise Act 2016 and record a positive finding after hearing the petitioner as to whether when the petitioner is found or the vehicle is found to be used by a person in drunken condition and no liquor is seized from the vehicle or when the vehicle is not used for transportation of liquor whether the provision of Section 56 of the Act will apply. It shall be mandatory for the confiscating authority to decide this issue before passing any order on the confiscation proceedings. The confiscating authority shall consider the provision of Section 56 of the Act apply his mind and pass a speaking order with regard to confiscation initiated Without deciding the aforesaid issue as a preliminary Patna High Court CWJC No.64020 dt.06 11 2020 issue further proceedings in the confiscation proceedings shall be prohibited. We further request the office of the Advocate General to communicate this order to all the District Magistrates in the State of Bihar who would be mandated to pass an appropriate order in such cases where the vehicle has been confiscated under Section 56 of the Act only on the allegation that the vehicle was being driven in a drunken condition and no liquor was seized from the vehicle nor the vehicle used for transportation or carriage of liquor. The issue shall be decided by each and every District Magistrate before proceeding in the confiscation proceedings where the allegation is about the vehicle being driven in a drunken condition and no liquor was found from the possession of the vehicle. It shall be the duty of the Advocate General to communicate this order to each and every District Magistrate and inform the Registrar General of this Court. In spite thereof if we find that the District Magistrates are passing confiscation order without addressing this issue first we may consider initiating contempt proceedings against the concerned District It is further seen that in CWJC No.150019 titled as Shobha Devi Versus The State of Bihar & Ors.the Court observed as under: “6. On examination of aforesaid fact particularly allegation of the petitioner that in a court proceeding before the learned Special Judge Excise a false information was given we are of the opinion that the court of learned Special Judge Excise would be competent court to pass an appropriate order in view of provisions contained in Section 340 of the Code of Criminal Procedure 1973 7. Accordingly the petitioner is granted liberty to file appropriate petition before the learned Special Judge Excise for prosecuting the concerned 8. So far as claim of compensation is concerned obviously on going through the material on record since there was no recovery of liquor from the vehicle and it was a case in which the occupants of the vehicle were alleged to be in drunken condition and were creating nuisance though were liable to be arrested. In any event the vehicle was not required to be seized since it was not liable to be confiscated Patna High Court CWJC No.64020 dt.06 11 2020 9. In such situation we are of the opinion that it is a fit case in which we may direct to pay adequate compensation to the petitioner being owner of the vehicle to the tune of Rs.75 000 however Sri Kumar Manish learned Standing Counsel 5 requests for granting an opportunity for obtaining detailed instruction and filing counter affidavit in the matter. The request of Sri Kumar Manish S.C. 5 is allowed for filing counter affidavit so that final order may be passed 10. It goes without saying that before filing counter affidavit the respondent no. 4 Superintendent of Police Darbhanga may conduct a preliminary inquiry regarding the conduct of the police officer who had seized the vehicle of the petitioner and state all those facts in its counter affidavit which must be filed by 29th of November 2019. The affidavit must be sworn by the Superintendent of Police himself 11. It further goes without saying that if after considering all the facts including counter affidavit which is proposed to be filed the Court comes to the conclusion that the petitioner is entitled for claim of amount of compensation which has been referred hereinabove the said compensation amount must be recovered from the pocket of the police officer who was responsible for such illegal seizure.” and Shri Vivek Prasad Despite the same only before this Court when matters of similar nature came up for hearing on 16thof December 2019 the learned Advocate General assisted by Shri Vikash Kumar learned Standing Counsel 11 learned Government Pleader 7 vehemently opposed the petitions for release of the vehicles. Consequently the writ petitions were disposed of with the directions to the appropriate authorities to positively initiate conclude confiscatory proceedings within a period of 30 45 days Without adjudicating the petitioner’s petition on merits we are of the considered view that interest of justice would be best met if the petition is disposed of in the following terms: a) Since the vehicle in question stands seized in relation to the FIR which stood registered long ago in case confiscation proceeding has not been initiated it must be initiated within a period of 15 days from today and that confiscation proceeding stands initiated we direct the appropriate authority under the Patna High Court CWJC No.64020 dt.06 11 2020 Act to forthwith ensure that such proceedings be concluded not later than 30 days. b) The petitioner undertakes to make himself available in the office of the concerned appropriate authority empowered under Section 58 of the Act i.e. District Collector in his her office on 04.02.2020 at 10:30 A.M c) We further direct the appropriate authority to positively conclude the confiscation proceeding within next thirty days on appearance of the petitioner. If for whatever reason such proceeding cannot be concluded in that event it shall be open for the authority to take such measures as are permissible in law for release of the vehicle in question by way of interim measure on such terms as may be deemed appropriate considering the attending facts and circumstances of the case d) If eventually the appropriate authority arrives at a conclusion that the property is not liable to be confiscated it shall be open for the petitioner to seek damages in accordance with law and have appropriate the erring initiated against Learned counsel for the petitioner states that the certified copy of the order shall be made available to the concerned District Collector on the date so fixed. For future guidance where parties have not approached this Court we issue the following direction: The expression “reasonable delay” used in Section 58 of Chapter VI of the Act in our considered view necessarily has to be within a reasonable time and with dispatch which period in our considered view three months time is sufficient enough for any authority to adjudicate any issue more so when we are dealing with confiscatory proceedings. We clarify that we have not adjudicated the writ petition on merits and it shall be open for the parties to take all stand in the adjudicatory proceedings and wherever parties are aggrieved it shall be open to them to initiate appropriate proceeding before the appellate Learned counsel for the State also undertakes to communicate the order to the concerned appropriate authority i.e. District Magistrate empowered under Section 58 of the Act.” In Umesh Sahthis Court had clarified Patna High Court CWJC No.64020 dt.06 11 2020 that the expression “reasonable delay” under Section 58 of Chapter 6 of the Act has to be construed to be ‘not more than three months’. It is seen that despite our observations the appropriate authorities have not taken any action in initiating the proceedings for confiscation of the property under the Act. The litigants are thus forced to approach this Court by way of filing separate petitions Thus today we are left with two options either to initiate proceedings for contempt under the provisions of Contempt of Courts Act or under Article 215 of the Constitution of India or ask the Chief Secretary Government of Bihar to evolve a mechanism self serving in nature so as to ensure that the provisions of the Act are implemented in letter and spirit expeditiously without any delay and with reasonable dispatch Why is it that the owners of the property are forced to approach this Court for release of the vehicles or property Is it that there is no mechanism under the Act for initiating confiscatory proceedings at the earliest Is it that there is insufficient infrastructure with the State Government for ensuring implementation of the provisions of the Act Illustratively in the weekly list dated 27.1.2020 we notice that more than 75 cases stand filed and listed despite our order dated 9thof January 2020. In the instant case seizure is of the year 2019 and no proceedings of confiscation have commenced We are of the considered view that non implementation of the Act is generally having a very serious adverse consequence on the dispensation of administration of justice. And peculiarly it is only when the matter was taken up by the Bench hearing the petition bearing C.W.J.C. No. 252619on 17.12.2019that the State vehemently opposed release of the vehicle contrary to the practice adopted hitherto before. Be that as it may at this point in time we refrain from passing any order under the contempt jurisdiction but direct the Chief Secretary Government of Bihar to file his personal affidavit dealing with each one of the issues highlighted as also elaborately indicating the mechanism which the State has or desires to evolve so as to prevent the litigants from directly approaching the Court for release of the vehicle and also ensuring early completion of the proceedings be it confiscatory in nature or in an appellate jurisdiction under the provisions of the Bihar Prohibition and Excise Act Patna High Court CWJC No.64020 dt.06 11 2020 Let an affidavit in that regard be positively filed within one week. List this case on 6.2.2020.” Further this very Bench in CWJC No.61420 titled as Vishal Kumar Versus the State of Bihar & Anr on 04.06.2020 issued the following directions: “In the aforesaid decisions we have already laid down the time schedule within which all proceedings are necessarily required to be concluded and the outer limit is three months from the date on which this Court has directed the party to make himself available before the appropriate We clarify that petitioner undertakes to fully cooperate in the proceedings and we further clarify that in case the authorities are not able to conclude the proceedings within the time bound period the vehicle property shall be allowed to be released on such conditions as the appropriate authority may deem fit and proper. As such petition is disposed of making the directions contained in the orders referred to supra applicable mutatis mutandis insofar as applicable and possible to the petitioner’s case.” Learned counsel states that petition be disposed of in terms of the various orders passed by this Court more so the orders referred to supra. It is seen that till date in large number of cases position about conclusion of the proceedings be it under Section 58 92 or 93 remains the same. We further direct that all proceedings under Patna High Court CWJC No.64020 dt.06 11 2020 Section 58 must positively be initiated concluded within a period of ninety days from the date of appearance of the parties Further Appeal Revision if any be also decided within a period of thirty days from the date of initiation failing which the “things”shall be deemed to have been released in terms of several orders passed by this Court reference whereof stands mentioned in Bunilal Sah @ Munilal Wherever confiscatory proceedings stand concluded and parties could not file the appeal revision within the statutory period of limitation as already stands directed in several matters if they were to initiate such proceedings within next thirty days the plea of limitation would not come in their way of adjudication of such proceedings on merit. Petitioner through learned counsel undertakes to make himself available on 24.11.2020 at 10:30 A.M. before the appropriate authority which may be in the attending facts the Collector of the Darbhanga District Appellate or the Revisional Authority. If the Collector is not himself dealing with the matter on account of delegation of power or assignment of work to another officer of his District he shall fix a date directing the parties to appear before the said officer which date shall be not Patna High Court CWJC No.64020 dt.06 11 2020 exceeding one week. Also he shall inform the said authority of fixing of such date. We clarify that convenience of parties specially during the time of Pandemic Covid 19 is of prime importance and it shall be open for the authority to hear the parties with the use of technology i.e. Video Conferencing facility etc. Learned counsel for the State undertakes to communicate the order to all concerned including the District Magistrate and no certified copy of the order shall be required to be placed on the file of proceedings pending or initiated under the Act for such order is available on the official website of the High Court & can be downloaded and or verified from there in the times of current Pandemic Covid 19. We only hope and expect that the Authorities under the Act shall take appropriate action at the earliest and in accordance with law within the time schedule fixed failing which the vehicle property things liable for confiscation shall be deemed to have been released without any further reference to this Court. Liberty reserved to the petitioner to take recourse to such remedies as are otherwise available in accordance with law if the need so arises subsequently. Patna High Court CWJC No.64020 dt.06 11 2020 Petition stands disposed of with the aforesaid observations directions. Sanjay Karol CJ) ( S. Kumar J

Commissioner Of Income Tax Versus Visisth Chay Vypapar Ltd

The limitation period in case of a loan starts from the date of the loan, while it starts from the date of repayment in the case of deposit The assessee had placed Inter-Corporate Deposits (ICD) with Shaw-Wallace & Company (SWC). Before placing these ICDs with SWC, a Resolution was passed in the meeting of Board of the Directors of the assessee Company which was held on 11-10-1994. As per this Resolution, one of the Directors of the assessee Company Shri Champa Lal Pareek, informed the Board of Directors that Shri Pareikh was taking ICDs to fund its existing programmes. He thus mooted an idea that even the assessee Company can approach SWC for giving ICDs.Accepting this proposal of Mr. Pareek, the Board authorized Shri Pareek to negotiate and settle such terms and conditions as may be beneficial to the company for placing ICDs for a maximum amount of Rs.22 crores. Armed with this Resolution, Shri Pareek, on behalf of the company, wrote letter dated 1.11.1994 to SWC setting out the terms and conditions, rate of interest and the time period. SWC accepted the same vide letter dated 4th November, 1994. Based on this, a binding agreement was arrived at between the parties and subsequent thereto the assessee Company placed ICDs at ` 22 crores at the disposal of SWC.It is also recorded by the Tribunal in the impugned order that in order to stipulate the condition that the assessee company had placed at the disposal of SWP, ICDs, the assessee also filed number of documents in the form of TDS Certificates, accounts of SWC, the letter of SWC, affidavit of the assessing company, etc. In all these documents, the transaction in question was termed as Inter-Corporate Deposit.The assessee also informed that since SWC failed to return back, the said deposit, for recovery of the same, the assessee was forced to file Civil Suits in the High Court of Judicature at Calcutta. The suits were decreed in favour of the Assessee by the said Court. In the judgment and decree pronounced by Calcutta High Court, the aforesaid transaction was treated as in the nature of Inter-Corporate Deposit. On the basis of all these materials, the Tribunal came to conclusion that nature of transaction was that of „deposit‟ and not „loan‟. These are the findings of facts on which there is a final determination by the Income Tax Appellate Tribunal.ISSUE BEFORE THE COURT:Whether ITAT was correct in law in holding that the interest earned by the assessee from M/s SWC was not chargeable to interest tax u/s 5 of the Interest Tax Act?Whether amount given to M/s SWC were in the nature of loans and advances within the meaning of Section 2(7) of the Interest Tax Act?RATIO OF THE COURTOnly when this deposit is covered by section 2(7) of the Act, it will be chargeable interest tax under Section 5 of the Interest Tax Act. In any case, we would like to point out that there is a settled distinction between the loan and deposit. It is rightly held by the Tribunal, on the analysis of various judgments of our Courts which are referred to by Mr. Vohra as well and already noticed above, there are three main test between the loan and deposit. These are:-\A loan is payable immediately on receipt thereof as per the directions of the lender, while a deposit has a term for repayment, which may be a fixed date or it may be as per terms and conditions of the agreement,(ii) The loan is obtained at the request of the borrower while a deposit is made at the instance of the depositor andThe limitation period in case of a loan starts from the date of the loan, while it starts from the date of repayment in the case of deposit.These distinctions are brought out in a judgment rendered by this Court in Baidyanath Plastic Industries (P) Ltd. (supra) in the following words:- The assessee had placed Inter-Corporate Deposits (ICD) with Shaw-Wallace & Company (SWC). Before placing these ICDs with SWC, a Resolution was passed in the meeting of Board of the Directors of the assessee Company which was held on 11-10-1994. As per this Resolution, one of the Directors of the assessee Company Shri Champa Lal Pareek, informed the Board of Directors that Shri Pareikh was taking ICDs to fund its existing programmes. He thus mooted an idea that even the assessee Company can approach SWC for giving ICDs. Accepting this proposal of Mr. Pareek, the Board authorized Shri Pareek to negotiate and settle such terms and conditions as may be beneficial to the company for placing ICDs for a maximum amount of Rs.22 crores. Armed with this Resolution, Shri Pareek, on behalf of the company, wrote letter dated 1.11.1994 to SWC setting out the terms and conditions, rate of interest and the time period. SWC accepted the same vide letter dated 4th November, 1994. Based on this, a binding agreement was arrived at between the parties and subsequent thereto the assessee Company placed ICDs at ` 22 crores at the disposal of SWC. It is also recorded by the Tribunal in the impugned order that in order to stipulate the condition that the assessee company had placed at the disposal of SWP, ICDs, the assessee also filed number of documents in the form of TDS Certificates, accounts of SWC, the letter of SWC, affidavit of the assessing company, etc. In all these documents, the transaction in question was termed as Inter-Corporate Deposit. The assessee also informed that since SWC failed to return back, the said deposit, for recovery of the same, the assessee was forced to file Civil Suits in the High Court of Judicature at Calcutta. The suits were decreed in favour of the Assessee by the said Court. In the judgment and decree pronounced by Calcutta High Court, the aforesaid transaction was treated as in the nature of Inter-Corporate Deposit. On the basis of all these materials, the Tribunal came to conclusion that nature of transaction was that of „deposit‟ and not „loan‟. These are the findings of facts on which there is a final determination by the Income Tax Appellate Tribunal. Only when this deposit is covered by section 2(7) of the Act, it will be chargeable interest tax under Section 5 of the Interest Tax Act. In any case, we would like to point out that there is a settled distinction between the loan and deposit. It is rightly held by the Tribunal, on the analysis of various judgments of our Courts which are referred to by Mr. Vohra as well and already noticed above, there are three main test between the loan and deposit. These are:-\ These distinctions are brought out in a judgment rendered by this Court in Baidyanath Plastic Industries (P) Ltd. (supra) in the following words:- “Now the only question which remains to be determined is whether the repayment was towards ‘deposit’ or the same was towards ‘loan’. In order to determine this question it will be necessary to consider whether the meaning of the term ‘deposit’ ascribed by the Expln. to s. 269T includes the term ‘loan’ in its ambit. The distinction between the loan and the deposit is that in the case of the former it is ordinarily the duty of the debtor to seek out the creditor and to repay the money according to the agreement and in the case of the latter it is generally the duty of the depositor to go to the banker or to the depositee, as the case may be, and make a demand for it. This distinction was adopted by the Lahore High Court in the case of Gurcharan Das & Anr. vs. Ram Rakha Mal & Ors. AIR 1939 Lah 81. Similar view was expressed by a Division Bench of the Oudh High Court in the case of Chaturgun vs. Shahzady AIR 1930 Oudh 395. While drawing the distinction between the words ‘deposit’ and ‘loan’, the Court relied upon two earlier decisions of the Madras High Court in V. Balakrishnudu vs. Narayanaswamy Chetty 24 IC 852, and Kishtappa Chetty vs. Lakshmi Ammal 72 IC 842. In this regard it held as follows : “The word “deposit” as pointed out by the Madras High Court in V. Balakrishnudu vs. Narayanaswamy Chetty 24 IC 842 is derived from the Latin depositor, a technical word used in the Roman law of bailment for a bailment of a specific thing to be kept for the bailor and returned when wanted, as opposed to commodious where a specific thing is lent to the bailee to be used by him and returned. In popular language commodious is translated by the word “loan” and the distinction between deposit and loan is this : that a deposit is to be kept by the depositee for the depositor and the loan is to be kept by the borrower for himself. Thus I deposit my hat in the cloak room. My hat is not to be used by the depositee, but is to be kept for me and returned to me on my demand; but I lend my money to a friend and he can do what he likes with it as long as he returns it to me either on demand or at some specified time. It may be, as observed by Sir Walter Schwa be when Chief Justice of the Madras High Court, in Kishtappa Chetty vs. Lakshmi Ammal, 72 IC 842 that Art. 145 covers more than the depositor of Roman Law, and his Lordship observed that the framers of the Indian Limitation Act “meant to use simple and plain language,” but I take this to mean that the word “deposit” is used in the ordinary sense of the word in the English language, and as far as I am aware the word “deposit” does not cover a transaction of the nature of a loan. The transaction that we have to consider is a loan. The plaintiff lent the defendant these ornaments to be used by the latter in a religious procession. There was no question of trust or quasi-trust. It was a mere loan for the benefit of the borrower and in my opinion Art. 145 has no application”. It may also be noted that while Arts. 19 and 21 of the Limitation Act fix the period within which suit for recovery of loan can be filed, Art. 22 deals with the period of limitation for suit for money on account of deposit. The starting period of limitation under Arts. 19 and 21, on the one hand, and Art. 22, on the other, are different. Under Arts. 19 and 21 the cause of action in the case of money lent arises from the date of loan, whereas under Art. 22 the cause of action in the case of a deposit arises from the date of demand. Therefore, it is necessary to distinguish a deposit from a mere loan.” The aforesaid view was followed by this Court in CIT Vs. Vikramajit Singh (supra). We are of the opinion that expression “advance” occurring in Section 2 (7) alongwith the expression “loan” should take its colour from “loan” and cannot be given wider interpretation to include deposit as well. Otherwise, money deposits given in the form had been investments etc. would also qualify as “advances” and interest thereon would become exigible to Interest Tax Act. DECISION HELD BY COURT: ICD given by the assessee to M/s SWC was not in the nature of loan or advances within the meaning of Section 2 (7) of the Interest Act and, therefore, not chargeable to Interest Tax Act under Section 5 of the said Act. As a consequence, both the questions are answered in favour of the assessee and this appeal is accordingly dismissed.

IN THE HIGH COURT OF DELHI AT NEW DELHI ITA 689 OF 2009 ITA 712 OF 2009 ITA 765 OF 2009 1) ITA 689 OF 2009 COMMISSIONER OF INCOME TAX Judgment reserved on: 21.7.2011 Judgment Delivered On: 30.8.2011 . . . APPELLANT Through: Ms. Suruchi Aggarwal Advocate VISISTH CHAY VYPAPAR LTD. . ..RESPONDENT Through: Mr. Ajay Vohra Advocate with Ms. Kavita Jha and Mr. Somnath Shukla 2) ITA 712 OF 2009 COMMISSIONER OF INCOME TAX Through: Ms. Suruchi Aggarwal Advocate . . . APPELLANT VISISTH CHAY VYPAPAR LTD. . ..RESPONDENT Through: Mr. Ajay Vohra Advocate with Ms. Kavita Jha and Mr. Somnath Shukla 3) ITA 765 OF 2009 COMMISSIONER OF INCOME TAX Through: Ms. Suruchi Aggarwal Advocate . . . APPELLANT VISISTH CHAY VYPAPAR LTD. . ..RESPONDENT Through: Mr. Ajay Vohra Advocate with Ms. Kavita Jha and Mr. Somnath Shukla ITA 689 OF 2009 712 OF 2009 765 OF 2009 CORAM : HON‟BLE MR. JUSTICE A.K. SIKRI HON‟BLE MR. JUSTICE M.L. MEHTA 1. Whether Reporters of Local newspapers may be allowed to see the Judgment To be referred to the Reporter or not 3. Whether the Judgment should be reported in the Digest A.K. SIKRI J. In these three appeals the assessee as well as the questions of law which arose is common. The appeals are admitted on the following substantial question of law: ”(i) Whether ITAT was correct in law in holding that the interest earned by the assessee from M s SWC was not chargeable to interest tax u s 5 of the Interest Tax Act ii) Whether amount given to M s SWC were in the nature of loans and advances within the meaning of Section 2(7) of the Interest Tax Act The aforesaid questions have arisen for consideration under the following factual backdrop. The assessee had placed Inter Corporate Deposits with Shaw Wallace & Company of the Act. The Question of Law No.2 relate to this aspect. Only when this deposit is covered by section 2(7) of the Act it will be chargeable interest tax under Section 5 of the Interest Tax Act. Both these provisions are reproduced below: In this Act unless the context otherwise requires 7) interest means interest on loans and advances made in India and includes commitment charges on unutilised portion of any credit sanctioned for being availed of in India discount on promissory notes and bills of exchange drawn or made in India but does not interest referred to in sub section of section 42 of the Reserve Bank of India Act 1934ITA 689 OF 2009 712 OF 2009 765 OF 2009 discount on treasury bills ] prescribed means prescribed by rules made under Section 5 of the Interest Act states as under: “Scope of chargeable interest subject to the provisions of this Act the chargeable interest of any previous year of a credit institution shall be the total amount of interest accruing or arising to the credit institution in that previous year.” According to Ms. Suruchi Aggarwal learned counsel appearing for the Revenue the chargeable interest is one which accrues or arises to the credit institution in the previous year and that is liable for tax. The only exception is that carved out is when the interest is earned on loan or advance made to other credit institutions or to any cooperative society engaged in carrying out the business of bank. In the present case the assessee had taken monies from M s SWC and had shown interest earned accrued thereupon in its profit and loss account M s SWC had even deducted tax at source on this interest income which had been taken by the assessee in the Income Tax Return. Therefore following the mercantile principle of accounting the assessee itself had on accrual basis shown the said interest income in the profit and loss account and thus the assessee was liable to interest tax as well. She also submitted ITA 689 OF 2009 712 OF 2009 765 OF 2009 that in the appeal preferred by the assessee before the CIT the only basis for seeking commission from interest tax was loans and advances were made by the assessee to M s SWC which itself was a credit institution and the said contention was rejected as no evidence was adduced to substantiate that SWC was a finance company. She also referred to the reasoning of the CITholding that ICD would fall within the ambit of expression “loan and advances”. According to the CIT the distinction between loan and deposit crucially depends on the needs of lender and receiver and the factum of use of funds by the receiver. The needy person approaches the lender for seeking loan at the terms of the lender while in the case of deposit it is the depositor who goes to the depositee for investing his money primarily with the intention to earn interest. These two elements constitute the crux of the distinction between loan and deposit. The question whether a deposit amount to a loan depends upon the terms of the contract under which the deposit is made concluded that on the basis of various correspondences exchanged between the assessee and SWC the term “Inter Corporate Deposit” had been used ornamentally. The CIT formed the opinion that from the correspondences it was clear that the assessee had lent money to M s SWC for helping the borrower to tide over its short term liquidity crunch. The needy person in this transaction was definitely M s Shaw Wallace & Co. Ltd. The terms of contract was decided by the lender. The nomenclature of “inter corporate deposit” was used ornamentally in various correspondences without taking into account the substance of the term. Therefore the cumulative effect of the evidence confirmed the fact that the transaction between the appellant company and M s Shaw Wallace & Co. Ltd. is not deposit but a loan. 7. Mrs. Aggarwal strongly relied upon the aforesaid reasoning of the CIT154. 8. Mr. Vohra learned counsel for the Assessee countered the aforesaid submissions. In addition to relying upon the impugned decision of ITAT wherein it is held that the deposit is different from the loan or advance and the expression „loan‟ would not include deposit. He has also referred to various other judgments by which this very issue has been decided by various courts. ITA 689 OF 2009 712 OF 2009 765 OF 2009 9. We find that the Tribunal in support of its conclusion has referred to the judgment of this Court in Baidyanath Plastic IndustriesLtd. and Others v K.L. Anand Income Tax Officer230 ITR 522 and that of High Court of Judicature at Allahabad in CIT v Sahara India Saving & Investment Corporation264 ITR 646. In addition Mr. Vohra has referred to the following judgments: i) CIT v Vikramajit Singh: 292 ITR 274ii) CIT v Lakshmi Vilas Bank Ltd: 228 ITR 69710. Mr. Vohra has gone to the extent of arguing that the interest on securities is held to be not taxable under Section 2(7) of the Interest Tax Act as held by the Supreme Court in CIT Vs. Corp. Bank and other 295 ITR 193(SC) which judgment is followed by the Apex Court in CIT Vs. Ratnakar Bank Ltd. 306 ITR 257 wherein it has been held that the expression „loan‟ under Section 2(7) has to be given strict interpretation and the words included thereunder namely „deposit‟ in the instant case could not be covered by Legislative interpretation. 11. We have considered the submissions of counsel for both the parties. 12. We have already stated that the Tribunal has recorded a finding of fact on the basis of analysis of various documents that transaction in ITA 689 OF 2009 712 OF 2009 765 OF 2009 ice. question between the assessee and M s SWC was in the nature of deposit and not loan. For this purpose the Tribunal referred to the judgment and decree passed by the Calcutta High Court in the suits filed by the assessee for recovery of the amount in question from M s SWC where judicial recognition is given to the said amount treating as in Inter Corporate Deposit. Therefore the reliance placed by the learned counsel for the Revenue on the reasoning on the finding given by the CITthat transaction in question was that of loan and not deposit would not cut any In fact the entire decision of the CIT rested on this aspect namely transaction between the assessee and M s SWC was treated as loan and not deposit and on this premise it was held that interest earned on said loan would be covered by the provisions of section 2 of the Interest Act. Once we find that it was a deposit and loan in fact no further discussion is even required. In any case we would like to point out that there is a settled distinction between the loan and deposit. It is rightly held by the Tribunal on the analysis of various judgments of our Courts which are referred to by Mr. Vohra as well and already noticed above there are three main test between the loan and deposit. These are: ITA 689 OF 2009 712 OF 2009 765 OF 2009 A loan is payable immediately on receipt thereof as per the directions of the lender while a deposit has a term for repayment which may be a fixed date or it may be as per terms and conditions of the agreement The loan is obtained at the request of the borrower while a deposit is made at the instance of the depositor and iii) The limitation period in case of a loan starts from the date of the loan while it starts from the date of repayment in the case of deposit. 15. These distinctions are brought out in a judgment rendered by this Court in Baidyanath Plastic IndustriesLtd.in the following words: “Now the only question which remains to be determined is whether the repayment was towards deposit or the same was towards loan . In order to determine this question it will be necessary to consider whether the meaning of the term deposit ascribed by the Expln. to s. 269T includes the term loan in its ambit. The distinction between the loan and the deposit is that in the case of the former it is ordinarily the duty of the debtor to seek out the creditor and to repay the money according to the agreement and in the case of the latter it is generally the duty of the depositor to go to the banker or to the depositee as the case may be and make a demand for it. This distinction was adopted by the Lahore High Court in the ITA 689 OF 2009 712 OF 2009 765 OF 2009 case of Gurcharan Das & Anr. vs. Ram Rakha Mal & Ors. AIR 1939 Lah 81. Similar view was expressed by a Division Bench of the Oudh High Court in the case of Chaturgun vs. Shahzady AIR 1930 Oudh 395. While drawing the distinction between the words deposit and loan the Court relied upon two earlier decisions of the Madras High Narayanaswamy Chetty 24 IC 852 and Kishtappa Chetty vs. Lakshmi Ammal 72 IC 842. In this regard it held as follows : The word "deposit" as pointed out by the Madras High Court in V. Balakrishnudu vs. Narayanaswamy Chetty 24 IC 842 is derived from the Latin depositor a technical word used in the Roman law of bailment for a bailment of a specific thing to be kept for the bailor and returned when wanted as opposed to commodious where a specific thing is lent to the bailee to be used by him commodious is translated by the word "loan" and the distinction between deposit and loan is this : that a deposit is to be kept by the depositee for the depositor and the loan is to be kept by the borrower for himself. Thus I deposit my hat in the cloak room. My hat is not to be used by the depositee but is to be kept for me and returned to me on my demand but I lend my money to a friend and he can do what he likes with it as long as he returns it to me either on demand or at some specified time. It may be as observed by Sir Walter Schwa be when Chief Justice of Kishtappa Chetty vs. Lakshmi Ammal 72 IC 842 that Art. 145 covers more than the depositor of Roman Law and his Lordship observed that the framers of the Indian Limitation Act "meant to use simple and plain language " but I take this to mean that the word "deposit" is used in the ordinary the Madras High Court ITA 689 OF 2009 712 OF 2009 765 OF 2009 sense of the word in the English language and as far as I am aware the word "deposit" does not cover a transaction of the nature of a loan. The transaction that we have to consider is a loan. The plaintiff lent the defendant these ornaments to be used by the latter in a religious procession. There was no question of trust or quasi trust. It was a mere loan for the benefit of the borrower and in my opinion Art. 145 has no application". It may also be noted that while Arts. 19 and 21 of the Limitation Act fix the period within which suit for recovery of loan can be filed Art. 22 deals with the period of limitation for suit for money on account of deposit. The starting period of limitation under Arts. 19 and 21 on the one hand and Art. 22 on the other are different. Under Arts. 19 and 21 the cause of action in the case of money lent arises from the date of loan whereas under Art. 22 the cause of action in the case of a deposit arises from the date of demand. Therefore it is necessary to distinguish a deposit from a mere loan.” 16. The aforesaid view was followed by this Court in CIT Vs. Vikramajit Singhand A.M. Shamsuddin Vs. UOI & Ors. 244 ITR 26617. Once we find that monies given by the assessee to SWC did not fulfill the aforesaid criteria thereby bringing it within the expression ITA 689 OF 2009 712 OF 2009 765 OF 2009 “loan” the question of applicability of Section 2of the Interest Tax Act would not arise. 18. Section 2 of the Act uses the expression “loan and advances”. Therefore we have also to determine is as to whether the said deposit in the form of ICD can be treated as “advance” so as to attract the provisions of Section 2 of the Act. We are of the opinion that expression “advance” occurring in Section 2alongwith the expression “loan” should take its colour from “loan” and cannot be given wider interpretation to include deposit as well. Otherwise money deposits given in the form had been investments etc. would also qualify as “advances” and interest thereon would become exigible to Interest Tax Act. such a situation was never contemplated by the Legislature. In fact in Corporation Bank and Ors. the Supreme Court has specifically held that interest on securities is not taxable under Section 2 of the Interest Tax Act which view is rendered in the case of CIT Vs. Ratnakar Bank Ltd.(supra). 19. We also find that wherever Legislature has intended that deposit be treated as loan specific statutory provision is made in this behalf. Section 372A of the Act is one such example. ITA 689 OF 2009 712 OF 2009 765 OF 2009 20. The aforesaid discussion led us to hold that ICD given by the assessee to M s SWC was not in the nature of loan or advances within the meaning of Section 2 of the Interest Act and therefore not chargeable to Interest Tax Act under Section 5 of the said Act. As a consequence both the questions are answered in favour of the assessee and this appeal is accordingly dismissed. JUDGE JUDGE AUGUST 30 2011 ITA 689 OF 2009 712 OF 2009 765 OF 2009

Court dismisses the criminal appeal filed under section 482 Cr.P.C. to quash the order of the Sessions Court: Karnataka High Court

The criminal appeal is filed under section 482 of CR.P.C ( speaks about High court can’t pass adverse order or observations against third party) praying to quash the order which was passed by Additional and session judge for illegally transporting alcohol from one state to another. But the petition was dismissed by the High court of Karnataka through the learned bench led by the Honourable MR. K Natrajan in the case Madhu transport company vs the authority officer ( criminal petition no. 2382 of 2022) on 20th December 2022. Facts of the case are that the Excise Department has seized the lorries belonging to the petitioners while transporting the spirit and registered a case on 20.01.2019 so also FIR in 122/2018-19 for carrying “Extra Netural Alcohol” (Spirit) from Madhya Pradesh to Kumbalgod, Karnataka. During the pendency of the investigation, the Excise Department took up the proceedings under Section 43-A of the Karnataka Excise Act, 1965 and confiscated the vehicles belonging to the petitioners including the spirit vide order dated 15.02.2020.  Aggrieved by the said order of confiscation, petitioners being the transporters filed an appeal before the Additional District & Sessions Judge, Tumakuru, however, the Dist & Sessions Judge has allowed for releasing the vehicles to the petitioners but, has directed for destroying the spirit as unfit for human consumption. Therefore, the petitioners are appeared before this court. Arguments presented by the learned counsel appearing for petitioner that the criminal proceedings against these two petitioners have already been quashed by a Co-ordinate Bench of this court and there is no case against these petitioners. These petitioners are running lorry transport. They have carried the spirit for their living and there is no intention of transporting for commission of offence. Arguments presented by the learned High court government pleader appearing for respondent the impugned order calls for no interference by this Court as it is legal and valid. After hearing both the counsels and records presented by them before the honourable court that it is not in dispute that the vehicles bearing registration nos.UP-15-AT-8941 and UP-15BT-8611 belong to the petitioners. The two trucks which was plying from Madhya Pradesh to Kumbalgod at Bengaluru, Karnataka carrying, were seized. A case was registered against the accused persons including the petitioners, distillery owner as well as the buyer. Petitioners 1 and 2 are the transporters who were hired on contract for carrying the spirit as ordered by the customers or the distillery owner. There is no offence committed by them except lending the vehicles for rent. Such being the case, the Co-ordinate bench of this Court has quashed the criminal proceedings against the petitioners dated 18.07.2019. That apart, the proceedings against the petitioners under Section 43-A of the Act has been taken up by the Authorised Officer and the vehicles as well as the spirit were confiscated. The First Appellate Court rightly set-aside the order of the Excise Department confiscating the lorries and ordered for release which has ended in finality. But, the First Appellate Court has directed the authority to destroy the spirit. Even the buyer and supplier of sprit has not come forward to challenge the order passed by the session judge. And the petitioners who have lent the truck for carrying the sprits, have no authority or ownership over the spirit and it cannot be returned to them. The Excise Department rightly confiscated the spirit under Section 43-A of the Act and First Appellate Court has rightly ordered to destroy the spirit as it is hazardous to the health and unfit for human consumption.If at all the supplier or the buyer had come forward seeking any counter claim of the spirit, the Court could have Considered it. But they have not challenged the same and the petitioners have no ownership over the spirit and have no authority to challenge the impugned order. The spirit was seized on 20.01.2019 and three years have elapsed as on today. Definitely the spirit becomes spurious and dangerous to life. Therefore, it has to be destroyed as per law passed by the session court. And the petition is dismissed by the high court of Karnataka and also contended that the petitioner are not liable to pay the value of the sprits. 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 K.NATARAJAN CRIMINAL PETITION No.2382 2021 1. MADHU TRANSPORT COMPANY RAJNISH JAIN BY ITS PARTANER SHREYAS JAIN S O RAJNEESH JAIN AGED ABOUT 34 YEARS NO.750 BARAL PARTAPUR MEERUT UTTAR PRADESH 250 103. THROUGH POWER OF ATTORNEY HOLDER TARUN KUMAR S O RAMESH KUMAR AGED ABOUT 33 YEARS R AT NO.184 SHAKYAPURI MEERUT UTTAR PRADESH 2. M S JAIN BULK CARRIER A PARTNERSHIP FIRM REPRESENTED BY SHRI GAUTHAM JAIN S O SUBASH CHAND JAIN AGED ABOUT 43 YEARS NEAR BHADHUR MOTORS DELHI ROAD MEERUT UTTAR PRADESH THROUGH POWER OF ATTORNEY HOLDER ANSHUL GUPTA S O SATHISH CHAND GUPTA AGED ABOUT 38 YEARS R AT NO.A.44 FLAT NO.5 PRATHAP VIHAR COLONY DELHI RAOD NEAR MADHAVA PURAM MEERUT UTTAR PRADESH. PETITIONERS 2 BY SRI G K BHAT SENIOR COUNSEL FOR SMT SUDHA D ADV.) THE AUTHORISED OFFICER AND DEPUTY COMMISSIONER OF EXCISE TUMKUR DISTRICT TUMKUR 572 101. BY SRI ROHITH B J HCGP) ..RESPONDENT THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 CR.P.C. PRAYING TO QUASH THE ORDER DATED 05.12.2020 PASSED BY TEH HONOURABLE II ADDITIONAL DISTRICT AND SESSIONS JUDGE TUMAKURU DISTRICT IN CRL.A.NO.36 2020 AS PER ANNEXURE B INSOFAR AS IT RELATES TO DIRECTION TO CONFISCATE THE EXTRA NEUTRAL SPIRIT LOADED IN THE VEHICLES BEARING REGISTRATION NO.UP 15 AT 8941 AND UP 15 BT 8611. CRIMINAL PETITION COMING ON FOR ADMISSION THROUGH VIDEO CONFERENCING THIS DAY THE COURT MADE THE FOLLOWING: This petition is filed by the petitioners appellant Nos.1 and 2 under Section 482 Cr.P.C. being aggrieved by the order passed by the II Addl. District and Sessions Judge Tumakuru in Crl.A.36 2020 directing respondent to destroy the spirit which was seized by the authorities on registering the case against the petitioners and others. 2. Heard the learned counsel for the petitioners and the learned HCGP. 3. The case of the petitioners is that Excise Department is said to have seized the lorries belonging to the petitioners while transporting the spirit and registered case on 20.01.2019 so also FIR in 122 2018 19 for carrying "Extra Netural Alcohol" from Madhya Pradesh to Kumbalgod Karnataka. During the pendency of the investigation the Excise Department took up the proceedings under Section 43 A of the Karnataka Excise Act 1965 and confiscated the vehicles belonging to the petitioners including the spirit vide order dated 15.02.2020 in No.EXE AOC 14 2018 19. Aggrieved by the said order of confiscation petitioners being the transporters filed an appeal before the II Addl. Dist. & Sessions Judge Tumakuru however the Dist & Sessions Judge has allowed for releasing the vehicles to the petitioners but has directed for destroying the spirit as unfit for human consumption. Therefore the petitioners are before this 4 4. Learned counsel for the petitioners contended that the criminal proceedings against these two petitioners have already been quashed by a Co ordinate Bench of this Court and there is no case against these petitioners. These petitioners are running lorry transport. They have carried the spirit for freight and there is no intention of transporting for commission of offence. Considering this fact the High Court quashed the criminal proceedings. The First Appellate Court i.e. Sessions Court committed error in ordering for destroying the spirit instead of returning to the petitioners as in turn petitioners are liable to return the spirit to either the distillery owner or the buyer. Therefore prayed for setting aside the order. 5. Per contra learned HCGP submitted that the impugned order calls for no interference by this Court as it is legal and valid. 6. On hearing the arguments and on perusal of the records it is not in dispute that the vehicles bearing Regn. Nos.UP 15 AT 8941 and UP 15BT 8611 belong to the petitioners. The two trucks which was plying from Madhya pradesh to Kumbalgod at Bengaluru Karnataka carrying 5 spirit were seized. A case was registered against the accused persons including the petitioners distillery owner as well as the buyer. Petitioners 1 and 2 are the transporters who were hired on contract for carrying the spirit as ordered by the customers or the distillery owner. There is no offence committed by them except lending the vehicles for rent. Such being the case the Co ordinate Bench of this Court has quashed the criminal proceedings against the petitioners in Crl.P.No.3424 2019 dated 18.07.2019. That apart the proceedings against the petitioners under Section 43 A of the Act has been taken up by the Authorised Officer and the vehicles as well as the spirit were confiscated. The First Appellate Court rightly set aside the order of the Excise Department confiscating the lorries and ordered for release which has ended in finality. But the First Appellate Court has directed the authority to destroy the spirit which is under challenge. 7. The petitioners counsel submit that they have carried the spirit for rental purpose and that if the spirit is not returned the petitioners will be prosecuted and liable for payment of the value of the spirit. 6 8. This contention of the counsel for the petitioner cannot be accepted for the reason that the owner i.e. buyer of the spirit or the supplier i.e. the distillery owner have not come forward for seeking release of the spirit and they are also facing the trial before the trial Court and they have not challenged either the charge sheet or confiscation of the spirit. The petitioners who have only lent the lorrries trucks for carrying the spirit have no authority or ownership over the spirit and it cannot be returned to the petitioners transporters. The Excise Department rightly confiscated the spirit under Section 43 A of the Act and First Appellate Court i.e. Sessions Court has rightly ordered to destroy the spirit as it is hazardous to the health and unfit for human consumption. If at all the distillery owner or the buyer had come forward seeking any counter claim of the spirit the Court could have considered it. But they have not challenged the same and the petitioners have no ownership over the spirit and have no authority to challenge the impugned order. The spirit was seized on 20.01.2019 and three years have elapsed as on today. Definitely the spirit becomes spurious and dangerous to life. Therefore it has to be destroyed as per 7 law. Therefore I do not find any error in the order dated 05.12.2020 passed by the II Addl. Dist & Sessions Judge at Tumakuru in Crl.A.36 2020 ordering to destroy the spirit which was seized by the Excise Department. However it is pertinent to note that the petitioners cannot be made liable for any payment of value of the spirit to either the distillery owner or the buyer as they are involved in crime. Hence the following: The petition is dismissed. There shall not be any liability on the petitioner in respect of the value of the spirit and the order dated 05.12.2020 passed by the II Addl. Dist & Sessions Judge at Tumakuru in Crl.A.36 2020 ordering for destroying the spirit is hereby confirmed. JUDGE Sd

The attempt to commit an offence begins when the accused commences an act with the necessary intention to execute it: Jharkhand High Court

Attempt to commit an offence can be said to begin when the preparations are complete and the culprit commences to do something, which is a step towards the commission of the offence. It has also been held that the moment he commences to do an act with the necessary intention, he commences his attempt to commit the offence and mere intention to commit an offence, not followed by any act, cannot constitute an offence. The judgement was passed by the High Court of Jharkhand in the case of Mathura Thakur v. The State of Jharkhand [Cr. Rev. No. 228 of 2012] by Single Bench consisting of Hon’ble Justice Anubha Rawat Choudhary. The case was registered under Sections 376/511 of the Indian Penal Code against the petitioner. After completion of the investigation, a charge-sheet was submitted against the petitioner under the same sections and cognizance of the offence was taken against him under the same sections, the case was committed to the Court of Sessions for trial and disposal. Wherein the petitioner was held guilty and convicted under Sections 376/511 of the Indian Penal Code and was sentenced to undergo Rigorous Imprisonment for 07 years and to pay a fine. The learned counsel for the petitioner submitted that the basic ingredients for the offence of attempt to commit rape are not satisfied in the present case and as such, the offence under Sections 376/511 of the Indian Penal Code is not made out against the petitioner and the present case, at best, maybe a case under Section 354 of Indian Penal Code. The learned counsel further submitted that without prejudice to the aforesaid submissions, the present case is the first offence of the petitioner and the petitioner is already out of employment and the learned courts below have refused to give the benefit of Probation of Offenders Act, 1958 to the petitioner. The learned counsel for the respondent, on the other hand, while opposing the prayer submitted that there are consistent findings recorded by the learned courts below and there is no scope for re-appreciation of evidence and coming to a different finding. He further submitted that there is no illegality, perversity or impropriety in the impugned judgments calling for any interference in revisional jurisdiction. The learned counsel also submitted that considering the nature of the offence, the petitioner is not entitled to the benefit of the Probation of Offenders Act, 1958 and this criminal revision petition is fit to be dismissed.

IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr. Rev. No. 2212 Mathura Thakur Son of Late Bandhu Thakur resident of Bhanwra 6 Number P.O. & P.S. Jorapokhar District Dhanbad The State of Jharkhand Versus … Opposite Party … … CORAM: HON BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY Mr. Sanjay Kumar Pandey Advocate Mr. Manoj Kumar Mishra A.P.P. For the Petitioner For Opp. Party State Through Video Conferencing JUDGMENT C.A.V. on 17 04 2021 Pronounced on 06 05 2021 1. Heard Mr. Sanjay Kumar Pandey the learned counsel appearing on behalf of the petitioner. 2. Heard Mr. Manoj Kumar Mishra the learned A.P.P. appearing on behalf of the Opposite Party State. The present criminal revision petition is directed against the Judgment dated 31.01.2005 passed by the learned Addl. Sessions Judge VIII Dhanbad in Criminal Appeal No. 166 1994 whereby and whereunder the conviction and sentence of the petitioner under Section 376 511 of the Indian Penal Code passed by the learned trial court was affirmed and the appeal was dismissed. The petitioner had preferred the criminal appeal against the Judgment of conviction and the order of sentence dated 03.10.1994 passed by the learned 1st Assistant Sessions Judge Dhanbad in Sessions Trial No. 2485whereby and whereunder the petitioner was held guilty and convicted under Sections 376 511 of the Indian Penal Code and was sentenced to undergo Rigorous Imprisonment for 07 years and to pay fine of Rs.5 000 and in default in payment of fine to undergo Rigorous Imprisonment for a further period of 01 month. Arguments on behalf of the petitioner The learned counsel appearing on behalf of the petitioner while advancing his arguments submitted that the incident is of 07.03.1985 at about 11:00 P.M. and the fardbeyan was recorded on 08.03.1985 at about 05:00 P.M. and the F.I.R was registered on 09.03.1985 at 8:45 A.M. under Sections 376 511 of Indian Penal Code. The charge sheet was submitted on 22.03.1985 and charge was framed on 03.07.1989 under the aforesaid Sections. The learned counsel further submitted that although 6witnesses were cited in the charge sheet of the case but only 5 five) were examined and the Investigating Officer of the case was not examined. He also submitted that except P.W. 5 rest witnesses are interested witnesses. P.W. 4 is the informant of the case and the mother of the victims but she herself is a hearsay witness as she has stated in her evidence that she was sleeping inside the room and came out of the room upon alarm raised by the victim. He further submitted that P.W. 1 is the father of the victims who was admittedly not present at the time and place of the occurrence and it was the mother who had narrated the entire incident to the father and accordingly the father and mother both are hearsay witnesses. He further submitted that P.W. 5 is also not the eye witness to the occurrence and she had arrived at the place of occurrence when alarm was raised by the informant and other witnesses. The learned counsel submitted that P.W. 2 and P.W. 3 are the victim witnesses of the case. He further submitted that only one exhibit i.e. the fardbeyan has been exhibited in the case as Exhibit 1 and the F.I.R. itself has not been proved. He also submitted that the Investigating Officer of the case has not been examined and due to non examination serious prejudice has been caused to the petitioner and there are material contradictions in the evidence of the prosecution witnesses. He further submitted that the aforesaid aspects of the case have not been properly considered by the learned courts below. The learned counsel further submitted that the basic ingredients for the offence of attempt to commit rape are not satisfied in the present case and as such the offence under Sections 376 511 of the Indian Penal Code is not made out against the petitioner and the present case at best may be a case under Section 354 of Indian Penal Code. The learned counsel for the petitioner referred to the judgments passed by the Hon’ble Supreme Court in the cases of “Aman Kumar and Another vs State of Haryana” reported in 2004) 4 SCC 379 Paragraph Nos.11 13 and 14 “Tarkeshwar Sahu vs State of Bihar8 SCC 560 and “Koppula Venkat Rao vs State of A.P.” reported in 2004) 3 SCC 602 in support of his contentions and submitted that at best the offence under Section 354 of Indian Penal Code is made out against the petitioner. The learned counsel further submitted that the incident of the present case is of the year 1985 and at that point of time the maximum punishment for offence under Section 354 of Indian Penal Code was 02 years. He also submitted that the petitioner was in jail custody from 10.03.1985 to 19.03.1985 at pre trial stage and during the pendency of the present criminal revision petition he had surrendered before the learned court below on 16.02.2012 and this Hon’ble Court vide order dated 25.09.2012 had granted bail to the petitioner and thereafter release order of the petitioner was forwarded to L.N.J.P. Central Jail on 18.10.2012 and accordingly the petitioner has already remained in jail custody for 08 months 12 days. The learned counsel submitted that as per the judgment of conviction the petitioner was 35 years of age on 03.10.1994 and accordingly the present age of the petitioner would be more than 60 years. 10. The learned counsel further submitted that without prejudice to the aforesaid submissions the present case is the first offence of the petitioner and the petitioner is already out of employment and the learned courts below have refused to give the benefit of Probation of Offenders Act 1958 to the petitioner. 11. During the course of arguments it has not been disputed that the petitioner was in total denial of the incident while recording his statements under Section 313 of Cr.P.C. and no evidence was led by the petitioner in his defence. Arguments on behalf of the Opposite Party State 12. The learned A.P.P. appearing on behalf of the Opposite Party State on the other hand while opposing the prayer submitted that there are consistent findings recorded by the learned courts below and there is no scope for re appreciation of evidences and coming to a different finding. He further submitted that there is no illegality perversity or impropriety in the impugned judgments calling for any interference in revisional jurisdiction. The learned counsel also submitted that considering the nature of offence the petitioner is not entitled to the benefit of the Probation of Offenders Act 1958 and this criminal revision petition is fit to be dismissed. Findings of this Court 13. The prosecution case is based on the fardbeyan of the Informant recorded by S.I. S. Khan of Bhowra O.P. on 08.03.1985 at 17:00 hours alleging inter alia that on 07.03.1985 at about 11:00 P.M. the Informant was sleeping inside her house and her children namely Tunni Kumari P.W. 2) aged about 09 years and Seema Kumari aged about 06 years and the daughter of Sripati Bouri namely Baishakhi aged about 10 years were sleeping in the verandah of the house. In the meantime Mathura Thakur entered into her house and enquired about the whereabouts of her husband namely Baleshwar Paswan @ Sadhujee to which she replied that he was not in house whereupon the petitioner told her that this is the day for merry making and whether there is any arrangement or not. Thereafter the petitioner slept on the cot alongwith the girls and forcibly started untying the laces of their pants one by one and also threatened them not to raise any alarm but Tunni Kumari raised alarm saying that the petitioner has untied their pants and has thrown away and is trying to commit rape upon them. Thereafter the informant who was sleeping inside the house rushed out and saw the petitioner adjusting his underwear and fleeing away. The informant chased the petitioner but the petitioner entered inside his house and bolted the door from inside. When the informant returned to her house she found the girls lying in naked condition and she clothed them. On being asked the girls told her that the petitioner was trying to commit rape upon them. 14. On the basis of the fardbeyan the case was registered as Jorapokhar P.S. Case No. 101 1985 dated 09.03.1985 under Sections 376 511 of the Indian Penal Code against the petitioner. After completion of investigation charge sheet was submitted against the petitioner under the same sections and on 02.04.1985 cognizance of the offence was taken against him under the same sections and vide order dated 26.07.1985 the case was committed to the Court of Sessions for trial and disposal. On 03.07.1989 the charge under Sections 376 511 of the Indian Penal Code was framed against the petitioner which was read over and explained to him in Hindi to which he pleaded not guilty and claimed to be 15. On 27.09.1993 the statements of the petitioner were recorded under Section 313 of Cr.P.C. wherein he simply denied the incriminating evidences put to him and said that the occurrence is false and he has been falsely implicated. The petitioner did not adduce any oral or documentary evidence in his 16. This Court finds that the learned trial court considered the oral and documentary evidences adduced on behalf of the prosecution and the arguments advanced on behalf of the parties and recorded its ultimate findings at Para 8 which reads as under: In this case the accused has not made out any positive case of defence. There is nothing on the record to show as to why the victim girl and the informant deposed against him for sustaining conviction U s 376 511 I.P.C. when there was no previous enmity. Defence further failed to bring anything on record as to why he has been falsely implicated by the prosecution in this case. On the other hand from the evidence on the record I find that the victim girls are all minors aged about between 6 and 10 years and the accused in the dead of night tried to commit rape on them when all the three girls were sleeping on the same cot as it would transpire from the evidence of Seema Kumariand other neighbours came there to whom she narrated about the occurrence. She further deposed that her husband returned after sometime and she narrated the entire occurrence to him. On the next day she went to the house of Mukhiya to inform regarding the occurrence but Mukhiya was not available. Thereafter she got her fardbeyan recorded in which put her L.T.I. and her husband put his signature. She identified the petitioner in court. In her cross examination she deposed that Baishakhi is the daughter of Sripati Bouri. 20. P.W. 2 is one of the victim girls of the case. She deposed that on the date of occurrence she was sleeping on a cot in the verandah alongwith her younger sister namely Seema and Baishakhi Kumari and her mother was sleeping inside the house. At about 11 O’clock night the petitioner came there calling the name of her father whereupon her mother told him that Sadhujee is not in the house and her mother closed the door. Thereafter the petitioner slept by her side in the cot and after untying he threw away her pant and tried to commit rape upon her. When she raised alarm the petitioner threatened her and on her alarm her mother came outside and she narrated the entire occurrence to her mother. In the meantime the petitioner stood up and fled away holding his pant. Her mother chased the petitioner to his house but the petitioner entered inside his house and closed the door. On raising alarm by her mother neighbours assembled there and her mother narrated the occurrence to them. Thereafter her father returned to the house at 12:30 night and she also told the entire occurrence to her father. She identified the petitioner in court. In her cross examination she deposed that when they were fast asleep the petitioner had entered into the house and he untied her pant she woke up and identified the petitioner. She stated that the petitioner had untied her pant but he did not do anything to her. 21. P.W. 3 is also the victim girl of the case. She deposed that on the date of occurrence she was sleeping on a cot in the verandah alongwith her sister namely Tunni and one Baishakhi Bouri and at about 10 O’clock night the petitioner came there calling the name of her father whereupon her mother came out of the house and told him that Sadhujee is not in the house and her mother closed the door and went to sleep. Thereafter the petitioner slept in the same cot in which they were sleeping. She further deposed that the petitioner untied the pants of Tunni her and Baishakhi and tried to molest her. The petitioner had also undressed his underwear. When her elder sister raised alarm the petitioner threatened them and when her elder sister started weeping her mother came outside and then the petitioner started fleeing away towards his house adjusting his pant. Thereafter she and her elder sister narrated the entire occurrence to their mother. Her mother chased the petitioner to his house but the petitioner entered inside his house and closed the door. On raising alarm by her mother Basanti Bouri and other neighbours came there and her mother narrated the occurrence to them. Thereafter her father returned to the house at 12:30 night and she also told the entire occurrence to her father. She identified the petitioner in court. In her cross examination she deposed that on hearing the alarm raised by Tunni she woke up at 11 O’clock and she saw the petitioner fleeing away. 22. P.W. 1 is the husband of P.W. 4 and the father of P.W. 2 and P.W. 3 the two victims. He deposed that it was Holi on the date of occurrence and on the night of occurrence he had gone to market alongwith his friends and her wife and two daughters were in the house and when he returned at 12 O’clock night his wife told him about the occurrence committed by the petitioner. He further deposed that on the next day at about 05:00 P.M. he went to the police station alongwith his wife and the fardbeyan of his wife was recorded in which his wife put her thumb impression and he had put his signature. He identified his signature on the fardbeyan which has been marked as Exhibit 1. He identified the petitioner in court. He denied the suggestion that no such occurrence had taken place and they lodged the case due to 23. P.W. 5 is the neighbour of the informant. She deposed that on the date of occurrence at about 11 O’Clock she had come out of her house on hearing the alarm raised by the mother of Tunni who had told her about the occurrence committed by the petitioner. She identified the petitioner in court. 24. Each of the prosecution witnesses were thoroughly cross examined and the learned court below recorded that all the prosecution witnesses have neither contradicted their own statement nor contradicted the statement of any witness on any material point. The learned counsel for the petitioner has not specifically pointed out any material contradiction in the evidence of the witnesses. 25. This Court finds that P.W.2 and P.W. 3 are the victim girls of the case and both are the daughters of P.W. 1 and P.W. 4 Informant) and both were minors aged about 09 Years and 06 years respectively on the date of occurrence but at the time of recording their evidence no objection has been raised on behalf of the petitioner with regard to their competency for adducing evidence in court. In the judgement passed by the Hon’ble Supreme Court reported in 4 SCC 379 the accused was convicted by the trial court under Section 376(2)(g) of the Indian Penal Code. In the said case it was held in para 8 that in every crime there is first intention to commit secondly preparation to commit it thirdly attempt to commit it. If the third stage that is attempt is successful then the crime is complete. In case the attempt fails the crime is not complete but the law punishes the person attempting the act which is punishable under Section 511 of Indian Penal Code. It has been held in para 9 of the said judgment that if a person fails to commit the offence due to reasons beyond his control he is said to have attempted to commit the offence. Attempt to commit an offence can be said to begin when the preparations are complete and the culprit commences to do something with the intention of committing the offence and which is a step towards the commission of offence. It has also been held that the moment he commences to do an act with the necessary intention he commences his attempt to commit the offence and mere intention to commit an offence not followed by any act cannot constitute an offence. The Hon’ble Supreme Court also held that an attempt to commit a crime is to be distinguished from an intention to commit it and from preparation made for its commission. The will is not to be taken for the deed unless there be some external act which shows that progress has been made in the direction of it. It was held that dividing line between a mere preparation and an attempt is sometimes thin and has to be decided on the facts of each case and that there is a greater degree of determination in attempt as compared with preparation. It has been held in para 10 and 11 of the aforesaid judgement as under: 10. An attempt to commit an offence is an act or a series of acts which leads inevitably to the commission of the offence unless something which the doer of the act neither foresaw nor intended happens to prevent this. An attempt may be described to be an act done in part execution of a criminal design amounting to more than mere preparation but falling short of actual consummation and possessing except for failure to consummate all the elements of the substantive crime. In other words an attempt consists in it the intent to commit a crime falling short of its actual commission. It may consequently be defined as that which if not prevented would have resulted in the full consummation of the act attempted. The illustrations given in Section 511 clearly show the legislative intention to make a difference between the cases of a mere preparation and an attempt. 11. In order to find an accused guilty of an attempt with intent to commit a rape court has to be satisfied that the accused when he laid hold of the prosecutrix not only desired to gratify his passions upon her person but that he intended to do so at all events and notwithstanding any resistance on her part. Indecent assaults are often magnified into attempts at rape. In order to come to a conclusion that the conduct of the accused was indicative of a determination to gratify his passion at all events and in spite of all resistance materials must exist. Surrounding circumstances many times throw beacon light on that aspect.” In the judgement passed by the Hon’ble Supreme Court reported in 3 SCC 602 similar view has been expressed by the Hon’ble Supreme Court. 27. The judgement passed in the case of Tarkeshwar Sahu supra) has been distinguished by the Hon’ble Supreme court in the judgement of “Chaitu Lal versus State of Uttarakhand” reported in20 SCC 272 in para 11 and it has been observed that the accused in Tarkeshwar Sahufailed at the stage of preparation of commission of offence itself. Para 22 of the judgement in Tarkeshwar Sahu reveals that in the said case the accused had neither undressed himself nor had asked the victim to undress herself so there was no question of penetration. In the judgement of Chaitu Lalit has been held that the attempt to commit an offence begins when the accused commences to do an act with necessary intention. In the said case the accused pounced upon the victim sat upon her and lifted her petticoat and the victim protested against his advances and wept. The victim’s daughter pleaded the accused to let her go but the accused did not show any reluctance from committing the offence. In this backdrop the Hon’ble Supreme Court held that had there been no intervention the accused would have succeeded in executing his criminal design and upheld the conviction under 354 and 376 511 of IPC by holding that the conduct of the accused was indicative of his definite intention to commit the offence. 28. The present case is required to be examined in the light of the aforesaid law laid down by the Hon’ble Supreme Court considering the various stages i.e. intention preparation attempt and ultimate commission of offence. The distinction has also to be kept in mind between indecent assault amounting to outraging the modesty of the victim and attempt to rape. There can be no doubt that attempt to rape is an aggravated form of indecent assault. It is required to be examined in the present case as to Whether the intention and preparation of the petitioner was to commit rape upon the victims and whether such intention and preparation translated into an attempt to commit rape considering the conduct of the accused and circumstances of the While examining the aforesaid point it is to be seen Whether the petitioner would have succeeded in committing rape upon the victims had there been no intervention by P.W 4. From perusal of the evidences of P.W. 2 P.W. 3 and P.W. 4 this Court finds that there are specific and consistent evidences on record that it was ‘Holi’ on the date of occurrence and the petitioner had come to their house in the night calling the name of P.W. 1. P.W 4 informed the petitioner that P.W. 1 was not present in the house and shut the door of the house. It has also been proved from evidences on record that the petitioner slept on the same cot in the verandah on which the minor victim girls were sleeping and forcibly untied and removed the pants of the victim girls and when they protested he gave threats to their lives. P.W 3 has also clearly deposed that the petitioner had untied the pants of all the three girls who were sleeping on the cot and the petitioner also occupied the cot and tried to rape all of them. She has also deposed that the petitioner also dropped his underwear and when P.W 2 raised alarm he threatened to shoot her and P.W 2 started weeping while raising alarm. However upon raising of alarm by P.W. 2 her mothercame out of the house and saw the petitioner adjusting his underwear and fleeing away. When the Informant chased the petitioner he entered inside his house and closed the door from inside. On raising alarm by the Informant P.W. 5 and other neighbours came there to whom the Informant narrated about the occurrence and when her husband returned from market she narrated the entire occurrence to him also. 30. Thus the petitioner had not only untied the pants of the victim girls but also dropped his underwear lied on the cot with the victims and when they protested he threatened them. This Court further finds that the sequence of the occurrence alongwith the evidences available on the records of the case establishes beyond any reasonable doubt that the petitioner was determined to commit rape upon the victims made full preparation for the same by sleeping besides them on the cot and dropping his underwear on one hand and untying the pants of the victims on the other. It has also been proved beyond any reasonable doubt that after full preparation step towards achieving his evil intention of committing rape was also taken by him and also threatening the victims of their life when they protested. Had P.W 2 not raised alarm by weeping in spite of threat to her life the petitioner would have definitely succeeded in his evil intention to commit rape upon the victims. It was only due to raising alarm by P.W. 2 and timely arrival of the mother informant the petitioner failed and the victims could be saved. This Court also finds that if the P.W. 2 had not raised the alarm the petitioner was determined to commit the offence of having sexual connection with the victims. This Court finds that the petitioner not only desired to gratify his passions upon the victims but he to do so at all events and notwithstanding resistance on their part but could not succeed due to intervention of P.W 4. The facts and circumstances of the case conduct of the petitioner and the evidences on record clearly establish beyond any reasonable doubt that the petitioner intended and prepared to commit rape upon the victims and such intention and preparation translated into an attempt to commit rape and the petitioner tried to overpower the victims in spite of their protest and threatened to kill them. It has also been established beyond all reasonable doubts that the petitioner would have succeeded in committing rape upon the victims had there been no intervention by P.W 4 upon alarm raised by P.W 2. 31. The investigating officer of the case has not been examined by the prosecution. However no prejudice has been shown to have been caused to the petitioner on account of non examination of the investigating officer of the case as there are consistent evidences on record including the evidences of the victim girls which established the case of the prosecution beyond all reasonable doubts. No evidence has been led by the defence regarding any reason for false implication of the petitioner and this aspect of the matter has been fully considered by the learned courts below. 32. The Hon’ble Apex Court has explained the power of revisional court in the case of “Jagannath Choudhary and others Vs. Ramayan Singh and Another” reported in5 SCC 659 at para. 9 as under: “9. Incidentally the object of the revisional jurisdiction as envisaged under Section 401 was to confer upon superior criminal courts a kind of paternal or supervisory jurisdiction in order to correct miscarriage of justice arising from misconception of law irregularity of procedure neglect of proper precautions ofapparent harshness of treatment which has resulted on the one hand in some injury to the due maintenance of law and order or on the other hand in some underserved hardship to individuals. See in this context the decision of this Court in Janata Dal Vs. H.S. Chowdhary) . The main question which the High Court has to consider in an application in revision is whether substantial justice has been done. If however the same has been an appeal the applicant would be entitled to demand an adjudication upon all questions of fact or law which he wishes to raise but in revision the only question is whether the court should interfere in the interests of justice. Where the court concerned does not appear to have committed any illegality or material irregularity or impropriety in passing the impugned judgment and order the revision cannot succeed. If the impugned order apparently is presentable without any such infirmity which may render it completely perverse or unacceptable and when there is no failure of justice interference cannot be had in exercise of revisional 33. The revisional power is further explained in the case of Ramesh Kumar Bajaj reported in1 JCR 684at para. 13 as follows: “It is well settled that revisional interference may be justified where: i) the decision is grossly erroneous. ii) there is no compliance with the provisions of law. iii) the finding of fact affecting the decision is not based on evidence. iv) material evidence of the parties is not considered and judicial discretion is exercised arbitrarily or In view of the aforesaid discussions and findings and considering the entire facts and circumstances of this case this Court is of the considered view that the learned courts below have passed well reasoned judgements considering every aspect of the matter and every argument advanced on behalf of the petitioner. There being no perversity or in the judgements of conviction and sentence no interference is called for. Considering the nature of offence and the manner it has been committed any lenient view in the matter of sentence will defeat the ends of justice as substantial justice has been done by the impugned judgements. 35. Accordingly this criminal revision petition is hereby 36. Bail bond furnished by the petitioner is hereby cancelled. Interim order if any stands vacated. 18 38. Pending interlocutory application if any is also dismissed as not pressed. learned court below. 39. Let the lower court records be immediately sent back to the 40. Let a copy of this order be communicated to the learned court below through ‘e mail FAX’.

Reasonable time must be granted to the appellant for curing the default: Chhattisgarh High Court

To prevent injustice, a reasonable amount of time must be granted to the appellant or the appellant authority to point out the default and also cure the default so the appeal can be heard on merits. This was decreed by the Hon’ble Justice Shri P. Sam Koshy in the case of The Sub Area Manager South Eastern Coalfields Ltd. Vs. Shri Anam and ors. [WPL No. 26 of 2021] on the 20th of July before the Hon’ble High Court of Chhattisgarh at Bilaspur. The brief facts of the case are, he respondent no.1 was employed by the petitioner on the post of General Mazdoor Category- I. However, in the course of his employment a complaint was received in respect of his getting employment by impersonating himself. Subsequently, a disciplinary proceeding was initiated and the respondent no.1 was terminated from service vide order dated 30.04.2018. The order of termination from service has not been challenged by the employee before any Court of law. Subsequently, the respondent no.1 preferred an application before the Controlling Authority for payment of gratuity under the Payment of Gratuity Act. The Controlling Authority vide order dated 11.03.2020 passed an order holding that the respondent no.1 is entitled for payment of gratuity to the tune of Rs.20,00,000. The order of the Controlling Authority was subjected to challenge before the Appellate Authority i.e., the respondent no.3 under Section 7(7) of the Payment of Gratuity Act. The respondent no.3 vide impugned order dated 28.09.2020 dismissed the appeal of the present petitioner on the ground that the appeal has not been properly constituted as is required under the provisions of Sub Section 7 of Section 7 of the Payment of Gratuity Act. According to the Appellate Authority, the petitioner was required to deposit the entire amount awarded by the Controlling Authority, and refused to accept a Demand Draft of RS. 1636343/= which was the actual amount of Gratuity the employee would have got had he permitted to be retired, and the appeal thus has been rejected. Aggrieved by this, the present petition has been filed. The counsel for the petitioner submits that, the quantum arrived at by the Controlling Authority is without any basis and is also without any proper calculation in terms of the entitlement under the Payment of Gratuity Act as per the salary received by the employee under the petitioner. the petitioner company themselves had calculated gratuity amount in accordance with the provisions of law governing the Payment of Gratuity Act upon the petitioner establishment and found that the employee would have been entitled for an amount of Rs.16,36,343. The counsel for the respondent however refutes this argument and claims the payment. The learned judge heard the submissions of both the parties. To answer the whether the order of the Appellate Authority rejecting the appeal for want of deposit of the amount quantified by the Controlling Authority to be proper, legal and justified or not, the court relied on section 7 (7) of the Payment of gratuity act. plain perusal of the second proviso to Sub Section 7 of Section 7 would clearly reveal that the statute mandates for the employer to deposit the amount as per Sub Section 4 of Section 7 of the Payment of Gratuity Act and the certificate of the deposited amount be accompanied with the memo of appeal. It was observed that, Once when the dispute is left for the Controlling Authority to be decided and the Controlling Authority passes an order determining the amount of gratuity payable to the employee then under the second proviso to Sub Section 7 of Section 7, the employer should deposit the entire amount awarded by the Controlling Authority. The employer ought to have deposited the entire amount and immediately pressed upon hearing of an appeal or at least an interim application seeking for stay of the disbursement by the Controlling Authority.

1AFRHIGH COURT OF CHHATTISGARH AT BILASPURWPL No. 221The Sub Area Manager South Eastern Coalfields Ltd. Ncph Colliery Chirmiri Area Post Office Haldibadi District Korea Chhattisgarh. Petitioner Versus 1.Shri Anam S o Late Dina Ex Pump Operator Old Mines Quarter AtP.O. West Chirmiri Colliery District Korea Chhattisgarh 4977732.Controlling Authority And The Regional Labour CommissionerBilaspur Chhattisgarh.3.Deputy Chief Labour CommissionerGovernment Of India Ministry Of Labour And Employment Raipur Chhattisgarh. Respondents For Petitioner:Mr. Vivek Chopda Advocate For Respondents No. 2 & 3:Mr. Ramakant Mishra Asstt. S.G. along with Mr. Amit Banerjee AdvocateHon ble Shri Justice P. Sam KoshyOrder on Board20 07 20211.Aggrieved by the order of the respondent no.3 dated 28.09.2020delivered upon the petitioner on 08.10.2020 passed in PGA 15 2020the present writ petition has been filed. 2.The facts of the case in brief are that the respondent no.1 wasemployed by the petitioner on the post of General Mazdoor Category I. However in the course of his employment a complaint was receivedin respect of his getting employment by impersonating himself.Subsequently a disciplinary proceeding was initiated and therespondent no.1 was terminated from service vide order dated30.04.2018. 23.The order of termination from service has not been challenged by theemployee before any Court of law. Subsequently the respondentno.1 preferred an application before the Controlling Authority forpayment of gratuity under the Payment of Gratuity Act. The matterwas registered as Case No. BSP 36(71) 2019 RLC. The ControllingAuthority vide order dated 11.03.2020 passed an order holding thatthe respondent no.1 is entitled for payment of gratuity to the tune ofRs.20 00 000. The order of the Controlling Authority was subjected tochallenge before the Appellate Authority i.e. the respondent no.3under Section 7(7) of the Payment of Gratuity Act. The respondentno.3 vide impugned order dated 28.09.2020 dismissed the appeal ofthe present petitioner on the ground that the appeal has not beenproperly constituted as is required under the provisions of SubSection 7 of Section 7 of the Payment of Gratuity Act. According tothe Appellate Authority the petitioner was required to deposit theentire amount awarded by the Controlling Authority and refused toaccept a Demand Draft of RS. 1636343 = which was the actualamount of Gratuity the employee would have got had he permitted tobe retired and the appeal thus has been rejected.4.The contention of the learned counsel for the petitioner is that thequantum arrived at by the Controlling Authority is without any basisand is also without any proper calculation in terms of the entitlementunder the Payment of Gratuity Act as per the salary received by theemployee under the petitioner. According to the counsel for thepetitioner the petitioner company themselves had calculated gratuityamount in accordance with the provisions of law governing the 3Payment of Gratuity Act upon the petitioner establishment and foundthat the employee would have been entitled for an amount ofRs.16 36 343 for which a demand draft was also prepared andpresented along with the memo of appeal which has not beenaccepted by the Appellate Authority while rejecting the appeal. 5.The bone of contention in the present writ petition is whether the orderof the Appellate Authority rejecting the appeal for want of deposit ofthe amount quantified by the Controlling Authority to be proper legaland justified or not 6.For proper understanding of the case it would be relevant at thisjuncture to take note of the provisions of Sub Section 7 of Section 7 ofthe Payment of Gratuity Act which for ready reference is beingreproduced hereinunder:“7(7). Any person aggrieved by an order under sub sectionor deposits with the appellateauthority such amount.]” 47.A plain perusal of the second proviso to Sub Section 7 of Section 7would clearly reveal that the statute mandates for the employer todeposit the amount as per Sub Section 4 of Section 7 of the Paymentof Gratuity Act and the certificate of the deposited amount beaccompanied with the memo of appeal. In view of the requirement ofthe second proviso it would be relevant to take note of the provisionsof Sub Section 4 which again for ready reference is being reproducedhereinunder:“(4)(a). If there is any dispute to the amount of gratuity payableto an employee under this Act or as to the admissibility of anyclaim of or in relation to an employee for payment of gratuity or as to the person entitled to receive the gratuity theemployer shall deposit with the controlling authority suchamount as he admits to be payable by him as gratuity.Where there is a dispute with regard to any matter ormatters specified in clausethe employer or employee orany other person raising the dispute may make an applicationto the controlling authority for deciding the dispute.(c) The controlling authority shall after due inquiry and aftergiving the parties to the dispute a reasonable opportunity ofbeing heard determine the matter or matters in dispute and if as a result of such inquiry any amount is found to be payableto the employee the controlling authority shall direct theemployer to pay such amount or as the case may be suchamount as reduced by the amount already deposited by theemployer.(d) The controlling authority shall pay the amount deposited including the excess amount if any deposited by theemployer to the person entitled thereto.(e) As soon as may be after a deposit is made under clausethe controlling authority shall pay the amount of the deposit—(i) to the applicant where he is the employee or(ii) where the applicant is not the employee to the 5[nominee or as the case may be the guardian of suchnominee or] heir of the employee if the controllingauthority is satisfied that there is no dispute as to theright of the applicant to receive the amount of gratuity.”8.If we read the clauses of Sub Section 4 it would clearly establish thatClauseand Clauseare stages which have to be applied beforethe Controlling Authority finally adjudicates upon a matter. However only if the matter is left for the Controlling Authority to be decided thenSub sectionandwould come into play. Once when the disputeis left for the Controlling Authority to be decided and the ControllingAuthority passes an order determining the amount of gratuity payableto the employee then under the second proviso to Sub Section 7 ofSection 7 the employer should deposit the entire amount awarded bythe Controlling Authority. The employer ought to have deposited theentire amount and immediately pressed upon hearing of an appeal orat least an interim application seeking for stay of the disbursement bythe Controlling Authority. 9.In the instant case the petitioner company have not deposited theentire amount as awarded by the Controlling Authority and on thecontrary they have deposited something which according to theircalculation is proper. In the opinion of this Court depositing of anamount which according to the employer is correct calculation after anorder of the Controlling Authority after adjudication by the ControllingAuthority where the Controlling Authority passes a final order will be incontravention to Sec 7.7 of the Act. After the final order is passed bythe Controlling Authority it has to be the final amount awarded by theControlling Authority which needs to be deposited. 610.According to the learned counsel for the petitioner since the amountof Rs.20 00 000 was not deposited at the time of filing of appeal butonly an amount of Rs.16 36 343 was deposited by way of a DemandDraft the Appellate Authority refused to accept the same and haverejected the appeal on the ground that the entire amount has notbeen deposited. It is further contended that the Management of SECLfurther tried to deposit the entire amount of Rs.20 00 000 before theAppellate Authority which too has been not accepted by the AppellateAuthority stating that since the appeal has already been rejected byhim earlier the subsequent amount cannot be accepted by him.11.At this stage learned counsel for the petitioner submits that theappellate authority at least ought to have pointed out the default andshould have granted some period of time to cure the default so thatthe appeal could be heard on merits and prayed for at least this Courtmay direct the Appellate Authority to permit the petitioner to depositthe entire amount once again and let the appeal be decided onmerits. According to the counsel or else substantial injustice couldhappen to the Petitioner as the respondent no.1 who had obtainedemployment by impersonation would be again benefited by anotherhuge amount of Rs. 20 00 000 in terms of the order of the ControllingAuthority. 12.Given the submission by the learned counsel for the petitioner andtaking note of the fact that the impugned order of the AppellateAuthority does not reveal any opportunity being granted to thepetitioner for curing the default. Accordingly the impugned orderAnnexure P 1 deserves to be set aside only on this limited ground of 7not granting the appellant some reasonable time for curing thedefault which is otherwise the condition precedent for entertaining anappeal under Section 7(7) of the P.G. Act. In the opinion of this Court ends of justice would meet if the matter is remitted back to theAppellate Authority with a direction to the petitioner to ensure that theentire amount awarded by the Controlling Authority is depositedbefore the Appellate Authority within a further period of 2 weeks fromthe date of receipt of copy of this order. The appellate Authority shallthereafter consider the appeal on its own merits in accordance withlaw and decide the same at the earliest. 13.The writ petition accordingly stands disposed of.Sd (P. Sam Koshy)JudgeVed

Failure of registration because of dormancy of E-Portal isn’t the fault of the Petitioner in the matter of delayed transaction: High Court of Patna

The applicants recorded a writ request in the idea of mandamus in which the solicitors argued to get the vehicles bought by them enlisted by the respondents. Because of the inertia of the E-Portal, the equivalent was not done. The Hon’ble High Court accepted the petition and gave decision in favour of the petitioner under the light of all facts and circumstances. The Hon’ble High Court of Patna before Justice Mr.  S. Kumar in the matter of Khagaria Auto Agency and others v. The State of Bihar[Civil Writ Jurisdiction Case No.5165 of 2021]. The facts of the case were that the applicant submitted in the court to give a proper writ or request in the idea of Mandamus to make respondents issue suitable orders to the individual DTO’s to enrol the vehicles as referenced in the outline upon the confirmation of the genuineness of the exchange in understanding to law. The seller has offered 10 vehicles to isolate people. The Learned senior advice expressed that the solicitor ought to be permitted to move toward the authority designated for the vehicle’s enlistment. It was fought that in case the materials show the validity of the exchanges happened then the proper authority should accept choices according to law and the vehicles would be enlisted. The applicant further appealed to give a request to the respondent to give impact to the different orders as passed by the Supreme Court by which the Hon’ble Court allowed the authorization for enrolment of the vehicles bought on a date. The applicants further added to order the respondents to acknowledge the enrolment of the vehicles which were sold however the subtleties of a similar which couldn’t be transferred by the solicitor on the E-Portal on the grounds that the Portal was idle around then. The Hon’ble High Court Of Patna held and directed,”…the candidate to approach the authority, for example, Locale Transport Officer, Khagaria, according to specifics given by the learned direction.” Further, it was added that the said authority should handle the application within a time of about a month from the date of recording of the application. Henceforth, the freedom is held to the candidate to benefit fitting cures, assuming that the need so emerges. The appeal stood arranged off on the previously mentioned conditions.

IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.51621 Khagaria Auto Agency having its office at M.G. Road Khagaria 851204 Bihar through its authorised representative Shri Vinay Kumar aged about 50 S o Bhola Prasad Yadav R o Vill and P.O. Raghunathpur Ward No. 12 P.S. Sahebpurkamal District Begusarai 851217 Bihar ... Petitioner s The State of Bihar through the Principal Secretary Transport Department Govt. of Bihar Patna The Principal Secretary Transport Department Govt. of Bihar Patna The State Transport Commissioner Transport Department Govt. of Bihar The District Transport Officer Khagaria Bihar For the Petitioner s ... Respondent s Mr. Y.V.Giri Sr. Advocate Mr.Nikhil Kumar Agrawal Advocate Mr. Vaibhav Niti Advocate Ms. Aditi Hansaria Advocate For the Respondent s Mr. Anil Kr. Singh GP 26 Mr. Sarvesh Kumar GP 24 CORAM: HONOURABLE THE CHIEF JUSTICE and HONOURABLE MR. JUSTICE S. KUMAR Per: HONOURABLE THE CHIEF JUSTICE Date : 07 10 2021 Petitioner has prayed for the following relief(s): “(i) To issued an appropriate writ order direction in the nature of Mandamus directing the Respondents to issue appropriate orders to the respective DTO’s to register the vehicles enumerated in the chart annexed as Annexure 12 upon verification of the authenticity of the Patna High Court CWJC No.51621 dt.07 10 2021 sale purchase transaction in accordance with law ii) To issue an appropriate writ order direction in the nature of Mandamus commanding the Respondents to give effect to the various orders passed by the Hon’ble Supreme Court whereby and whereby the Hon’ble Court has granted permission for registration of BS IV vehicles purchased on or before 31.03.2020 iii) To issue an appropriate writ order direction in the nature of Mandamus commanding the respondents to accept registration of even those vehicles which were sold on or before 31.03.2020 but details of which could not be uploaded by the petitioner on the portal as the e Vahan portal was inoperative inactive on 29.03.2020 30.03.2020 Here we are dealing with a case where the dealer has sold 10 vehicles to separate individuals particulars whereof are mentioned in Annexure 12 page 129 of the writ petition. After the matter was heard for some time Sri Y.V.Giri learned senior counsel states that petitioner be allowed to approach the appropriate authority nominated for registration of Shri Anil Kumar Singh learned G.P. 26 states that if the petitioner places all materials showing the genuineness of transactions the appropriate authority shall take a decision expeditiously in accordance with law and if the sales are held to be genuine the vehicles would be registered. Patna High Court CWJC No.51621 dt.07 10 2021 Statement accepted and taken on record. As such we direct the petitioner to approach the authority i.e. District Transport Officer Khagaria as per particulars given by the learned counsel. We expect the said authority to decide the application expeditiously preferably within a period of four weeks from the date of filing of the application along with a copy of this order in accordance with law. remedies if need so arises. Liberty reserved to the petitioner to avail appropriate Petition stands disposed of with the liberty aforesaid Interlocutory application if any stands disposed of. Sanjay Karol CJ) ( S. Kumar J

Director General of Medical Education shall give recommendations for admissions: Supreme Court

The Director General of Medical Education and Training shall give recommendations for admission to the college providing the course of MBBS. The process of admission of students shall only be followed after such recommendation has been made. This principle was upheld by the Supreme Court presided by J. L. NAGESWARA RAO & J. S. RAVINDRA BHAT in the case of Saraswati Educational Charitable Trust & Anr. vs. Union of India & Ors. [Writ Petition (C) No.291 of 2019]. In the present case, The College applied for grant of renewal of permission for admission of 150 students for the academic year 2017-2018. An inspection was conducted followed by a second surprise inspection by the assessing team and renewal was denied. Petitioner challenged it before this Court and by the judgment of 2017, Respondents were directed to permit the College to take part in the counselling process for the year 2017-2018. The Director General of Medical Education and Training- third Respondent informed asked them all the students to apply/register themselves for admission for MBBS course in the College and 735 students applied for admission to 150 students. The director forwarded a list of 150 students on merit but only 9 students completed their admission formalities. The college asked for the names of all students and without recommendation from the Director, they issued an urgent notice informing 735 candidates who opted for admission pursuant to the notice issued by third Respondent to avail the opportunity of admission in the College. The Medical Council of India directed the Principal of College to discharge the 132 students who were admitted in violation of the Medical Council of India Regulations on Graduate Medical Education, 1997. This Writ Petition was filed by 71 students, who had been admitted in first year MBBS course for the academic year 2017-2018 in Saraswati Medical College, to permit them to continue with their studies and to direct the Registrar, Uttar Pradesh Medical Council, the other Respondent to declare their results of the first year MBBS course. The honorable court observed, “The admission of 132 students in the College for the academic year 2017-2018 being completely contrary to the Regulations, the Writ Petitions are liable to be dismissed. However, taking note of the fact that the students have completed the second year MBBS course, cancelling their admissions at this stage would not serve any useful purpose. The students who joined the College knowing fully well that their admissions are contrary to the Regulations are directed to do community service for a period of two years after completing their MBBS course. The National Medical Commission shall decide the details and workout the modalities of the community service to be rendered by the 132 students. The Respondent- University is directed to conduct the second year MBBS examination for 126 students admitted in the Petitioner-College and who completed their second year course at the earliest and declare their results. They shall be permitted to complete the MBBS course.”  

Non Reportable IN THE CIVIL ORIGINAL JURISDICTION Writ PetitionNo.418 Saraswati Educational Charitable Trust & Anr. PetitionersNo.2919 JUDGMENT L. NAGESWARA RAO J 1. Writ Petition No.40 of 2018 has been filed by Saraswati Educational Charitable Trust challenging the notice dated 29th September 2017 issued by the second Respondent Medical Council of India by which the Saraswati Medical Collegewas directed to discharge 132 out of 150 students admitted in the first year Bachelor of Medicine Bachelor of SurgeryNo.2919 has been filed by 71 students who have been admitted in first year MBBS course for the academic year 2017 2018 in Saraswati Medical College to permit them to continue with their studies and to direct the Registrar Uttar Pradesh Medical Council the seventh Respondent herein to declare their results of the first year MBBS course Saraswati Medical College was established by Saraswati Educational Charitable Trust in the year 2016. The College applied for grant of renewal of permission for admission of 150 students for the academic year 2017 2018. An inspection was conducted in November 2016 followed by a second surprise inspection by the assessing team on 21st and 22nd November 2016. Renewal of permission was not granted by an order dated 10th August 2017 which was challenged by the Petitioner in Writ Petition No.5117 before this Court. This Court by its judgment dated 1 st September 2017 directed the Respondents therein to permit the College to take part in the counselling process for the year 2017 2018. The cut off date for completion of admission in respect of the College was extended till 5th September 2017. The Respondents were directed to make available students willing to take admission in the College 2 | P a g e through central counselling in order of merit. The Petitioner No.2 requested the Director General of Medical Education and Training Respondent No.3 herein to provide a list of students from the National Eligibility cum Entrance Test NEET) 2017 merit list to enable the College to make admission before 5th September 2017. An email was sent by the College to the third Respondent with the same request for providing the list of students at 6:41 p.m. on 1st September 2017. On 4th September 2017 the Management of the College reiterated the request of allotment of students for admission into first year MBBS course. The third Respondent informed all eligible students about the order passed by this Court in Writ Petition No.515 of 2017 and asked them to apply register themselves for admission to first year MBBS course in the College from 4 th September 2017 6:00 p.m. to 5th September 2017 1:00 p.m. 735 students applied registered within the time schedule for admission to 150 students in the College. On 5th September 2017 the third Respondent forwarded a list of 150 students on the basis of their merit amongst 735 students. Only 9 out of 150 students reported and completed their admission formalities by 7:00 p.m. on 5th September 2017 according to the College. A letter was 3 | P a g e written by the College at 7:00 p.m. on 5th September 2017 to the third Respondent requesting the third Respondent to provide students from the list of 735 students. Without waiting for a response from the third Respondent at 7:32 p.m. on 5th September 2017 the College issued an urgent notice informing all the 735 candidates who opted for admission pursuant to the notice issued by third Respondent on 4th September 2017 to avail the opportunity of admission in the College. It was stated in the said notice that admissions will be made in the order of merit from amongst 735 students and the admissions would be completed by 11:59 p.m. on 5th September 2017. In the meanwhile 9 more students from the original list of 150 students sent by the third Respondent were admitted by the College. The College filled up 132 seats on 05.09.2017. On receipt of information about the admission of 132 students by the Petitioner College on its own without being recommended by the third Respondent the Medical Council of India by a letter dated 29th September 2017 directed the Principal Saraswati Medical College to discharge the 132 students who were admitted in violation of the Medical Council of India Regulations on Graduate Medical Education 1997 hereinafter ‘the Regulations’). This Writ Petition has been 4 | P a g e filed challenging the letter dated 29.09.2017 in which notice was issued on 25.01.2018. The students continued to study and were permitted to take the examinations for the first year MBBS course by the Chhatrapati Shahu Ji Maharaj University Kanpur Uttar Pradesh. Thereafter this Court by an order dated 22th July 2019 directed the result of the first year MBBS course to be declared provisionally subject to the outcome of the Writ Petition. It was made clear in the said order that the students shall not claim any equities on the declaration of the result. I.A. No.14176 of 2021 has been filed by the students seeking a direction to permit them to appear in the second year MBBS examinations. 6. We have heard Mr. P.S. Patwalia Mr. Ranjit Kumar and Mr. Gaurav Bhatia learned Senior Counsel appearing for the College Mr. Neeraj Kishan Kaul and Mr. Nikhil Nayyar learned Senior Counsel Mr. Trideep Pais learned counsel for the students and Mr. Gaurav Sharma learned counsel for the Medical Council of India. The contention of the College is that 132 students were admitted on 5th September 2017 from the list of 735 candidates who have applied pursuant to a notice dated 4th September 2017 strictly on the basis of merit amongst those who approached the College under 5 | P a g e extraordinary circumstances. It was argued on behalf of the College that the third Respondent was lethargic in not allotting sufficient number of students for admission to first year MBBS 2017 2018 till 4th September 2017 though he was informed about the order passed by this Court on 1st September 2017 itself. On 5th September 2017 the third Respondent allotted only 150 students out of whom initially 9 and thereafter 9 students took admission. The third Respondent was informed about the fact that only a few students took admission. However the third Respondent did not allot students from the list of 735 students. Having no other alternative the College made admissions from the list of 735 candidates who have applied pursuant to the notice issued by the third Respondent on 4th September 2017. It was also argued on behalf of the College that the admissions were based on merit of the candidates who have applied and till date there is no complaint from any student that he she was ignored in spite of being more meritorious than the students who were admitted. The students pleaded ignorance about any illegality or irregularity in the matter of their admission to the first year MBBS course for the year 2017 2018. They responded to the notice issued by the third Respondent on 4th September 6 | P a g e 2017. They were hopefully waiting for their admission in case the 150 students who have been allotted to the College do not join. Only 18 from the list of 150 students sent by the third Respondent joined the College. Pursuant to the urgent notice they participated in the selection process conducted by the College and were admitted on the last date fixed by this Court i.e. 5th September 2017. As they cannot be held responsible for any violation of the Regulations if any they request this Court to permit them to complete the course as they are all NEET qualified candidates and their names were in the list of 735 students who applied pursuant to the notice issued by third Respondent on 4th September 2017. The learned counsel for the Medical Council of India relied upon Regulation 5 A of the Medical Council Regulations on Graduate Medical Education 1997 to argue that all admissions to the MBBS course shall be on the basis of the merit list of the NEET. Admissions shall be made from the list sent by the Director General Medical Education on the basis of ranking of the students in NEET. The College can make admissions of students allotted by the Director General Medical Education. In case students from the list of 150 did not join before the last date the College should have approached this Court for extension of time and for a 7 | P a g e direction to the Director General Medical Education to allot more students. It was argued on behalf of the Medical Council of India that the students who were admitted contrary to the Regulations are not entitled to claim any equity and the College which acted in blatant violation of the Regulation is liable to be penalized suitably. Regulation 5 A of the Regulations provides for counselling for admission to MBBS course in all medical educational institutions on the basis of merit list of NEET According to the said Regulations no admissions can be made by the Petitioner College on its own. 7 SCC 353 29 SCC 401 39 SCC 412 8 | P a g e third Respondent to send more candidates. The third Respondent cannot be blamed for any delay on his part in carrying out the directions issued by this Court by its order dated 1st September 2017 in Writ Petition No.5117 The College sent an email to the third Respondent at 6:32 p.m. on 1st September 2017. Admittedly 2nd and 3rd September were not working days. The third Respondent acted swiftly on 4th September 2017 and sought for applications from interested students for admission to the college in the first year MBBS course. 735 students made applications. 150 meritorious students out of 735 were allotted to the College for admission to the first year MBBS course for the academic year 2017 2018. Only 9 out of 150 students according to the College took admission. The third Respondent cannot be said to have been negligent. On the other hand the College ought not to have issued a notice at 7:30 p.m. on 5th September 2017 and admitted 132 students in four hours. Admissions were made by the College from students who have approached the college after 7:30 p.m. on 5th September 2017. It is very difficult to accept the submission on behalf of the College that students who were not in the list of 150 students sent by the Director General Medical Education were all waiting for their admission after 9 | P a g e 7.30 p.m. on 5th September 2017. We reject the submission of the College that there was no other alternative except to make admission from the list of 735 students who have applied pursuant to the notice dated 4th September 2017 issued by the third Respondent. 11. The students who have secured admission cannot be said to be innocent as they knew fully well that their names were not recommended by the Director General Medical Education. We also do not agree that students and their parents were not aware that their admissions in College are contrary to the Regulations. In spite of the letter dated 29th September 2017 issued by the Medical Council of India the College did not discharge the students. The said direction issued by the Medical Council of India was not stayed by this Court. In spite of this the students continued their first year MBBS course and managed to write the first year MBBS course examinations after being permitted by the University Thereafter they approached this Court for declaration of their results for the first year MBBS course examinations which was granted. 6 students out of 132 students failed in their first year examination. At present 126 students have completed their second year MBBS course and are seeking 10 | P a g e permission to appear and write the examination for second year MBBS. 12. The admission of 132 students in the College for the academic year 2017 2018 being completely contrary to the Regulations the Writ Petitions are liable to be dismissed However taking note of the fact that the students have completed the second year MBBS course cancelling their admissions at this stage would not serve any useful purpose The students who joined the College knowing fully well that their admissions are contrary to the Regulations are directed to do community service for a period of two years after completing their MBBS course. The National Medical Commission shall decide the details and workout the modalities of the community service to be rendered by the 132 students. The Respondent No.6 University is directed to conduct the second year MBBS examination for 126 students admitted in the Petitioner College and who completed their second year course at the earliest and declare their results They shall be permitted to complete the MBBS course. This direction is issued only to save the students from losing three academic years in the peculiar facts and circumstances of this case and shall not be treated as a precedent. 11 | P a g e 13. Being aware of the fact that admissions cannot be made from students not allotted by the third Respondent the College admitted 132 students on its own. Thereafter the College permitted the students to continue their studies in spite of the direction by the Medical Council of India to discharge the students not being stayed. Intentional violation of the Regulations by the Petitioner College while granting admission to 132 students in the first year MBBS course for the academic year 2017 2018 cannot be condoned. The Petitioner College is directed to deposit an amount of Rupees Five Crores in the Registry of this Court within a period of 8 weeks from today. The Petitioners are directed not to recover the amount from the students in any manner whatsoever We direct the National Medical Commission to constitute a Trust which shall include the Accountant General of the State of Uttar Pradesh an eminent educationist and a representative of the State of Uttar Pradesh as Members of the Trust. The Trust constituted to manage the amount of Rupees Five Crores to be deposited by the Petitioner College shall extend financial assistance to needy students seeking admission to medical colleges in the State of Uttar Pradesh An Action Taken Report along with the copy of the Trust Deed 12 | P a g e shall be filed by the National Medical Commission within a period of 12 weeks from today. 14. The Writ Petitions are disposed of with the above directions. [L. NAGESWARA RAO ...............................J [S. RAVINDRA BHAT New Delhi February 24 2021. 13 | P a g e

Power of an Arbitrator to award an interest while litigation awaits is restricted when the parties have agreed to contrary: Supreme Court of India

The law relating to the award of pendente lite interest by Arbitrator under the Arbitration and Conciliation Act, 1996 is no longer res Integra. The provisions of the   1996   Act give paramount importance to the contract entered into between the parties and categorically restricts the power of an arbitrator to award pre-­reference and pendente lite interest when the parties themselves have agreed to the contrary as held by the Hon’ble Supreme Court through Justice S. Abdul Nazeer in the case of Garg Builders Vs. Bharat Heavy Electricals Ltd. [CIVIL APPEAL NO.6216 OF 2021] (Arising out of S.L.P. (C.) No. 16320 of 2018). The brief facts of the case are that the respondent floated a tender for the construction of a boundary wall at its Combined Cycle Power Project at Bawana, Delhi. The appellant submitted its bid for the project which was accepted by the respondent.  Subsequently, on 24.10.2008 the parties entered into a contract which, inter alia, contained the interest barring clause. The disputes arose between the parties with respect to the aforesaid contract and subsequently, the appellant filed a petition under Section 11 of the Arbitration and Conciliation Act, 1996 before the Delhi High Court wherein the Court-appointed Hon’ble Mr. Justice M.A. Khan (Retd.) as the sole Arbitrator to adjudicate the disputes. Learned Arbitrator after hearing the contentions of both and awarded pendente lite and future interest at the rate of 10% p.a. to the appellant on the award amount from the date of filing of the claim petition i.e. 02.12.2011 till the date of realization of the award amount. The respondent challenged the said award under Section 34 of the 1996 Act before the   Delhi   High   Court on the ground that the learned   Arbitrator being a creature of the arbitration agreement traveled beyond the terms of the contract. The learned Single Judge vide his final judgment and order dated 10.03.2017 set aside the impugned order and this judgment was upheld by the Division Bench of the High Court. Before the Hon’ble Supreme Court, Mr. Sanjay Bansal, learned counsel for the appellant, contended that the learned   Arbitrator had taken a plausible view, in terms of Clause 17 of the Contract and held that the said clause does not bar the payment of interest for pendente lite period. This argument relied on the judgments of this court in Ambica Construction v. Union of India and Raveechee and Company v. Union of India. On the other hand, Mr. Pallav Kumar, learned counsel for the respondent, submitted that Section 31(7)(a) of the 1996 Act gives paramount importance to the contract entered into between the parties and categorically restricts the power of an arbitrator to award pre­reference and pendente lite interest when the parties themselves have agreed to the contrary. After hearing both the parties, the hon’ble court, while relying on the judgments in the case of Sayeed Ahmed and Company v. State of Uttar Pradesh & Ors, Bharat Heavy Electricals Limited v. Globe Hi­Fabs Limited and  Sri   Chittaranjan   Maity   v.   Union of   India, stated that “If the contract prohibits   pre­reference   and pendente lite interest,   the arbitrator cannot award interest for the said period.   In the present case, clause barring interest is very clear and categorical.   It uses the expression “any moneys due to the contractor” by the employer which includes the amount awarded by the arbitrator”.

of the High Court of Delhi dated 19.09.2017 in FAO(OS COMM)No.120 2017 whereby it has upheld the judgment of the learned Single Judge in OMP No.28 of 2017 dated 10.03.2017 resulting in denial of pendente lite interest on the Delhi to the appellant dated 09.09.2008. Subsequently on 24.10.2008 the parties entered into a contract which inter alia contained the interest barring clause which is reproduced The disputes arose between the parties with respect to the short “the 1996 Act”) before the Delhi High Court wherein the The appellant in the claim petition apart from claiming various amounts under different heads inter alia claimed pre­reference dated 24.10.2008 and LOI dated 09.09.2010 about payment of interest for the pre­suit pendente lite and future period. Therefore the 1996 Act before the Delhi High Court in O.M.P. of the Act the power of the arbitral tribunal to award pre award “Learned counsel for the petitioner has placed reliance on an order of this Court in Ambica materials on record. Mr. Sanjay Bansal learned counsel for the appellant contended that the learned Arbitrator had taken a that the said clause does not bar the payment of interest for pendente lite period. This argument was advanced in view of judgment of this Court in Ambica Construction v. Union of India1 wherein the appellant was entitled for the payment of On the other hand Mr. Pallav Kumar learned counsel for the paramount importance to the contract entered into between the parties and categorically restricts the power of an arbitrator to award pre­reference and pendente lite interest when the parties themselves have agreed to the contrary. He argued that if the pendente lite interest. It was further argued that Ambica 114 SCC 323 27 SCC 664 the proceedings for recovery of any debt or damages or in damages already paid. However Section 3(3) of the Interest Act damages and sanctifies contracts which bars the payment of Act 1872. In light of the arguments advanced the learned counsel no longer res integra. The provisions of the 1996 Act give paramount importance to the contract entered into between the parties and categorically restricts the power of an arbitrator to award pre­reference and pendente lite interest when the parties themselves have agreed to the contrary. Section 31(7)(a) of the “31(7)(a) Unless otherwise agreed by the parties where and insofar as an arbitral award is for the action arose and the date on which the award is It is clear from the above provision that if the contract prohibits pre­reference and pendente lite interest the arbitrator cannot award interest for the said period. In the present case clause barring interest is very clear and categorical. It uses the expression “any moneys due to the contractor” by the employer Section 31(7)(a) of the 1996 Act in relation to the power of the 312 SCC 26 arbitrator to award interest. As per this section if the contract bars In Sree Kamatchi Amman Constructions v. Divisional Railway Manager Palghat & Ors.4 it was held by this words “any amount due to the contractor by the employer”. In our opinion these words cannot be In Sri Chittaranjan Maity v. Union of India6 it was 48 SCC 767 55 SCC 718 69 SCC 611 16. Therefore if the contract contains a specific clause which expressly bars payment of interest then it is not open for the arbitrator to grant pendente lite interest. The judgment on which reliance was placed by the learned counsel for the appellant in Ambica Construction has no application to the instant case because Ambica Construction was decided under the Act. This has been clarified in Sri Chittaranjan Maity as “16. Relying on a decision of this Court in Ambica Construction v. Union of India 14 SCC 323 the learned Senior Counsel for the appellant submits that mere bar to award interest on the Therefore the arbitrator was justified in awarding the pendente lite interest. However it is not clear from Ambica Construction as to whether it was decided under the Arbitration Act 1940 1 SCC 508. This the arbitrator from awarding interest for the pre­ reference pendente lite or post­award period interest for the pre­award period the arbitrator cannot award interest for the said period. Therefore the decision in Ambica Constructioncannot 18. Having regard to the above we are of the view that the High the Contract is ultra vires in terms of Section 28 of the Indian Contract Act 1872. According to Section 28 a contract is void to which he may enforce his rights. Exception I to this section that any dispute which has arisen or which may arise between to arbitration is not illegal. The question therefore is whether the “Exception 1: Saving of contract to refer to more persons agree that any dispute which may arise between them in respect of any subject or that only the amount awarded in such move the Court for appropriate relief is restricted but where the parties have agreed to resolve their dispute through arbitration violate Section 28. No cause of action then accrues until the Arbitrator has made the award and the only amount awarded in claim to interest including pendente lite and the power of the Arbitrator to grant interest is subject to the agreement of the 22. Thus when there is an express statutory permission for the In the result the appeal fails and is accordingly dismissed 24. Pending application if any shall also stand disposed of

No harsher sentence be awarded because of involvement in other cases: Delhi High Court

Presumption of innocence must be maintained until the accused is held guilty and even though the appellant is involved in other cases, no harsh sentence can be awarded just because the appellant had been convicted in any of the other cases as well at the material time. Delhi High Court gave the judgment in the case of Chhotu Kumar vs. Govt. of NCT of Delhi [CRL. A. 331/2017] presided over by the single bench of Hon’ble Justice Vibhu Bakhru. In the above-cited case, the appellant had filed the present appeal for challenging the earlier judgment of 30-11-2016 where he was convicted u/s 186, 353, and 307 of the Indian Penal Code and sections 25 and 27 of the Arms Act, 1959. On 5-7-2015, secret information was received against the appellant that he was about to deliver and distribute illegal arms and ammunition in Delhi and Haryana. It was observed that the appellant was involved with gangsters and in various criminal cases including murder, attempted murder, looting, smuggling of weapons, and was quite capable of attacking the police as well. During the entire chasing operation, the appellant fired bullets on the police vehicles and didn’t surrender; but was finally caught. During the trial, the prosecution examined eleven witnesses. The statement of the appellant was also recorded under Section 313 of the Cr.PC. He claimed that he had been falsely implicated and the police had planted their illegal weapons and framed him. The trial court examined all the witnesses & evidence and accepted that the appellant had fired five bullets and the same was established as five cartridges were recovered from the spot. They were also found to have been fired from the pistol recovered from the appellant. The petitioner’s counsel contended that the appellant had already served more than five years of his prison sentence and thus, had served the sentence awarded to him in respect of all offences other than the offence punishable under Section 307 of the IPC and argued that the trial court had also based the decision on the FSL reports, which indicated that the bullet recovered from the bulletproof vests worn by the officers, were fired from the pistol used by the accused. However, the said report was never tendered and therefore, could not have been considered as evidence. Lastly, he contended that the sentence awarded to the appellant was harsh and onerous. The impugned order on sentencing indicated that the Trial Court had awarded a higher sentence on the ground that the appellant was involved in other cases. In the further observations, it was found that the testimonies of all the witnesses were exactly similar to each other but with different names and the prosecution did not examine any of the six police officials who were part of the complete operation regarding the events leading to the apprehension of the appellant and there were no independent witnesses involved during the trial. So, therefore, Delhi HC decided to set aside the conviction of the appellant for offence u/s 307 IPC; since there were no proper witnesses presented in the case and stated that “This Court is unable to accept that the prosecution has established its case that the appellant had committed an offence punishable under Section 307 of the IPC beyond any reasonable doubt.”

IN THE HIGH COURT OF DELHI AT NEW DELHI Judgment delivered on: 27.01.2021 .....Appellant .....Respondent CRL. A. 331 2017 CHHOTU KUMAR @ CHOTE FAUJI STATEAdvocates who appeared in this case: For the Appellant For the Respondent HON’BLE MR JUSTICE VIBHU BAKHRU VIBHU BAKHRU J Mr. Akshay Bhandari and Mr. Digvijay Singh Advocates. Mr. Amit Gupta APP for State. The appellant has filed the present appeal impugning a judgment dated 30.11.2016 whereby the appellant Chhotu Kumar @ Chote Fauji was convicted of the offences punishable under Sections 186 353 and 307 of the Indian Penal Code and Sections 25 and 27 of the Arms Act 1959rigorous imprisonment for a period of ten years along with a fine of ₹25 000 and in default of payment of fine to undergo simple imprisonment for a further period of one year for committing CRL. A. 331 2017 an offence punishable under Section 307 of the IPC rigorous imprisonment for a period of two years along with a fine of ₹5 000 and in default of payment of fine to undergo simple imprisonment for a further period of one month for committing an offence punishable under Section 353 of the IPC rigorous imprisonment for a period of three months along with a fine of ₹500 and in default of payment of fine to undergo simple imprisonment for a further period of ten days for committing an offence punishable under Section 186 of the IPC rigorous imprisonment for a period of three years along with a fine of ₹5 000 and in default of payment of fine to undergo simple imprisonment for a further period of three months for committing an offence punishable under Section 25(1B)(a) of the Arms Act andrigorous imprisonment for a period of five years along with a fine of ₹15 000 and in default of payment of fine to undergo simple imprisonment for a further period of six months for committing an offence punishable under Section 27(1) of the Arms Act. All the sentences were directed to run concurrently. The case of the prosecution is that on 05.07.2015 SI Krishan Kumar received secret information in the office of Special Cell to the effect that the appellant a Constable with Sashatra Seema Balwho was absconding would come at about 7.30 8.00 P.M in a Maruti Wagon R vehiclefor delivering illegal arms and ammunition for distribution in Delhi and Haryana with the aid of a friend at Rajiv Nagar Bus Stand near the under construction Signature Bridge Delhi. He also informed that the appellant is a CRL. A. 331 2017 as well. resident of Uttar Pradesh and is involved with gangsters and in various criminal cases including murder attempted murder looting smuggling of weapons. And he is quite capable of attacking the police The information received was entered as DD No. 13. The secret informer was produced before Inspector Govind Sharma and on his instructions a team comprising of ten officials ASI Ajaibir SI Krishan Kumar HC Rajkumar HC Umesh HC Sandeep HC Rajiv HC Sanjeev HC Surender HC Narender and Ct. Anshu was constituted. The said team left for the spot along with arms and ammunitions as well as the IO kit. The secret informer accompanied the said team. The police team used three vehicles a Government police gypsy a private car and one motorcycle. The team reached the spot and SI Krishan Kumar briefed the members of the team and deployed them at various spots. According to the prosecution a Maruti Wagon R vehicle bearing registration No.DL 3CZ 3444 arrived at the spot at about 07.35 p.m. from the direction of Khajuri and was going towards Rajiv Nagar Bus Stand and stopped about 15 20 meters from where the police vehicle was stationed. One person got out from the said vehicle. The secret informer identified the said person as the CRL. A. 331 2017 appellant which he was using to take cover. The police officials alleged that there was a moment when the appellant attempted to change the magazine of his pistol and he was overpowered at that moment. SI Krishan Kumar snatched his pistol and he found that the pistol still contained one live round in its chamber. He also snatched the magazine from the appellant which had six live cartridges. After being apprehended the appellant disclosed his name and address. The vehicleused by him was checked and a travelling bag containing thirty pistols was found kept on the rear seat. The appellant allegedly disclosed that he had brought the same at the instance of one Lokender from Khargaun Madhya Pradesh for delivering the same in Delhi. Each of the pistols had magazines inside them. The pistols seven live cartridges and two magazines were recovered from the appellant and their sketches were prepared. The police officials claimed that the magazines and the pistols were kept in separate plastic containers with two pistols each. They were then sealed with the help of a doctor tape. SI Krishan Kumar prepared a rukka and sent the same through HC Raj Kumar for registration of the FIR. After the FIR was registered the investigation was assigned to SI Amrik Singh. SI Amrik Singh prepared a site plan of the spot at the instance of SI Krishan Kumar. Five empty cartridges were also recovered CRL. A. 331 2017 which allegedly pertained to the bullets fired by the appellant. They were kept in a separate sealed container. Four empty cartridges from the bullets fired by the members of the police team were also recovered from the spot and were sealed and seized. The bullet proof vests allegedly worn by the four police officials were also seized and sealed. 10. The vehicle used by the appellant was found to be stolen and a subject matter of FIR No.2645 registered with PS Crime Branch Delhi. The same was seized under Section 201 of the Cr.PC. Thereafter the accused was taken for his medical examination to All India Institute of Medical Sciences 13. Shri Pramod Kumar Mendiratta the owner of the Wagon R vehicle bearing registration No.DL 3CZ 3444 was examined as PW6 and he proved that he was the owner of the vehicle and the said vehicle was stolen on 25.05.2015. He also testified that at his instance an FIR regarding theft of his vehicle had been registered. 14. HC Rajesh was examined as PW1 and he testified that he had driven a police gypsy bearing no.DL 1CJ 3486 to CFSL CBI for his forensic examination by the Ballistics Department Division at CGO Complex. He testified that the said vehicle was examined and thereafter he drove the vehicle back to the Special Cell on 08.07.2015. 15. Ct. Anshu Choudhary was examined as PW8. He testified that on 09.07.2015 he was posted with the Special Cell Lodhi Colony and on that date he had collected 22 pullandas from the malkhana. 16 pullandas were sealed with the seal of SPL CELL NDR 31 and 3 pullandas were sealed with the seal of SPL CELL NDR 21. The remaining 3 pullandas were sealed with the seal of AIIMS. He testified that he had also collected the FSL Forms and he deposited the said 22 pullandas with CFSL CBI CGO Complex Lodhi Road. He had transported the same under RC Number 84 21 15. He deposed that CRL. A. 331 2017 he had secured a receipt of the pullandas from the CFSL CBI CGO Complex and had deposited the same to MHC(M) HC Sanjeev. 16. The three reports received from CFSL CBI New Delhi which were marked as Ex.PX1 Ex.PX2 and Ex.PX3 were not disputed by the appellant. The report marked as Ex.PX1 indicated that one country made pistol which was sealed in parcel No.A was an arm and seven 7.65 mm cartridges the said parcel were ammunition. The CFSL report marked as Ex.PX2 indicated that the fifteen parcels received by CFSL contained country made pistols and magazines which were firearms. The CFSL report marked as Ex.PX3 indicated that the three parcels which contained the cotton swabs taken from the accused had traces of nitrite which is one of the main constituents of gunshot residue. 17. SI Mahipal Singh who was posted as the General Store In charge of PS Special Cell was examined as PW2. He testified that he had issued four bullet proof jackets to HC Umesh for his team on 03.07.2015. He also produced the relevant entries made in the B.P. Jacket Article Register for issuance of the said jackets. In addition he testified that on 05.07.2015 he had issued one Glock Pistol No.AADP081 with ten rounds of 9 mm to SI Krishan Kumar one 9 mm pistol No.1621 2041 with butt no. 5159 with 10 rounds to HC Umesh Kumarone 9 mm pistol No.1621 2074 with butt no. 5192 with 10 rounds to SI Ajayveer Singh and one 9 mm pistol No.1621 2065 with butt no. 5183 with ten rounds to HC Raj Kumar sent by SI Krishan Kumar through HC Raj Kumar and on the basis of the said rukka an FIR bearing no. 46 2015was recorded in his presence. 19. HC Sanjeev Kumar was examined as PW11. He testified that on 06.07.2015 he was posted at PS Special Cell as MHC(M). He testified that the IO SI Amrik Singh had deposited fifteen plastic containers containing pistols and cartridges which were sealed with a doctor tape and were bearing the seal of SPL CELL NDR 31. In addition SI Amrik Singh had also deposited three other plastic containers sealed with a similar seal along with the FSL Form. The said containers contained empty cartridges. One of them also contained a pistol and a magazine. He further stated that SI Amrik Singh had also deposited four bullet proof jackets marked as BP1 BP2 BP3 and BP4 which were kept in two white plastic sacks and were duly sealed with the seal of SPL CELL NDR 21. CRL. A. 331 2017 Evidence of the eyewitness 20. SI Krishan Kumar deposed as PW 4. He deposed that prior to the incident in question the officers of Special Cell had raided and arrested several accused persons who had been involved in supplying arms and ammunitions. He stated that by conducting such raids more than one hundred accused persons had been arrested and arms and ammunitions in large quantities had been recovered. He stated that on 05.07.2015 he was present in the office of Special Cell when one secret informer informed him that one absconding constable from Sastra Seema Bal who was engaged in supplying arms and ammunitions to miscreant elements will bring illegal arms and ammunitions from Khargaun Madhya Pradesh in a Wagon R vehicle bearing registration number 3444). He stated that the secret informer had further informed him that the constable will come between 7:30 8:00 pm in the said car near Rajiv Nagar Bus Stand under construction Signature Bridge behind Nanaksah Gurudwara Delhi for the purpose of supplying the same. The secret informer had further stated that the accused would not be afraid to attack the police team and further he had been involved with gangsters as well as in cases of dacoities murder attempt to murder and other crimes. He deposed that he produced the secret informer before Inspector Govind Sharma and was asked by him to take action regarding the said information. He stated that he reduced the said information into writing in the rojnamancha and thereafter he had organised a raiding team under the supervision of Inspector Govind Sharma which comprised of ASI CRL. A. 331 2017 Ajaybir HC Rajkumar HC Umesh HC Sandeep HC Rajiv HC Sanjeev HC Surender HC Narender Ct. Anshu and himself. He further deposed that at about 06:00 pm they had left the office of Special Cell along with the secret informer in a government gypsy one private vehicle and one motor cycle. He deposed that they had also carried the IO kit bullet proof jackets and arms and ammunitions. He further deposed that on the way to the spot he contacted few public persons to become witnesses to the raid but none agreed. He deposed that he had briefed the members of the raiding team and deployed them at the spot. He testified that at about 7:35 pm the said Wagon R vehicle came from the side of Khajuri towards Rajiv Nagar Bus Stand and stopped there and thereafter one person alighted from the said car who was identified by the secret informer to be the accused Chhotu @ Fauji. The said accused appeared to be waiting for someone. He stated that thereafter hecame out from the gypsy and gave a signal to the raiding team to surround the accused. He deposed that the accused smelled their presence and immediately got into his Wagon R vehicle and drove the same towards the Signature Bridge. He stated that they chased the said Wagon R vehicle in the gypsy being driven by HC Umesh and intercepted the said Wagon R after a distance of about 250 300 yards. He stated that they warned the accusedthat he was surrounded by the police team and they had information that he was carrying illegal arms. Upon hearing this the accused had come out from his car and took out a pistol from his dub and loaded the same. PW4 further deposed that they had warned the accused to not use the weapon however he fired a shot CRL. A. 331 2017 which had hit the mudguard of the left wheel of the gypsy. He stated that thereafter he and HC Rajkumar alighted from the gypsy and took out their respective weapons and moved towards the accused. He stated that upon moving ahead to apprehend the accused the accused fired by taking an aim towards him and the bullet hit his bullet proof jacket in the chest portion. He deposed that he also fired a shot from his service revolver in his self defence. Thereafter HC Rajkumar tried to overpower him but the accused also fired at him which had resulted in the bullet hitting his bullet proof jacket in the chest portion. He stated that ASI Ajaybir and HC Umesh Kumar came forward while covering for them but the accused fired on them as well. The bullets fired by the accused resulted in hitting their bullet proof jacket. He affirmed that in their self defence ASI Ajaybir HC Rajkumar and HC Umesh Kumar also fired one shot each. He deposed that they overpowered the accused when he paused to change the magazine of his pistol. He deposed that he snatched the pistol from the hands of the accused and upon checking it one live round was found in the chamber. He stated that he had also snatched the magazine from the hands of the accused and six live cartridges were found in it. He further deposed that he interrogated the accused and the accused disclosed his name and address as Chhotu Kumar @ Chhote Fauji S o Shaligram R o Village Kacchotpura PS Gonda Dist. Aligarh U.P. He stated that he had also conducted a cursory search of the accused but no other weapon or ammunition was found on him. He further stated that one red colour trolly travelling bag was recovered from the rear seat of the said car and upon checking the bag thirty pistols CRL. A. 331 2017 wrapped in newspapers and covered by cloth were found. He stated that upon interrogation the accused disclosed that he brought the said pistols at the instance of one Lokender from Khargaun Madhya Pradesh and the same had to be supplied in Delhi with the assistance of Lokender. He stated that he had prepared the sketch of one pistol seven live cartridges and two magazines recovered from the accused Ex PW4 A) and thereafter he had kept the pistol cartridges and magazines in a transparent plastic container and sealed the same with the help of a doctor tape and applied the seal of SPL CELL NDR 31 and marked the same as Mark A. He seized the same vide seizure memo which were recovered from the said car and prepared sketches of the pistols and magazines and marked them as SI No. 1 to 30and thereafter he had kept the pistols in fifteen transparent plastic containers and marked the container as SI No. 1 to 15 and sealed the same with the help of doctor tape and applied the seal of SPL CELL NDR 31. He seized the same vide seizure memo and handed over the same to HC Rajkumar for registration of the FIR. He further deposed that he had handed over the seizure memos sketches 16 containers and FSL forms along with the accused to SI Amrik Singh and he had prepared the site plan at his instance. He deposed that during the course of the investigation the IO had collected 5 empty cartridges of the bullets fired by the accused from the ground and had kept the same in a transparent dabbi container CRL. A. 331 2017 sealed with the seal of SPL CELL NDR 21 and had marked the pullandas as F1. He seized the same vide seizure memoto the IO and ASI Ajaybir and HC Umesh handed over the bullet proof jackets to the IO. Thereafter the IO prepared two pullandas of the jackets and sealed the same with the seal of SPL CELL NDR 21 and marked them as K1 and K2. He took the same into possession vide seizure memounder Section 102 of the Cr.PC by the IO as the same was found stolen in a case bearing FIR no. 2645 registered with PS Crime Branch Delhi. The IO also arrested the accused and conducted his personal search vide search memowas highly improbable. He stated that in all the appellant is alleged to have fired five bullets. The first had hit the police vehicle at the mudguard. The next four bullets had allegedly struck the four concerned police officials constituting a part of the raiding team that had accosted the appellant with each police official being struck by one bullet. He submitted that none of the police officials were hurt. They allegedly retaliated and each of CRL. A. 331 2017 them fired shots at the appellant but none of the shots struck the appellant or the vehicle. 26. Next he submitted that apart from the improbability of such an event the testimonies of PW4 PW7 PW9 and PW10 were not similar but absolutely identical. This included the sentences punctuation and also the spelling errors. He stated that it was evident that the testimony of a witness had been copied as testimonies of other witnesses and the only changes made were regarding their names. 27. Next he submitted that all of the aforesaid police officials were from the same police station and despite the seriousness of the event as alleged the crime team had not been called. Further he submitted that in addition to the testimonies of PW4 PW7 PW9 and PW10 the Trial Court had also based the decision on the FSL reports which indicated that the bullet recovered from the bullet proof vests worn by the officers were fired from the pistol used by the accused. However the said report was never tendered and therefore could not have been considered as evidence. He submitted that while such evidence may be admissible under Section 293 of the Cr.PC it nonetheless is required to be tendered. He relied on the decision of the Division Bench of this Court in Dharampal and Anr. v. State: Crl. A. 140 1999 decided on 28.07.2011 in support of this contention. CRL. A. 331 2017 28. Lastly he contended that the sentence awarded to the appellant was harsh and onerous. The impugned order on sentencing indicates that the Trial Court had awarded a higher sentence on the ground that the appellant was involved in other cases. However the appellant had not been convicted in any case and therefore taking an adverse view against him on the ground that he was being prosecuted was not permissible. He stated that the Cr.PC only permits taking previous convictions into account and not merely FIRs which are in the nature of mere allegations. 29. He referred to the decision of the Division Bench of this Court in State v. Bashir Ahmed Ponnu and Ors.: Crl. A. 1065 2014 decided on 08.12.2014 whereby the role attributed to the co accused Shahid Gafoor was similar to the allegations against the appellant. Although the court had convicted him it had sentenced him to five years of rigorous imprisonment for an offence punishable under Section 307 of the IPC. He submitted that in that case the co accused was stated to be involved in terrorist activities. Therefore in the event the appellant’s conviction is sustained the sentence awarded to him ought to be reduced. 30. Mr. Amit Gupta learned APP appearing for the State countered the aforesaid submissions. He submitted that it was not open for the appellant to now object to the manner in which the evidence of PW4 PW7 PW9 and PW10 was recorded. He submitted that the Trial Court CRL. A. 331 2017 had considered their testimonies and had apparently copied the same while making certain necessary changes regarding the names of the witnesses and the officers involved. He submitted that this was well within the knowledge of the counsel of the appellant but no objection was raised in this regard. He also relied on Section 465 of the Cr.PC and submitted that the appellant cannot challenge the judgment convicting him in view of the manner in which the evidence was recorded unless he is able to establish that he has been prejudiced by the same. Reasons and Conclusion 31. As noticed above the learned counsel appearing for the appellant has restricted the present appeal to impugn the appellant’s conviction for an offence punishable under Section 307 of the IPC only. Therefore this Court has confined its examination to the said aspect alone. It is relevant to note that the appellant had admitted certain documents including the Ballistic Report CFSL 2015 F 978CFSL 2015 F 979and CFSL 2015 F 981and the same has been recorded by the Trial Court in its order dated 19.10.2015. However it appears that thereafter two other CFSL reports were received:Report bearing no. CFSL 2015 F 973 dated 15.10.2015 and Report bearing no. CFSL 2015 F 980 dated CRL. A. 331 2017 16.10.2015. The said reports were not marked and the appellant had not admitted to the said documents. The additional statement of the appellant under Section 313 of the Cr.PC was recorded on 22.11.2016 and all the CFSL reports were put to him. He responded by stating that no firearms were recovered from his possession but the contents of the reports were a matter of record. 33. The appellant’s conviction under Section 307 of the IPC is premised on the basis that he had fired four shots at the police officials SI Krishan Kumar HC Raj Kumar ASI Ajaibir PW7) and HC Umesh Kumar In all trials before a Court of Session the evidence of each witness shall as his examination proceeds be taken down in writing either by the presiding Judge himself or by his dictation in open Court or under his direction and superintendence by an officer of the Court appointed by him in this behalf. 2) Such evidence shall ordinarily be taken down in the form of a narrative but the presiding Judge may in his discretion take down or cause to be taken down any part of such evidence in the form of question and answer. 3) The evidence so taken down shall be signed by the presiding Judge and shall form part of the record.” 35. As it is apparent from a plain reading of Section 276(1) of the Cr.PC. the evidence of each witness is required to be taken down “as his examination proceeds”. Plainly this has not been done in this case. 36. Whilst there is merit in the contention that the said procedure could have been objected to at the time when the evidence was being recorded and the fact that the learned counsel for the appellant had not done so would be a relevant factor in determining whether there has been a failure of justice as a result thereof however this Court is of the view that the issue of absolutely identical examinations in chief CRL. A. 331 2017 not only highlights procedural irregularity but also raises a question to the credibility of the testimonies of the witnesses. The examination in chief of the witnesses which are identical both in their construct and content would in normal circumstances lead to a doubt that the witnesses may have rehearsed their testimony in consultation with one another. 37. Having stated the above this Court is of the view that the testimony of the said witnesses cannot be disregarded or ignored only for the reason that their examination in chief is identical. It would be necessary to examine the evidence led as a whole before ascertaining whether the prosecution has established its case beyond any reasonable doubt. The fact that the testimonies of certain police officials are identically worded would certainly be a factor while evaluating their evidence. In the present case a raiding team was constituted on the secret information received by SI Krishan Kumar “near Rajiv Nagar bus stand under construction signature bridge behind Nanaksah Gurdwara Delhi”. However the said entrymerely mentions that as per the secret informer the appellant would come to Delhi no specific locality or place is mentioned in the entry. 40. PW4 testified that the said raiding team was under the overall supervision of Inspector Govind Sharma who had also accompanied the team. He testified that the raiding team had left in three vehicles: A Government vehiclea private car and one motor cycle. The departure of the said raiding team had been entered as DD No.15 on 05.07.2015 as DL 1CJ 3486 but the particulars of the private vehicle and the motorcycle are not mentioned. 41. As noted above the testimonies of HC Raj KumarASI Ajaibirand HC Umesh Kumarare identical to that of SI Krishan Kumarwas examined as PW8. It is material to note that he did not testify as to him being a part of the raiding team or CRL. A. 331 2017 any of the events of 05.07.2015. He also did not affirm that he was a part of the raiding team or was deployed to apprehend the appellant. He did not mention that he was posted at the Special Cell on 05.07.2015. He merely stated that he was posted at the Special Cell on 09.07.2015 and on the instructions of the IO he had collected 22 pullandas and taken them to CFSL CBI CGO Complex Lodhi Road. 43. The fact that none of the members of the raiding team travelling in the private vehicle or on the motorcycle testified to the events that transpired on 05.07.2015 does raise some doubts. These are compounded by the fact that Ct. Anshu who according to the prosecution had travelled in the private vehicle chose not to mention anything about the events of 05.07.2015. It is apparent that the prosecution had for reasons known to them decided not to examine any of the six police officials that had formed a part of the raiding team regarding the events leading to the apprehension of the appellant. Accordingly Ct. Anshu who appeared as a witness was also not examined regarding the events of 05.07.2015 but only regarding transporting the pullandas to FSL. 44. According to the prosecution the raiding team had left the office of the Special Cell along with the secret informer at about 06:00 pm. PW4 had testified that he had on the way to the spot near Rajiv Nagar Bus Stand contacted a few public persons to be witnesses to the raid but none of them had come forward and had left the spot CRL. A. 331 2017 without disclosing their names and addresses. Thus even though the raiding team was deployed at a spot which was not isolated no public persons were joined as independent witnesses to the proceedings. It is relevant to note that one of the police officials of the raiding teamwas in fact deputed right next to the bus standyet none of the persons standing at the bus stop had joined the proceedings. The site plan also indicates that Gurudwara Nanaksah was located nearby. However none of the witnesses from the said Gurudwara were also included in the proceedings. On the contrary in the testimony PW4 had stated that the Gurudwara was at some distance away. However that would not the officials from including witnesses from the said Gurudwara if they wanted to include independent witnesses. 45. Although the examination of the four police officials are identical and all of the said witnesses had affirmed that on the way SI Krishan Kumar had contacted a few public persons to become witnesses their statements in their cross examination are not similar. PW4 in his cross examination had stated that at the spot he had contacted 5 6 passersby to witness the raid but none had come forward. However it is material to note that in his examination in chief he had stated that he had contacted persons on the way and not at the spot. ASI Ajaibir in his cross examination further improved his testimony and stated that the IO had contacted the public persons to become witnesses to the raid thrice and in addition also contacted public persons at the spot but none had CRL. A. 331 2017 come forward. PW9 had stated in his cross examination that SI Krishan Kumar had asked public persons to join the investigation at the spot but they had refused. It is well settled that evidence of the police officers cannot be rejected only on the ground that it is not supported by independent witnesses. However non examination of independent witnesses does cast an added duty on the court to scrutinize the evidence of the police officers were examined regarding the events leading to the apprehension of the appellant. Curiously they are the only officials who had been issued bullet proof vests. The prosecution has also led evidence to establish that they were issued arms and ammunitions however no evidence had been led to establish whether the other members of the raiding team were also armed. PW4 PW7 PW9 and PW10 were questioned on this aspect but they stated that they were not aware whether the other members of the raiding team were carrying arms or not. 47. There is no explanation whatsoever as to why the other members of the raiding team did not come to the spot from where the CRL. A. 331 2017 accused was apprehended within a reasonable time. According to PW4 the raiding team was led by Inspector Govind Sharma. He remained inside the private car which had not pursued the appellant. According to the witnesses PW4 PW7 PW9 and PW10 have varying accounts as to when the remaining members of the raiding team arrived at the spot where the encounter with the appellant had allegedly taken place. According to PW4 the other members of the raiding team arrived at the spot after about fifteen to twenty minutes according to PW5 the other members came to the spot after about five to ten minutes according to PW9 Inspector Govind Sharma arrived at the spot about ten minutes after they had apprehended the appellant. PW10 stated that the staff arrived after ten to fifteen minutes. The alleged spot where the encounter had taken place is stated to be about 250 to 300 yards away from where the raiding team was initially deployed. The site plan also indicates that the spot where the encounter took place was straight ahead from where the raiding team was deployed. According to the prosecution the entire team had left the spot to apprehend the appellant. However there is no explanation as to why the other members of the raiding team did not immediately proceed to the spot even though it was at a visible distance from where they were deployed. Even if the team had walked to the spot they would have covered the distance in less than ten minutes. 48. As noticed above the team leader was inside a private car which was stationed right behind the official gypsy. Yet only the gypsy pursued the appellant when he attempted to CRL. A. 331 2017 flee and the other members of the raiding team took fifteen to twenty minutes to cover a short distance of 250 to 300 yards meters. 49. As observed earlier Ct. Anshu was examined as a witness. However he did not even mention that he was posted with the Special Cell on the date of the incident. It is thus clear that the prosecution had specifically ensured that none of the other members of the raiding team testify as to the incident even though they were relevant witnesses. This coupled with the fact that the official witnesses of the raiding team who did testify did so in a manner where their examination in chief is identical does raise doubts as to the evidence led by the prosecution. It is also relevant to note that there are certain minor differences in the statements of their cross examination. One of the aspects on which their statements made in the cross examination are not consistent is related to the initial stage of the encounter. In his cross examination PW4 stated that the accused had driven his vehicle on a road which was closed ahead due to construction and when he reached the end point the accused stopped the vehicle on a kaccha road. It is stated that they challenged the accused and told him that they were police officials and asked him not to flee. It is stated that they had also told him that they had information that he had been carrying illegal arms. Despite stating so the accused came out of his vehicle and suddenly fired on the members of the police team. He CRL. A. 331 2017 stated that they did not return the fire after the first shot was fired. He volunteered that the first shot hit the police gypsy and they reversed the vehicle for about five meters. He stated that he was the first to get out of the police vehicle and just about that time HC Raj Kumar also got down. In the examination in chief which is common between PW4 PW7 PW9 and PW10 PW4 had testified that they had intercepted the Wagon R vehicle being driven by the accused after a distance about 250 300 yards. They had warned the accused that he was surrounded by a police team and they had information that he was carrying illegal arms and ammunition. He testified that on hearing this the accused came out of the car. He took out a pistol from his dub and loaded the same. They again warned him not to use the weapon but he did not hear them and fired a shot which hit the mudguard of the left wheel of the gypsy. PW4 stated that he and HC Raj Kumar had alighted from the gypsy and took out their respective weapons and moved towards the accused. It is relevant to note that in the examination in chief the said witnesses did not state that they had reversed the gypsy on the accused shooting the same. 51. PW7 also did not state in his cross examination that they had reversed the gypsy vehicle after the accused had fired a shot at it. PW10 also did not make any statement to the aforesaid effect. 52. The manner in which the encounter had allegedly unfolded must be considered in the aforesaid backdrop. According to PW4 PW7 CRL. A. 331 2017 PW9 and PW10 who were the only persons who were examined on behalf of the prosecution to testify as to the incident stated that the appellant had fired five bullets. Apparently on being informed that he was surrounded the accused had got out of the vehicle loaded his gun and then fired a shot which hit the mudguard over the left wheel of the gypsy. PW4 and PW10 had alighted from the vehicle but they did not fire any retaliatory shots. The accused then fired his second shot which hit PW4 in the area of his chest. However he was unhurt because he was wearing a bullet proof jacket. At that stage PW4 also returned fire in his defence. However the said bullet neither hit the accused nor the Wagon R vehicle. It is material to note that according to PW4 the accused at that stage was hiding near the bonnet of the Wagon R vehicle. In other words the vehicle placed between the police party and the accused was being used as a cover. PW4 was barely six meters from the appellant but the bullet fired by him neither struck the appellant nor the Wagon R vehicle. 53. Thereafter the appellant fired a third shot which now hit PW10 in his chest region but he remained unhurt because he was wearing a bullet proof vest. He then returned fire in his defence. This bullet neither struck the appellant nor the Wagon R vehicle which he was using as a cover. 54. Thereafter the accused also fired at the other two police officials who came forward to cover PW4 and PW10. They were also CRL. A. 331 2017 hit with one bullet each in their chest region and remained unhurt because they were wearing bullet proof jackets. They also returned fire but none of their bullets either hit the Wagon R or the accused. In fact there is no evidence as to where the bullets fired by the raiding team eventually struck. At that stage the accused decided to change the magazine of his weapon even though there was a bullet in the chamber and at that stage the four police officials overpowered him. According to PW4 all of this happened within two minutes which is before the other members of the raiding team fetched up. It is material to note that PW4 in his cross examination stated that while they were chasing the accused the two private vehicles were behind them in which other staff members were present. He stated that they also did not fire as they had discussed earlier not to do so. As to why the private vehicles which were behind the gypsy while it was pursuing the accused could not cover a distance of 250 to 300 yards within a span of 15 20 minutes raises a serious question as to the case set up by the prosecution. 56. This Court is of the view that if the question of the testimonies of PW4 PW7 PW9 and PW10 as to them being identical is viewed in the overall context of the facts thatno public witnesses were joined although there would have been a large number of them available near the site that none of the other six members of the raiding CRL. A. 331 2017 team who were in two vehicles and had been deployed to apprehend the appellant could not proceed to cover a distance of 250 to 300 yards within a span of 15 to 20 minutes that none of the other members of the raiding team who would be relevant witnesses to the manner in which the events unfolded were examined by the prosecution and one memberwho was examined did not even mention that he was deployed at the police station on the given date while four members of the team were armed and wore protective gear there is no evidence that the other six members of the team were armed or not andthe manner in which the encounter is alleged to have taken place one bullet each in the chest region of each of the four police officials wearing bullet proof vests and the failure of the bullets fired by the police in defenceto find any target does raise doubts as to the prosecution’s case. 57. There is also merit in the contention that the CFSL Reports which were not tendered and exhibited in evidencecould not be relied upon. The Trial Court had taken note of a report dated 16.10.2015 as evidence that the bullets recovered from the bullet proof jackets were fired from the weapon that had been recovered from the accused. However that report was neither tendered in evidence nor exhibited. Although the said report may be admissible under Section 293 of the Cr.PC without the author testifying to the contents thereof however the said report was CRL. A. 331 2017 required to be tendered and could not be taken note of without the same being tendered and exhibited. In Dharampal and Anr. v. Statethe Division Bench of this Court has observed as under: “23. It is true that in view of Section 293 of the Criminal Procedure Code the report in question need not have been proved by summoning the author thereof but that does not mean that during trial nobody had to tender the same in evidence and have the same exhibited by deposing that either he himself went to the FSL Laboratory and collected the report in question or deposing that during investigation he obtained the report in question and that the same pertains to the investigation conducted in the case which was being tried. It must be deposed that the report in question pertains to the case at hand.” 59. Concededly the appellant has been convicted of an offence punishable under Section 307 of the IPC principally on the basis of the testimonies of four members of the raiding team and the CFSL Report evidencing that the bullets recovered from the bullet proof jackets were fired from the weapon allegedly recovered from the appellant. In view of the above this Court is unable to accept that the prosecution has established its case that the appellant had committed an offence punishable under Section 307 of the IPC beyond any reasonable doubt. CRL. A. 331 2017 In view of the above conclusion it is not necessary to examine the contention that the Trial Court had erred in taking into account that the appellant was involved in other cases while awarding the sentence. However for the sake of completeness this Court considers it apposite to consider the same as well. It is settled law that the presumption of innocence must be maintained until the accused is found guilty. Therefore even though the appellant may be involved in other cases the same could not be considered as a factor to award a harsher sentence because the appellant had not been convicted in any of the cases at the material time. This Court is of the view that the Trial Court erred in considering that the appellant was also involved in other cases while considering the quantum of sentence. In view of the above the appellant is acquitted of committing an offence punishable under Section 307 of the IPC. The impugned judgment to the limited extent it convicts the appellant for committing an offence punishable under Section 307 of the IPC is set aside. 63. The appeal is allowed to the aforesaid extent. The appellant be released forthwith if he is not wanted in any other case. JANUARY 27 2021 RK CRL. A. 331 2017 VIBHU BAKHRU J

Dismissal of applications during the process of arbitration cannot be challenged in court: High Court of Calcutta

When an order by the arbitrator under Section 16 of the Act is paased dismissing an application, such an order cannot be challenged by any party in the high court until the final order for that arbitration is not passed. This was decided in the case of. Saraswati Ojha And Ors. -Vs- Sri Birendra Prasad Singh And Ors [AP 61 of 2021] by the Hon’ble  Judge Ravi Krishan Kapur in the High Court of Calcutta. The disputes between the parties arose out of an arbitration clause contained in a partnership deed.  By an order, this Court had appointed a Sole Arbitrator to adjudicate the disputes between the parties arising out of the aforesaid partnership deed. Before the Arbitrator, the petitioners herein filed an application under Section 16 of the Act contending that the arbitration proceedings were barred by limitation. The Arbitrator rejected the application filed under Section 16, on the ground that the disputes raised by the petitioners did not give rise to a pure question of law but involved a mixed question of law and fact. The Arbitrator has further held that, it was necessary for issues to be framed and evidence to be taken in order to ascertain whether the partnership business has been actually dissolved or not or whether it had been reconstituted The counsel for the petitioner contended that the issue of limitation raised by the petitioners did not involve determination of any fact or framing of issues or adducing of any evidence. On the other hand, the claimants contention was that the application under Section 34 was misconceived and not maintainable. The court referred to the case of Deep Industries Ltd. vs. Oil And Natural Gas Corporation Ltd. & Ors. [2019(17) SCALE 85] where it was mentioned that, “The drill of Section 16 of the Act is that where a Section 16 application is dismissed, no appeal is provided and the challenge to the Section 16 application being dismissed must await the passing of a final award at which stage it may be raised under Section 34.” It further noted that the court was of the view that from the scheme of the Act, it is apparent that at this stage, a challenge under section 34 of the Act is not maintainable against an order dismissing an application under Section 16 of the Act. Also, it categorically stated that the legislature does not provide for recourse by way of a challenge under Section 34 against an order under Section 16(5) where the Arbitral Tribunal takes a decision rejecting the plea that the Arbitral Tribunal has no jurisdiction.

IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 10TH DAY OF FEBRUARY 2021 THE HON’BLE MR. JUSTICE ALOK ARADHE THE HON’BLE MR.JUSTICE NATARAJ RANGASWAMY W.A. NO.16925 OF 20111. WORKMEN OF MYSORE LAMP WORKS LTD REPRESENTED BY THE MYSORE LAMP STAFF & EMPLOYEES UNIONA REGISTERED TRADE UNION REGISTERED UNDER THE INDIAN TRADE UNIONS ACT) REP. BY ITS PRESIDENT HAVING ITS OFFICE AT OLD TUMKUR ROAD MALLESHWARAM WEST BANGALORE 560055. THE MYSORE LAMP WORKS LIMITED APPELLANT 2 REP. BY THE MANAGING DIRECTOR OLD TUMKUR ROAD MALLESHWARAM WEST BANGALORE 560055. BY SRI. K. SUBBA RAO SR. COUNSEL FOR M S. SUBBA RAO & CO. FOR R1 SRI. UDAYA HOLLA SR. COUNSEL FOR SMT. ANUPARNA BORDOLOI ADV. FOR R2) RESPONDENTS THIS W.A. IS FILED U S 4 OF THE KARNATAKA HIGH COURT ACT PRAYING TO SET ASIDE THE ORDER PASSED IN THE WRIT PETITION NOS.3190 2002 C W W.P. NOS.8259 2002 37142 2002 AND 757 2003 DATE THIS W.A. HAVING BEEN HEARD AND RESERVED ON 08.02.2021 FOR HEARING AND COMING ON FOR PRONOUNCEMENT OF JUDGMENT THIS DAY ALOK ARADHE J. DELIVERED THE FOLLOWING: This intra court appeal under Section 4 of the Karnataka High Court Act 1961 has been filed by the Government of Karnataka being aggrieved by the order dated 14.01.2011 passed by learned Single Judge in W.P.No.3190 2002 and other connected matters by which learned Single Judge has quashed the orders 3 dated 04.01.2002 as well as 30.08.2002 by which Mysore Lamp Works Ltd.by which operation of the company was closed by the State Government and subsequently an order was passed by the Labour Department under Section 25 O of the Industrial Disputes Act 1947 hereinafter referred to as the Act for short) granting permission to close the company under Section 25 O(2) read with Section 25 O(8) of the Act. Brief facts necessary for adjudication of this appeal are that the company is a public sector undertaking. In the year 1992 93 the company was operating on profitable basis. However since 1993 94 the company started incurring losses. On 11.07.1996 the State Government decided to prioritize the company. The company in the month of December 1996 was registered with Board of Industries and Financial Reconstruction granting permission to close the company under Section 25 O(2) read with Section 25 O(8) of the Act. The aforesaid orders were subject matter of challenge before the learned Single Judge. The learned Single Judge vide order dated 14.01.2011 5 allowed the writ petitions and the matter was remitted to the Government for fresh consideration of the application under Section 25 O of the Act after affording reasonable opportunity to the workmen of the company to put forth their case and thereafter to consider the case of the workmen in the light of observations made in the order. In the aforesaid factual background this appeal has been filed. 3. During the pendency of this appeal a bench of this court vide order dated 08.12.2016 passed in O.S.A.No.36 2014 in view of consensus arrived at between the parties directed the Additional Chief Secretary to the Government Commerce and Industries Department to ensure that the M s Mysore Minerals Ltd. shall convene a meeting of Board Of Directors as per decision dated 07.12.2006 for the absorption of the workmen within two weeks and further directed to identify the places where the services of the workmen of the company are to be absorbed in M s Mysore Minerals 6 Ltd. and the details shall be produced on the next date of hearing. It was further directed that each of the workmen shall be paid a sum of Rs.1 25 000 subject to proper identification. Admittedly in pursuance of the order passed by a bench of this court a sum of Rs.1 25 000 has been paid to the workmen who had filed the writ petition. Thereafter by an order dated 13.11.2020 a bench of this court directed Karnataka Minerals to make adhoc payment of Rs.15 000 per month to the workmen for past three years within a period of four weeks from the date of passing of the order. However the aforesaid payment was made subject to result of the appeal and the orders that may be passed on the merger by the appropriate government and also subject to future adjustment that can be made. Learned Senior counsel for the workmen of the company submitted that pursuant to the order 7 passed by State Government on 01.12.2020 the company had filed a memo dated 02.01.2021 along with which the report of the Task Force which was constituted to arrive at appropriate notional pay fixation and arrears of the workmen of the company was placed on record. It is further pointed out that the aforesaid Task Force has made the recommendations in favour of the workmen which are yet to be implemented. 6. However it is contended that the aforesaid Committee has not taken into account the fact that the workmen are entitled to back wages for a period from 2003 till the date of their absorption i.e. in the year 2017. It is further submitted that the Committee has not taken into account the past services rendered by the workmen in the company and the issue with regard to fitment pay scale and promotion and seniority as well as consequential benefits. In this connection our attention has been invited to statement of revised wages from 1994 to 2019 as per the settlement between the 8 Management and the Workers Union in respect of Mysore Electrical Industries Karnataka Soaps and Detergents Ltd. It is submitted that the workmen who are approximately 55 in number are also entitled to parity in treatment and are entitled to arrears of wages as well as consequential benefits at par with Mysore Electrical Industries Karnataka Soaps and Detergents Ltd. In support of aforesaid submissions reliance has been placed on decision of the Supreme Court in B.K.MOHAPATRA VS. STATE OF ORISSA AND ANOTHER 1987 SCC 553 S.M.PANDIT AND OTHERS VS. STATE OF GUJARAT AND OTHERS 4 SCC 778 and in HARJINDER SINGH VS. PUNJAB STATE WAREHOUSING CORPORATION 3 SCC 192. Learned Senior counsel has also reminded us of our constitutional obligation while reading out paragraphs from the HARJINDER SINGH VS. PUNJAB STATE WAREHOUSING CORPORATION supra. 9 7. On the other hand learned Additional Advocate General submitted that notwithstanding the order passed by the State Government on 01.12.2020 still the validity of the order passed by the learned Single Judge needs to be adjudicated to ascertain the date of closure of the company. It is also contended that provisions of Section 25 O does not contemplate recording of evidence and in the instant case neither the workmen had adduced any evidence in its case nor had sought for an opportunity to cross examine the witnesses. Therefore the learned Single Judge erred in law in setting aside the order of closure on the ground that the workmen were not afforded an opportunity of cross examination. In support of aforesaid submissions reliance has been placed on decision of Bombay High BRITANNIA INDUSTRIES LTD. VS. MAHARASHTRA GNERAL KAMGAR UNION AND ANOTHER 3 LLJ 275. However learned Additional Advocate General fairly submitted that the 10 recommendations made by Task Force Committee shall be given effect to within a period of three months and the amount due to the workmen approximately to the tune of Rs.6 Crores who are before this court shall be paid to them within a period of three months. Learned Senior Counsel for the company submitted that the company had already announced VRS scheme on 31.12.2001 prior to 04.01.2002 and 1046 employees had already opted for the scheme and the company had closed its production on October 2002 itself. It is also pointed out that services of 48 employees have already been absorbed in Boards and Corporations where they were deputed by the company and services of 79 employees have been absorbed in Karnataka Mineral Corporation Ltd. Therefore in the fact situation of the case the Government rightly took a decision to close the company. It is also submitted that the learned Single Judge erred in setting aside the order 11 dated 04.01.2002 and in remitting the matter to the State Government for fresh consideration. Learned Senior counsel for the Karnataka Mineral Corporation Ltd. has invited our attention to paragraph 16 of the constitution bench decision of the Supreme Court ANAKAPALLE CO OPERATIVE AGRICULTURAL AND INDUTRIES SOCIETY LTD VS. WORKMEN AND OTHERS AIR 1963 SC 1489 and submitted that the constitution bench of the Supreme Court has laid down the principles with regard to retrenchment with regard to Section 25 FF of the Act and the workmen are either entitled to compensation or absorption and they cannot claim both the reliefs. However it is submitted that the Corporation shall implement the recommendation of the Task Force Committee within a period of three months and shall grant the benefits to the workmen due under the recommendations within a period of three months from 12 10. We have considered the submissions made by learned counsel for the parties and have perused the record. It is well settled in law that this court while passing the order may take into account the subsequent events. In this connection reference may be made to decision of the Supreme Court in ANDHRA BANK VS. OFFICIAL LIQUIDATOR AND ANOTHER 5 SCC 75. However it is well equally well settled proposition in law that the court should not answer the academic or hypothetical question. 1 SCC 147]. Now we may advert to the subsequent developments which have taken place the pendency of this appeal. The State Government during the pendency of this writ appeal took a conscious decision by an order dated 01.12.2020 which reads as under: 13 GOVERNMENT ORDER NO:CI 108 CMI 2020BENGALURU DATED 01.12.2020 In the circumstances explained in the preamble Government is pleased to accord approval for utilization of land assets of M s Mysore Lamp Works Ltd. for Experience Bengaluru Project as below: i) To develop Experience Bengaluru Project on the land assets of MLQWL as a novel concept showcasing both the culture of Karnataka but also maintaining lung space in the heart of the city as per the National Green Tribunal Act. ii) Withdrawal of Government Order dated 20.03.2020 according approval the Scheme of Amalgamation of the Mysore Lamp Works Limited with Karnataka State Minerals Corporation Limited and empowering Mysore Lamp Works Limited to implement Experience Bengaluru Project by making necessary changes the Memorandum of Association and Article of iii) BDA to consider for change of land use from industrial to public and semi public of MLWL land to suit the proposed Experience Bengaluru Project. iv) In principal approval to initiate process of buy out minority shareholders of 5.6% and settle liabilities and make the MLWL to 100% Government Shareholding The above approval is accorded subject to the following terms and conditions 1) A detailed valuation of the company is to be done after the change in nature of the company and after the change in nature of ht eland. The value of each share is then assessed and shared with GoK. b) The liability with respect to employees will continue to be the responsibility of the KSMCL as decided in the previous amalgamation order. c) MLWL board decision is taken as mandated by the companies act wherever necessary. d) Hon ble High Court is briefed of the new developments before hand since a case is still pending in the court with respect to employees issue. e) Since majority of the employees are already absorbed in KSMCL they will continue to work there and employees issues with respect to fitment payment of arrears etc will be handled by KSMCL. 14 f) On the liabilities since MLW will continue to be in existence the liabilities need not be retired as of now. A decision on this can be taken at a later date. This order is issued with the concurrence of Finance Dept. vide its Note No. FD 320 Exp 1 2020 dated 25.11.2020 Commerce and Industries Departmentvide File No. CI 108 CMI 2020(E) dated 26.11.2020 & Urban Development Department vide File No .CI 108 CMI 2020 (E) and Cabinet approval in its meeting held on 27.11.2020 vide subject No.C:612 2020. By Order and in the name of the Governor of Karnataka Sd Under SecretaryCommerce & Industries Department. 11. Thus from perusal of the aforesaid Government Order it is evident that the Government has taken a conscious decision to approve for utilization of the land assets of the company for experience Bengaluru Project and has withdrawn the Government Order dated 20.03.2020 according approval to the scheme of amalgamation of Company with Karnataka State Minerals Corporation Limited and empowering the company to implement experience Bengaluru Project by making necessary changes in its Memorandum of Association and Articles of Association. In Principal 15 approval has also been accorded to initiate the process of buy out minority shareholders of 5.6% and settle liabilities and make the company to a 100% government share holding company and the aforesaid decisions have been taken subject to the terms and conditions which have been mentioned in the order. 12. Thus it is axiomatic that the company is still in existence therefore in view of the subsequent development viz. the conscious decision taken by the State Government it is not necessary for us to adjudicate the validity of the order passed by the learned Single Judge as the issue with regard to validity of the order of closure has been rendered academic as the State Government has subsequently taken a conscious decision to permit the company to be in existence and has converted the same as 100% Government Company. It is relevant to mention here that pursuant to interim order dated 08.12.2016 passed by a bench of this court directing absorption of the 16 employees of the company the State Government had constituted the special task force committee. The committee has made a representation in favour of the workmen which is reproduced below for the facility of i) The Task Force is of the unanimous view that the pay scales fixed by KSMCL AND MLWL employees on absorption is better than the notional pay worked out with MLWL pay scales. Hence the fixed by KSMCL on absorption of MLWL employees is appropriate and reasonable. ii) Monetary relief may be provided to MLWL employees from 12.06.2003 to the date of absorption in KSMCL or the date of death or the date of superannuation as per the Scheme of Financial Relief already approved vide Government Order No.CI 14 CMC 2019 dated 20.03.2020 and Government Order No.CI 108 CMI 2020(E) dated 1.12.2020. 17 iii) The above may be submitted before the Hon ble Court by MLWL AND KSMCL through their senior counsels. 13. Learned Additional Advocate General as well learned Senior counsel for Karnataka Mineral Ltd. have recommendations made by the Task Force Committee shall be given effect to within three months. The aforesaid statement is placed on record. It is not in dispute that services of the workmen who are before us have been absorbed in the year 2017 in Karnataka Mineral Corporation Ltd. and they are in service and in the peculiar facts of the case bearing in mind the interest of the workmen as well who have been litigating before this court for past approximately two decades we deem it appropriate to mould the relief and to direct the State Government as well as Karnataka Mineral Corporation Ltd. to ensure that the benefits of the recommendation made by the Task Force Committee are 18 given effect to and the payment of amount of approximately Rs.6 Crores as stated by Additional Advocate General shall be paid to the workmen within a period of three months from today who are before us in the light of recommendations made by the Task Force Committee subject to proper identification. However we may hasten to add that we have not quantified the amount due to the workmen. 14. This court is conscious of its constitutional obligation it is trite law that case is an authority for what it decides and not for what logically follows from it. The ratio decidendi of the case has to be read in the factual context. It is pertinent to note that in none of the cases relied upon by the learned Senior counsel for the workmen the Supreme Court was dealing with the matter arising out of an order of winding up or closure of a company. Therefore the decisions relied upon by the learned Senior counsel for the workmen have no application to the fact situation of the case. The court 19 while deciding a controversy has to bear in mind the scope of the proceeding as well and jurisdiction of this court in this appeal is confined to examining the validity of the order passed by the learned Single Judge and this court is not oblivious of its constitutional obligations which can only be discharged in an appropriate proceeding. 15. The grievance of the workmen with regard to their fitment fixation of pay scales and grant of consequential benefits cannot be gone into in this appeal as the same requires adjudication of the facts which can be done in an appropriate forum. Apart from this the aforesaid adjudication would be outside the scope of the present proceeding therefore we refrain ourselves from entering into the arena of disputed questions of fact which can only be adjudicated in an appropriate forum. Therefore the workmen would be at liberty to take recourse to such remedy which may be available to them in accordance with law. All questions in this regard 20 are kept open to be adjudicated in an appropriate forum. It is trite law that life of an interim order is co terminus with the main proceeding therefore the interim orders dated 08.12.2016 as well as 20.02.2020 do not survive in view of the fact that order dated 08.12.2016 has already been implemented and controversy in this appeal has already been adjudicated. With the aforesaid directions the appeal disposed of. Sd Sd

Devotion, Integrity and Honesty is a Sine Qua Non for every Bank employee: Supreme Court of India

Upholding the dismissal of a Bank clerk, Supreme Court observed that it is every Bank employees’ duty to work with devotion and integrity and honesty in the Banking Business. This was held in the case of Deputy General Manager (Appellate authority) vs. Ajai Kumar Srivastava [SLP(C) No(s). 32067­32068 of 2018] presided over by the bench of Hon’ble Justice L. Nageswara Rao, Justice Hemant Gupta and Justice Ajay Rastogi. In the above cited case, in 1999, Ajay Kumar Srivastava, was found guilty of charges of misappropriation of funds and was dismissed after holding the disciplinary enquiry. He had filed a departmental appeal, which was also dismissed by the authorities. When the writ petition was filed by the respondent in the HC, Allahabad High Court rejected the dismissal of the respondent by giving two reasons. When the appeal was filed in Supreme Court, it was being observed that the Charge no. 1 in reference to which the finding recorded by the enquiry officer had been overturned, the charges were proved by the enquiry officer against the employee and the finding of fact was confirmed by the disciplinary/appellate authority after meeting out objections raised by the respondent delinquent at different stages. In the judgment itself, SC contended about the power of judicial review in matters of disciplinary proceedings and was decided that the scope of judicial review cannot be extended to the examination of correctness or reasonableness of a decision of authority as a matter of fact. SC explained that what should be done in the cases when departmental enquiry is held against any public servant. SC observed the Constitutional Court while exercising its jurisdiction of judicial review under Article 226 or Article 136 of the Constitution should not interfere with the findings of fact arrived at in the departmental enquiry proceedings except in a case of malafides or perversity and if there is some evidence to support the conclusion arrived at by the departmental authority, the same needs to be sustained. It was stated that in these type of cases, the only requirement of law is that the allegation against the public servant must be established by such evidence acting upon which a reasonable person may arrive at the upholding of the charge.

Dissatisfied with the judgment and order dated 13th of Allahabad the instant appeals have been preferred at the that the appellant is a statutory body incorporated and constituted under the State Bank of India Act 1955. The respondent joined service as a Cashier Clerk in Mumfordganj Branch Allahabad on 07th December 1981. While on duty a misconduct was committed by him for which he was placed under suspension in the first place by order dated 14th August 1995 and later the charge­sheet dated 11th April 1996 was It may be relevant to note that for the self­same Sections 420 467 468 471 IPC read with Section 120­B IPC and Section 13(2) read with Section 13(1)(d) of Prevention of After the charge­sheet dated 11th April 1996 was served the denying all the charges. The enquiry officer was thereafter Bipartite Settlement applicable for award staff of Nationalized Bank. The respondent had participated in the disciplinary enquiry and the enquiry officer after holding enquiry in accordance with the procedure prescribed under the Bipartite Settlement applicable for award staff of Nationalized Bank furnished his report of enquiry dated 22nd May 1999 to the In his report dated 22nd May 1999 it has been noticed by the enquiry that he neither wants to say anything about the to substantiate his statement in defence regarding fictitious On 16.02.1994 saving bank account no.12215 of Shri I.S Vermawas debited with Rs.1 09 600 ­ and To prove the above allegation charge the presenting officer Debit voucher dated 16.02.1994 for Rs.1 09 600.00 relating to general account through schedule No.4 for Rs.4 87 300 and this amount was first posted in saving bank account No.7547 in favor of Shri K.C. Miglani. This amount was subsequently withdrawn in instalments on 25.03.1994 and 04.04.1994 and amount of Rs.89 150 and Rs.10 000 were misappropriated by him through credit to his current account No. P­15 on the To prove the above allegations charges the presenting officer Branch clearing general account schedule No.4 dated 25.03.1994 for Rs.4 87 300 Saving bank credit voucher dated 25.03.1994 for Rs.4 87 300 pertaining to saving bank account No.7547 of Shri K.C Debit voucher dated 25.03.1994 for Rs.2 36 550 pertaining to pertaining to current account No. P­51 of Shri Ajay Kumar PEX­8: Debit voucher dated 04.04.1994 for Rs.2 40 750 pertaining to current account No. P­51 of Shri Ajay Kumar Ledger sheet of current account No. P­15 of Shri Ajay Kumar On 22.09.1994 Shri Srivastava conspired with some staff members at the branch with a view to defraud the bank and accordingly a fake debit of Rs.5 00 000 ­ was raised in branch’s saving bank a c and out of the above an amount of Rs.2 00 000 ­ was misappropriated by him through credit to his To prove the above allegation charge the presenting officer Bank and accordingly a fake debit of Rs.5 30 000 was raised in Branch’s current Account and out of the above amount an misappropriated by him through affording of credit to his current Account No. P­51 and Saving Bank A c. No.11068 Rs.2 50 000.00 and Rs.25 000 ­ To prove the above allegation charge the presenting officer PEX­15 Debit voucher dated 30.12.1994 for Rs.5 30 000 ­ PEX­17 Saving bank credit voucher dated 30.12.1994 Rs.25 000 ­ pertaining to saving bank a c no.11068 of Smt PEX­18 Ledger sheet of saving bank a c no.11068 of Smt of Rs.2 30 000 in the S.B. A.C. No.11068 fvg. Smt. Rashmi To prove the above allegation charge the presenting officer PEX­19 Debit voucher dated 30.05.1995 for Rs.2 30 000 ­ pertaining to saving bank account no.11068 of Smt. Rashmi PEX­20 Current A c credit voucher dated 30.05.1995 Rs.2 30 000 ­ pertaining to current a c no. P­51 of Smt of Rs.3 60 000 in the S.B. A c No.11068 fvg. Smt. Rashmi got its part amount of Rs.3 00 000 credited to his current To prove the above allegation charge the presenting officer PEX­22 Current A c credit vouchers dated 31.05.1995 for Rs.3 00 000 ­ pertaining to current a c no. P­51 of Sri Ajay On 20.10.1993 Shri Srivastava borrowed Rs.35 000.00 from To prove the above allegation charge the presenting officer PEX­26A Saving bank credit voucher dated 29.10.1993 for PEX­27 Debit voucher dated 20.10.1993 for Rs.35 000 ­ PEX­28 Current a c credit vouchers dated 20.10.1993 for Rs.35 000 ­ pertaining to current a c no. P­51 of Shri Ajay After copy of the detailed report of enquiry was made available the disciplinary authority took pains to revisit the reference to Charge Nos.2­7 proved by the enquiry officer dated 29th June 1999 along with his finding of disagreement(for enquiry to the respondent delinquent calling for his written communication made by the disciplinary authority dated 29th the same time in reference to other Charge Nos. 2 to 7 which were held to be proved and prima facie accepted by the disciplinary authority no specific objection was raised of any rebuttal not been considered by the enquiry officer or of any breach of the procedure prescribed in holding disciplinary enquiry or violation of the principles of natural justice raised vague objections of general in nature without supporting any documentary oral evidence and one of the objection of the pending trial investigation by the CBI and the conclusion of departmental enquiry without awaiting the outcome of the investigation trial instituted against him in a pending criminal authority revisited the record of enquiry including the enquiry report the explanation furnished by the respondent while its prima­facie opinion which he has expressed in his communication dated 29th June 1999 and in terms of Para 521(5)(a) of the Sastry Award read with Para 18 28 of the Desai Award as modified by the 12th Bipartite Settlement dated 14th February 1995 between the State Bank of India and All India State Bank of India Staff Federation confirmed the penalty of 10. The respondent preferred departmental appeal against his specific averment in the appeal as to what was the procedural error being committed by the enquiry officer in holding certain ulterior reasons if any and no specific objection was him other than general objections which are vague and 11. The departmental appeal was examined by the appellate para 2 of the order of the appellate authority and after going through record of enquiry and taking note of the nature of allegations levelled by the respondent delinquent in his appeal from para 3(i) to and finally holding the appeal having no merit and the punishment being commensurate to the charges levelled against him confirmed the punishment of dismissal the High Court of Allahabad filed at the instance of the 12. The learned Single Judge of the High Court although has passed a detailed judgment but the focus was throughout on charge no.1 which was not found to be proved by the enquiry officer in his report but the disciplinary authority recorded its by the Division Bench of the High Court by its impugned judgment dated 13th September 2018 which is the subject 13. During the course of arguments it was brought to our for offences under Sections 420 467 468 471 IPC read with Prevention of Corruption Act 1988 the respondent employee was CBI Court No. 1 Lucknow by a judgment dated 31st May 2019 14. Learned counsel for the appellants submits that fair in the course of enquiry and it was never the case of the respondent that either the procedure prescribed under the by the authority who was not competent under law or the are not supported by the evidence on record or there was a violation of the principles of natural justice. In the absence whereof the plea raised by the respondent holding that the 15. To the contrary the Enquiry Officer in his detailed report expressing its prima facie opinion and after the copy of the enquiry report along with the tentative view of the disciplinary reply into consideration has dealt with so called alleged objections raised confirmed its tentative view expressed in upholding penalty of dismissal from service after assigning reasons supported by the documents on record. In the given is concerned it is true that the enquiry officer has not found its reasons for disagreement while expressing a prima facie employee no justification was tendered by the delinquent respondent in his written reply to the note of disagreement recorded by the disciplinary authority. Thus a fair opportunity was afforded to him and taking assistance of the Constitution this Court in P.D. Agrawal Vs. State Bank of India and 2 learned counsel submitted that the order of dismissal the enquiry officer and confirmed by the disciplinary appellate authority holds the respondent delinquent guilty of grave delinquency in upholding the penalty of dismissal and delinquent by the High Court was not justified and needs 17. Per contra learned counsel for the respondent while his report and failed to examine the record of enquiry independently and rejected the written objections raised by the from service by passing a non­speaking order without due 18. Learned counsel further submits that when the enquiry officer has not found charge no. 1 proved and the disciplinary authority disagreed with the finding recorded by the enquiry officer in his report should have served in the first place a note respondent guilty in reference to Charge no. 1 was not only a procedural error but is a great prejudice being caused to the respondent and such defect could not have been cured by the post­decisional hearing which has been rightly upheld by the 20. At the outset it may be noted that the enquiry officer has noticed in his enquiry report that the respondent delinquent a representative of his choice. He further stated during the the presenting officer. Taking note of the record of enquiry respondent employee the enquiry officer examined each of the charge nos. 1 to 7 and after detailed analysis recorded his 21. The disciplinary authority after the report of enquiry was enquiry including charge­sheet reply to the charge­sheet enquiry proceedings findings of the enquiry officer dated 22nd May 1999 brief of the presenting officer brief of the defence and further noticing 28 documents which were exhibited PEX­1 to PEX­28 relied by the presenting officer and employee after due application of mind recorded its finding in no. 1 holding to be proved. The detailed reasons assigned in Placed before me are the submissions show cause notice dated the 15th July 1999 of Shri A.K. Srivastava Cashier­cum­Clerk under suspension presently posted at dismiss him without notice for his gross misconduct relating to the fraudulent transactions perpetrated at also decided that the period spent by Shri Srivastava as suspended will be treated as such and no salary and allowance except the subsistence allowance already paid him on the charges contained in the charge­sheet dated 11.4.1996 and he was given an opportunity to make submissions if any against the above punishment within 7 days of its receipt extended to 15 days on his request failing which it would be deemed that he has nothing to 2. Shri A.K. Srivastava has submitted that it is highly without seeking his comments thereon. In his view the him for seeking his submissions if any which has not been to forward the enquiry report to the charged employees before finalization of the proposed punishment. The procedure in this regard has been followed by enquiry imposed on him as per the system and procedure in the the same day on the conclusion of the day’s proceedings receipt of the prosecution brief. Likewise the Enquiry Officer has already clarified on the points raised by Shri Srivastava in his letter dated 10.11.1998 which has been 4. The other points raised by Shri Srivastava in his submission dated 15.7.1999 sent to the Disciplinary Srivastava neither asked any document not desired to produce any witnesses defence evidence during the enquiry proceeding till its conclusion on 12.5.1998 However when he left that the prosecution has produced enough evidences as per enquiry proceedings which will prove his involvement in the conspiracy to defraud the bank he started levelling the baseless allegations against 5. I have perused all the relevant documents again and 15.12.1998 and do not find any substance for re­ opening the enquiry as Shri Srivastava had already been punishment is commensurate to the charges levelled and I therefore confirm my tentative order dated 29.6.1999 to of the Desai Award as modified by the 12th Bipartite Settlement dated 14.2.1995 made between State Bank of also order that the period spent by Shri Srivastava as suspended be treated as such and no salary and allowances except the subsistence allowance already paid 22. The departmental appeal which was preferred by the by the appellate authority in its order dated 15th November 1999 “3. In order to examine the aforesaid points by the appellant I have gone through the charge­sheets reply of proceedings findings of the Enquiry Officer tentative order dated the 29th June 1999 final order dated the 24th July 1999 his service sheet and other relevant records of the i) Almost all points raised by Shri Srivastava as July 1999. The clarification given are quite The charges contained in the charge­sheet were not vague as alleged by him and all the charges ii) The contention of Shri Srivastava that the Officer who has been appointed by him for fact Supreme Court has given several judgments in iv) The Disciplinary Authority reviews the pending suspension cases and can order reinstatement of any suspended employee after the charges against them were not serious v) The charges of double standards and discriminatory treatment are not correct as disciplinary proceedings have been initiated Supplementary charge­sheets have already been served on some of the employees against whom penalties have been imposed on the basis of vi) The payment of suspension period has not been made in terms of their service rules to any charge­sheeted employee and none has been vii) The appellant has already accepted that he prepared to take vouchers without any real cash transfer transaction for regularizing his overdrawn current account and deposit of none had promised him penalty short of viii) Non­reply of his letters representations meant for delay in the domestic enquiry and resultant punishment cannot be treated as violation of natural justice. The enquiry started while other charged employees opted for defence any representative to defend his case in view of serious charges against him. He neither asked any document nor desired to produce any witness defence evidence during the enquiry proceedings till its conclusion on 12.5.1998 When he felt that the prosecution has produced enough evidences as per enquiry proceedings to defraud the bank he started levelling the 4. Thus the points raised by Sri Srivastava in his appeal preceding paragraphs. After careful consideration of the Authority is fully justified in awarding the punishment of dismissal without notice and treating the period spent by salary and allowances except the subsistence allowance already paid to him. I therefore hold the order of the 23. The power of judicial review in the matters of disciplinary inquiries exercised by the departmental appellate authorities “13. The disciplinary authority is the sole judge of facts Where appeal is presented the appellate authority has coextensive power to reappreciate the evidence or the relevant. Adequacy of evidence or reliability of evidence cannot be permitted to be canvassed before the consideration of the evidence reached by the disciplinary authority is perverse or suffers from patent error on the It is thus settled that the power of judicial review of the Constitutional Courts is an evaluation of the decision­making process and not the merits of the decision itself. It is to ensure fairness in treatment and not to ensure fairness of conclusion the delinquent if it is in any manner inconsistent with the rules by the disciplinary authority if based on no evidence. If the conclusion or finding be such as no reasonable person would suffers from patent error on the face of record or based on no evidence at all a writ of certiorari could be issued. To sum up the scope of judicial review cannot be extended to the examination of correctness or reasonableness of a decision of authority whether rules of natural justice are complied with iii) whether the findings or conclusions are based on some evidence and authority has power and jurisdiction to reach It is well settled that where the enquiry officer is not the disciplinary authority on receiving the report of enquiry the disciplinary authority may or may not agree with the findings recorded by the former in case of disagreement the disciplinary authority has to record the reasons for disagreement and after departmental enquiry proceedings. However the only must be established by such evidence acting upon which a reasonable person acting reasonably and with objectivity may cannot sustain the finding of guilt even in the departmental 29. The Constitutional Court while exercising its jurisdiction of would not interfere with the findings of fact arrived at in the perversity i.e. where there is no evidence to support a finding or is some evidence to support the conclusion arrived at by the respondent delinquent for misappropriation of public funds by relevant period. In all 7 charges were levelled against him of grave misconduct which he had committed in discharge of his respondent delinquent and due compliance of the principles of the preliminary objections raised by the respondent delinquent 22 pages along with documents produced by the presenting officer marked as PEX­1 to PEX­28 to establish the allegations charges levelled against the respondent delinquent of enquiry that he neither wants to say anything about the presenting officer and never requested to seek permission to documentary evidence produced by the presenting officer in not proved and charges nos. 2­7 stood proved against the prima facie opinion called upon the respondent to submit his explanation and after affording an opportunity of hearing and dealing with the objections raised by the respondent in his written reply expressed its brief reasons while upholding the finding recorded by the enquiry officer in his report and confirmed its opinion of inflicting penalty of dismissal from also later revisited on the appeal being preferred and after 33. The submission which persuaded the High Court in the impugned judgment is basically for two reasons. Firstly before the finding of disagreement being recorded by the disciplinary was not afforded to the respondent delinquent and that has caused prejudice to him. Secondly the disciplinary authority appellate authority has not examined the record of disciplinary enquiry independently and passed a non­speaking order without due application of mind and this what prevailed 34. The submission which was made in regard to the note of to Charge no. 1 is concerned this Court do find substance to hold that the disciplinary authority on receiving the report of the first place before recording his finding of guilt and is severable from the other charges(Charge nos. 2­7) levelled Officer and the finding of fact was confirmed by the disciplinary appellate authority after meeting out objections the order of dismissal illegal but on the finding of guilt being recorded by the Enquiry Officer in his report in reference to charges nos.2­7 and confirmed by the disciplinary appellate authority was not liable to be interfered and those findings established the guilt of grave delinquency which in our view was an apparent error being committed by the High Court while interfering with the order of penalty of dismissal inflicted upon this Court in State of Orissa and Others Vs. Bidyabhushan “9. The High Court has held that there was evidence to acquitted by the Tribunal and it did not fall to be 1(e) in the view of the High Court “the rules of natural Tribunal was undoubtedly founded on its findings on Charges 1(a) 1(e) 1(c) 1(d) and Chargecould not be sustained because in Government of the State of Orissa should decide whether would suffice”. It is not necessary for us to consider whether the High Court was right in holding that the findings of the Tribunal on Charges 1(a) and 1(e) were the order of the High Court directing the Government to we will presently set out be sustained. If the order of order of dismissal illegal but when the findings of the Tribunal relating to the two out of five heads of the first charge and the second charge was found not liable to be interfered with by the High Court and those findings established that the respondent was prima facie guilty of “..It was urged that the Court should not have assumed that the General Manager would have inflicted the charge and consequently the punishment should not be in State of the decision Orissa v. Bidyabhushan Mohapatrawhere it was said that if an order in an enquiry under be given it is not for the Court to consider whether that ground alone would have weighed with the authority in imposing the punishment in question. In our view that Although the enquiry officer found in fact that the 39. Yet again in Sawarn Singh and Another Vs. State of 19. In view of this the deficiency or reference to some irrelevant matters in the order of the Commissioner had proposition that where the order of a domestic tribunal makes reference to several grounds some relevant and existent and others irrelevant and non­existent the order and existing grounds and the exclusion of irrelevant or State of the charges which have been proved justify imposition of penalty 41. So far as the submission which has prevailed upon the High of mind in our considered view is not factually supported by the In the case on hand the disciplinary appellate authority order dated 24th July 1999 the disciplinary authority had taken note of the record of enquiry including self­contained enquiry report dated 22nd May 1999 and his prima facie opinion dated 29th June 1999 which was made available to the respondent employee and after affording reasonable opportunity of hearing penalty of dismissal by its order dated 24th July 1999. That finding of guilt recorded by the enquiry officer in his report dismissing the respondent employee from service rejected by order dated 15th November 1999. After detailed discussion we are unable to accept the finding recorded by the High Court the disciplinary appellate authority which deserves to be set 43. Before we conclude we need to emphasize that in banking business absolute devotion integrity and honesty is a sine qua non for every bank employee. It requires the employee to has committed an apparent error in setting aside the order of dismissal of the respondent dated 24th July 1999 confirmed in 44. Consequently the appeals deserve to succeed and are accordingly allowed and the judgment of the High Court impugned dated 13th September 2018 is hereby set aside. No 45. Pending application(s) if any stand disposed of

Higher educational qualification can be a basis for barring promotion : Supreme Court

If the authority conferred with the power to relax, chooses to regulate the manner of exercise of his own power, the same cannot be assailed as arbitrary. The Supreme Court bench consisting of  CJI S. A. Bobde, A. S. Bopanna and V. Ramasubramanian, decided upon the powers of the Chief Justice in matters of appointment and promotion in the matter of Ashok Kumar & Ors. v. The State of Jammu and Kashmir & Ors. [Contempt Petition (C) Nos. 392-395 of 2019]. Under Section 108 of the Constitution of Jammu and Kashmir, which is similar to Article 229 of the Constitution of India, which deals with “Officers and servants of the High Court”, sub-section (1), it is given that appointments of officers and servants of the High Court  shall be made by the Chief Justice of the Court or such other person as the Chief Justice may direct. As per sub-section (2), the conditions of the officers and the servants of the High Court is to be as prescribed by the Rules made by the Court with the approval of the Governor. In exercise of these powers. The HC issued a set of Rules known as the Jammu & Kashmir High Court Staff (Conditions of Service) Rules, 1968, wherein Rule 4 stipulated that all appointments of the staff including promotions shall be made by the Chief Justice who also had the power to lay down qualifications and to determine the mode of recruitment as conferred in Rule 6. The contesting private respondent were originally appointed as peons (Class-IV) during the period 1989-1995. They were promoted as Junior Assistants and further to Senior Assistants. The appellants, on the other hand, were directly recruited as Junior Assistants and later promoted as Senior Assistants. Owing to an Officer Order with regards to the Rules as mentioned previously, persons like the appellants were promoted as Head Assistants from the post of Senior Assistants. Due to some vacancies available, the respondents who entered the service as Class-IV employees were also promoted to Head Assistants until the time the gap eligible candidates were available to fill the gap. The promotions were challenged on the grounds that the respondents were not qualified for the same and the order of promotion was set aside. The affected parties appealed, which was dismissed and as a consequence thereof, all the persons like the appellants-herein were promoted. The respondents filed a set of writ petitions again which was allowed b the High Court Judge primarily on the grounds that all the persons working as Senior Assistants constituted a homogeneous group and hence, there could not be any differentiating among them on the basis of educational qualification and that the order of the Chief Justice could affect the individuals adversely with retrospective effect. Challenging the same, the appellants herein filed the present Letter Patents Appeals.  

Challenging a common order passed in a batch of Letters Patent Appeals confirming the Judgment of the learned Single Judge quashing an administrative Order of the Chief Justice qualified as per the rules at the time of appointment have come up 2. We have heard the learned Counsel for the appellants the as peons during the period 1989­1995. They were promoted as Junior Assistants in the year 1997 and as Senior In contrast the appellants in these appeals were directly 2001 2005 2006 and 2008. The High Court of Jammu & Kashmir is a creation of the of Jammu & Kashmir which is similar to Article 229 of the Court”. Under Sub­section of Section 108 appointments of High Court as per Sub­section shall be such as may be of officers and servants of the High Court shall be made by the Chief Justice of the Court or such other Judge or officer of the In exercise of the powers conferred by Sub­section of Section 108 the High Court issued a set of Rules known as the stipulates that all appointments of the staff of the High Court including promotions shall be made by the Chief Justice the power to lay down the qualifications and to determine the mode of from time to time lay down the qualifications of a member of of the High Court of Jammu & Kashmir issued an Office Order qualification required the experience if any and the pay scales stipulated for three posts namely the posts of Head Assistant promotion Graduate from a Two years Senior Assistants on the basis of Junior Assistants on the basis of A) 75% by direct 25% by amongst Class­IV employees on the Graduate from a 2. Since the requirement of graduation for entry into the High the service. Such officials having during this period gained sufficient experience in the working of the administration the Chief Justice may on his own or on the recommendations of committee if soconstituted relax the qualification in cases before the 25th April 1987. Further the minimum period of experience can also be relaxed in exceptional and appropriate minimum educational qualification of a graduation was not an prescribed as a qualification for promotion to the post of Head Assistant. Keeping this in mind let us now go back to the 10. On 26.10.2008 persons like the appellants who were directly graduation were promoted as Head Assistants from the post of Senior Assistants. It appears that still some vacancies were of Senior Assistants were also promoted as Head Assistants However such promotions were intended to fill up the gap till 11. Challenging the promotions so granted to the contesting respondents­herein on the ground that they were not qualified at the relevant point of time a writ petition in Writ Petition No.1751 of the Order of the promotion dated 24.11.2008 of the contesting 12. The affected parties filed appeals in LPA Nos.45 and 84 of 2010 but those appeals were dismissed on 30.08.2011. As a consequence thereof all persons like the appellants­herein who were left out earlier were promoted on 30.08.2011 as Head 13. Finding that the benefit promotion that came to them was Order dated 24.10.2008 of the Chief Justice the contesting respondents­herein filed a set of writ petitions in Writ Petition Nos.4810 26811 23411 and 5012 14. By a common Order dated 30.08.2013 a learned Judge of the the learned Judge was that all persons working as Senior be any differentiation among them on the basis of educational qualifications that the Chief Justice’s order dated 24.10.2008 of the Chief Justice’s Order restricts the power of relaxation available to the Chief Justice only to cases of persons appointed the Chief Justice had the effect of affecting individuals adversely 15. Challenging the Order of learned Judge dated 30.08.2013 passed in favour of the contesting respondents­herein the appellants­herein filed a set of Letters Patent Appeals. These 16. On 13.05.2016 notice was ordered by this Court in the special It appears that after this Court granted an interim stay on petitions in Contempt Petition Nos.392­395 of 2019. These qualifications even within a homogenous group for the purpose of promotion to a higher post that an order passed by the Chief Chief Justice and that the order of the Chief Justice was not the learned Counsel for the appellants that as on date those contesting respondents who are now in service have all acquired a is only one of seniority. Therefore it is submitted by the learned upheld then the long standing lis can be put to an end by fixing 20. However it is contended by the learned Counsel appearing for the contesting respondents that once a person has been appointed promoted he becomes part of a homogenous class within which there can be no differentiation and that what is applicable to the case on hand is only Rule 5 of the Jammu Kashmir Civil Services Rules 1956 under which the 18 of these Rules it is for the Government to prescribe the 22. Before we proceed to analyse the rival contentions it must be the Chief Justice prescribing the qualifications for direct got promoted as Head Assistants on 24.11.2008 only because against the said Order in LPA Nos.45 and 84 of 2010 were also petition filed by the qualified candidates that the contesting respondents woke up from the slumber and initiated a second 24. As a matter of fact the Order of promotion dated 24.11.2008 clear that their appointments were only till eligible and suitable candidates are posted to these posts and that they can be considered for regularisation appointment only if they attain the qualification and experience prescribed for the post. But the contesting respondents did not choose to challenge the Order of the Chief Justice it is clear that the power of the Chief Justice by the High Court in exercise of the power conferred by Section 26. The CCA Rules 1956 will have only limited application to the employees of the High Court. These Rules by themselves do not stipulate the qualifications required for appointment to any No person shall be eligible for appointment to any service class Any of these rules made under them may for reasons to be recorded in writing be relaxed by the Government in individual Chief Justice is specifically empowered to prescribe the available with him. If the authority conferred with the power to relax chooses to regulate the manner of exercise of his own power the same cannot be assailed as arbitrary. The notification dated qualification. This is why the Chief Justice chose by his Order to for promotion to the post of Head Assistant. The entitlement of unqualified candidates to seek promotion to the post of Head the Chief Justice violated Article 14 by creating a distinction 33. Way Back in 1968 the Constitution Bench of this Court held 16(1) does not bar a reasonable classification of employees or reasonable test for their selection. It was further held that the were employed as Tracers carrying out the same duties and 1 AIR 1968 SC 349 responsibilities the Bench held in that case that the classification of Tracers into two types with different grades of pay on the basis that one type consisted of matriculates and the other non­ Jammu & Kashmir vs. Triloki Nath Khosa & Ors.2 another from different sources and integrated into one class can be classified on the basis of their educational qualifications for affirmative holding that the Rule providing for graduates to be eligible for promotion to the exclusion of diploma holders is not as follows:­ Higher educational qualification is a permissible basis of classification acceptability of which will depend on the facts and circumstances Higher educational qualification can 2(1974) 1 SCC 19 3(1994) 6 SCC 282 be the basis not only for barring promotion but also for restricting 35. As pointed out in T.R.Kothandaraman the Court in service while judging the validity of the classification. Though the High Court could not establish the necessity for higher qualification for the efficient discharge of the functions of higher that the non graduates have had opportunities to qualify themselves which they have also done. Therefore the prescription acquired the necessary qualifications they need not be reverted at this stage. But the seniority of the appellants vis a vis the the date of their acquiring the qualification while occupying the

Deprivation of personal liberty without ensuring speedy trial is not consistent with Article 21 of the Constitution of India: Supreme Court Of India

Once it is obvious that a timely trial would not be possible and the accused has suffered incarceration for a significant period of time, the Courts would ordinarily be obligated to enlarge him on bail. Such an observation was made by the Hon’ble Supreme Court Of India before Hon’ble Justice AJAY RASTOGI & Hon’ble Justice ABHAY S. OKA in the matter of ASHIM @ ASIM KUMAR HARANATH BHATTACHARYA vs NATIONAL INVESTIGATION AGENCY [CRIMINAL APPEAL NO(S).   1525     OF 2021] on 01.12.2021. The facts of the case were that an FIR against the appellate was lodged under Sections 120B, 121, 121A, 122 of the IPC, Section 25(1A)   of the   Arms   Act,   1959, and   Section   5   of the   Explosive Substances Act, 1908 on 01.03.2021 and the charges were framed after 7 years of filing the charge sheet. The appellate is currently 74 years old and has already undergone 9.5 years. Thus, applied for post-arrest bail, but the same was denied by the learned trial court and the Hon’ble High court. Thus, the instant appeal is preferred by the appellate.\ The Hon’ble Supreme Court Of India observed that “We have to balance the nature of crime in reference to which the appellant is facing a trial.   At the same time, the period of incarceration which has been suffered and the likely period within which the trial can be expected to be completed, as is informed to this Court that the statement of PW­1/de­facto complainant has still not been completed and there are 298 prosecution witnesses in the calendar of witnesses although the respondent has stated in its counter-affidavit that it may examine only 100 to 105 witnesses but indeed may take its own time to conclude the trial.   This fact certainly cannot be ignored that the appellant is in custody since 6th July, 2012 and has completed nine and half years of incarceration as an undertrial prisoner.” Additionally, the Hon’ble Supreme Court Of India held that liberty guaranteed in Part III of the Constitution would cover within its protective ambit not only due procedure and fairness but also access to justice and a speedy trial is imperative and the undertrials cannot indefinitely be detained pending trial. Once it is obvious that a timely trial would not be possible and the accused has suffered incarceration for a significant period of time, the Courts would ordinarily be obligated to enlarge him on bail. Finally, the Hon’ble Supreme Court Of India directed the learned trial court to grant post-arrest bail to the appellate. Click Here To Read The Judgment Judgment Reviewed by: Rohan Kumar Thakur The facts of the case were that an FIR against the appellate was lodged under Sections 120B, 121, 121A, 122 of the IPC, Section 25(1A)   of the   Arms   Act,   1959, and   Section   5   of the   Explosive Substances Act, 1908 on 01.03.2021 and the charges were framed after 7 years of filing the charge sheet. The appellate is currently 74 years old and has already undergone 9.5 years. Thus, applied for post-arrest bail, but the same was denied by the learned trial court and the Hon’ble High court. Thus, the instant appeal is preferred by the appellate.\ The Hon’ble Supreme Court Of India observed that “We have to balance the nature of crime in reference to which the appellant is facing a trial.   At the same time, the period of incarceration which has been suffered and the likely period within which the trial can be expected to be completed, as is informed to this Court that the statement of PW­1/de­facto complainant has still not been completed and there are 298 prosecution witnesses in the calendar of witnesses although the respondent has stated in its counter-affidavit that it may examine only 100 to 105 witnesses but indeed may take its own time to conclude the trial.   This fact certainly cannot be ignored that the appellant is in custody since 6th July, 2012 and has completed nine and half years of incarceration as an undertrial prisoner.” Additionally, the Hon’ble Supreme Court Of India held that liberty guaranteed in Part III of the Constitution would cover within its protective ambit not only due procedure and fairness but also access to justice and a speedy trial is imperative and the undertrials cannot indefinitely be detained pending trial. Once it is obvious that a timely trial would not be possible and the accused has suffered incarceration for a significant period of time, the Courts would ordinarily be obligated to enlarge him on bail. Finally, the Hon’ble Supreme Court Of India directed the learned trial court to grant post-arrest bail to the appellate. Click Here To Read The Judgment Judgment Reviewed by: Rohan Kumar Thakur The Hon’ble Supreme Court Of India observed that “We have to balance the nature of crime in reference to which the appellant is facing a trial.   At the same time, the period of incarceration which has been suffered and the likely period within which the trial can be expected to be completed, as is informed to this Court that the statement of PW­1/de­facto complainant has still not been completed and there are 298 prosecution witnesses in the calendar of witnesses although the respondent has stated in its counter-affidavit that it may examine only 100 to 105 witnesses but indeed may take its own time to conclude the trial.   This fact certainly cannot be ignored that the appellant is in custody since 6th July, 2012 and has completed nine and half years of incarceration as an undertrial prisoner.” Additionally, the Hon’ble Supreme Court Of India held that liberty guaranteed in Part III of the Constitution would cover within its protective ambit not only due procedure and fairness but also access to justice and a speedy trial is imperative and the undertrials cannot indefinitely be detained pending trial. Once it is obvious that a timely trial would not be possible and the accused has suffered incarceration for a significant period of time, the Courts would ordinarily be obligated to enlarge him on bail. Finally, the Hon’ble Supreme Court Of India directed the learned trial court to grant post-arrest bail to the appellate. Click Here To Read The Judgment Judgment Reviewed by: Rohan Kumar Thakur Additionally, the Hon’ble Supreme Court Of India held that liberty guaranteed in Part III of the Constitution would cover within its protective ambit not only due procedure and fairness but also access to justice and a speedy trial is imperative and the undertrials cannot indefinitely be detained pending trial. Once it is obvious that a timely trial would not be possible and the accused has suffered incarceration for a significant period of time, the Courts would ordinarily be obligated to enlarge him on bail. Finally, the Hon’ble Supreme Court Of India directed the learned trial court to grant post-arrest bail to the appellate.

The instant appeal has been filed on behalf of accused no 6(Ashim @ Asim Kumar Haranath Bhattacharya) out of the total to be rejected by the learned trial Court by Order dated 25 th February 2020 and also by the High Court by Order dated 15 th The FIR No. 138 2012 dated 1st March 2012 was initially lodged under Sections 120B 121 121A 122 of the IPC Section 25(1A) of the Arms Act 1959 and Section 5 of the Explosive Substances Act 1908 against five accused persons by a de­facto complainant who is an Inspector Special Task Force. Later the case was re­registered as RC No. 01 2012 NIA DLI at PS NIA Headquarters New Delhi for offences under Sections 120B 121 121A 122 IPC Section 25(1A) of the Arms Act 1959 Section 5 of the Explosive Substances Act 1908 and Sections 18 20 40(1)(b)(c of the Unlawful Activities(Prevention) Act 1967(hereinafter being A­1 to A­5 on 23rd August 2012 and thereafter the first supplementary charge sheet was filed on 27th December 2012 June 2019 for offences under Sections 121 121A 122 120B IPC and under Sections 25(1)(a) 25(1A) 25(1­AA) of Arms Act 1959 who is the de­facto complainant his cross­examination has been 28 2007 dated 11th May 2007)in which he was acquitted by the It has come on record that there are 298 prosecution sheet but it has been stated in the counter affidavit filed by the The charges against the accused appellant are undoubtedly factors like the period of incarceration which the appellant has expected to be finally concluded. That apart the appellant is 74 submits that the delay is in no manner be attributable to the after the charge­sheets came to be filed way back in 2012 the the appellant is facing a trial. At the same time the period of this Court that the statement of PW­1 de­facto complainant has indeed may take its own time to conclude the trial. This fact 12. This Court has consistently observed in its numerous and the undertrials cannot indefinitely be detained pending trial deprivation of personal liberty for some period may not be avoidable period of deprivation pending trial appeal cannot be human rights and denial of speedy justice is a threat to public 14. The three­Judge Bench of this Court in Union of India Vs statute as well as the powers exercisable under constitutional melt down where there is no likelihood of trial being completed undergone has exceeded a substantial part of the prescribed sentence. Such an approach would safeguard against the possibility of provisions like Section 43­D(5) of the UAPA being In the above circumstances we are of the view that the 16. Before parting with the order we would like to observe that under the scheme of the Act 2008 the power is vested with the High Court for the trial of scheduled offences designate one or more Courts of Session as Special Courts by notification in the of the Act 2008. At the same time it has been mandated under Section 19 of the Act 2008 that the trial under the Act of any designate one or more Courts as Special Courts for the trial of cases under the Act 2008. Before us the order sheets have been framed in June 2019 and looking to the voluminous record and may take its own time to conclude and indeed the undertrial Bengal from time to time is placed for our perusal but nothing In the given circumstances we consider it appropriate to direct that the State of West Bengal shall take up the issue and 2008. At the same time the Central Government may also in and the mandate as intended by the legislature in its wisdom post­arrest bail by the learned trial Court. We also make it clear 21. Consequently in light of the above the appeal is allowed and 22. Pending application(s) if any stand disposed of 23. Copy of this order be sent to Chief Secretary State of West

Conviction is not a nexus for parole: Bombay High Court

Grant or refusal of parole does not appear to have anything to do with either the conviction or the place of court convicting. Conviction appears to be of little concern so far as grant or refusal of parole is concerned. Conviction is not a nexus for parole. A Bench of Dipankar Datta CJ, SP Gangapurwala J and Sunil P Deshmukh J, while adjudicating the matter in State of Maharashtra v. Guddu; [CRIMINAL WRIT PETITION NO.1362 OF 2020], dealt with the issue of releasing a convict on parole. The respondent moved a criminal writ petition in Bombay High Court aggrieved by an order rejecting his application for emergency parole passed by Superintendent of Central Prison. Parole leave to said respondent had been refused by the Superintendent, him having not availed parole or furlough leave on two occasions and that he had not completed three years in jail prior to his application for emergency parole under Rule 19 (1) (C) of the Prisons (Bombay Furlough and Parole) Rules, 1959 (the Parole Rules), introduced into Rule 19 under the Amendment Rules of 2020, in the wake of COVID-19 pandemic, finding that in the circumstances, he would not be eligible for release on emergency parole leave. The respondent had instructed to the State that he would file a fresh application for emergency parole under Rule 19 (1) (C) of the Parole Rules, as soon as he completes three years in jail, while he had completed about two years and eight months. The counsel appearing for the respondent stated that Rights accrued to the prisoners under the Rules, if are to be practically fruitful, inconvenience to the extent of making their realization impossible should in all cases be avoided lest it would do harm to the purpose for which access is being afforded. Conviction may not have any relation to the reasons for parole, yet, it may have to be taken into account that very purpose of rules would be frustrated if matter of said limited liberty made available is pedantically approached. The public prosecutor stated that the liberty of a person under the Constitution, upon his conviction, being under due process of law, is not ordinarily enjoyable to fullest extent. While conviction and imprisonment deprive a person of his liberty otherwise available, furlough and parole leave make available curative facility and generation of kindness, behavioural maturity and values a good life under controlled conditions may be possible. The facility of furlough / parole leave is an indication of humanistic approach towards the prisoners, letting / affording opportunity to solve their personal or family problems and to maintain link with the society.

on 25 01 2021 on 22 03 1} criapln2073.20 drpIN THE HIGH COURT OF JUDICATURE OF BOMBAYBENCH AT AURANGABADCRIMINAL APPLICATION NO. 2073 OF 2020INCRIMINAL WRIT PETITION NO.1362 OF 2020The State of Maharashtra APPLICANTThrough Superintendent Nashik Central Prison NashikVERSUSGuddu @ Kansha Wahab Shaikh RESPONDENTAge 21 years Occ LabourR o Near Datta Temple Tambapura JalgaonTaluka and District Jalgaonin Bombay High Court Aurangabad Bench aggrieved by an order rejecting hisapplication for emergency parole passed by Superintendent ofCentral Prison Nashik on 28th September 2020. Parole leave tosaid Guddu had been refused by the Superintendent him havingnot availed parole or furlough leave on two occasions and that hehad not completed three years in jail prior to his application foremergency parole under Rule 19(C) of the PrisonsRules 1959introducedinto Rule 19 under the Amendment Rules of 2020 in the wake ofCOVID 19 pandemic finding that in the circumstances he wouldnot be eligible for release on emergency parole leave.3.The criminal writ petition had been allowed grantingemergency parole leave to Guddu pursuant to Rule 19(C) ofthe Parole Rules.Subsequently criminal application No. 20720 hadbeen moved by the State contending that Aurangabad Bench ofhigh court would not have jurisdiction to entertain the criminal on 25 01 2021 on 22 03 3} criapln2073.20 writ petition the order of rejection of emergency parole beingpassed at Nashik by the Central Jail Superintendent havingregard to orders passed by co ordinate benches on 8th August 2019 in criminal writ petition No. 10919 and 22ndJanuary 2020 in criminal writ petitions No. 18 and 120viz “Baldev Baliram Lonari V s State of Maharashtra” and“Samadhan Pandit Choudhary and Umesh Ishwar Patil V s theState of Maharashtra and Others” respectively. It had beencontended in the orders passed in the matters of “Baldev” and“Samadhan”it had been considered by two divisionbenches that when order impugned is passed by an authority ofprison in a particular district not covered by jurisdiction ofAurangabad Bench of high court aggrieved convict would not beable to file proceedings in Aurangabad Bench.It appears that said Guddu had instructed to state that hewould file a fresh application for emergency parole under Rule 19(1)of the Parole Rules as soon as he completes three yearsin jail while he had completed about two years and eightmonths. The division bench having regard to aforesaid hadthought it proper in the circumstances to recall order dated 26thOctober 2020 in criminal writ petition No. 13620 to the on 25 01 2021 on 22 03 4} criapln2073.20 extent of emergency parole and had observed that orderallowing the criminal writ petition would be rendered infructuous.It appears that learned advocate for the prisoner convicthad submitted before the division bench that convicts aggrievedby rejection of their application either for furlough parole emergency parole leave should have no territoriallimits restrictions while it is within the powers of prisonauthorities their discretion administration to locate and re locatethe convicts to any jail in Maharashtra and had in justificationreferred to some instances. The division bench thought those tobe logical while furlough parole been a kind of concession.The division bench has further considered with respect tothe view emerging under orders dated 8th August 2019 and 22ndJanuary 2020 in the cases of “Baldev” and “Samadhan”in the peculiar facts and circumstances of the cases underCOVID 19 pandemic as under:“ though there could not be a choice for a convict to choose a Forum cases in which the convicts were convicted by the Courts amenableto the jurisdiction of a particular Bench should be granted the libertyto approach the same Bench or to the Bench at which place the orderof rejection of furlough parole leave has been passed for challengingthe order. ” on 25 01 2021 on 22 03 5} criapln2073.20 4.Aforesaid had been followed by illustration if “A” isconvicted by a competent court at Nandurbar and said convict isundergoing sentence at Kolhapur Central Jail and if hisapplication for emergency parole leave is rejected by the jailSuperintendent he should have liberty to approach the highcourt either at the Principal seat at Mumbai or AurangabadBench of high court as Nandurbar district falls within the area ofjurisdiction of Aurangabad Bench of the high court feeling thatsaid prisoner should not be compelled to suffer rigours oflitigation on the point of jurisdiction in the backdrop of anextraordinary situation of COVID 19. The division bench hasobserved that it had not been able to align itself with the viewtaken by the division bench under order dated 22nd January 2020 in “Samadhan’s” caseand as such followingquestion has been framed which is referred to full bench “ Whether a convict prisoner can challenge the rejection of his paroleapplication only before the Forum of this Court having jurisdictionover the district in which the rejection order was passed and isprecluded from approaching the bench having jurisdiction over thedistrict in which the Trial Court convicting him her is situated ”5.Matter accordingly is placed before us.Before proceeding to deal with the question it would beappropriate to take into account orders passed by two division on 25 01 2021 on 22 03 6} criapln2073.20 benches one in criminal writ petition No. 10919 and theother in criminal writ petitions No. 18 and 120.The division bench in criminal writ petition No. 1091 of2019 in Baldev’s casewhich pertains to grant offurlough leave while the petitioner had been lodged in NashikCentral Prison had considered that local jurisdiction ofAurangabad Bench of high court is prescribed and saidjurisdiction could cover only the districts which are notified inthis respect whereas the Parole Rules show that matter is to beprocessed by jail authority which is to take decision after receiptof reports as contemplated under the Rules since the prisoner islodged in a particular jail the matter arises from said jail. Thereis no vested right to prisoner to get furlough leave. The court isexpected to go with the presumption that matter arises fromlocal area of a particular jail. Since Nashik jail or Nashik districtis not covered under the local jurisdiction of Aurangabad Bench it purported to hold that Aurangabad Bench has no jurisdictionover the matter and had rejected application for modification oforder passed by jail authority at Nashik dated 5th February 2019.Cases of “Samadhan and Umesh” in Criminal writ petitionsNo. 18 and 120 are also in respect of rejection offurlough leave by prison authorities at Nashik convicts being put on 25 01 2021 on 22 03 7} criapln2073.20 up in Nashik jail. The division bench in said matters hadadverted to that prior to the decisions in “Baldev” and“Samadhan”it appears that this bench had dealt withmatters arising out of orders passed by jail authorities at Nashikand had granted reliefs to some convicts prisoners probably inthe circumstances that they were convicted and sentenced bythe courts over which this bench has jurisdiction and or theInspector GeneralAurangabad being the authorityhaving jurisdiction over Nashik Prison had also weighed. Albeit ithad been considered that point of jurisdiction was not consideredin said proceedings.The division bench in paragraph No.6 of the judgment hasobserved thus “ 6. The decision of the criminal case or the orders made during thependency of criminal case by the courts over which this Court hasterritorial jurisdiction can be definitely considered by this Court invarious proceedings. However after decision of the matter asprovided in Criminal Procedure Code it is up to the State to takedecision as to where in which prison the convict needs to be keptand that is the administrative matter of the State and ordinarily thisCourt does not interfere in the matters in which the State takes thedecision for administrative reasons. When a prisoner is kept atNashik Prison form there he makes applications for furlough orparole and these applications are considered by the authority likeInspector Generalas per the scheme given under Furloughand Parole rules of this State. For consideration of the application on 25 01 2021 on 22 03 8} criapln2073.20 police report is also called and the police of the concerned districtwhere the prisoner would live or where the prisoner was ordinarilyresiding before his imprisonment make enquiry with the witnesses.These circumstances also cannot have any relation to the cause ofaction. Even if the same authority like D.I.G. has jurisdiction overthe Prison from Nashimk and Prison from Aurangabad hisjurisdiction for the purpose like the present one over Nashik prisonneeds to be considered separately for the present purpose. Onlybecause the officers is designated as Inspector GeneralAurangabad all orders made by him in respect of the prisoners keptoutside of the local jurisdictions of this Court cannot be challengedin this Court. If that approach is used by the Court many matterslike the challenges against the detention orders or orders made onfurlough application which have arisen from Aurangabad would goto principal seat so as per the aforesaid Rules when application ismade by the prisoner from Nashik jail which is not within theterritorial jurisdiction of this Court and due to procedure theapplication is considered by the officer who has office inAurangabad that order cannot be challenged in this Court. ThisCourt holds that the orders made by the Inspector Generalinrespect of the prisoners kept in the prison which are not withinterritorial jurisdiction of this Court cannot be challenged in thisCourt at Aurangabad Bench. By giving exhaustive reasons inaforesaid matter of Baldev this Court has already given suchdecision on the jurisdiction of this Court. So this Court holds that itis not possible to consider and decide these two proceedings in theresult both the proceedings are dismissed. The fees of the appointedcounsel in both the matters is quantified as Rs.5000 which is total fees in both the matters and it is to be paidthrough High Court Legal Services Sub Committee Aurangabad. ”6.Mr. Satej Jadhav learned advocate has offerred valuable on 25 01 2021 on 22 03 9} criapln2073.20 assistance to the court in dealing with the question underreference with flair submitting that furlough or parole arecreation of rights under the rules and if rights are to bemeaningful the construction on rules may so be placed aswould carry forward the underlying purpose. Rights accrued tothe prisoners under the Rules if are to be practically fruitful inconvenience to the extent of making their realizationimpossible should in all cases be avoided lest it would do harm tothe purpose for which access is being afforded. He submits thatit is not in control of prisoners as to prison they are to be lodgedin and it is surely administrative convenience discretion of theauthorities. However in such a case if they are aggrieved by anorder passed by an authority at a particular place prisonersshould not be shut out to have resort to remedy which wouldordinarily be available to them at place they come from or wheretheir conviction has taken place. He submits that necessarily one is a prisoner because of the conviction and it cannot be saidthat on his imprisonment though he bears appellation as aprisoner it would sever ties with the conviction. Ostensibly conviction may not have any relation to the reasons for parole yet it may have to be taken into account that very purpose ofrules would be frustrated if matter of said limited liberty madeavailable is pedantically approached. He submits in many cases on 25 01 2021 on 22 03 10} criapln2073.20 it would be virtually impossible for the prisoners even if areaggrieved by order passed by jail authority to approach a properBench viz: at principal seat at Nagpur at Aurangabad or atPanaji Goa if the order is passed at a far distance from theplace where his conviction has taken place or where he issupposed to be on parole or where he hails from. Their economiccondition as well as that of their relatives would not let themafford have recourse to resort against order passed rejectingapplication for parole. He particularly emphasizes that whenprisoner has no control a stickler s approach should better beeschewed.7.On the other hand Mr. Salgar learned APP refers a fewdecisions of the apex court and this court and refers to CriminalManual and Maharashtra Classification of Parole Rules 1970 particularly rules 2 and 3 thereunder. He as well refers to Article226of the Constitution of India and submits that havingregard to the same recourse will have to be had to a place ofhigh court within jurisdiction of which order has been passedsince the cause of action is the order passed. If it falls within thejurisdiction of principal seat or a particular bench proper andappropriate resort would be to the principal seat or the properbench and not for the reason that prisoner hails from or for that on 25 01 2021 on 22 03 11} criapln2073.20 he wants to be at a particular place or his conviction been atplace not in the place where cause of action has arisen.Emergency parole under rule 19(C) is indeed distinct fromother parole and the reasons are also quite apart. He therefore submits that the question may be answered accordingly.8.It may not be out of place to refer to that liberty of aperson under the Constitution upon his conviction being underdue process of law is not ordinarily enjoyable to fullest extent.While conviction and imprisonment deprives a person of hisliberty otherwise available furlough and parole leave makeavailable curative facility and generation of kindness behavioralmaturity and values a good life under controlled conditions maybe possible. The facility of furlough parole leave is an indicationof humanistic approach towards the prisoners letting affordingopportunity to solve their personal or family problems and tomaintain link with the society.9.Parole Rules create access to seek provisional limitedliberty to a convict prisoner. Furlough parole leave has beenmade available to convicts prisoners with various purposesunderlying. The rules open vistas for action by aconvict prisoner. Such provisional liberty coming the way of aprisoner pursuant to the rules is accrued to him under the rules on 25 01 2021 on 22 03 12} criapln2073.20 and is governed and regulated by said rules. Such a liberty iscircumscribed with the criteria and restricted according toprovisions thereunder and is conditioned by the same. But forthe rules such a facility would not have been possible andpermissible to a convict prisoner.10.The rules also provide for and empower competentauthority to grant or refuse parole to convicted prisoner and incase of refusal of regular parole an appeal has been provided tohigher authority.11.The provisions under Parole Rules may have to be lookedinto having regard to language in which question underreference has been couched.12.Rule 18 thereunder refers to competent authorities togrant parole and under clauserefers to commissioner ofdivision where the prisoner is lodged and in case of refusal byhim an appeal is provided to Director General CorrectionalServices Maharashtra State Mumbai making his decision final.13.Rule 19 of the Parole Rules refers to when a prisoner maybe released on parole. Sub rule 1 thereunder concernsemergency parole and sub rule 2 regular. Under clause 19(B) anda prisoner is eligible for emergency parole of 14 on 25 01 2021 on 22 03 13} criapln2073.20 days for death of near relative and marriage of near relativewithout possibility of any extension. Clauseauthorizes Superintendent of prison to grant emergency parole for death ofa close relative and Deputy Inspector General for marriage ofson daughter brother sister with conditions as may beconsidered appropriate.14.Rule 19with regard to regular parole refers to thatprisoner eligible for furlough would be eligible for parole forserious illness of near relatives delivery of child or naturalcalamity with a rider that prisoner shall not be released onemergency or regular parole for a period of one year after expiryof his last emergency regular parole except in case of death ofnear relative further regulating limits of parole days in case ofregular parole as referred to under clauses A B and C of sub rule2 of Rule 19. Rules 21 to 28 prescribe procedure to be followedwhile considering application for parole.15.We may have to examine the aspect as to whether there isany nexus between conviction by trial court in a district andgrant or refusal of parole. In this respect it would be seen thatconviction of a person for an offence committed has differentconsiderations is an absolutely different context and dominion.Whereas parole as can be seen from the rules would be on 25 01 2021 on 22 03 14} criapln2073.20 occasioned on the specific reasons as have been enumeratedunder the Parole Rules viz: death or marriage of close relativesor pandemic illness delivery of child natural calamity etc. andwould be circumscribed by the eligibility criteria referred tothereunder. It appears that there is seldom any nexus between aconviction and a parole. Place of court convicting has nosignificance and does not appear to play any role in the matterof granting or refusal of parole.16.It would thus emerge that parole is to be considered ondifferent parameters which hardly have anything to do with theconviction of a prisoner or place of court convicting him. There isno mutuality between place of court convicting and grant orrefusal of parole. Conviction occurs in entirely different dominionand the dominion of operation of rules for parole is separate andapart and does not appear to be related in any way save thatparole is available under the rules to a convict pursuant to thecriteria referred to beyond that conviction or for that matterplace of court convicting the prisoner has no role. Convictiondoes not influence granting or refusal of parole nor does place oftrial court.17.When access to provisional limited liberty is created by therules incidentally remedial measures on refusal to grant parole on 25 01 2021 on 22 03 15} criapln2073.20 for a prisoner convict would also be regulated and governedunder operation of rules.18.While we are dealing with the question framed in thisrespect Chapter XXXI of the Bombay High Court Appellate SideRules 1960 would have a significant role to play prescribingpresentation of proceedings at the offices of high court atNagpur Aurangabad Panajirequiring presentation ofappeals applications references and petitions includingpetitions in exercise of powers under Articles 226 and 227 of theConstitution arising in judicial districts as have been referred to to respective high court benches seat at Nagpur Aurangabadand Goa. Under said Rules chief justice may in his discretion order that case and or class of cases arising in any district maybe heard at Bombay or even vice versa. 19.In a hypothetical case if the authority does not pass orderon an application for parole and keeps it pending a mandamusnecessarily will have to be sought from a forum of this courthaving jurisdiction over the place where the relevant competentauthority prison is situated. Having regard to Chapter XXXI ofBombay High Court Appellate Side Rules 1960 corollary wouldbe a prisoner would not be able to have a writ of mandamusunder Article 226 of the Constitution from a forum of this court on 25 01 2021 on 22 03 16} criapln2073.20 not having jurisdiction over the area where the authority prisonis located which does not pass order on application for parole. 20.From the provisions it clearly surfaces thatso far as order of rejection of parole other than for under Rule 19(A) andof Parole Rulesis concerned it would be an order against which appeal would beavailable and in such a case if appellate authority is situatedoutside notified jurisdictional districts such an order wouldalways be amenable to challenge before the bench havingjurisdiction over area where appellate authority is situatedand or also before a bench in jurisdiction of which original orderhad been passed. To illustrate suppose an order has beenpassed by an authority in Aurangabad refusing parole and appealtherefrom has been preferred at Mumbai and if a prisoner isaggrieved by the appellate order he would have option tochallenge it before Aurangabad Bench or at the principal seat.21.Under amended rules it appears that the Superintendentof prisons has been empowered to grant emergency parole ifapplication is pursuant to Rule 19(A) andof theParole Rules. In such a case it appears there is no appealprovided against order of rejection and the reason for theemergency parole being not linked with conviction it does not on 25 01 2021 on 22 03 17} criapln2073.20 appear only for the reason that conviction being from aparticular place and if that place is falling within the territorialjurisdiction of a particular bench resort can be had to that benchby prisoner whose application pursuant to Rule 19of theParole Rules has been rejected. 22.As such while the procedure regulates presentation ofmatters according to cause arising in the judicial districts for acause arising outside the jurisdiction so emerging from ChapterXXXI of the Bombay High Court Appellate Side Rules resortwould have to be before the proper bench while place ofconviction would not be of any significance. Any nexus betweenrefusal to grant parole and conviction has neither been shownnor hinted at. 23.Grant or refusal of parole does not appear to haveanything to do with either the conviction or the place of courtconvicting. Conviction appears to be of little concern so far asgrant or refusal of parole is concerned. Conviction is not a nexusfor parole. However for a party which finds it extremely difficultand hardship would be caused to it access can be had to theChief Justice’s powers under proviso under rules in Chapter XXXIof the Bombay High Court Appellate Side Rules 1960. on 25 01 2021 on 22 03 18} criapln2073.20 24.Foregoing discussion leads us to consider that while theredoes not appear to be any nexus between grant or refusal ofparole and place of court convicting ordinarily a prisoner convictwould have to approach a forum of this court having jurisdictionover the district in which order of rejection is passed. But aconvict prisoner is not precluded from approaching the benchhaving jurisdiction over the district in which trial court hasconvicted him if the order of rejection of parole is passed in thearea of jurisdiction of forum whereunder conviction has takenplace or if a nexus between refusal to grant parole andconviction could reasonably and validly be said to exist. However in the latter case it could always be open in rare and exceptionalcases for the Bench before which the proceeding is presented toexamine the plea at the threshold and decide whether to receivethe proceedings or not.25.The question under reference is answered accordingly. CHIEF JUSTICES. V. GANGAPURWALA JUDGESUNIL P. DESHMUKH JUDGE drp criapln2073.20

Unfaithful translation of documents violate rights of an accused: Bombay High Court

While translating the detention order of a detune, only typographical errors may be accepted, any kind of factual or substantial error will be in violation of the rights of the accused under Article 22(5) of the Constitution. This remarkable judgement was passed by the division bench of the Bombay High Court, consisting of Justice S.S.Shinde & Justice M.S.Karnik in the matter of Rohit Sidram Khatal (Detenu) v The Commissioner of Police Solapur & Ors. [CRIMINAL WRIT PETITION NO. 1576 OF 2020]. The present petition was filed by an individual who was detained under Section 3 of the Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug-offenders, Dangerous Persons, Video Pirates, Sand Smugglers and Persons engaged in Black-marketing of essential Commodities Act, 1981 (MPDA Act), challenging the detention order under article 226 of the Constitution. The petitioner alleged that he has not been provided with true information regarding his detention which has hampered his right under Article 22(5) of the Constitution. The petitioner also alleged that representation was dated 6th July 2020 and the same came to be decided only on 18th August 2020. There was no explanation given whatsoever much less a satisfactory explanation for the delay in deciding the representation. The counsel relied on the decision of the Hon’ble Supreme Court in the case of Harish Pahwa vs. State of Uttar Pradesh, [(1981) 2 SCC 710] and Rashid Kapadia vs. Medha Gadgil and others, [(2012) 11 SCC 745] where Their Lordships considered the question of delay in deciding the representation made by the detenu in the context of violating the valuable right conferred under Article 22 (5) of the Constitution of India. These decisions squarely apply in the present case. Firstly, the alleged wrong translation of the original English version to Marathi, which he is fluent in, it is contended that in paragraph 4 of grounds of detention in the English version it is stated “Faujdar Chawadi Police Station” whereas in Marathi ground of detention it is translated as “Salgar Wasti Police Station”. Further, in the English version of grounds, a total of 9 cases are shown to be registered against the petitioner whereas in the Marathi translation only 7 cases are shown. Lastly, learned counsel for the petitioner urged that in the column of ‘status’ in the table of cases furnished in paragraph 4.2 there is a variance in the English and Marathi translation. The division bench observed that “In our opinion, the discrepancies pointed out by learned counsel for the petitioner in Marathi translation are not mere typographical errors but in fact are substantial mistakes. A cumulative reading of the discrepancies, additions and omissions lead us to a conclusion that the detune has not been furnished with the true and faithful translation of the original version and thus deprived of making an effective representation as such his right to make a representation under Article 22(5) of the Constitution of India is violated”. Accordingly, the Writ Petition has been disposed of. Click here to read the judgement

cri.wp 1576 20.doc IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO. 1576 OF 2020 CRIMINAL WRIT PETITION ASDB LDVC 243 OF 2020 at present Yerwada Jail Rohit Sidram Khatalby the respondent No.1 the Commissioner of Police Solapur Briefy stated the grounds of detention states that the petitioner detenu is a dangerous person and weapon wielding desperado. The petitioner and his associates move around the various areas within the jurisdiction of Faujdar Chawadi Police Station and commit serious ofences like robbery causing serious hurt stone pelting by making unlawful assembly extortion attempt to commit murder molestation and house trespass holding deadly weapons like knife gupti sura sword hockey stick iron pipe stones and lathi. It is stated that the petitioner cri.wp 1576 20.doc has unleashed a reign of terror and has thereby become a habitual danger to the lives and properties of the people residing and carrying out thier daily business in the areas. The details of as many as 9 criminal cases registered against the petitioner at Faujdar Chawadi Police Station are stated. The details as regards the preventive action taken against the petitioner is also stated In camera statements of Witness ‘A’ and ‘B’ came to be recorded. Considering the materials on record respondent No.1 Detaining Authority was satisfed that the petitioner is a dangerous person within the meaning of sub section 2of the MPDA Act. The detention order is dated 17th March 2020 The petitioner made a representation dated 6th July 2020 which was received by the Superintendent of Jail Yerwada Central Prison Pune on 20th July 2020. On the very same day i.e on 20th July 2020 the representation was forwarded to the State Government vide Outward No.2894 2020 dated 20th July 2020 The representation was considered by the Additional Chief Secretary and was rejected by an order dated 18th August 2020 Though the order of detention is challenged on various grounds as stated in the Petition learned counsel for the petitioner restricted her challenge to the grounds stated in paragraphs(e) andof the Writ Petition cri.wp 1576 20.doc The respondent No.1 detaining authority has fled an afdavit duly afrmed by him dated 26th August 2020 in support of the order of detention. An afdavit has also been fled by Shri Aniruddha Venkatesh Jewlikar on behalf of respondent No.2 the State of Maharashtra dealing with the issue of consideration of the representation made by the detenu and consequent rejection thereof vide order dated 20th August 2020. Shri Umaji Tolaram Pawar Superintendent of Jail Yerwada Central Prison Pune respondent No.3 has fled an afdavit indicating the details of the receipt of the representation of the detention and forwarding the same to the State Government We have heard learned counsel for the parties. We have gone through the Memo of the Petition annexures and the record. We deal with the grounds as urged by the petitioner at GROUNDOF THE PETITION Learned counsel for the petitioner frstly pressed groundof the Constitution of India. According to learned counsel for the petitioner long and unexplained delay in considering and deciding the representation of the detenu would vitiate the order of detention. Learned counsel for the petitioner submitted that the representation is dated 6th July 2020 and the same came to be decided only on 18th August 2020. There is no explanation whatsoever much less a satisfactory explanation for the delay in deciding the representation Learned APP Shri Yagnik invited our attention to the afdavits fled by the respondents. He would submit that there is no delay in deciding the representation. According to him the representation dated 6th July 2020 was received by the respondent No.3 Superintendent of Jail on 20th July 2020. The same is received in the Special Branch 3B Desk on 11th August 2020. Thereafter the remarks were called for of the detaining authority on 11th August 2020. The remarks of the detaining authority were received vide letter dated 17th August 2020. The fle containing the remarks of the detaining authority along with the representation of the detenu was sent to the Deputy Secretaryon 17th August 2020. Upon endorsement cri.wp 1576 20.doc the same was forwarded to the Additional Chief Secretaryof the Constitution of India. These decisions squarely apply in the present case. GROUNDOF THE PETITION The next ground urged on behalf of the petitioner is ground F). According to petitioner he is well versed with Marathi language. The compilation of the documents containing Marathi translation of original Engligh documents running into 152 pages in all are furnished to the petitioner. According to the petitioner wrong translation of the original Engligh version is furnished to the petitioner thereby depriving him of making an efective 1981) 2 SCC 710 2012) 11 SCC 745 cri.wp 1576 20.doc Learned counsel for the petitioner invited our attention to the grounds of detention in Engligh and corresponding Marathi translation. It is contended by her that in paragraph 4 of grounds of detention in English version it is stated “Faujadar Chawadi Police Station” whereas in Marathi ground of detention it is translated as “Salgar Wasti Police Station” 14. With reference to paragraph 4.1 in Engligh version of grounds she submitted that a total of 9 cases are shown to be registered against the petitioner whereas in Marathi translation only 7 cases are shown. Thirdly learned counsel for the petitioner urged that in the column of ‘status’ in the table of cases furnished in paragraph 4.2 there is a variance in the English and Marathi translation. Learned counsel would submit that thus the petitioner is deprived from making efective representation since he has not been furnished true and faithful translation of original Engligh version thereby creating confusion to make efective representation as such his right to make representation under Article 22(5) of the Constitution of India is In support of her submission learned counsel for the petitioner relied upon the decision of this Court in the case of cri.wp 1576 20.doc Shri Noor Mohamed Khan vs. Shri M.N. Singh & ors. 3. She also relied upon the decision of this Court in the case of Yogesh Nandu Pujari vs. Commissioner of Police Thane & ors.4 Learned APP on the other hand submitted that no prejudice whatsoever is caused to the petitioner as the discrepancies pointed out by the petitioner in the Marathi translation are mere typographical errors. He would further submit that the representation was made by the petitioner through his Advocate which did not raise any objection about the said discrepancies additions and omissions. In support of his submission learned APP relied upon the decision of this Court in the case of Amar alias Amarsingh Gulabsingh Rathod vs. State of Maharashtra & anr.5 holding that the grievance of detenu that the documents were not explained to him in his language does not survive as a representation was made through his counsel. In our opinion the discrepancies pointed out by learned counsel for the petitioner in Marathi translation are not mere typographical erros but in fact are substantial mistakes. Mere reading of the order of detention in English language and translations supplied to the detenu in Marathi language would 2001 ALL MR1988 2013 ALL MR1779 2003 ALL MR1671 cri.wp 1576 20.doc indicate that in paragraph 4.1 of the Engligh version of the grounds total of 9 cases are shown to be registered against the detenu whereas in Marathi translation only 7 cases are shown Even in paragraph 4.2 of the grounds of detention so far as the table providing ‘status’ of the 3 cases mentioned therein we fnd that the translated version is at variance with the English version of the grounds of detention. In the ‘status’ in paragraph 4.2 so far as Serial No.2 is concerned we fnd that in the English version the same is mentioned as Police Ofcer Order No. ACP Div 01 u s. 107 of CrPC On 05 02 14 fnal bond has been taken for The translation reads thus iksfyl vf kdkjh lgk iksfyl vk qDr] foHkkx & 1 vkns’k dzekad o 287@13] fn Lkhvkj ih lh dye 107 fn 05@02@2014 jksth d o”kkZdfjrk ‘kkarrk jk[k. klkBh vafre ca ki= ks. kr vkysys gksrs We fnd that the mention of period “one year” in Marathi translation does not fnd place in English version. So far as Serial No.3 of the table in paragraph 4.2 of the grounds of detention is concerned again the period of “one year” mentioned in the Marathi translation is not be found in the English translation cri.wp 1576 20.doc Another noticeable addition in Marathi translation which does not fnd place in the English version of the grounds of detention are the words “for maintenance of peace”. We further fnd that whereas in English version in the grounds of detention it is mentioned that the bond has been taken for good behaviour the same does not fnd a mention in translated version of Marathi We thus notice that there is variance in the copy of the grounds of detention in English and its translation in Marathi apart from there being additions and omissions. We may also note that in paragraph 4 of English version it is stated that “known criminal registered in Gunda register at Faujdar Chawadi Police Station Solapur” whereas in Marathi translation the name of the Police Station is mentioned as “Salgarwasti Police Station”. A cumulative reading of the discrepancies additions and omissions lead us to a conclusion that the detenu has not been furnished with true and faithful translation of the original version and thus deprived from making efective representation as such his right to make representation under Article 22(5) of the Constitution of India is violated In this context we may refer to the decision rendered by the Division Bench of this Court in the case of Shri Noor Mohamed Khanof the Constitution of India and if in a given case the answer is in the afrmative the detention order would have to be quashed and if in the negative it would be sustained. We have already in paragraph 5 given our reasons as to why the detenu could have been misled in the 19. We therefore have no hesitation in coming to the conclusion that in the light of the infrmity in the translation the detenu could have been misled and confused in the instant case Learned APP relied upon the decision of the Hon’ble Supreme Court in the case of Piyush Kantilal Mehta vs Commissioner of Police Ahmedabad City and another6 to submit that even the Hon’ble Supreme Court has held that the order of detention cannot be held illegal on the ground that detenu was wrongly described in the order in as much as his name is diferent from that as given in the order. In our opinion 1989 SCC Supl.(1) 322 the said decision has no application to the facts of the present cri.wp 1576 20.doc 21. As aforesaid the petitioner has raised other point articulated in ground of the Petition. However we do not intend to dilate on the said ground in view of the favourable fndings recorded on the other two points urged by the petitioner Accordingly we hold that continued detention of the petitioner is illegal and vitiated. It is hit by the vice of Article 22(5) of the Constitution of India of denial of right to make efective representation at the earliest opportunity The present Petition therefore succeeds. Hence the The Writ Petition is allowed The respondents are directed to release the petitioner Rohit Sidram Khatal forthwith who has been detained in connection with the impugned preventive detention order dated 17th March 2020 bearing No.D.O.No.04 CB DP 2020 unless required in connection with some other criminal case Rule is made absolute accordingly cri.wp 1576 20.doc The Writ Petition is disposed of accordingly This judgment will be digitally signed by the Personal Assistant of this Court. All concerned will act on production by fax or email of a digitally signed copy of this judgment M.S.KARNIK J (S.S.SHINDE J

To secure industrial peace and harmony, one must provide machinery and procedure for the investigation and settlement of industrial disputes: High Court Of New Delhi

The present writ petition was filed by M/s Hindustan Antibiotics Limited (‘Management’) challenging various orders passed by the Presiding Officer, and the same issue was held in the judgement passed by a single bench judge comprising  JUSTICE PRATHIBA M. SINGH, in the matter  M/S HINDUSTAN ANTIBIOTICS LIMITED V. B.N. SINGH dealt with an issue mentioned above. The Respondent- Workman was appointed as a Medical Representative in the office of the Management in Patna. He worked with the Management until 1996, a charge sheet was issued against him by the Management On 14th November 1996, on the ground that he had falsely claimed Leave Travel Concession ( ‘LTC’) by filing a receipt of travel from Delhi to Patna and back, amounting to Rs. 6,000/-. Later an enquiry was conducted and a report dated 10th August 1999, was submitted by the then enquiry officer. As per the said report, the Workman was found guilty of the charges levelled – i.e., ‘Fraud or Dishonesty in connection with the company’s business or property. But An appeal was preferred by the Workman before the Appellate Authority, which was dismissed vide order dated 9th November 2000. The Workman filed a writ petition being CWP 3395/2001, seeking quashing of the said termination order dated 28th August 2000, as well as the enquiry report against him. The High Court, vide order dated 6th August 2002, recorded the statement of the Management that a new enquiry officer would be appointed in the matter, and accordingly ordered for the Workman to be reinstated into service until the fresh enquiry was completed. The writ petition was disposed of with the said direction. Meanwhile, the Workman was then reinstated into service on 29th August 2002, and he joined the services of the Management at the Delhi branch on 5th September 2002. On 30th October 2002, a fresh charge sheet was issued against the Workman, and an independent domestic enquiry was again conducted. Again he was found guilty of all the charges levelled in respect of the LTC availed by him. This termination letter dated 14 th October 2009, was challenged by the Workman by invoking remedies under the Industrial Disputes Act, 1947 ( “Act”), i.e., by filing a statement of claim before the Conciliation Officer under the Act. Mr D. Roy Chaudhary, appearing for the Management, has made three broad submissions: Was mentioned by the advocate.  Mr B.N. Singh,( The workman ) appears in person and submits the following: Accordingly in the opinion of this Court, the termination of the Workman, vide letter dated 14th October 2009, cannot stand in the eyes of law, as the Management has not proved on record that there was any fabrication of a bill of Rs.6,000/- by the Workman. The court perused the facts and argument’s presented, it believed that- “It is made clear that these amounts shall be paid without prejudice to the payment under Section 17B of the Act, which is stated to be the subject matter of LPA No. 506/2019, titled B.N. Singh v. M/s Hindustan Antibiotics Limited. At this stage, Mr Debasish Moitra, ld. Counsel for the Management submits that the Workman has been paid the amounts due under Section 17B in terms of the order. The said statement is taken on record. However, the issue of payment under Section 17B has not been gone into by this Court. The present petition and all pending applications are disposed of in the above terms”.

5 IN THE HIGH COURT OF DELHI AT NEW DELHI Date of decision: 28th October 2021 W.P.(C) 8297 2016 and CM APPL. 867 2020 M S HINDUSTAN ANTIBIOTICS LIMITED ..... Petitioner Through: Mr. D. Roy Chaudhary Sr. Advocate with Mr. Debasish Moitra Advocate. B.N. SINGH ..... Respondent JUSTICE PRATHIBA M. SINGH Through: Mr. B. N. Singh in person. Prathiba M. Singh J.(Oral) This hearing has been done through hybrid mode. The present writ petition has been filed by M s Hindustan Antibiotics Limited challenging various orders passed by the Presiding Officer Labour Court XVII Karkardooma Courts Delhi hereinafter ‘Labour Court’) in LIR No. 207 16 10finally culminating into impugned Award dated 2nd February 2016. This petition seeks quashing of the said Award and various orders passed by the Labour Court and also seeks remand of the matter back to the Labour Court to decide afresh after hearing the Management’s case. The brief background of the matter is that the Respondent Workman was appointed as a Medical Representative in the office of the Management in Patna. He worked with the Management until 1996. On 14th November 1996 a chargesheet was issued against him by the Management on the ground that he had falsely claimed Leave Travel Concession by filing a receipt of travel from Delhi to Patna and back amounting to Rs. 6 000 . According to the Management he had not undertaken the W.P.(C) 8297 2016 said journey. and had not obtained approval in respect thereof of the Management competent authority for availing the LTC. In the chargesheet which was issued an enquiry was conducted and a report dated 10th August 1999 was submitted by the then enquiry officer. As per the said report the Workman was found guilty of the charges levelled i.e. ‘Fraud or Dishonesty in connection with the company’s business or property’. He was then terminated vide order dated 28th August 2000 passed by the Disciplinary Authority which concurred with the findings of the first enquiry officer. An appeal was preferred by the Workman before the Appellate Authority which was dismissed vide order dated 9th November 2000. The Workman then filed a writ petition being CWP 3395 2001 seeking quashing of the said termination order dated 28th August 2000 as well as the enquiry report against him. The High Court vide order dated 6th August 2002 recorded the statement of the Management that a new enquiry officer would be appointed in the matter and accordingly ordered for the Workman to be reinstated into service until the fresh enquiry was completed. The writ petition was disposed of with the said direction. The order of the High Court reads: “Mr. Savla counsel for the respondent has contended that he has sought instructions and new enquiry officer shall be appointed. In view of the statement of counsel for the respondent impugned order dated 28.8.2000 is quashed. The petitioner be reinstated in the service. However the petitioner will not claim any back wages till the enquiry is completed. It is also open to the respondent to take whatever action that is contemplated under their own service rules and regulations. W.P.(C) 8297 2016 With these directions writ petition as well as application stand disposed of. The Workman was then reinstated into service on 29th August 2002 and he joined the services of the Management at the Delhi branch on 5th September 2002. On 30th October 2002 a fresh chargesheet was issued against the Workman and an independent domestic enquiry was again conducted. Upon the completion of the said enquiry a report dated 17th January 2007 was submitted by the enquiry officer to the Management vide which he was once again found guilty of all the charges levelled in respect of the LTC availed by him. On 8th July 2008 a showcause notice was issued against the Workman enclosing a copy of the said enquiry report to which he had submitted a reply. Thereafter vide letter dated 14th October 2009 the Workman was terminated by the Disciplinary Authority Competent Authority which concurred with the findings of the second enquiry officer. This termination letter dated 14th October 2009 was challenged by the Workman by invoking remedies under the Industrial Disputes Act 1947 hereinafter “Act”) i.e. by filing a statement of claim before the Conciliation Officer under the Act. The conciliation proceedings failed and accordingly vide order dated 6th September 2010 the GNCTD referred the case for adjudication to the Labour Court. Before the Labour Court the Workman filed his statement of claim on 17th January 2011 and the Management filed its written statement on 19th March 2011. An Authorized Representative was appointed to represent Management as the Workman objected to the appearance of an Advocate on behalf of the Management under Section 36 of the Act which was upheld by W.P.(C) 8297 2016 the Labour Court vide order dated 15th October 2011. According to ld. Counsel for the Management The AR who was representing the Management took voluntary retirement and another officer was appointed as the AR. However the said officer was also subsequently transferred to Chandigarh. Upon the ARs having superannuated or transferred the Management is stated to have lost track of the instant case and none appeared on behalf of the Management for leading evidence before the Labour Court although the Written Statement had already been filed. The Labour Court vide order dated 23rd July 2012 framed the following issue in the matter as a preliminary issue: “(i) Whether management against the workman was in violation of principles of natural justice OPW” the enquiry conducted by Vide order dated 10th July 2015 the Labour Court decided the said preliminary issue on the validity of the enquiry and concluded that the said enquiry was contrary to the principles of natural justice as the enquiry officer appointed by the Competent Authority of the Management had not considered the reports of the handwriting experts produced by the Workman in its report. The said order was passed ex parte. The Labour Court held as In view of the above discussion the enquiry issue is decided in favour of the claimant and against management. The enquiry was not as per the principles of natural justice. The enquiry officer did not consider at all the handwriting expert reports produced by the claimant.” Subsequently the final Award dated 2nd February 2016 was passed by W.P.(C) 8297 2016 the Labour Court which noted that the Management did not examine a single witness or produce any document to prove the misconduct which was alleged against the Workman in the proceedings. The Labour Court vide this Award directied reinstatement of the Workman with continuity of service as also payment of back wages in the following terms: “ Relief from 30.10.2002 time his services were 14. First time the claimant was terminated in October 2000 and he was reinstated only on 29.08.2002 after first enquiry was quashed by the Hon’ble High Court. He was chargesheet dated 30.10.2002 and was suspended on the same day. Suspension was revoked on 10.08.2004. terminated on 14.10.2009 and the claimant is still under termination. He had got subsistence allowance during suspension to 10.08.2004. The management is a government undertaking. The main allegation against the claimant was that he had sent a bill of Rs. 6 000 for reimbursement as expenses for LTC from Delhi to Patna and vice versa. That amount was not sanctioned to him. So the claimant had only attempted to get Rs. 6 000 as LTC expenses. That allegation went unproved. So the management is directed to pay 100% back wages to the claimant from the date of first termination in October 2000 to first reinstatement on 29.08.2002. The management is further directed to pay the remaining salary i.e. total salary minus subsistence allowance from 30.10.2002 to 10.08.2004. The management is further directed to pay 100% back wages from 15.10.2009 onwards. The management is also directed to reinstate the claimant with continuity in service within a month from the date of publication of the award failing which it shall be liable to pay interest @9 per cent per annum on above amount from today till its realization. Parties to bear W.P.(C) 8297 2016 their own costs. Award Reference is answered accordingly.” is passed accordingly. It is this Award that is assailed in the present petition. 11. Mr. D. Roy Chaudhary ld. Sr. Counsel assisted by Mr. Debasish Moitra ld. Counsel appearing for the Management has made three broad The Labour Court did not have jurisdiction to hear and adjudicate the Claim of the Workman as the appropriate Government in the present case is the Central Government. The is a Central Government entity the 100% shareholding of which is owned by the President of India. ii. Both the independent domestic enquiry reports arrived at a clear conclusion that there was fabrication of the bill of Rs.6 000 which was availed of as LTC by the Workman showing travel from Delhi to Patna and back. This fabrication has led to a loss of confidence in the Workman and accordingly the Management cannot be forced to retain him. iii. Finally the judgment of the Supreme Court in OP Bhandari v. Indian Tourism Development Corporation Ltd. and ors.4 SCC 337 is relied upon to canvass the proposition that when there is a loss of confidence of this nature and no purpose would have been served by reinstatement a lump sum compensation equivalent to the salary of 3.33 years ought to be paid and reinstatement with full back wages and continuity of service need not be granted. W.P.(C) 8297 2016 12. The Workman Mr. B.N. Singh appears in person and submits the The Management did not lead any evidence in the matter throughout the proceedings before the Labour Court. ii. On the aspect of jurisdiction the Workman submits that he had initially approached the Ministry of Labour and Employment Government of India. which informed him on 12th November 2009 that the Central Government is not the appropriate Government in the dispute raised by him. Accordingly he was left with no option but to approach the GNCTD and seek a reference in respect of his claim thereof. It is under these circumstances that the Labour Court has exercised jurisdiction of his claim. Moreover the Management had submitted to the jurisdiction of the Labour Court when it filed its Written Statement and accordingly cannot dispute the same at this stage. iii. There need not be any loss of confidence in respect of him as he has rendered services with the Management since 1982. iv. He is entitled to approximately Rs. 50 00 000 in terms of the Labour Court award. In Rejoinder ld. Sr. counsel for the Management submits that the Management is a company which was under liquidation and had become a sick company although recent attempts have been made to revive the same. The Workman disputes this position and submits that large amounts of funds have already been invested by the Central Government into this company even to the tune of more than Rs.300 Crores. 14. Heard ld. Senior Counsel for the Management and the Respondent W.P.(C) 8297 2016 Workman who is appearing in person and perused the record. 15. A few facts that are important to be noticed are: • The Management was served in the matter before the Labour Court i.e. ID 236 10 and the Written Statement of the Management was also filed however none appeared for the management and it was proceeded ex parte on 5th June 2012. Since then till the passing of the impugned Award on 2nd February 2016 the Management did not bother to defend itself before the Labour Court. No evidence was led on its behalf and it was proceeded ex parte. • The order of the Labour Court dated 10th July 2015 by which the enquiry was held to be contrary to law and was set aside as also the final Award dated 2nd February 2016 have both been decided in favour of the Workman and he has been reinstated with back wages and continuity of service. The Labour Court had no option but to accept the evidence on behalf of the Workman as the Management did not lead any evidence. • No official of the Management was examined before the Labour Court including the driver who had made the endorsement during the enquiry that the Workman had refused to go to Patna in his taxi. • Even if the allegation of the Management is taken at its highest the irregularity committed by the Workman was to the tune of Rs. 6 000 claiming LTC qua a journey from Delhi to Patna and back in 1994. 16. Accordingly the question is as to whether the domestic enquiry report conducted by the enquiry officer appointed by the Competent Authority of the Management ought to be believed or does this Court have to go by the W.P.(C) 8297 2016 Award of the Labour Court itself. 17. The enquiry report dated 17th January 2007 was set aside by the Labour Court vide its order dated 10th July 2015 on the ground that the same was violative of the principles of natural justice as the reports of the handwriting experts which were produced by the Claimant were not considered by the enquiry officer. Even if this Court presumes that the handwriting expert’s report could not have been considered and the enquiry report was valid in law the matter only relates to a sum of Rs.6 000 in respect of an alleged false LTC claim made by the Workman. In the opinion of this Court after the setting aside of the enquiry report dated 10th July 2015 a duty was cast upon the Management to lead evidence in the matter to prove its case that the Workman had defrauded the The Management had complete knowledge of proceedings before the Labour Court and it had also filed its Written Statement. None of the submissions being made today in respect of jurisdiction as well as loss of confidence were made before the Labour Court. 19. The Workman was initially dismissed in 1996 was reinstated by an order of this Court dated 6th August 2002 in CWP 3395 2001 on 29th August 2002. He was again terminated on 14th October 2009 pursuant to the second enquiry report. The Workman has been fighting this litigation in respect of the LTC which was availed by him for the last 25 years against the Management. The only payment stated to have been received by him during this period is a sum of Rs.1 80 000 to Rs.2 00 000 which is stated to have been made under Section 17B of the Act. The Workman submits that he has been unemployed since his termination and he in fact chose not W.P.(C) 8297 2016 to take any alternate employment. as he wanted to get his name cleared. He submits that he was also offered a Voluntary Retirement Scheme however he did not accept the same. as that would have meant that his name would not have been cleared and he would have been presumed to be guilty of the offence alleged to have been committed by him in 1994. 20. Accordingly in the opinion of this Court the termination of the Workman vide letter dated 14th October 2009 cannot stand in the eyes of law as the Management has not proved on record that there was any fabrication of a bill of Rs.6 000 by the Workman. Insofar as the issue of jurisdiction is concerned it is noted that since in Labour Courts Advocates usually don’t appear for the parties in view of Section 36 of the Act the Workman and the Management per force conduct their own cases. The letter which has been placed before this Court dated 12th November 2009 wherein the Workman had approached the Ministry of Labour and Employment Government of India and was told that the Central Government is not the appropriate Government in the matter itself shows that the Workman had sought to avail of his remedies in accordance with law. However upon being told by the Government Department to approach the appropriate Government he was constrained to approach the GNCTD which referred his dispute to the Labour Court. The later dated 12th November 2009 reads as under: “Your application dated nil received in this office on 3.11.2009 on the above cited subject is returned herewith as Central Government is not appropriate government in this dispute under the I.D. Act 1947. You may raise your dispute before the appropriate government if you so desire.” W.P.(C) 8297 2016 The claim was then filed before the Labour Court which exercised jurisdiction. In respect of the relief ordered by the Labour Court it is noted that the Workman was initially posted in Patna however thereafter he was shifted to Delhi where he was posted until his termination. At the time when the Workman was terminated admittedly the Management was undergoing proceedings under the Sick Industrial Companies Act 1986. Thus it is very possible that there was no active business activity being conducted by the Management at that time. The workman however disputes this and submits that the Management had a 1000 employees during this period. 23. Be that as it may the recent jurisprudence that has evolved from the Supreme Court clearly holds that in all cases reinstatement need not be granted and depending upon the facts of the case at hand lump sum compensation can be awarded by Courts. In Allahabad Bank and ors. v. Krishan Pal Singh No. 19648 2019 decided on 20th September 2021) the Supreme Court has held: “8. The directions issued by the High Court of Allahabad for reinstatement were stayed by this Court on 23.08.2019. During the pendency of these proceedings the respondent workman had attained age of superannuation. Though there was strong suspicion there was no acceptable evidence on record for dismissal of the workman. However as the workman has worked only for a period of about six years and he has already attained the age of superannuation it is a fit case for modification of the relief granted by the High Court. The reinstatement with full back wages is not automatic in every case where termination dismissal is found to be not in accordance W.P.(C) 8297 2016 with procedure prescribed under law. Considering that the respondent was in effective service of the Bank only for about six years and he is out of service since 1991 and in the meantime respondent had attained age of superannuation we deem it appropriate that ends of justice would be met by awarding lump sum monetary compensation. We accordingly direct payment of lump sum compensation of Rs.15 lakhs to the respondent within a period of eight weeks from today. Failing to pay the same within the aforesaid period the respondent is entitled for interest @ 6% per annum till payment.” 24. Thus the Supreme Court has clearly recognised the fact that reinstatement is not an automatic consequence of wrongful termination especially when the Workman is due to attaining superannuation and has during the pendency of litigation not performed any services with the Management. The Supreme Court has accordingly awarded lump sum compensation in such a case as seen above. Even in Ranbir Singh v. Executive Eng. P.W.D. the Supreme Court has taken a similar view and held as under: “6. …In other words we find that reinstatement cannot be automatic and the transgression of Section 25F being established suitable compensation would be the appropriate remedy. 7. In such circumstance noticing that though the appellant was reinstated after the award of the Labour Court in 2006 the appellant has not been working since 2009 following the impugned order and also taking note of the fact that the appellant was in all likelihood employed otherwise also the interest of justice would be best subserved with modifying the W.P.(C) 8297 2016 impugned order and directing that in place of Rs. 25000 as lumpsum compensation appellant be paid Rs.3.25 lakhsas compensation taking into consideration also the fact that the appellant had already been paid Rs. 25000 Rupees Twenty Five Thousand) as compensation.” 25. The judgment relied upon by the Management in OP Bhandari supra) gives a lump sum compensation equivalent to 3.33 years of salary on the basis of the last pay and allowances drawn by the Appellant therein. However there is no fixed mathematical formula that has been set out in these cases as to what should be the lump sum compensation. The same has to be determined in the facts and circumstances of each case. In the present case the Workman was clearly working as an Agro Representativewith the Management. He was alleged to have fabricated an LTC claim in lieu of his travel from Delhi to Patna and back. From his own statement it is clear that his priority has been to clear his name from the matter which has been done by the impugned order dated 2nd February 2016. Further the Management having not filed any evidence or cross examined the Workman before the Labour Court the Workman cannot again be relegated to fight another round of litigation against the Management. The Workman submits that he is attaining superannuation on 31st October 2021. It is in view of the Workman’s impending superannuation that this matter has been heard on an urgent basis. 27. The Workman’s stand has clearly been vindicated vide the impugned award dated 2nd February 2016. However this Court is mindful of the fact the Workman has not worked with the Management since his termination W.P.(C) 8297 2016 and has not rendered any services after 2009 i.e. for more than 12 years. Under these circumstances the following directions are issued: i) A lump sum compensation of Rs.15 00 000 shall be paid to the Workman by the Management instead of the reinstatement and 100% back wages that have been awarded by the Labour Court vide its impugned Award. ii) In addition litigation costs of Rs.1 00 000 are awarded in favour of the Workman to be paid by the Management. iii) The said amounts mentioned in directions and above shall be paid within eight weeks. If the said amounts are not paid within 8 weeks further interest at the rate of 6% simple interest would be liable to be paid by the Management to the Workman till the date of payment. It is made clear that these amounts shall be paid without prejudice to the payment under Section 17B of the Act which is stated to be subject matter of LPA No. 506 2019 titled B.N. Singh v. M s Hindustan Antibiotics Limited. At this stage Mr. Debasish Moitra ld. Counsel for the Management submits that the Workman has been paid the amounts due under Section 17B in terms of the order. The said statement is taken on record. However the issue of payment under Section 17B has not been gone 29. The present petition and all pending applications are disposed of in PRATHIBA M. SINGH into by this Court. the above terms. OCTOBER 28 2021 W.P.(C) 8297 2016

Irreparable damage must be proved before granting injunction for use of trademark: High Court of Delhi

The party seeking an injunction must show that irreparable damage will be caused if the injunction is refused. This was decided by the Delhi high court bench consisting of Hon’ble Justice Rajiv Sahai Endlaw and Hon’ble;e Justice Asha Menon in Shrivats Rathi and Anr. vs. Anil Rathi and Ors.[First Appeal Order (Comm) No.119 of 2020]. This appeal was filed in response to an order that set aside interim applications filed in cases concerning infringement of a trademark. The background facts to this case are that a company named Rathi Steels Rolling Mills (RSRM) came into existence in 1986. In 1969, it split into K.L. Rathi Steels Ltd. and G.D Steels Rathi Ltd. which were looked after the male descendants of the family. Later in the year 1975, all members of the family applied for and obtained the registration of the trademark ‘RATHI’ to preserve the quality of the products manufactured. However after a MOU was signed among the family members to not allow outsiders use the name, the appellant began granting a license to a third party for usage of the trademark. When the matter was taken to court, the judge issued a restraining order from issuing any license in the future. The High Court stated that an appellate court has limitations on matters dealing with an injunction, especially for the assessment of the material grounds on which decision by the lower court was made. It could only interfere when certain principles of law had been ignored while the lower court exercised its discretion. The court then discussed the different ingredients that justify its interference in the grant of an injunction by referring to the Supreme Court judgement made in the case Dalpat Kumar vs. Prahlad Singh (1992) 1 SCC 719, It was held “the burden is on the plaintiff by evidence that there is a ‘prima facie case’ in his favor. The court further has to satisfy that non-interference by the court would result in ‘irreparable injury to the party seeking relief and that there is no other remedy available to the party except one to grant injunction’. The third condition is that ‘the balance of convenience’ must be in favor of granting injunction which means that the court must find the amount of substantial mischief which is like to be caused if the injunction is refused”. Applying the above principles the court held that the appellant failed in presenting a prima facie case by not disclosing any right to issue licenses for use of trademark “RATHI”. Besides, the respondent showed that injury would be caused to the Rathi family by the unregulated use of this trademark. This damage would be irreparable and the balance of convenience swings in favor of the respondent.

IN THE HIGH COURT OF DELHI AT NEW DELHI Date of Decision: 4th January 2021 SHRIVATS RATHI & ANR. FAO(OS)119 2020 Through: Mr. Appellants Mr.Sanjeev Sindhwani Sr. Advs. with Mr. Tanmay Mehta & Mr. Subhash Chawla Advocates ANIL RATHI & ORS. Through: Mr. Sudhir Chandra & Mr. SHRIVATS RATHI & ANR. FAO(OS)122 2020 Through: Mr. Sandeep Sethi Sr. Advs. with Mr. Sagar Chandra Ms. Srijan Uppal Ms. Mehek Dua & Mr. R.K. Rajwanshi Advs. for R 1. Appellants Mr.Sanjeev Sindhwani Sr. Advs. with Mr. Tanmay Mehta & Mr. Subhash Chawla Advocates ANIL RATHI & ORS. Through: Mr. Sudhir Chandra & Mr. Sandeep Sethi Sr. Advs. with Mr. Sagar Chandra Ms. Srijan Uppal Ms. Mehek Dua & Mr. R.K. Rajwanshi Advs. for R 1 HON BLE MR. JUSTICE RAJIV SAHAI ENDLAW HON BLE MS. JUSTICE ASHA MENON FAO(OS)Nos.119 2020 & 122 2020 JUSTICE ASHA MENON FAO(OS) 119 2020 CM Nos.24330 2020 24331 2020 & 25167 2020AND FAO(OS) 122 2020 CM Nos.24341 202024342 2020 & 25183 2020These are two first appeals filed against a common judgment of the learned Single Judge dated 15th September 2020 disposing of two interim applications under Order XXXIX Rules 1 & 2 of the Code of Civil Procedure 1908 in two suits filed against the defendants for infringement of trademark of the plaintiff. The appellants are two of the defendants in the suits whereas the respondent No.1 is the plaintiff. Vide the impugned judgment the learned Single Judge restrained all the defendants including the present appellants from issuing licenses manufacturing exporting marketing offering for sale selling advertising or in any manner dealing in TMT Bars Steel Bars common metals their alloys metal building materials and several other products and goods of common metal under the trademark “RATHI” or adopting any other mark or label which is identical or deceptively similar to the registered trademark “RATHI” amounting to infringement of registered trademark passing off dilution and unfair competition during the On 30th September 2020 after hearing counsel we directed as pendency of the suits. under: FAO(OS)Nos.119 2020 & 122 2020 On 6th October 2020 the CM Application Nos.24330 2020 and 24341 2020 for stay were dismissed and the following order was passed : “11. It is therefore ordered that the appellants defendants which are members of the Rathi family during the pendency of these appeals shall not renew alter or change in any way any existing licence licensee and shall not grant any new licences. A list of licences already granted along with copies thereof be also furnished to the counsels for the respondent plaintiff and be filed in this Court. 12. On request of counsel for the appellants instead of tomorrow list on 5th October 2020. 13. However it is made clear that the compensation in monetary terms in respect whereof undertaking would be required to be given would be effective from tomorrow i.e. 1st October 2020.” “9. Having considered the controversy we are of the view that once the appellants defendants on the basis of their books of accounts have computed the profits earned by them in the preceding three months at the rate of Rs.6.33 lakhs per month and have also put the rider that owing to the prevalent pandemic the profits in the ensuing months are likely to be less the offer of the respondent plaintiff will more than compensate the appellants defendants for the losses suffered from non stay of the operation of the impugned judgment till the decision of the appeal. 10. As observed in the order dated 30th September 2020 once the Single Judge of this Court has granted an preferred will not ipso facto lead to stay of the operation of the order of the Single Judge during the pendency of injunction merely because the appeal FAO(OS)Nos.119 2020 & 122 2020 the appeal. 11. We thus accept the undertaking on behalf of the respondent plaintiff Anil Rathi in his personal individual capacity to in the event of the appeal being allowed within 15 days deposit in this Court an amount computed at the rate of Rs.20 lakhs per month including for the days of a month less than the complete month on pro rata basis with effect from the order dated 29th September 2020 and till the decision of the appeal. The disbursement of the said amount to the FAO COMM) Nos. 119 2020 & 122 2020 Page 6 of 6 appellants defendants shall however be subject to the orders if any in the further remedies if any taken against the decision in the appeal. 12. The said undertaking of the respondent plaintiff Anil Rathi is accepted and respondent plaintiff Anil Rathi ordered to be bound with the said undertaking and has been explained through counsel the consequences of breach of undertaking given to this Court. 13. C.M. Appl. Nos. 24330 2020 & 24341 2020 for stay are dismissed and the order of the Single Judge shall continue to operate during the pendency of the appeal.” BACKGROUND FACTS Gordhan Das Rathi and his brother Kanhiya Lal Rathi along with their late brother Chuttan Rathi’s son Hari Kishan Rathi set up in 1942 a steel rolling mill in the name of “Rathi Steels Rolling Mills”and in 1968 started manufacturing cold twisted deformed bars i.e. TOR Steel Bars under the trademark “RATHI”. However in 1969 both the brothers split RSRM into two units which continued to roll TOR steel bars under the name of “RATHI”. M s G.D. Rathi Steels Ltd. was owned by the sons FAO(OS)Nos.119 2020 & 122 2020 of late G.D. Rathi while M s. K.L. Rathi Steels Ltd. was owned by C.R. Rathi the son of late K.L. Rathi and his family and H.K. Rathi and his family. As the business grew the sons of late G.D. Rathi established in 1970 M s. Rathi Ispat Ltd. and in 1972 M s. Rathi Udyog Ltd. both at Ghaziabad. Similarly C.R. Rathi and H.K. Rathi established a steel plant under the name of Rathi Super Ltd. in Ghaziabad and Rathi Alloy Steel Ltd. in Alwar Rajasthan. In October 1975 M s. K.L. Rathi Steels Ltd. applied for and obtained the registration of the trademark “RATHI” under registration number 309435 in class 6 for certain products. M s. G.D. Rathi Steels Pvt. Ltd. also obtained a registered trademark “RATHI” in October 1980 under the registration number 367635. In 1986 there was a split in the G.D. Rathi family. M s G.D. Rathi Steels Ltd. came to be owned by P.R. Rathi and his sons and K.K. Rathi and his sons and M s. Rathi Ispat Ltd. and M s. Rathi Udyog Ltd. came to be owned by P.C. Rathi and family Arun Kumar Rathi and family and Anil Rathi and family. Things continued in this fashion till the members of the Rathi family felt the need to come together to protect and safeguard the interest of the family in the trademark “RATHI” against outsiders. They were also keen to maintain the standards of the products manufactured and sold trademark “RATHI”. With this objective in mind a Memorandum of Understandingwas executed on 24th June 1995 to ensure a consistent quality of the products manufactured in their own rolling mills under the trademark “RATHI”. As per this MOU it was also agreed that the Rathi family would create two trusts being Rathi Foundation and Rathi Research Centre. FAO(OS)Nos.119 2020 & 122 2020 7. For the purposes of the Trust named Rathi Foundation on 28th June 1995 vide the Trust Deed executed the entire family was divided into three groups A B and C with the Group C being further divided into C1 C2 and C3 with twelve Lifetime Trustees. The same is reproduced in a tabulated form for ready reference as under: Late Mr. GROUP B 1.Deepak Rathi Harikishan Rathi) 2. Dhananjay Rathi S o Mr. Deepak 3. Kshitij Rathi S o Mr. Deepak 4. Rekha Rathi GROUP A 1.Shanta Bai Lakhotiya In place of deceased erstwhile trustee Late Mr. C.R. Rathi) 2. Rajesh Rathi S o Late Mr. C.R. 3. Gaurav Rathi 4. Lila Devi Rathi GROUP C GROUP C1 1.P.C Rathi S o Late Mr. G.D. Rathi 2.Raj Kumar Rathi S o Mr. P.C. Rathi) 3.Pradeep Rathi S o Mr. P.C Rathi) GROUP C2 1.Arun Kumar Rathi S o Late Mr. G.D. GROUP C3 1.Anil Rathi S o Late Mr. G.D. The trademark bearing number 309435 obtained by M s.K.L. Rathi Steels Ltd. was assigned to Rathi Foundation through Assignment Deed dated 29th June 1995. The senior most trustee of each group and sub group i.e. A B C1 C2 and C3 were granted power to issue licenses to use the trademark subject to certain conditions in the Trust Deed read FAO(OS)Nos.119 2020 & 122 2020 with the MOU under information to the Rathi Foundation. The Licensees were also required to file with the Rathi Foundation acceptance of all terms and conditions of the Trust Deed. The present dispute has commenced as a result of the appellant No.1 allegedly granting licenses to outsiders without adherence to the terms of the Trust Deed and the MOU. It may be mentioned here that the appellant no.1 is the son of the respondent No.6 who being the head of the sub group C 2 has the right to issue two licenses to two entities in which the family had a majority interest. However it is alleged that the appellant No.1 who had no right whatsoever either under the Trust Deed or the MOU during the lifetime of the respondent No.6 illegally issued eight licences to entities which were not connected to the family. The respondent No.1 being a Lifetime Trustee of the Rathi Foundation instituted the two suits seeking an injunction against the defendants in the suits from using the registered trademark of the Foundation in infringement thereof and to restrain the appellants herein from wrongly issuing any further licences against the terms of the MOU and Trust Deed. Pending trial he sought interim injunction which was granted. SUBMISSIONS IN APPEAL 10. The focus of the arguments of Sh. Virmani and Sh. Sindhwani senior counsel and Sh. Tanmay Mehta Advocate as advanced on behalf of the appellants was that the respondent No.1 had himself sought the registration of trademark “RATHI” by filing a number of applications claiming use of “RATHI” “as a surname” and could not have taken a contrary stand to oppose a similar claim by the appellant FAO(OS)Nos.119 2020 & 122 2020 No.1. Relying upon S.P. Chengalvaraya Naidu v. Jagannath & Ors. AIR 1994 SC 853 it was also urged that having come to the conclusion that the respondent No.1 as plaintiff had willfully suppressed facts relating to such attempt to obtain registration the learned Single Judge ought not to have granted the injunction as the respondent No.1 had not come to the court with clean hands and had no equities in his favour. The locus standi of the respondent No.1 to file the suit was also questioned since all the trustees had not passed a Resolution in his favour and as the plaint was actually signed by a Power of Attorney. 11. The case put forth by the learned senior counsel for the appellants is that the appellant No.1 was a lineal male descendant of late G.D. Rathi and like all family members had the right to use the family name as a trademark under Section 35 of the Trademarks Act 1999. The learned senior counsel has relied upon the judgements in S.K. Sachdeva v. Shri Educare Ltd. 2016 SCC OnLine Del 473 and Shri Ram Education Trust v. SRF Foundation 2016 SCC OnLine Del 472 to put forth his argument that goodwill in the registered mark "RATHI" of the Foundation is not exhaustive of the goodwill and entitlement in Rathi family name. It was submitted that the trademark “RATHI” had been in existence since 1942 and that goodwill had remained with the family and when M s. K.L. Rathi Steels Ltd. registered the said trademark in its name in 1975 it created goodwill from that date which was transferred to the Foundation but it did not include all of the goodwill generated in the family name and which several other family members continued to use despite such registration. It was also argued that the subsequent registration in the name of M s. G.D. Rathi Steels Ltd. was improper and FAO(OS)Nos.119 2020 & 122 2020 the very fact of it getting another trademark registered in its name reflected the fact that “RATHI” was not an exclusive trademark. Finally it was argued that the appellant No.1 was not a party to the MOU and therefore none of its terms were binding upon him. It was suggested that the entire game plan of the respondent No.1 was to monopolize the issuance of licenses for the use of the trademark “RATHI” in the hands of the trustees including himself. 12. Sh. Sandeep Sethi senior counsel appearing on behalf of the respondent No.1 submitted that the suit had been filed as a trustee on behalf of the trust and as per the express authority given in para 11.3 of the Trust Deed in order to protect the interest of the trust in the registered trademark. All allegations of concealment were against the respondent No.1 Sh. Anil Rathi as a person and there were no allegations against the Trust. In any case the consequences of the mistake of the lawyer cannot be visited upon the respondent No.1 as observed by the Delhi High Court in Insecticides Limited vs. Parijat Industries Pvt. Ltd. 2018 SCC OnLine Del 9748 and there could be no estoppel against him even if it was to be believed that he had himself sought to register the name “RATHI” on the plea that it was also his surname though it was argued that what was sought to be registered was “EUROTHERM by RATHI”. It was pointed out by Sh.Sudhir Chandra senior counsel that the very purpose of the MOU was to protect the standard and quality of RATHI TORS which had gained high acceptability as a brand signifying high quality so much so that per metric tonne RATHI TORS sold at a rate that was higher than for other brands by more than INR 2000 and FAO(OS)Nos.119 2020 & 122 2020 that it was because of the large margin that outsiders desired to use the trademark “RATHI” for their TORS. In order to have control over the quality of products manufactured by various rolling mills the MOU provided that no rolling mill without a 51% holding in the company of the family member would be allowed to use the trademark “RATHI” for their products. According to the learned senior counsel the appellant No.1 was trafficking in the trademark to all and sundry for profit without caring for the quality or the fair name of the family. Sh. Sethi also contended that for 25 years the MOU and the Trust Deed had played out well with no one having any problems till the appellant No.1 began indulging in dilution of the trademark. It is well settled that there are limitations on the powers of the appellate court while dealing with an appeal arising out of a discretionary order. The appellate court will not reassess the material on which the court of first instance has decided to grant or refuse an interim protection. As held by the Supreme Court in Wander Limited and Anr. Vs. Antox India P Ltd. 1990 Suppl. SCC 727 the appellate court would normally not be justified in interfering with the exercise of discretion particularly on the ground that if it had considered the matter at the trial stage it would have come to a contrary conclusion. Only 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 interim relief in the form of an injunction will the appellate court be justified in interfering with the decision. FAO(OS)Nos.119 2020 & 122 2020 15. Interim relief of injunction is granted at a time when all facts have yet to be proved in trial. At the same time the court will consider whether the party seeking such injunction pending trial has a “prima facie case” in its favour. If no prima facie case exists in other words the party seeking the interim injunction discloses no right in its favour no interim injunction will be granted as it would not be justified. However even where a party discloses a prima facie case interim relief will not automatically follow. The party would have to establish that the absence of such relief would cause it “irreparable injury and damage” which would not be compensated by money and that the “balance of convenience” lies in its favour. The existence of all these three conditions alone will justify the grant of interim injunction. Reference in this regard can be made to Dalpat Kumar vs. Prahlad Singh 1 SCC 719 as follows: “5. Therefore the burden is on the plaintiff by evidence aliunde by affidavit or otherwise that there is “a prima facie case” in his favour which needs adjudication at the trial. The existence of the prima facie right and infraction of the enjoyment of his property or the right is a condition for the grant of temporary injunction. Prima facie case is not to be confused with prima facie title which has to be established on evidence at the trial. Only prima facie case is a substantial question raised bona fide which needs investigation and a decision on merits. Satisfaction that there is a prima facie case by itself is not sufficient to grant injunction. The Court further has to satisfy that non interference by “irreparable injury” to the party seeking relief and that there is no other remedy available to the party except one the Court would FAO(OS)Nos.119 2020 & 122 2020 to grant injunction and he needs protection from the consequences of apprehended injury or dispossession. Irreparable injury however does not mean that there must be no physical possibility of repairing the injury but means only that the injury must be a material one namely one that cannot be adequately compensated by way of damages. The third condition also is that “the balance of convenience” must be in favour of granting injunction. The Court while granting or refusing to grant injunction should exercise sound judicial discretion to find the amount of substantial mischief or injury which is likely to be caused to the parties if the injunction is refused and compare it with that which is likely to be caused to the other side if the injunction is granted. If on weighing competing possibilities or probabilities of likelihood of injury and if the Court considers that pending the suit the subject matter should be maintained in status quo an injunction would be issued. Thus the Court has to exercise its sound judicial discretion in granting or refusing the relief of ad interim injunction pending the 16. The observations made in Dorab Cawasji Warden v. Coomi Sorab Warden 2 SCC 117 may be profitably reproduced here “16. The relief of interlocutory mandatory injunctions are thus granted generally to preserve or restore the status quo of the last non contested status which preceded the pending controversy until the final hearing when full relief may be granted or to compel the undoing of those acts that have been illegally done or the restoration of the party that which was wrongfully complaining. But since the granting of such an injunction to a party who fails or would fail to establish his right at the trial may cause great injustice or irreparable harm to FAO(OS)Nos.119 2020 & 122 2020 the party against whom it was granted or alternatively not granting of it to a party who succeeds or would succeed may equally cause great injustice or irreparable harm courts have evolved certain guidelines. Generally stated these guidelines are: 1) The plaintiff has a strong case for trial. That is it shall be of a higher standard than a prima facie case that is normally required for a prohibitory injunction. 2) It is necessary to prevent irreparable or serious injury which normally cannot be compensated in terms of 3) The balance of convenience is in favour of the one seeking such relief.” These cardinal principles for grant of interim injunction have been reiterated in Hindustan Petroleum Corpn. Ltd. v. Sriman Narayan 2002) 5 SCC 760 M. Gurudas and Ors. v. Rasaranjan and Ors. AIR 2006 SC 3275 Best Sellers RetailLtd. v. Aditya Birla Nuvo Ltd. 6 SCC 792 and Ambalal Sarabhai Enterprise Ltd. v. KS Infraspace LLP Ltd.5 SCC 410. In this background it may be seen whether any interference in the impugned judgment is called for or not. We may determine this on the There is no strength in the arguments advanced on behalf of the appellants that the appellants are not bound by the MOU or the Trust Deed because they were not a party thereto. The Rathi family chart filed by the respondent No.1 reflects the fact that except for P.R. Rathi and K.K. Rathi sons of Late G.D. Rathi all other family groups are parties to the MOU as also the formation of the Trust. From the family chart these two persons are connected to the Rathi Research Centre which is the FAO(OS)Nos.119 2020 & 122 2020 basis of the arguments advanced. second foundation created by the family and to which the registered trademark in favour of M s. G.D. Rathi Steels Ltd. was assigned. The MOU includes all male lineal descendants of the parties who are signatories to the MOU. In other words the appellant No.1 being the lineal male descendant of respondent No.6 who has signed the MOU is also governed by the terms and conditions of the MOU as well as the Trust Deed. Merely because he did not sign the document would not result in his being excluded from such terms as such an interpretation would undo the very intent of the elders of the family when they had entered into the arrangement encapsulated in the MOU and cemented by the Trust Deed. The claim that other family members have carried out business under the trademark “RATHI” for the steel TORS and common metal products even after the creation of the Trusts and assignment of the trademark to them would be a matter of evidence as rightly observed in the impugned judgment. The facts as noticed hereinbefore would also give us a reason why M s. K.L. Rathi Steels Ltd. and subsequently M s. G.D. Rathi Steels had obtained separate registrations for the trademark “RATHI” in their names. The original company RSRM was formed and run by two brothers and the son of a deceased brother. When the split took place it was between G.D. Rathi and K.L. Rathi groups of companies with the nephew H.K. Rathi choosing to go with K.L. Rathi. But what is more important is that after functioning separately from 1975 1980 all of them thought it appropriate to take concrete steps to preserve the quality of the products being manufactured and sold in the family name of “RATHI” by FAO(OS)Nos.119 2020 & 122 2020 the various constituents of the family through their independent units companies. Their idea was obviously to preserve the brand value and ensure that the expansion of the family and the business does not result in a fall in quality and thus the disappearance of the goodwill that the name “RATHI” had acquired over a long period of time. Each branch of the family through the eldest member was authorized to grant licenses to their individual units either existing or to be formed subject to conditions noticed in the impugned judgement and therefore not required to be reproduced herein. The courts generally give effect to such family arrangements unless there was no bonafides or there was fraud and undue influence which facts require to be proved during trial. Apart from the fact that no such plea has been taken in the present case it has also to be noticed that this arrangement has worked well from 1995 till now when the appellant No.1 has sought to assert a right independent of the MOU and the Trust Deed by claiming a right under Section 35 of the Trademarks Act 1999. It is in connection with this plea that the appellant No.1 highlighted the pleas taken by the respondent No.1 while seeking registration of certain trademarks including the name of “RATHI” by claiming it as a family name surname. However it is for the appellant No.1 to independently establish his bonafide in using the name “RATHI” irrespective of what plea the respondent No.1 had taken before the registration authorities in respect of some other trademarks. The appellant No.1 is clearly seeking to enforce rights outside the MOU and the Trust Deed by claiming a vested right in a name the goodwill of which was not created by him but created by his predecessors since 1942 and specifically for TORS since FAO(OS)Nos.119 2020 & 122 2020 1968. The name “RATHI” in respect of TORS evokes a certain brand quality and this has been established not by a proprietor being the grandfather of appellant No.1 but by all members of the family over a period of time including his grand uncles. 22. The learned Single Judge was right in concluding that on the basis of the MOU and the Trust Deed the respondent No.1 had disclosed a prima facie case whereas the appellant No.1 had not disclosed any right to issue licenses for use of the trademark “RATHI” by outsiders. In view of the goodwill and brand value of the trademark “RATHI” the injury caused by the widespread unregulated and unlawful use of this trademark which admittedly had been registered in the name of M s. K.L. Rathi Steels Ltd. and which was thereafter duly assigned to the Rathi Foundation would be irreparable as it would be a loss to the family represented by the Rathi Foundation through the respondent No.1. The balance of convenience lies in favour of the Rathi family and the Rathi Foundation and not with the appellant No.1. 23. The contention that the respondent No.1 was not authorized to file the suits by other trustees also has no force since the Trust Deed itself authorizes each Trustee to initiate legal action against any other Trustee family member if they were found violating the terms of the Trust. It is a specious plea that without a hundred percent unanimity amongst the Trustees no legal action can be initiated because if a Trustee is found violating the terms of the MOU Trust Deed he would not be agreeable to a Resolution against him and in absence of such absolute unanimity the terms of the Trust Deed would not be enforceable. FAO(OS)Nos.119 2020 & 122 2020 Therefore placing such an interpretation on the terms of the MOU Trust Deed before the filing of suits cannot be accepted. 24. The impugned judgment does record an observation that the respondent No.1 had not made full disclosure. But that need not result in a deprivation of relief to the Trust which is seeking to protect interest of all family members in the trademark “RATHI” against unauthorized usage. The respondent No.1 has not sought an injunction against the appellants and other respondents to this appeal in his personal capacity after violating terms and claiming a privilege over other violators. He is in a representative capacity and the acts of one Trustee cannot predicate the rights that can be enforced by the Trust. 25. We therefore find no reason to interfere with the reasoning and the conclusions in the impugned judgement as no perversity or illegality has been disclosed or is evident. 26. Appeals dismissed. ASHA MENON J. RAJIV SAHAI ENDLAW J. JANUARY 04 2021 FAO(OS)Nos.119 2020 & 122 2020

Duty of court -to Encourage Settlement between Parties: High Court of New Delhi

It was the duty of court to encourage settlement. More over court fees was a taxing statute and had to be construed strictly and benefit of any ambiguity if any had to go in favor of the party and not to the state. This remarkable judgement was passed by New Delhi High Court in the case of Vijay Kumar and Ors v. Mera Baba Infrastructure Private ltd [RFA(OS) 78/2019, C.M. Appl. Nos. 38986-38987/2019] by Hon’ble Justice Mr. Manmohan and Ms. Asha Menon. The appeal had been filed challenging the decree dated 22nd May, 2019 whereby the Learned Single Judge was pleased to decree the suit for recovery filed by the Respondent for a sum of Rs. 2,15,74,500/- along with interest at the rate of 7% per annum from the date of institution of the suit till its realization. The parties stated that the matter had been amicably resolved by way of an out of Court settlement. The appellants prayed for refund of 50% of the Court fee.  The Court referred the case of the High Court of Judicature at Madras represented by Its Registrar General Vs. M.C. Subramaniam & Ors. The Delhi High Court had also taken a similar view in J.K. Forgings v. Essar Construction India Ltd. & Ors, (2009) and Inderjeet Kaur Raina v. Harvinder Kaur Anand, 2018 SCC that, “Section 89 of C.P.C. and Section 16 Court Fee Act are welcome step in that direction, as the No. of cases has increased, it is the duty of court to encourage settlement. In present scenario of huge pendency of cases in the courts a purposive and progressive interpretation is the requirement of present hour. Court Fees Act is a taxing statute and has to be construed strictly and benefit of any ambiguity if any has to go in favor of the party and not to the state.” The court opinioned that, “it is very clear that the Legislative intent of Section 16 of Court Fees Act was made broad enough to take cognizance of all situations in which parties arrive at a settlement irrespective of the stage of the proceedings. It is also obvious that the purpose of making this provision was in order to provide some sort of incentive to the party who has approached the court to resolve the dispute amicably and obtain a full refund of the court fees.”

IN THE HIGH COURT OF DELHI AT NEW DELHI RFA(OS) 78 2019 C.M. Appl. Nos. 38986 38987 2019 VIJAY KUMAR & ORS Through: Mr. Prag Chawla Advocate MERA BABA INFRASTRUCTURE PVT LTD Through: Mr. Rajeev Aggarwal Advocate Date of Decision: 17th March 2021 HON BLE MR. JUSTICE MANMOHAN HON BLE MS. JUSTICE ASHA MENON JUDGMENT MANMOHAN JNo.78 2019 The Supreme Court of India in ‘The High Court of Judicature at Madras represented by Its Registrar General Vs. M.C. Subramaniam Ors.’ SLP(C) No. 3063 3064 2021 decided on 17th February 2021 has held as under “18. The Delhi High Court has also taken a similar view in J.K Forgings v. Essar Construction India Ltd. & Ors. 113 DRJ “11. The laudable object sought to be achieved by inserting and amending these sections seems to be speedy disposal The policy behind the statute is to reduce the No. of cases by settlement. Section 89 of C.P.C. and Section 16 Court Fee Act are welcome step in that direction as the No. of cases has increased settlement. In present scenario of huge pendency of cases in the courts a purposive and progressive interpretation is the requirement of present hour. The Legislature is primarily to be gathered from the object and the words used in the material provisions. The statute must be interpreted in their plain grammatical meaning is the duty of court the stage of 12. It is very clear that the Legislative intent of Section 16 of Court Fees Act was made broad enough to take cognizance of all situations in which parties arrive at a settlement obvious that the purpose of making this provision was in order to provide some sort of incentive to the party who has approached the court to resolve the dispute amicably and obtain a full refund of the court fees. Having regard to this position the present application will have to be allowed the proceedings. It 14. This is not a case where parties to the suit after long drawn trial have come to the court for settlement Had it been the case of long drawn trial nonrefund of court fees could have been justified but in such like cases courts endeavor should be to encourage the parties and court fees RFANo.78 2019 attached with the plaint should be refunded as an incentive 17. Settlement of dispute only through any of the mode prescribed under section 89 of C.P.C is not sine qua non of section 89 C.P.C. rather it prescribes few methods through which settlement can be reached sine qua non for applicability of section 89 is settlement between the parties outside the court without the intervention of the courts 18. It is also not the requirement of the section that court must always refer the parties to Dispute Resolution Forum If parties have arrived at out of court settlement it should be welcomed subject to principles of equity 19. Court Fees Act is a taxing statute and has to be construed strictly and benefit of any ambiguity if any has to go in favour of the party and not to the state.”and J.K. Forgings supra) has been subsequently relied upon by the Delhi High Court in Inderjeet Kaur Raina v. Harvinder Kaur Anand 2018 SCC OnLine Del 6557 19. We find ourselves in agreement with the approach taken by the High Courts in the decisions stated supra. The purpose of Section 69 A is to reward parties who have chosen to withdraw their litigations in favour of more conciliatory dispute settlement mechanisms thus saving the time and resources of the Court by enabling them to claim refund of the court fees deposited by them. Such refund of court fee though it may not be connected to the substance of the dispute between the parties is certainly an ancillary economic incentive for pushing them towards exploring alternative methods of dispute settlement. As the Karnataka High Court has rightly observed in Kamalammaparties who have agreed to settle their disputes without requiring judicial intervention under Section 89 CPC are even more deserving of this benefit. This is because by choosing to resolve their claims RFANo.78 2019 themselves they have saved the State of logistical hassle of arranging for a third party institution to settle the dispute Though arbitration and mediation are certainly salutary dispute resolution mechanisms we also find that the importance of private amicable negotiation between the parties cannot be understated. In our view there is no justifiable reason why Section 69 A should only incentivize the methods of out of court settlement stated in Section 89 CPC and afford step brotherly treatment to other methods availed of by the parties Admittedly there may be situations wherein the parties have after the course of a long drawn trial or multiple frivolous litigations approached the Court seeking refund of court fees in the guise of having settled their disputes. In such cases the Court may having regard to the previous conduct of the parties and the principles of equity refuse to grant relief under the relevant rules pertaining to court fees. However we do not find the present case as being of such nature 20. Thus even though a strict construction of the terms of Section 89 CPC and 69 A of the 1955 Act may not encompass such private negotiations and settlements between the parties we the participants in such settlements will be entitled to the same benefits as those who have been referred to explore alternate dispute settlement methods under Section 89 CPC. Indeed we find it puzzling that the Petitioner should be so vehemently opposed to granting such benefit Registry State Government will be losing a one time court fee in the short term they will be saved the expense and opportunity cost of managing an endless cycle of litigation in the long term It is therefore in their own interest to allow the Respondent 21. Thus in our view the High Court was correct in Holding that Section 89 of the CP and Section 69 A of the 1955 Act be construction we affirm the High Court’s conclusion and hold that Section 89 of CPC shall cover and the benefit of Section 69 A of the 1955 Act shall also extend to all methods of out of court dispute settlement between parties that the Court subsequently RFANo.78 2019 finds to have been legally arrived at. This would thus cover the present controversy wherein a private settlement was arrived at and a memo to withdraw the appeal was filed before the High In such a case as well the appellant i.e. Respondent No.1 herein would be entitled to refund of court fee.” Keeping in view the aforesaid mandate of law the Registry is directed to issue to an authorized representative of the appellants a certificate authorizing him her to receive back from the Collector half the amount of the Court fee paid by them in the present appeal Accordingly the present appeal stands disposed of in view of the settlement arrived at between the parties MANMOHAN J ASHA MENON J MARCH 17 2021 RFANo.78 2019 Page

Discrepancies in the description and gravity of injuries between the case filed and post-mortem report formed the basis of bail grant by the Court: High Court Of Patna

Petitioner alleged of killing the informant’s father granted bail on establishing that the case filed and post-mortem report doesn’t match the amount and gravity of the injuries that have been inflicted upon the deceased. The Hon’ble High Court of Patna before Justice Mr. Ahsanuddin Amanullah in the matter Indal Yadav and Ors. v. The State of Bihar[Criminal Miscellaneous No. 4321 of 2021]. The facts of the case were that the petitioners were apprehended arrest in connection with the Case, instituted under Sections 147, 148, 149, 341, 323, 447, 302, 504, and 506 of the Indian Penal Code. It was alleged that the petitioner had assaulted the father of the informant by hitting an iron rod on his head and others had also assaulted him due to which he died and further, there is a general and omnibus allegation of assault on others also. Learned counsel for the petitioners submitted that the case is false for despite there being specific allegation in the FIR that there was assault by all the accused and specific against another co-accused of having hit on the head by an iron rod. The post-mortem report didn’t have any injuries mentioned. The petitioners also had no other criminal antecedents. The Additional Public Prosecutor contended that though in the inquest report, there is a reference of injury on the chest the same has not been specified and further that in the postmortem, the doctor has not found any injury on the body through the allegation against the petitioner no. 1 is that he had assaulted by bamboo stick and the petitioners no. 2 and 4 had tied up the hand of the deceased and had assaulted him with lathi on the hand. Learned counsel for the informant submitted that the inquest report shows that there were injuries on the chest. However, she was not able to controvert the fact that only a statement has been made that there were injuries without there being any specific injury referred and that in the post-mortem, no such injury anywhere on the body has been found.

IN THE HIGH COURT OF JUDICATURE AT PATNA CRIMINAL MISCELLANEOUS No. 43221 Arising Out of PS. Case No. 141 Year 2020 Thana BAKHTIARPUR District Saharsa Indal Yadav aged about 45 years Male Son of Late Ramdeo Yadav. Ravi Ranjan @ Ravi Ranjan Yadav aged about 34 years Male Son of Sri Krit Narayan Yadav. 3. Ashish Yadav @ Ashish Kumar aged about 23 years Male Son of Sri Krit Narayan Yadav. 4. Vinit Yadav @ Vinit Kumar aged about 21 years Male Son of Sri Indal All resident of Village Sukhasani PS Bakhtiyarpur District Saharsa The State of Bihar ... Petitioner s ... Opposite Party s For the Petitioner s For the State For the Informant Mr. Amit Kumar Anand Advocate Ms. Rita Verma APP Ms. Rashmi Jha Advocate CORAM: HONOURABLE MR. JUSTICE AHSANUDDIN AMANULLAH ORAL JUDGMENT Date : 16 08 2021 The matter has been heard via video conferencing 2. Heard Mr. Amit Kumar Anand learned counsel for the petitioners Ms. Rita Verma learned Additional Public Prosecutor for the State and Ms. Rashmi Jha learned counsel for the informant 3. On 06.07.2021 the prayer for pre arrest bail on behalf of petitioner no. 3 namely Ashish Yadav @ Ashish Kumar had been withdrawn as he had been arrested and thus the petition now stands restricted to petitioners no. 1 2 and 4 namely Indal Patna High Court CR. MISC. No.43221 dt.16 08 2021 Yadav Ravi Ranjan @ Ravi Ranjan Yadav and Vinit Yadav Vinit Kumar respectively 4. The petitioners no. 1 2 and 4 apprehend arrest in connection with BakhtiyarpurPS Case No. 1420 dated 19.05.2020 instituted under Sections 147 148. 149 341 323 447 302 504 and 506 of the Indian Penal Code 5. The allegation against the petitioners is that co accused Krit Narayan Yadav had assaulted the father of the informant with iron rod on his head and thereafter others had also assaulted him due to which he died and further there is general and omnibus allegation of assault on others also 6. Learned counsel for the petitioners submitted that the case is absolutely false for despite there being specific allegation in the FIR that there was assault by all the accused and specific against another co accused of having hit on the head by iron rod the post mortem report does not disclose a single external injury on the body. It was submitted that the cause of death has also not been indicated in the post mortem report and so the viscera had been preserved for forensic examination. Learned counsel submitted that the petitioners have no other criminal antecedent Patna High Court CR. MISC. No.43221 dt.16 08 2021 7. On 06.07.2021 in view of there being some discrepancy in the inquest report and the postmortem report with regard to external injuries the Court had asked learned APP to obtain the up to date legible copy of the entire case diary of BakhtiyarpurPS Case No. 1420 as also the inquest and postmortem reports and further the injury reports of the other victims from the Superintendent of Police Saharsa 8. Learned APP submitted that she has received the same. It was submitted that though in the inquest report there is reference of injury on the chest but the same has not been specified and further that in the postmortem the doctor has not found any injury on the body though the allegation against the petitioner no. 1 is that he had assaulted by bamboo stick and the petitioners no. 2 and 4 had tied up the hand of the deceased and had assaulted him with lathi on the hand but no such injury has been found. It was submitted that as no opinion has been given by the doctor with regard to reason for death the viscera was preserved for forensic examination 9. Learned counsel for the petitioner submitted that there is no allegation of any poisoning and thus such preservation of viscera may not be relevant for the purposes of considering the present application as specific allegation is only of assault leading Patna High Court CR. MISC. No.43221 dt.16 08 2021 to death that too against co accused Krit Narayan Yadav who is not petitioner in the present petition and after arrest has been enlarged on bail 10. Learned counsel for the informant submitted that the inquest report shows that there were injuries on the chest However she was not able to controvert the fact that only a statement has been made that there were injuries without there being any specific injury referred and that in the postmortem no such injury anywhere on the body has been found 11. Having considered the facts and circumstances of the case and submissions of learned counsel for the parties the Court finds that as per the allegation there being specific allegation of assault by bamboo stick on the body against petitioner no. 1 and against petitioner no. 2 that he had tied up the hands and assaulted by a thick bamboo stick and also against petitioner no. 4 that he also tied the hands and assaulted by bamboo stick on the hand but no trace of any injury having been found in the postmortem report as also the petitioners having no other criminal antecedent and further that as compared between the inquest and postmortem report the postmortem report being more specific since the inquest report is prepared only by what is being said by the people present at the time of occurrence and that Patna High Court CR. MISC. No.43221 dt.16 08 2021 too a vague statement of injury on chest but without any such trace found during postmortem the Court is inclined to allow the prayer for pre arrest bail 12. Accordingly in the event of arrest or surrender before the Court below within six weeks from today petitioner no 1 namely Indal Yadav petitioner no. 2 namely Ravi Ranjan Ravi Ranjan Yadav and petitioner no. 4 namely Vinit Yadav Vinit Kumar be released on bail upon furnishing bail bonds of Rs 25 000 each with two sureties of the like amount each to the satisfaction of the learned Chief Judicial Magistrate Saharsa in BakhtiyarpurPS Case No 1420 subject to the conditions laid down in Section 438(2 of the Code of Criminal Procedure 1973 and further that one of the bailors shall be a close relative of the said petitioners that the said petitioners shall co operate with the Court and police prosecution. Any violation of the terms and conditions of the bonds or the undertaking or failure to co operate shall lead to cancellation of their bail bonds 13. It shall also be open for the prosecution to bring any violation of the foregoing conditions of bail by the said Patna High Court CR. MISC. No.43221 dt.16 08 2021 petitioners to the notice of the Court concerned which shall take immediate action on the same after giving opportunity of hearing to the concerned petitioners 14. The petition stands disposed of in the (Ahsanuddin Amanullah J

Criminal revision petition seeking relief against impugned order dismissed because of no irregularity -Jharkhand high court

Criminal revision petition seeking relief against impugned order dismissed because of no irregularity -Jharkhand high court A criminal revision petition was filed on the ground that the order passed by the lower court was misconceived and illegal and was under the misconception of law and stated that the proceeding cannot be converted from proceedings under section 144 CRPC to under  145 CRPC. the petition was heard and dismissed by a single judge bench of HON’BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY in the case of  Rameshwar Mahto and Ors versus  Ishwar Lal Mahto and Ors ( Cr. Rev. No. 763 of 1999(P)) The learned counsel for the petitioners submits that the application challenging  Criminal Revision No. 63 of 1992 ordered by sessions judge and submits that the impugned order is perverse and cannot be sustained in the eyes of law as there was a direction passed in the order vide Cr. Rev. No. 30 of 1990 that the actual possession over the disputed land was not present and there was a question of parties entering into title under section 145 CRPC. The counsel further submitted that the matter was in violation of natural justice and some applications have already been filed and decided by lower courts in this matter but no court has decided the possession of land in the concerning matter and the appeal was dismissed by lower courts. The court hearing the arguments of the counsels and reviewing previous appeals ordered that once the possession was already decided in a civil suit, possession cannot be claimed by the losing party in a proceeding under section 145 Cr. P.C and in the absence of any case made out the parties came in the possession of the property after a year of filing the suit. hence court does not find any illegality, perversity, or material irregularity in the aforesaid findings of the learned court below while allowing the revision petition and the order is well reasoned and no interference is required in the matter accordingly present revision petition is dismissed. Click here to read the Judgment

IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr. Rev. No. 7699(P) 1. Rameshwar Mahto 2. Bansidhar Mahto 3. Murlidhar Mahto 3(i) Meghnath Mahto 3(ii) Raju Mahto 3(iii) Mukesh Kumar Mahto 4. Karmu Mahto All sons of Late Jhingu Mahto resident of village Mal Dumaria P.S. Godda Muffasil Dist. Godda. 1st party…. Petitioners 1. Ishwar Lal Mahto son of Late Jagarnath Mahto2. Asurudin Son of Late Sahdul Mian IInd parties… Opposite Parties CORAM: HON’BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY Mr. Lakhan Chandra Roy Advocate none For the Petitioners For the Opp. Parties Through Video Conferencing Heard Mr. Lakhan Chandra Roy learned counsel appearing on behalf of the petitioners. 2. No body appears on behalf of the opposite parties. It appears from the records that notices were issued to opposite party nos. 1 1(A) 1(B) 2 and 2(A) vide order dated 24.01.2013 and notice upon opposite party nos. 1 1(A) 2 and 2(A) was validly served but notice upon opposite party no. 1(B) was received by his brother and thereafter fresh steps were taken for service of notice upon opposite party no. 1(B) pursuant to the order dated 11.04.2013 read with order dated 04.07.2013. Thereafter the notice was again received by his brother and consequently vide order dated 27.09.2013 a direction was issued to take steps for service of notice upon opposite party no. 1(B) through paper publication having wide publication in the district of Godda and steps for that purpose were taken and thus the service of notice is complete and no one is appearing on behalf of the opposite parties. This criminal revision petition has been filed for the following relief: “That the petitioners figured as Ist party craves to move in Cr. Revision in this Hon’ble Court against the order impugned in a proceeding under Section 145 Cr.P.C. whereby the order being misconceived and illegal as the trial courts order was set aside on total misconceived conception of law that order dated 3.1.1985 in a proceeding under section 144 Cr.P.C. cannot be converted to a proceeding under section 145 on 26.2.1985 and therefore the petitioners declaration of possession was set aside.” The learned counsel for the petitioners has submitted that vide order dated 29.02.1992 passed in Cr. Rev. No. 30 of 1990 by the court of learned Second Additional District and Sessions Judge Godda the order dated 13.11.1985 passed in T.R. Case No. 104 of 1985 passed by the learned Executive Magistrate Godda was set aside on ground of violation of the principles of natural justice and the matter was remanded back to the concerned authority to pass a fresh order regarding the actual possession over the disputed land without entering into the question of right and title thereof as provided under Section 145 of Code of Criminal Procedure. The learned counsel for the petitioners further submits that pursuant to the said order of remand a fresh order dated 07.09.1992 was passed against the petitioners which was challenged in Criminal Revision No. 692 and decided by the court of learned 2nd Additional Sessions Judge Godda on 15.09.1999 and the fresh order passed pursuant to order of remand dated 07.09.1992 has been set aside. He submits that the order passed in Cr. Rev. No. 692 passed by the court of 2nd Additional Sessions Judge Godda on 15.09.1999 has been challenged in the present proceedings. He submits that the impugned order is perverse and cannot be sustained in the eyes of law in as much as there was a direction passed in the order of remand vide Cr. Rev. No. 30 of 1990 that the actual possession over the disputed land was to be gone into and there was no question of entering into right and title of the parties as provided under Section 145 of Code of Criminal Procedure. Brief fact of the case is that on the basis of a petition filed by the Jhangu Mahto a proceeding under Section 145 of Code of Criminal Procedure was started by the S.D.M. Godda which was transferred by him in his own file and decided the matter in violation of principles of natural justice against which a revision was preferred by the original opposite party no. 1 being Cr. Revision No. 30 of 1990. The said revision was allowed by the learned 2nd Additional Sessions Judge Godda on 29.02.1992 with a direction to the learned Executive Magistrate to hear both the parties. The matter was transferred to the file of one Sri. Umesh Prasad Singh and the case was renumbered as 2592. After remand the learned Executive Magistrate Godda heard the parties and vide order dated 07.09.1992 he decided the proceeding under Section 145 of the Code of Criminal Procedure in favour of the first party in the original proceedings. Against the order dated 07.09.1992 passed in Case No. 252 of 1992 Cr. Rev. No. 692 was filed by the opposite party no. 1 in the original proceedings namely Ishwar Lal Mahto before the learned court below. The grounds taken were that learned Executive Magistrate did not consider judgement of Title Suit No. 63 and Title Appeal No. 40 of 1967 wherein the original opposite party no. 1 was found in the possession of the land and the learned Executive Magistrate also failed to consider the document produced by the original opposite party no. 1. The learned revisional court perused the record of lower court and found that the proceeding under Section 145 Cr.P.C. was started between the parties on the land appertaining to J.B. No. 42 Plot Nos. 227 46 and 44 and 3K. and 4K situated under mouza Rampur. The learned revisional court considered the arguments of both the parties and recorded that in Title Suit no. 63 364 the issue with regards to title and possession was already decided wherein inter alia it was held that Jhingu Mahto father of the present petitioners) had no title and possession against which title appeal no. 40 of 1967 12 of 1974 was also dismissed. The learned revisional court while setting aside the order dated 07.09.1992 passed by Sri U.P. Singh Executive Magistrate Godda in Case No. 252 1992 inter alia recorded that the learned magistrate had crossed his jurisdiction and tried to put the respondentin possession in spite of the fact that they never pleaded that they came in possession of the land in question in particular year after the judgement and decree passed against their father in the said title suit. 10. This court is of the considered view that the learned court below has rightly taken the view that once the possession was already decided in civil suit possession cannot be claimed by losing party in a proceeding under section 145 Cr.P.C in absence of any case made out that they came in possession of the property in particular year after the judgement in the title suit. This court does not find any illegality perversity or material irregularity in the aforesaid findings of the learned court below while allowing the revision petition. The impugned order is a well reasoned order based on materials on record and it calls for no interference by this court. 11. Accordingly the present revision petition is dismissed. 12. Pending interlocutory application if any is closed. 13. Office is directed to send back the lower court records. 14. Let this order be immediately communicated to the learned court below through FAX E mail. Anubha Rawat Choudhary J.)

Repetitive and unnecessary litigations will attract fines: Punjab & Haryana High Court

Filing similar petitions repeatedly with alterations for a favorable outcome will not be exercised and would attract fines and punishment for wasting the judicial time amid the pandemic. Punjab & Haryana High Court gave the decision in the case of Vijay Lata vs. Rajiv Arora [CRM-M-43025-2020] presided over by the single bench of Hon’ble Justice Alka Sarin. In the above-cited case, the appellant approached the court for the fifth time for seeking the same relief under the same provisions of law by cleverly re-wording some portions of her petition. Court noted that the present petition was vaguely drafted and the petitioner tried to conceal all the previous orders passed by the Trials courts or the other High courts. It was observed that Petitioner was expelled from Kurukshetra University from the designation of a lecturer and therefore, she challenged her termination by filing CWP No.1986 of 1993 in the trial court, which eventually got dismissed. The petitioner again filed a petition for recalling the order, which again got dismissed. Petitioner then decided to move to the Supreme Court and challenged both the dismissed orders. But her SLP was again dismissed by the Supreme Court. The petitioner thereafter filed Civil Suit No.186 of 1994 seeking a decree of declaration and a consequential decree of the mandatory injunction to the effect that her services should not have been terminated and that she should be reinstated, challenging therein also the appointment of Naresh Kumar in her place. The HC bench observed that none of the previously passed judgments or decrees were attached to the present petition. And when she couldn’t be successful on the civil side, the petitioner then set in motion a series of proceedings on the criminal side. Appeals were made u/s 340 CrPC on 17-12-20.  HC stated, “A perusal of the above-narrated facts would make it clear that the petitioner has already unsuccessfully knocked on the doors of this Court several times by invoking the provisions of Section 340 CrPC”. Later HC contended that “The present proceedings must be labeled as nothing more than an abuse of the process of the Court particularly in view of the fact that with respect to the same subject-matter several similar petitions had already been filed by the petitioner against this very respondent which were all dismissed. The earlier orders passed by this Court declining any relief to the petitioner in her petitions filed under Section 340 CrPC still hold good and have not been set aside by the Supreme Court”. Referring to the previous judgments in the case of Kalyan Chandra Sarkar vs. Rajesh Ranjan [(2005) 2 SCC 42] HC noted that there was no justifiable reason to entertain the present petition. The court said that because the petitioner had concealed all the past orders in the present petition, she didn’t come to court with clean hands. HC contended that “It is well settled that litigants who, with an intent to deceive and mislead the Courts, initiate proceedings without full disclosure of facts, such litigants have come with unclean hands and are not entitled to relief”. And hence, the HC bench decided to dismiss the petition of the woman with a fine of Rs 25000/- because she moved to the High Court and Subordinate Courts repeatedly in several rounds of litigation for the same matter.

on 25 01 CRM M 43025 2020 1 IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH . CRM M 43025 2020 Date of Decision:12.01.2021 Mrs. Vijay Lata …..Petitioner Versus Sh. Rajiv Arora …..Respondent CORAM: HON BLE MRS. JUSTICE ALKA SARIN Present: Mrs. Vijay Lata petitioner in person. ALKA SARIN J. This is a petition under Section 340 read with Section 195(1)(b)(i) of the Code of Criminal Procedure 1973 for granting sanction to initiate criminal proceedings against the respondent for the offence of knowingly filing a false affidavitin CWP. No.19893 cheating forgery and defamation and for directing the Chief Judicial Magistrate Kurukshetra for further proceeding in Criminal Complaint No.2303. The facts of the case disclose how the criminal justice system is being clogged with unnecessary litigation and how the Courts are being burdened with cases which have already attained finality even during trying times. The petitioner has approached this Court for the fifth time for seeking the same relief under the same provisions of law by cleverly re wording some portions of her petition. She has been unsuccessful on the earlier four occasions. on 25 01 CRM M 43025 2020 2 The facts have been culled out from the order dated 16.03.2020passed by this Court in CRM M 10355 2020. The present petition itself is vaguely worded and the petitioner has for reasons best known to her concealed several orders passed by this Court as well as the civil court. The petitioner had challenged her discontinuation termination as a Lecturer in Kurukshetra University by filing CWP No.19893 in this Court. The respondent who was Registrar of Kurukshetra University filed a written statement in the said CWP No.19893. Vide order dated 19.03.1993CWP No.19893 was dismissed by a Division Bench of this Court. The petitioner filed an application praying for recalling the order dated 19.03.1993 but the said application was dismissed on 02.04.1993her SLP was dismissed. These proceedings have thus attained finality. The petitioner thereafter filed Civil Suit No.1894 seeking a decree of declaration and a consequential decree of mandatory injunction to the effect that her services should not have been terminated and that she be reinstated challenging therein also the appointment of one Naresh Kumar in her place. That civil suit was dismissed and the appeal against the said dismissal was withdrawn on 19.12.1997 with permission to file a fresh civil suit. The subsequent fresh civil suit was also dismissed and the appeal filed against the judgement and decree of the Trial Court was dismissed on 14.05.2002. The judgements and decrees passed by the Trial Court and the Appellate Court have not been attached with the present petition. on 25 01 CRM M 43025 2020 3 Having been unsuccessful in the proceedings initiated by her on the civil side the petitioner then set in motion a series of proceedings on the criminal side. In 2003 the petitioner filed a complaint under Section 340 CrPC before the Chief Judicial Magistrate Kurukshetra against the respondent and others where she averred that the accused had made false averments in CWP No.19893 because of which her said writ petition was dismissed. Vide order dated 26.05.2007this complaint was dismissed inter alia on the ground that since the reply which the petitioner alleged to be false had been filed before the High Court the Chief Judicial Magistrate Kurukshetra could not take cognizance of the offence under Section 195 CrPC. The petitioner filed an appealagainst that order which appeal was withdrawn on 26.03.2008. The order dated 26.03.2008 passed by this Court has not been attached with the present petition. Infact the present petition is completely silent regarding the filing and fate of CRA S 1376 SB 2007. The petitioner then filedthe first petition in this Court beingCriminal Miscellaneous No.M 468407 in CWP No.19893 under Section 340 CrPC with a prayer that the respondents be tried convicted and sentenced for filing wilfully a false affidavit in CWP No.19893. This petition was dismissed on 27.09.2010. The order dated 27.09.2010 passed by this Court has not been attached with the present petition. Infact the present petition is again completely silent regarding the filing and fate of Criminal Miscellaneous No.M 468407 in CWP No.19893. On 30.10.2010 the petitioner filed the second petition in this Court being CRM M 32437 2010 under Section 340 read with 482 CrPCfor granting sanction for prosecution of the respondents for offences under Sections 193 on 25 01 CRM M 43025 2020 4 204 420 468 and 500 read with Section 34 of IPC. The present respondent was arrayed as respondent No.2 in this petition. This petition was dismissed on 12.07.2011. The order dated 12.07.2011 passed by this Court has not been attached with the present petition. Infact the present petition is again completely silent regarding the filing and fate of CRM M 32437 2010. The order dated 12.07.2011 is available on the High Court website and inter alia reads as under : “It may be added that prima facie the affidavit filed by respondent No.2 in the writ petition cannot be said to be false because the resolution of the University was produced in the writ petition and the same was perused by this Court and it was thereafter that the writ petition was dismissed. Petitioner even approached the Hon ble Apex Court in that case but petition for special leave to appeal filed by the petitioner was also dismissed by Hon ble Supreme Court. Consequently it cannot be said that any offence as alleged by the petitioner was prima facie committed by the respondents by filing the aforesaid affidavit in the writ petition. For the reasons aforesaid I find no merit in the instant petition which is completely misconceived. Accordingly the petition is dismissed. The petitioner is advised to desist from generating such unnecessary litigation”. On 21.03.2017 the petitioner filed a complaint in the Court of the Special Judge appointed under the Scheduled Castes and Scheduled TribesAct 1989alleging therein that despite the Executive Council of the Kurukshetra University having approved in its meeting held on 25.01.1991 that she be appointed as a Lecturer in the Department of on 25 01 CRM M 43025 2020 5 Psychology her services had been terminated intentionally and dishonestly by violating the rules of Kurukshetra University without giving any notice to her and therefore since she belongs to a scheduled caste an offence punishable under the said provisions had been committed. This complaint was dismissed on 07.08.2018. The order dated 07.08.2018 passed by the Court has not been attached with the present petition. Infact the present petition is again completely silent regarding the filing and fate of the complaint under the Scheduled Castes and Scheduled TribesAct 1989. On 31.10.2018 the petitioner filed the third petition in this Court being CRM M 48956 2018 under Section 340 CrPCseeking that “charges for knowingly filing false affidavitin CWP No.19893that the report on her poor performance was deliberately obtained only so that her services would not be regularized yet the writ petition itself having been dismissed with the SLP filed against that order on 25 01 CRM M 43025 2020 6 also having been dismissed and her grievance as regards any false written statement affidavit etc. having been dismissed upon her invoking jurisdiction under Section 340 of the CrPC twice earlier too this petition is held to be not maintainable before this court and is consequently dismissed. No costs are being imposed upon the petitioner simply keeping in view the fact that she has appeared in person and is obviously harassing herself also enough time and again”. On 05.03.2020 the petitioner filed the fourth petition in this Court being CRM M 10355 2020 under Section 340 CrPC praying that “charges for knowingly filing false affidavitin CWP No.19893in CWP No.19893and the order passed therein in para 14 of the present petition it is averred “An earlier petitionNo.103520 under Section 340 read with 195(1)(b) of Criminal Procedure Code was dismissed by the Hon’ble High Court on dated 16.03.2020 due to technical defect of legal procedure2 SCC 42] the Supreme Court observed that “Ordinarily the issues which had been canvassed earlier would not be permitted to be reagitated on the same grounds as the same would lead to a speculation and uncertainty in the administration of justice and may lead to forum hunting”. Four Coordinate Benches of this Court have found that no inquiry under Section 340 CrPC is called for in relation to the written statement filed in CWP No.19893 and this Court does not find any material on record to permit the petitioner to reagitate this issue. The present petition is on identical on 25 01 CRM M 43025 2020 9 facts and the core of the present petition as well as the earlier petitions is identical. Apart from the averments made in the present petition and the earlier petitions even Annexures P 1 to P 24 attached with the present petition are also attached as Annexures P 1 to P 24 in the earlier petitions being CRM M 48956 2018 and CRM M 10355 2020 whose paperbooks have been accessed on the website of the High Court. Thus this Court finds no justifiable reason to entertain the present petition. Further the petitioner has concealed from this Court several orders passed by this Court as well as other Courts. She has not come to Court with clean hands. It is well settled that litigants who with an intent to deceive and mislead the Courts initiate proceedings without full disclosure of facts such litigantshave come with unclean hands and are not entitled to relief. In ‘Dalip Singh vs. State of Uttar Pradesh &Ors.’2 SCC 114] the Supreme Court observed that: “In the last 40 years a new creed of litigants has cropped up. Those who belong to this creed do not have any respect for truth. They shamelessly resort to falsehood and unethical means for achieving their goals. In order to meet the challenge posed by this new creed of litigants the courts have from time to time evolved new rules and it is now well established that a litigant who attempts to pollute the stream of justice or who touches the pure fountain of justice with tainted hands is not entitled to any relief interim or final”. Even the averment by the petitioner that her earlier CRM M 10355 2020 was dismissed due to a technical defect of legal procedure due to wrong prayer as per Section 195 of CrPC is also incorrect and false. 1 on 25 01 CRM M 43025 2020 10 In view the discussion above the present petition is held to be not maintainable and is dismissed with costs. Costs are being imposed since precious judicial time during the Covid 19 Pandemic has been wasted on an issue which already stands decided against the petitioner on four earlier occasions. Costs of Rs.25 000 be deposited with the ‘Haryana Corona Relief Fund’. 12.01.2021 JUDGE NOTE: Whether speaking non speaking: Speaking Whether reportable: YES NO

Irrational restraints may amount to waiver of the rights of a Person: Delhi High Court

Irrational restrictions may amount to waiver of the rights of a person. Imposing such restraints which have no rationale and justification qua and are based on prejudice to the contentions of other party can deprive a person from exercising his right. This principle was laid down in the case of Quikr India Private Limited vs. Nike Innovate C.V. & Anr. [FAO. 16/2021] by the Delhi high Court presided over by J. Sanjeev Sachdeva. The Appellant filed this appeal impugning the order passed by the court earlier, whereby the trial court has, on the very first date, disposed of the application filed by the respondent under Order 39 Rules 1 and 2 CPC and granted an exparte injunction, inter-alia, restraining the appellant from using manufacturing, selling, soliciting, displaying, advertising by visual, audio, print mode or by any other mode or by any other mode or manner dealing in or selling/soliciting, intending to sell or solicit through www.quikr.com and their mobile application under the name of Quikr or through any other online websites and/or online platforms or through social medias or in any manner using the impugned counterfeit goods under impugned trademarks/logos Nike, Swoosh Device, Nike Pro, Nike+, Nike Air Jordan, Jordan, Jump man (device) in relation to their impugned goods and business and from doing any other acts pre-deeds amounting to or likely to infringement of respondent’s registered trademarks/logos. The Appellants were further restrained from disposing off or dealing with their assets including their premises at the addresses mentioned in the Memos of Parties of the plaint and their stocks-in-trade till further orders.

IN THE HIGH COURT OF DELHI AT NEW DELHI Judgment delivered on: 13th January 2021 FAO 16 2021 QUIKR INDIA PRIVATE LIMITED Appellant NIKE INNOVATE C.V & ANR. Respondents Advocates who appeared in this case: For the Petitioner: Mr. Jayant Mehta Mr. Rishabh Bansal Mr. Arjun Rao and Mr. Maitryi Bhat Advocates For the Respondents: Mr. S.K. Bansal Advocate CORAM: HON’BLE MR JUSTICESANJEEV SACHDEVA SANJEEV SACHDEVA J. CM APPLN. 1030 2021Allowed subject to all just exceptions. FAO 16 2021& CM APPLN. 1028 29 2021 The hearing was conducted through video conferencing. Appellant impugns order dated 19.12.2020 whereby the trial court has on the very first date disposed of the application filed by the respondent under Order 39 Rules 1 and 2 CPC and granted an ex parte injunction inter alia restraining the appellant from using manufacturing selling soliciting displaying advertising by visual FAO 16 2021 audio print mode or by any other mode or by any other mode or manner dealing in or selling soliciting intending to sell or solicit through www.quikr.com and their mobile application under the name of Quikr or through any other online websites and or online platforms or through social medias or in any manner using the impugned counterfeit goods under impugned trademarks logos Nike Swoosh Device Nike Pro Nike+ Nike Air Jordan Jordan Jump manin relation to their impugned goods and business and from doing any other acts pre deeds amounting to or likely to infringement of respondent s registered trademarks logos infringement of respondent s the said trademarks Logos passing off of respondent s rights in respondent s said trademarks Logos violation of respondent s rights in its trade name Logos. Appellants have further been restrained till further orders from disposing off or dealing with their assets including their premises at the addresses mentioned in the Memos of Parties of the plaint and their stocks in trade. Learned counsel for the appellant contends that appellant is a mere intermediary and is not a seller and does not stock any articles and provides only a consumer to consumer based selling platform. Learned counsel further contends that the trial court has disposed of the application under Order 39 Rules 1 and 2 CPC without even issuing notice to the appellant. He further submits that the relief granted of restraining the appellant from disposing of and dealing with their assets including their premises at the addresses as mentioned in FAO 16 2021 respondent. the Memo of Parties is beyond the pleadings in the suit. He further submits that since the appellant is an intermediary there is no stock in trade of the subject footwear under the brand name in issue of the Learned counsel for the appellant contends that no complaint was ever received from the respondent prior to filing of the suit. Issue notice. Notice is accepted by learned counsel for respondent no. 1. Learned counsel for respondent no. 1 submits that the direction in the impugned order that the application stands disposed of is apparently erroneous. He further concedes that the subject matter of the Suit is not the assets or the premises of the appellant. Learned counsel for respondent no. 1 contends that there was no mention of a Grievance Officer on the website and as such no complaint has been lodged. In view of the above the appeal is disposed of with a direction that the application under Order 39 Rules 1 and 2 CPC is restored to the file of the trial court and be decided afresh. 10. Appellant shall file the Written Statement and its reply to the application in accordance with law. 11. Pending consideration of the application under Order 39 rule 1 FAO 16 2021 2 by the trial court the restraint placed on the appellant from using manufacturing selling soliciting displaying advertising by visual audio print mode or by any other mode or by any other mode or manner dealing in or selling soliciting intending to sell or solicit through www.quikr.com and their mobile application under the name of Quikr or through any other online websites and or online platforms or through social medias or in any manner using the impugned counterfeit goods under impugned trademarks logos Nike Swoosh Device Nike Pro Nike+ Nike Air Jordan Jordan Jump manin relation to their impugned goods and business and from doing any other acts pre deeds amounting to or likely to infringement of respondent s trademarks logos respondent s copyrights in the said trademarks Logos passing off of the respondent s rights in respondent s said trademarks Logos violation of respondent s rights in its trade name Logos shall continue till the disposal of the application under order 39 rule 1 and 2 CPC. 12. Further in view of the statement of learned counsel for the appellant that they are mere intermediaries and only provide an online trading platform and do not have any stock in trade of footwear of the subject mark the impugned order to the said extent also does not warrant any interference at this stage as no prejudice that would be caused to the appellant pending the disposal of the application under order 39 rule 1 & 2 CPC. 13. However with regard to the restraint on the appellant from FAO 16 2021 disposing of or dealing with their assets including their premises at the addresses mentioned in the Memo of Parties is concerned since there is no rationale or justification qua the same and admittedly are not subject matter of the Suit the same cannot be sustained and accordingly the order to the said extent is set aside. 14. This would be without prejudice to the rights and contentions of the parties and that would not in any manner amount to waiver of the rights of the plaintiff. 15. Trial Court shall decide the application under order 39 rule 1 and 2 CPC afresh without being influenced by anything stated in this 16. The appeal is disposed of in the above terms. 17. Copy of the order be uploaded on the High Court website and be also forwarded to learned counsels through email by the Court JANUARY 13 2021 SANJEEV SACHDEVA J order. FAO 16 2021

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? 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 Courts will not rule out the possibility of the petitioner putting pressure on the victim while granting Bail Application, especially in Child Rape Cases: High Court of Delhi

Child rape cases are cases of perverse lust for sex where even innocent children are not spared in pursuit of sexual pleasure. The seriousness of the offence of rape and its impact on the victim will be considered before granting a bail application. This auspicious judgment was passed by the High Court of Delhi in the matter of KASHISH BATRA V. THE STATE [BAIL APPLICATION NO. 477 OF 2021] by Honourable Chief Justice Subramonium Prasad. The petitioner had filed an instant petition under Section 439 of Criminal Procedure Code for seeking regular bail in FIR No.442 of 2020 under Sections 370, 370(A), 372, 374, 376, and 342 of Indian Penal Code and Section 6 of the Protection of Children from Sexual Offences Act 2012. The prosecutrix was studying in 8th standard then and was on numerous occasions caught by her family talking and chatting to a boy named Nadeem. After her brother slapped her for the same on 11.07.2020 she angrily left her house and got into a battery rickshaw without any phone or money. There she met Imrana who told her that she works for an NGO and took her to KNF Hotel, Gurgaon where Imrana and the petitioner drugged her and after she was semiconscious, the petitioner raped her. Later, Imrana sent her with Rashid who raped her. Then the prosecutrix ran away to Greater Noida where Mukesh gave her his phone and she spoke to Nadeem, who asked her to come to Meerut and later refused to keep her. Then Mukesh brought the prosecutrix back to Greater Noida where she spent 14 days with Mukesh and then her family was informed and later an FIR was filed under Sections 370, 370(A), 372, 374, 376, and 342 IPC and Section 6 of the POCSO Act was registered. The victim was given counseling by the Child Welfare Committee and in the report, new facts of sexual assault and Human Trafficking came to light. The petitioner’s bail application was dismissed by Additional Session Judge hence he approached the HC under Section 439 CrPC for a grant of regular bail. Since he contended that neither the petitioner could tamper with any evidence nor is he being called for any kind of investigation and hence continued custody will become punitive in nature which is contrary to the established law. The petitioner relied on Fakhrey Alam v. The State of Uttar Pradesh to contend that there can be only one charge-sheet and subsequent charge-sheets cannot enlarge the time and therefore the accused is entitled to default bail under Section 167 CrPC. However, the court refused this claim, “In the present case the charge-sheet was filed on 21.01.2021. The investigation was completed and the ingredients of Section 167(1)(a), 167(2) read with Section 173(1)(a) CrPC has been met with and therefore the petitioner is not entitled to default bail.” The Court observed that the “The seriousness of the offence of rape and its impact on the victim has as stated by the Supreme Court in Lillu v. State of Haryana (2013) 14 SCC 643 will be considered and the delay in filing the FIR cannot be said to be fatal to this case at this juncture while considering the application for bail.” The Court stated that “The prosecutrix is only 16 years of age. She was given counseling. The report given by the Child Welfare Committee reveals that the accused were trying to put the prosecutrix into flesh trade and that she managed to escape. The call detail records of the accused Imrana and the petitioner corroborate the locations. As correctly observed by the Additional Session Judge, there is no reason forthcoming as to why the prosecutrix would falsely implicate the petitioner. There are sufficient materials in the charge sheet against the petitioner. The petitioner is accused of committing a heinous offense of rape on a child. The possibility of the petitioner putting pressure on the prosecutrix at this stage, if released on bail, cannot be ruled out.”

IN THE HIGH COURT OF DELHI AT NEW DELHI BAIL APPLN. 477 2021 Date of decision: 05th APRIL 2021 IN THE MATTER OF: KASHISH BATRA ..... Petitioner Through Mr. Abhijat Mr. Kunal Malhotra Mr. Arpit Kumar Singh Mr. Princee Aroraa Advocates and ..... Respondent Through Mr. Hirein Sharma APP for the State. HON BLE MR. JUSTICE SUBRAMONIUM PRASAD SUBRAMONIUM PRASAD J. The petitioner has filed the instant petition under Section 439 Cr.P.C. for seeking regular bail in FIR No.442 2020 dated 28.10.2020 registered at Police Station Tigri Delhi under Sections 370 370(A) 372 374 376 and 342 IPC and Section 6 of the POCSO Act. On 28.10.2020 a complaint was given by the prosecutrix stating that she is studying in 8th standard and is staying with her family at B 453 Sangam Vihar New Delhi. It is stated that her father caught her chatting with a boy named Nadeem with whom she had fallen in love. It is stated that on 11.07.2020 her elder brother once again caught her talking chatting on phone with Nadeem and he slapped her. The prosecutrix states that she left BAIL APPLN.477 2021 her home and got into a battery rickshaw. She did not have her mobile phone. She did not had any money. She states that in that rickshaw she met one Imrana who inquired as to why the prosecutrix was crying. She states that Imrana told her that she works for an NGO and that she would help the prosecutrix. It is stated that Imrana took the prosecutrix to her home gave her food and took her to KNF Hotel Gurgaon where the petitioner was present. It is stated in the complaint that Imrana and the petitioner herein gave her something to drink and she became semiconscious and the petitioner raped her. It is stated that even though she was not fully conscious she could feel that she was being raped and could see the petitioner who had removed all his clothes. It is stated that Imrana kept the prosecutrix at the Hotel for three days and when she told Imrana that she wanted to go home Imrana took her home but told her that she should not reveal that she has been raped. It is stated that when she went back home she refused to stay with her parents because she was frightened. It is stated that the prosecutrix came back with Imrana who sent her with one Rashid. It is stated that Rashid took the prosecutrix to Moti Nagar and raped her. It is stated that the prosecutrix ran away from Imrana and Rashid and went to Greater Noida where a man named Mukesh gave her his phone and she spoke to Nadeem who asked her to come to Meerut. It is stated that when she went to Meerut Nadeem refused to keep her with him. It is stated that Mukesh brought the prosecutrix back to Greater Noida and took her to his house where she spent 14 days with Mukesh. Her family was informed and her uncle took her back home. On the said statement FIR under Sections 370 370(A) 372 374 376 BAIL APPLN.477 2021 and 342 IPC and Section 6 of the POCSO Act was registered. Statement of the victim was recorded under Section 164 Cr.P.C before the Magistrate wherein she reiterated her statement given in the complaint. Investigation was conducted. During investigation Imrana Kashish Batra the petitioner herein) and Rashid were arrested. The petitioner was arrested on 23.11.2020. It is stated that during the investigation the prosecutrix along with her mother were taken to FNF Co Living U Block DLF III Gurgaon where it is alleged that the petitioner raped the victim. The investigation revealed that the petitioner was living as a paying guest in a company called FNF Co Living where the victim was raped. The Manager of FNF Co Living revealed that on the request of the mother of the petitioner he allowed him to run a kitchen in his Paying Guest accommodation at the ground floor. The petitioner started visiting his Paying Guest premises since June 2020 and he used to stay there at night as he had to start the kitchen in the said It is stated that the CDR records and location report of the petitioner and Imrana were obtained to ascertain as to whether the petitioner was staying at the place where the offence was committed. It was found that the petitioner was in and around the vicinity of the place of occurrence where the first incident of rape was alleged to have been committed by the premises. It is pertinent to mention here that the victim was given counselling by the Child Welfare Committee. The Child Welfare Committee has given a report on 16.10.2020 wherein it is stated as under: BAIL APPLN.477 2021 "HISTORY: On perusal of the support person as well as interaction with child it is noted that the child has divulged new facts which invokes POCSO Act and human trafficking. The child has shared that she was talking to a boy named Nadeem through Tik tok. On 10th July her family found out about her affair and beated her. On 11th she left was thrown out of the house. She was on her way to Sangam Vihar where she met a lady named Imrana Khan. Imrama took her to Gurgaon in KNF Hotel there she spent three days. Thereafter Imrana started pressurizing her to sleep with men and joined business of flesh trade with her. The owner of the Hotel even offered 2 lakh rupees. Thereafter on refusal from Heena Imrana sent her to her cousin brother Rasheed at Moti Nagar where Rasheed committed sexual assault on her. Thereafter she ran away to Meerut in a cab to meet Nadeem. At Meerut Nadeem refused to keep her so she stayed with Mukesh and his family and threatened to death which forced her to leave the family and hence this DD No. 40A dated 25.07.2020 PS Tigri got registered and child was brought before the bench. Support person Ms. Swati Jha from BBA submitted the report via mail same is perused and taken on record. Child is interacted child again revealed that she was sexually abused by 2 persons named Batra in the Hotel KNF Gurgaon and Rashid and one lady Imrana is also involved in this case. Support person also requested to conduct a sport visit. In this case previously directions are given to SHO in case with DD No.40 a Dated: 25.07.2020 PS Tigri is directed to act in the light of new facts of sexual BAIL APPLN.477 2021 assault and Human Trafficking stated by the child and take action as per law. Submit status report on NDOH. But no compliance has been submitted till now. Bench has viewed it seriously. Support person Ms. Swati Jha from BBA submitted the report via mail same is perused and taken on record. Child is interacted child shared that she was sexually abused by two persons named Batra in the Hotel KNF in Gurgaon and Rashid and one lady Imrana is also involved in this case. Support person is also requested to conduct a spot visit. Child is present child is interacted. child shared that she wants to go with her mother and mother is also willing to take the custody of the child considering all facts and circumstances and in the best interest of child child is being restored to her mother. ID proof of Mother is taken on record and Form No.19 and 20 are executed and same accepted." The petitioner filed an application for bail and the learned Additional Session Judge 05South Delhi Saket Courts by an order dated 08.12.2020 dismissed the bail application. A second bail application was filed by the petitioner and by an order dated 30.01.2021 the said application was also dismissed. The petitioner has now approached this Court by filing the present bail application under Section 439 Cr.P.C. for grant of regular bail. 8. Mr. Abhijat learned counsel appearing for the petitioner would contend that the petitioner is in custody since 23.11.2020. He would state that the supplementary Charge sheet has been filed. He would also state that BAIL APPLN.477 2021 the petitioner has roots in the society and that there is no apprehension that the petitioner will flee from justice if he is released on bail. He would also state that the petitioner cannot tamper with any evidence since the prosecutrix is under the care and custody of the Child Welfare Committee. It is stated that the petitioner is now not being called for any kind of investigation and hence there is no need for the petitioner to be kept in jail. The learned counsel for the petitioner would state that continued custody will become punitive in nature and that is contrary to the law laid down by the Supreme Court. He would state that there has been inordinate delay in the filing of the FIR. He also stated that there are several discrepancies in the story of the complainant. Learned counsel for the petitioner also state that the petitioner was arrested on 23.11.2020. The charge sheet was filed on 21.01.2021 that is after 59 days of the arrest and the Supplementary Charge sheet has been filed just now. He would state that the petitioner was entitled for default bail. The learned counsel for the petitioner relies on the judgment dated 15.03.2021 passed by the Supreme Court in Fakhrey Alam v. The State of Uttar Pradesh to contend that there can be only one charge sheet and subsequent charge sheets cannot enlarge the time and therefore the accused is entitled to default bail under Section 167 Cr.P.C. Learned counsel for the petitioner also places reliance on the following a) Judgment of this Court BAIL APPLN. 1559 2020 titled as Dharmender Singh v. StateJudgment of the High Court of Bombay in CRIMINAL BAIL BAIL APPLN.477 2021 APPLICATION No.2632 2019 titled as Anirudha Radheshyam Yadav v. The State of Maharashtra. c) Judgment of this Court in H.B. Chaturvedi v. C.B.I. d) Anil Mahajan v. Commissioner of Customs and Anr. 2000(2)JCC(Delhi 302) e) Rajinder Singh Sethia v. State 32DLT 164 f) Sukh Ram v. State through CBI 64 DLT 633 g) Sudhir Nathani v. Central Bureau of Investigation MANU DE 0999 h) Sanjay Chandra & Ors. V. Central Bureau of Investigation i) Suresh Kalmadi v. CBI MANU DE 1625 2015 j) Anurag Vardhan v. CBI MANU DE 0551 2003. Mr. Abhijat places reliance on the following paragraphs of the judgment of this Court in H.B. Chaturvedi v. C.B.I. MANU DE 1521 which relied on the judgment of Anil Mahajan v. Commissioner of Customs and Anr. 2000(2)JCC(Delhi 302) which observes as under: “(c) The object of bail is to secure the attendance of the accused at the trial. The principal rule to guide release on bail should be to secure the presence of the applicant to take judgment and serve sentence in the event of the Court punishing him with imprisonment. d) Bail is not to be withheld as a punishment. Even assuming that the accused is prima facie guilty of a grave offence bail cannot be refused in an indirect process of punishing the accused person before he is convicted. BAIL APPLN.477 2021 e) Judges have to consider applications for bail keeping passions and prejudices out of their decisions. f) In which case bail should be granted and in which case it should be refused is a matter of discretion subject only to the restrictions contained in Section 437(1) of the Criminal Procedure Code. But the said discretion should be exercised judiciously. g) The powers of the Court of Session or the High Court to grant bail under Section 439(1) of Criminal Procedure Code are very wide and unrestricted. The restrictions mentioned in Section 437(1) do not apply to the special powers of the High Court or the Court of Session to grant bail under Section 439(1). Unlike under Section 437(1) there is no ban imposed under Section 439(1) against granting of bail by the High Court or the Court of Session to persons accused of an offence punishable with death or life. However while considering an application for bail under Section 439(1) the High Court or the Court of Sessions will have to exercise its judicial discretion also bearing in mind among other things the rationale behind the ban imposed under Section 437(1) against granting bail to persons accused of offences punishable with death or imprisonment for life. h) There is no hard and fast rule and no inflexible principle governing the exercise of such discretion by the Courts. There cannot be an inexorable formula in the matter of granting bail. The facts and circumstances of each case will govern the exercise of judicial discretion in granting or refusing bail. The answer to the question whether to grant bail or not depends upon a variety of circumstances the cumulative effect of which must enter BAIL APPLN.477 2021 into the judicial verdict. Any one single circumstance cannot be treated as of universal validity or as necessarily justifying the grant or refusal of bail. 9. Mr. Abhijat learned counsel for the petitioner states that there are several contradictions in the statement of the prosecutrix. He states that the petitioner be released on bail. 10. On the other hand Mr. Hirein Sharma learned APP would state that the judgment of Supreme Court in Fakhrey Alam(supra) is distinguishable with the facts of this case. He would state that in the said case the first charge sheet was filed under Sections 420 467 468 471 120 B IPC and Sections 3 25 and 30 of the Arms Act. Thereafter a second charge sheet was filed under the UAPA Act beyond the period of 180 days. It is stated that in the fact of that case the Supreme Court held that there can be only one charge sheet and granted bail to the appellant therein because the charge sheet under the UAPA Act was filed beyond a period of 180 days. He would state that in the present case charge sheet was filed on 21.01.2021 and only the supplementary charge sheet for the very same offences has been filed at a later point of time and therefore default bail cannot be granted to the petitioner herein. He would state that the prosecutrix was being forced into flesh trade and the petitioner is accused of committing a heinous offence. He would state that there is likelihood of the petitioner putting pressure on the prosecutrix and tampering with evidence. 11. Heard Mr. Abhijat learned counsel for the petitioner and Mr. Hirein Sharma learned APP for the State. BAIL APPLN.477 2021 12. As rightly pointed out by Mr. Hirein Sharam learned APP the case of Fakhrey Alamdoes not apply to the facts of this case inasmuch as in the abovementioned case a second charge sheet under the UAPA Act was filed beyond 180 days. In that case the appellant was arrested on 03.06.2017. The first charge sheet was filed on 04.09.2017 under Sections 420 467 468 471 120 B IPC and Sections 3 25 and 30 of the Arms Act. Thereafter a second charge sheet was filed under the UAPA Act on 05.10.2017 which was beyond 180 days period. In those circumstances the Supreme Court held that there can be only one charge sheet and therefore the petitioner therein was entitled to default bail. In the present case the charge sheet was filed on 21.01.2021. The investigation was completed and the ingredients of Section 167(1)(a) 167(2) read with Section 173(1)(a) Cr.P.C has been met with and therefore the petitioner is not entitled to default bail. 13. The parameters of granting bail have been laid down by the Supreme Court in a number of cases. In Ram Govind Upadhyay v. Sudarshan Singh 2002) 3 SCC 598 the Supreme Court has given the following considerations : “ While granting bail the court has to keep in mind not only the nature of the accusations but the severity of the punishment if the accusation entails a conviction and the nature of evidence in support of the accusations. b) Reasonable apprehensions of the witnesses being tampered with or the apprehension of there BAIL APPLN.477 2021 being a threat for the complainant should also weigh with the court in the matter of grant of bail. c) While it is not expected to have the entire evidence establishing the guilt of the accused beyond reasonable doubt but there ought always to be a prima facie satisfaction of the court in support of the d) Frivolity in prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail and in the event of there being some doubt as to the genuineness of the prosecution in the normal course of events the accused is entitled to an order of bail.” 14. The seriousness of the offence of rape and its impact on the victim has been stated by the Supreme Court in Lillu v. State of Haryana 14 SCC 643. The Supreme Court has observed as under: “12. In State of Punjab v. Ramdev Singh 1 SCC 421 : 2004 SCC307 : AIR 2004 SC 1290] this court dealt with the issue and held that rape is violative of the victim s fundamental right under Article 21 of the Constitution. So the courts should deal with such cases sternly and severely. Sexual violence apart from being a dehumanising act is an unlawful intrusion on the right of privacy and sanctity of a woman. It is a serious blow to her supreme honour and offends her self esteem and dignity as well. It degrades and humiliates the victim and where the victim is a helpless innocent child or a minor it leaves behind a traumatic experience. A rapist not BAIL APPLN.477 2021 In State of Rajasthan v. Om Prakash 5 SCC 745 the Supreme Court observed as under: only causes physical injuries but leaves behind a scar on the most cherished position of a woman i.e. her dignity honour reputation and chastity. Rape is not only an offence against the person of a woman rather a crime against the entire society. It is a crime against basic human rights and also violates the most cherished fundamental right guaranteed under Article 21 of the Constitution.” “19. Child rape cases are cases of perverse lust for sex where even innocent children are not spared in pursuit of sexual pleasure. There cannot be anything more obscene than this. It is a crime against humanity. Many such cases are not even brought to light because of the social stigma attached thereto. According to some surveys there has been a steep rise in child rape cases. Children need special care and protection. In such cases responsibility on shoulders of the courts is more onerous so as to provide proper legal protection to these children. Their for such physical and mental protection. Children are the natural resource of our country. They are the country s future. Hope of tomorrow rests on them. In our country a girl child is in a very vulnerable position and one of the modes of her exploitation is rape besides other modes of sexual towards a different abuse. These approach required to be adopted .” immobility call factors point 16. The delay in filing the FIR cannot be said to be fatal to this case at this juncture while considering the application for bail. The prosecutrix is BAIL APPLN.477 2021 only 16 years of age. She was given counselling. The report given by the Child Welfare Committee reveals that the accused were trying to put the prosecutrix into flesh trade and that she managed to escape. The call detail records of the accused Imrana and the petitioner corroborate the locations. As correctly observed by the Additional Session Judge there is no reason forthcoming as to why the prosecutrix would falsely implicate the petitioner. There are sufficient materials in the charge sheet against the petitioner. The petitioner is accused of committing a heinous offence of rape on a child. The possibility of the petitioner putting pressure on the prosecutrix at this stage if released on bail cannot be ruled out. In view of the above this Court is not inclined to grant bail to the petitioner. 17. However the Trial Court is directed to hear the arguments on framing of charge and if charges are framed examine all the public witnesses including the prosecutrix as expeditiously as possible and preferably within 18. Accordingly the application is dismissed with the abovementioned SUBRAMONIUM PRASAD J. one year. observations. APRIL 05 2021 BAIL APPLN.477 2021

The Sun TV Network has exclusive rights to broadcast the film “Jilla.”: Madras High Court

The 1st defendant after having assigned the telecast rights absolutely in favour of the plaintiff for a valid consideration, loses that right and the 1 st defendant can no longer assign the same rights in favour of any other party much less in favour of the 2 nddefendant. The facts of the present case are governed by the latin maxim nemo dat quod non habet which means that “no one can give what they do not have”. These were upheld by the  High Court of Madras through the learned bench of Honourable Justice Mr. N. Anand Venkatesh in thee case of  M/s. Sun TV Network Ltd  vs M/s. Super Good Films Private Limited & Ors. (C.S.No.329 of 2014) The crux of the case is The plaintiff is a leading television network in South India has filed the instant suit seeking for a relief of permanent injunction against the defendant, their men, representatives, agents and anybody on behalf of the defendants from in anyway exhibiting or exploiting the Tamil film ‘JILLA’ and for a declaration that the plaintiff is the sole and exclusive copyright holder for broadcasting the Tamil film ‘JILLA’ starring Vijay, Mohanlal and others through Satellite television Broadcast, direct to home broadcast, direct satellite service, internet, video streaming through all forms, etc for a perpetual period of 99 years. The plaintiff has further prayed for a direction to the defendant to pay costs. The plaintiff submits that the 1st defendant is the producer and exclusive copyright holder of the cinematography Tamil film ‘JILLA’ starring Vijay, Mohanlal and others. The 1 st defendant by way of agreement dated 08-07-2013 assigned the copyright for the said film in favour of the plaintiff for broadcasting through various modes of broadcast and transmission, for a consideration of Rs.15,50,00,000/-. The plaintiff states that they have clearly established the assignment of copyright of the film by the 1 st defendant in favour of the plaintiff and also established the entire consideration paid for the same. The agreement in favour of the plaintiff is prior to that of the alleged agreement in favour of the 2 nd defendant. The plaintiff claims that the alleged assignment agreement in favour of the 2 nd defendant was for theatrical release of the said movie outside India. Clause 8 of the alleged agreement clearly states that the said consideration of rupees 10 cores is only for theatrical release of the said film outside India. While this being so, the plaintiff claims that the 2 nd defendant cannot claim airborne rights and assign it in favour of the 3 rddefendant who in turn assigned it to 4 th defendant without any valid right. The plaintiff states that they have exploited the film in its satellite channels and OTT platforms and various other modes and the 2 nddefendant has not come forward with any claim. The plaintiff claims that this clearly establishes that the 2 nd defendant is well aware of the fact that, what was assigned to them was only theatrical release of the said movie outside India. On these pleadings, the plaintiff has laid the present suit. The 2nd defendant claims that that they were not aware of the assignment agreement entered into by the 1st defendant with the plaintiff. The 2nd defendant further claims that neither the plaintiff nor the 1st defendant informed about the assignment agreement dated 08-07-2013 to the 2nd defendant. The 2nd defendant states that the entire consideration of Rs.8,25,00,000/- was paid before the plaintiff’s alleged supplementary agreement with the 1st defendant dated 06-01-2014. The 2nd defendant states that 1st defendant is the author and copyright holder of the suit film and in view of the assignment dated 31-07-2013, the 2nd defendant has got copyright to telecast the film. The learned bench of Honourable Justice Mr. N. Anand Venkatesh observed and stated that “this court holds that the plaintiff is the sole and exclusive copyright owner for broadcasting the Tamil film “JILLA” and the agreement in favour of the 2nd defendant dated 31-07-2013, does not in anyway take away the right of the plaintiff conferred through the assignment agreement dated 08-07-2013 and to the extent the agreement dated 31-07-2013 executed in favour of the 2nd defendant transgresses into the right of the plaintiff, the same is held to be invalid. In view of the same, the plaintiff is entitled for the reliefs sought for in the present suit. All the issues are answered accordingly. In the result, the suit is allowed and it is decreed as prayed for. Taking into consideration the facts and circumstances of the case, there shall be a direction to the defendants to pay costs of a sum of Rs.1,50,000/- jointly and severally in favour of the plaintiff”

C.S.No.3214IN THE HIGH COURT OF JUDICATURE AT MADRAS ORDERS RESERVED ON : 10.01.2022 PRONOUNCING ORDERS ON : 12.01.2022 Coram:THE HONOURABLE JUSTICE MR.N.ANAND VENKATESHCivil Suit No.3214(Comm.Suits)M s.Sun TV Network Ltd. Rep.by its Authorised SignatoryMr.M.Jothi BasuMurasoli Maran Towers73 MRC Nagar Main RoadMRC Nagar Chennai 28. .. Plaintiff.vs.1.M s.Super Good Films Private Limited Rep.by its Managing Director Mr.R.B.Chowdary No.32 North Boag Road T.Nagar Chennai 600 017.2.M s.United India Exporters Represented by its Partner Mr.Mohammed Yahiya 5 21 Ormes Road Kilpauk Chennai 600 010.3.M s.A & P Groups Represented by its Partner No:3C 11 Ground Floor Hindi Prachar Sabha Street T.Nagar Chennai 600 017.1 18 https: www.mhc.tn.gov.in judis C.S.No.32144.M s.Global Infotainment Pvt.Ltd. Represented by its Partner Row House No.15 R.S.C.II Road Near Versova Telephone Exchange Mhada AndheriMumbai 400 053. ..Defendants Prayer: Civil Suit has been filed under Order VI Rule 1 of Original Side Rules R w Sections 55 and 62 of the Copy Rights Act & VII Rule 1 of CPC. prays for judgment and decree against the defendants:a) Declaration that the plaintiff is the sole and exclusive copyright holder for broadcasting the tamil film “JILLA” starring Vijay Mohanlal Poornima Bhagyraj Kajal Agarwal and others through Satellite Television Broadcast Direct to Home Broadcast Direct Satellite Service Internet Video Streaming through all forms I.P.TV Broadband Telephone Telephony Cell Phone RadioVCD DVD Video On Demand Moview Demand Video High DefinitionLaser Disc Blue Ray U Matic Inflight Airborne Railborne Terrestrial Television Broadcastthrough Cable viz Cable TV Local Delivery System MMDS Seaborne all modes of public private transportation Public Service Broadcasting Private Communication Broadcast Wire Wireless 2D & 3D formats Dimensions of the film or any other formats Dimensions which may be in existence now or invented in future or through any other forms means and modes and any forms of communication like signs signals writing pictures images and sounds of all kinds of transmission of electro magnetic waves through space or through cables intended to be received by the general public either directly or indirectly through the medium of relay stations and all its grammatical variations and cognate expressions shall be construed accordingly or any other systems without restriction of geographical area and including all channels of Doordarshan for a perpetual period of 99 years.2 18 https: www.mhc.tn.gov.in judis C.S.No.3214b)To grant permanent injunction restraining the Defendants their men representatives agents and anybody on behalf of the Defendants from in anyway exhibiting or exploiting the Tamil film “JILLA” starring Vijay Mohanlal Poornima Bhagryraj Kajal Agarwal and others through Satellite Television Broadcast Direct to Home Broadcast Direct Satellite Service Internet Video Streaming through all forms I.P.TV Broadband Telephone Telephony Cell Phone RadioVVCD DVD Video On Demand Movie Demand Video High DefinitionLaser Disc Blue Ray U Matic Inflight Airborne Railborne Terrestrial Television Broadcastthrough cabel via Cable TV Local Delivery System MMDS Seaborne all modes of public private transportation Public Service Broadcasting Private Communication Broadcast Wire Wireless 2D & 3D formats Dimensions of the film or any other formats Dimensions which may be in existence now or invented in future or through any other forms means and modes and any forms of communication like signs signals writing pictures images and sounds of all kinds of transmission of electro magnetic waves through space or through cables intended to be received by the general public either directly or indirectly through the medium of relay stations and all its grammatical variations and cognate expressions shall be construed accordingly or any other systems without restriction of geographical area and including all channels of Doordarshan for a perpetual period of 99 years.c) to pay cost.For Plaintiff : Ms.M.SnehaFor Defendants : Mr.M.A.Kalam for D 2 3 18 https: www.mhc.tn.gov.in judis C.S.No.3214 JUDGMENT The plaintiff has filed the instant suit seeking for a relief of permanent injunction against the defendant their men representatives agents and anybody on behalf of the defendants from in anyway exhibiting or exploiting the Tamil film ‘JILLA’ and for a declaration that the plaintiff is the sole and exclusive copyright holder for broadcasting the Tamil film ‘JILLA’ starring Vijay Mohanlal and others through Satellite television Broadcast direct to home broadcast direct satellite service internet video streaming through all forms I.P.T.V Broadband telephone telephony cell phone RadioVCD DVD Video on Demand movie demand video high definitionlaser disc blue ray U Matic inflight Airborne Rail borne terrestrial television broadcastthrough cable via cable tv local delivery system MMDS Sea borne all modes of public private transportation public service broadcasting private communication broadcast wire wireless 2D & 3D formats dimensions of the film or any other format which may be in existence now or invented in the future or through any other forms of communication like signs signals writing pictures images and sounds of all kinds of transmission of electromagnetic waves through space or through cables intended to be received by the general public either directly or indirectly through the medium of relay stations and all its grammatical variations and cognate expressions shall be construed accordingly without restriction of geographical area and including all channels of Doordharshan for a perpetual period of 99 years. The plaintiff has further prayed for a direction to the defendant to pay costs. 4 18 https: www.mhc.tn.gov.in judis C.S.No.3214Case of the Plaintiff:2.The plaintiff is a leading television network in South India. The plaintiff is also involved in production and distribution of movies. The plaintiff states that in the course of its business they also enter into assignment agreements to take assignment of copyright for the films for terrestrial television broadcast and satellite television broadcast rights and other broadcasting rights including exhibition of films by means of wire and wireless diffusion. 3.The plaintiff submits that the 1st defendant is the producer and exclusive copyright holder of the cinematography Tamil film ‘JILLA’ starring Vijay Mohanlal and others. The 1st defendant by way of agreement dated 08 07 2013 assigned the copyright for the said film in favour of the plaintiff for broadcasting through various modes of broadcast and transmission for a consideration of Rs.15 50 00 000 . As per the agreement on the date of signing of the agreement the plaintiff is to pay a sum of Rs.3 87 50 000 on the completion of 50% of the shooting another sum of Rs.3 87 50 000 at the time of audio launch another sum of Rs.3 87 50 000 and on receipt of censor certificate along with the digital intermediate data files of the film the remaining sum of Rs.3 87 50 000 is to be paid. The plaintiff states that as per the agreement the entire consideration amount was paid to the defendants in four instalments on 16 07 2013 03 09 2013 24 12 2013 and 07 01 2014. The plaintiff further states that as per assignment agreement dated 08 07 2013 the tentative date of release of the said movie was 24 01 2014 and the plaintiff’s telecast commencing date for the 5 18 https: www.mhc.tn.gov.in judis C.S.No.3214entire world was 90 daysfrom the date of general theatrical release. The plaintiff states that subsequently there was a supplementary agreement dated 6 1 2014 entered into between the plaintiff and the 1stdefendant wherein the 1st defendant has acknowledged the receipt of the entire consideration and also changed the telecast commencing date from 05 05 2014 to 20 04 2014. 4.The grievance of the plaintiff is that the 1st defendant with an intention to cheat the plaintiff has entered into an agreement dated 31 07 2013 with the 2nd defendant wherein the 1st defendant has assigned to the 2nd defendant the exclusive rights to make sell or let out for their copies of the cinematographic film ‘JILLA’ and broadcast the said film through various mediums of broadcast and transmission. The plaintiff states that the above said rights are assigned exclusively to the 2nd defendant for the entire world except India and armed with same the 2nd defendant was taking all steps to exploit the said film. The plaintiff further states that while this being so 3rd and 4th defendants who have no rights of any kind with respect to the said movie have entered into an agreement dated 08 02 2014 wherein the 3rd defendant has assigned the ‘AIRBORNE’ rights for the said movie for all airlines for the entire world excluding India for a period of 2 years and 6 months from the date of agreement. The plaintiff states that the 1st and 2nd defendants colluding with each other have assigned the rights to the 2nd defendant subsequent to assigning the same to the plaintiff with respect to the said 6 18 https: www.mhc.tn.gov.in judis C.S.No.3214film and the 2nd defendant had in turn assigned the airborne rights to the 3rd defendant who in turn assigned it in favour of the 4th defendant. 5.The plaintiff states that they have clearly established the assignment of copyright of the film by the 1st defendant in favour of the plaintiff and also established the entire consideration paid for the same. The agreement in favour of the plaintiff is prior to that of the alleged agreement in favour of the 2nd defendant. The plaintiff claims that the alleged assignment agreement in favour of the 2nd defendant was for theatrical release of the said movie outside India. Clause 8 of the alleged agreement clearly states that the said consideration of rupees 10 cores is only for theatrical release of the said film outside India. While this being so the plaintiff claims that the 2nd defendant cannot claim airborne rights and assign it in favour of the 3rddefendant who in turn assigned it to 4th defendant without any valid right. The plaintiff states that they have exploited the film in its satellite channels and OTT platforms and various other modes and the 2nddefendant has not come forward with any claim. The plaintiff claims that this clearly establishes that the 2nd defendant is well aware of the fact that what was assigned to them was only theatrical release of the said movie outside India. On these pleadings the plaintiff has laid the present suit.Case of the Defendant:7 18 https: www.mhc.tn.gov.in judis C.S.No.32146.The 2nd defendant states that the 1st defendant entered into an agreement with the 2nd defendant on 31 07 2013 wherein the 1st defendant assigned to the 2nd defendant exclusive rights to make sell or let out copies of the Tamil film ‘JILLA’ along with various other rights. The 2nd defendant states that the rights are assigned exclusively to the 2nd defendant for the entire world excluding India for a consideration of Rs.8 25 00 000 7.The 2nd defendant claims that that they were not aware of the assignment agreement entered into by the 1st defendant with the plaintiff. The 2nd defendant further claims that neither the plaintiff nor the 1st defendant informed about the assignment agreement dated 08 07 2013 to the 2nd defendant. The 2nd defendant states that the entire consideration of Rs.8 25 00 000 was paid before the plaintiff’s alleged supplementary agreement with the 1st defendant dated 06 01 2014. The 2nd defendant states that 1st defendant is the author and copyright holder of the suit film and in view of the assignment dated 31 07 2013 the 2nd defendant has got copyright to telecast the film. 8.Based on the above pleadings the following issues were framed by this Court:8 18 https: www.mhc.tn.gov.in judis C.S.No.3214i. Whether the plaintiff is the copyright holder of the suit movie ‘Jilla” ii. Whether the alleged agreement in favour of the 2nd defendant is valid since the same being subsequent to that of the plaintiff’s assignment agreement iii.Whether the plaintiff is entitled for the relief of injunction iv. To what other reliefs 9.The 1st 3rd and 4th defendants were served and these defendants did not choose to defend themselves either in person or through counsel and were called absent and set ex parte by this court on 06 11 2019. 10.The plaintiff examined PW1 and Ex.P 1 to Ex.P 13 were marked. The defendant examined DW1 and Ex.D 1 to Ex.D 3 were marked.Discussion and Findings: 11. Considering the limited scope of the present suit all the issues can be taken up together. The undisputed fact in the present case is that the 1st defendant is the producer and exclusive copyright holder of the cinematography Tamil film “JILLA”. The same is evident from Exhibit P 11 which is the censor certificate issued by the Central Board of film certification wherein it is seen that the 1st defendant is the producer of the Tamil film. The 1st defendant and the plaintiff entered into an assignment 9 18 https: www.mhc.tn.gov.in judis C.S.No.3214agreement dated 08 07 2013 and this document has been marked as Exhibit P 2. It is clear from this document that the 1st defendant assigned the exclusive copyright in favour of the plaintiff in respect of satellite television broadcast and it reads as follows:“The ‘ASSIGNOR’ hereby assigns to the ‘ASSIGNEE’ the exclusive copyright in respect of Satellite Television Broadcast Direct to Home Broadcast Direct Satellite Service Terrestrial Television Broadcast and all other rights connected therewith including exhibition of the schedule mentioned picture by means of wireless diffusion and by wire for communication to the public through Television Broadcast for the entire world.”The total consideration payable by the plaintiff to the 1s tdefendant was fixed as Rs.15 50 00 000 . The plaintiff has paid this amount in four instalments and the same is evident from Exhibits P 5 P 8 P 10 and P 13.12. The date of release of the movie was tentatively fixed as 24 01 2014 and the right of the plaintiff to telecast the movie was fixed as 90 days from the date of the general theatrical release. 13.The plaintiff and the 1st defendant entered into a supplementary agreement dated 06 01 2014 marked as Exhibit P 12 and it is seen from this agreement that the right ofvtelecast of the film by the plaintiff was refixed from 05 05 2014 to 20 04 2014. This document also confirmed the receipt of the entire consideration by the 10 18 https: www.mhc.tn.gov.in judis C.S.No.32141st defendant from the plaintiff and it is made clear that all the other terms of the assignment agreement dated 08 07 2013 will remain unaltered and biding on the parties. 14.The right that was assigned in favour of the plaintiff was further confirmed through the letter dated 05 07 2013 written by the 1st defendant to the lab and which has been marked as Exhibit P 3. The Gemini colour laboratory in turn through their letter dated 09 07 2013 informed the plaintiff about the letter received from the 1stdefendant and confirmed the assignment rights of the plaintiff. This letter has been marked as Exhibit P 4. 15.The Gemini colour laboratory once again though their letter dated 24 01 2014 informed the plaintiff that the digital format of the movie will be handed over to the plaintiff and this letter has been marked as Exhibit P 14. Thus all the above documents virtually clinch the copyright of the plaintiff assigned through agreement dated 08 07 2013. The 1st defendant did not choose to even enter appearance and contest this suit. The only person who could have questioned or challenged the copyright of the plaintiff was the 1st defendant and in the absence of any such challenge the rights assigned in favour of the plaintiff stands confirmed.16.The 1st defendant seems to have entered into an agreement dated 31 07 2013 with the 2nd defendant and this document has been marked as Exhibit D 2. Even though the purport of this agreement seems to be assignment of theatrical 11 18 https: www.mhc.tn.gov.in judis C.S.No.3214exploitation rights of the same Tamil film in favour of the 2nd defendant incidentally the 1st defendant seems to have once again assigned the rights which were already assigned in favour of the plaintiff through agreement dated 08 07 2013. The 2nd defendant in turn seems to have assigned ‘AIRBORNE’ rights in favour of the 3rd defendant to telecast the movie for all airlines for the entire world excluding India. The 3rd defendant in turn has assigned the rights in favour of the 4th defendant through agreement dated 08 02 2014 and this agreement has been marked as Exhibit P 15. Curiously there is absolutely no material or particulars available before this court to find out as to when the 2nd defendant assigned the airborne rights in favour of the 3rd defendant. The 3rd and 4th defendants have chosen to remain ex parte and they have not defended their rights and therefore this Court does not find any right whatsoever in favour of the 3rd and 4th defendants with respect to the suit film. 17.The only defence that has been raised by the 2nd defendant is that they were not aware of the assignment of rights in favour of the plaintiff by the 1st defendant through an agreement dated 08 07 2013. The 1st defendant ought to have come before this court and explained as to whether only the theatrical exploitation rights alone was assigned in favour of the 2nd defendant or the agreement dated 31 07 2013 also included the telecasting rights that were already assigned in favour of the plaintiff. In the absence of any such explanation this court has to only go by the terms of the agreement 12 18 https: www.mhc.tn.gov.in judis C.S.No.3214dated 08 07 2013 marked as Exhibit P 2 and agreement dated 31 7 2013 marked as Exhibit D 2. 18. The 2nddefendant is not contesting or seriously questioning the genuineness or validity of the agreement made in favour of the plaintiff on 08 07 2013. The 2nd defendant is merely begining ignorance of this agreement. Such a stand does not in any way improve the case of the 2nd defendant. 19.The plaintiff has exploited the suit film in their satellite channels OTT platform and in various other modes and the 2nd defendant has not come forward to question the rights of the plaintiff till date. Going by the attitude of the 2nddefendant it seems that the 2nd defendant has become aware of the rights assigned to the plaintiff and hence the 2nd defendant has only exploited the theatrical rights of the suit film outside India. The same is clear from the evidence of DW 1. 20.The 1st defendant after having assigned the telecast rights absolutely in favour of the plaintiff for a valid consideration loses that right and the 1st defendant can no longer assign the same rights in favour of any other party much less in favour of the 2nddefendant. The facts of the present case are governed by the latin maxim nemo dat quod non habet which means that “no one can give what they do not have”. The 1st 13 18 https: www.mhc.tn.gov.in judis C.S.No.3214defendant could not have assigned the telecast rights in favour of the 2nd defendant on 31 07 2013 since he did not possess this right on that day. This right was lost by the 1stdefendant on 08 07 2013 when the assignment agreement was executed in favour of the plaintiff. 21.The facts of the present case is also governed by the Latin maximqui prior est tempore potiorest jure. This maxim literally means that “he who is prior in time is better in law”. The transferor of a right cannot prejudice the rights assigned to the transferee by any subsequent dealing with the very same property. The 1st defendant cannot be allowed to cause prejudice to the telecast rights of the plaintiff through the subsequent agreement dated 31 07 2013 executed in favour of the 2nd defendant. At the best the 2nd defendant can only get the right of theatrical exploitation of the suit film outside India and nothing more. It is also seen from records that the plaintiff had the benefit of an order of interim injunction in their favour from the year 2014 onwards and hence the defendants were never able to exploit the telecast rights already assigned in favour of the plaintiff. 22.In view of the above discussion this court holds that the plaintiff is the sole and exclusive copyright owner for broadcasting the Tamil film “JILLA” and the agreement in favour of the 2nd defendant dated 31 07 2013 does not in anyway take away the right of the plaintiff conferred through the assignment agreement dated 08 07 2013 and to the extent the agreement dated 31 07 2013 executed in favour of the 14 18 https: www.mhc.tn.gov.in judis C.S.No.32142nd defendant transgresses into the right of the plaintiff the same is held to be invalid. In view of the same the plaintiff is entitled for the reliefs sought for in the present suit. All the issues are answered accordingly. 23.In the result the suit is allowed and it is decreed as prayed for. Taking into consideration the facts and circumstances of the case there shall be a direction to the defendants to pay costs of a sum of Rs.1 50 000 jointly and severally in favour of the plaintiff. 12.01.2022Internet: YesIndex : YesKPList of Witness examined on the side of the Plaintiff: M.Jothibasu PW 1List of Witness examined on the side of the Defendant: Khaleel Rahman DW 1List of the Exhibits marked on the side of the Plaintiff: Sl. Nos.ExhibitsDescription of documents1.Ex.P.1Original Authorization letter dated 23.01.2013.2. Ex.P2Photocopy of Assignment agreement dated 08.07.2013 in favour of the plaintiff.15 18 https: www.mhc.tn.gov.in judis C.S.No.3214Sl. Nos.ExhibitsDescription of documents3.Ex.P3Letter dated 05.07.2013 from the 1st defendant to Lab.4.Ex.P.4 Lab letter dated 09.07.2013.5.Ex.P.5 Photocopy of Cheque bearing No.031912 dated 16.07.2013.6.Ex.P.6 Assignment Agreement dated 31.07.2013 between 1st and 2nd defendants .7.Ex.P.7 Letter dated 26.08.2013 from the 1st defendant to plaintiff.8.Ex.P.8Photocopy of Cheque bearing No.032712 dated 03.09.2013.9.Ex.P.9 Letter dated 10.12.2013 from the 1st defendant to plaintiff .10.Ex.P.10Photocopy of Cheque bearing No.032781 dated 24.12.2013.11.Ex.P11Photocopy of Censor Certificate dated 31.12.2013.12.Ex.P12Supplementary Agreement dated 06.01.2014.13.Ex.P13Photocopy of Cheque bearing No.032786 dated 07.01.201414.Ex.P 14Lab letter dated 24.12.2013.15Ex.P 15Agreement between the 3rd and 4th defendants.Li st of the Exhibits marked on the side of the Defendants: Sl. Nos.Exhibits Description of documents1.Ex.D 1Original Authorisation letter dated.16.8.2021.2.Ex.D 2Photocopy of the agreement dated 31.07.2013 between the 1st and 2nd defendant .3.Ex.D 3Photocopy of Assigned rights dated 03.01.2014.16 18 https: www.mhc.tn.gov.in judis C.S.No.3214ToThe Sub Assistant Registrar Original Side Section High Court Madras.N.ANAND VENKATESH J.KP17 18 https: www.mhc.tn.gov.in judis C.S.No.3214Civil Suit No.3214(Comm.Suits)12.01.202218 18

It cannot be said that this is a case where no opportunity of hearing was provided to the petitioner and that there was any violation of the principle of natural justice: Calcutta High Court

It seemed that the petitioner could not make out a case of any patent jurisdictional error or that the assessing officer acted contrary to any specific provision of law in course of the impugned assessment proceeding. The Hon’ble High Court at Calcutta before the Hon’ble Mr. Justice Md. Nizamuddin held such an opinion in the matter of Unisource Hydro Carbon Services Pvt. Ltd. & Ors. vs. Union of India & Ors. [W.P.A. No. 11041 of 2021]. The facts of the case relate to an instant Writ Petition whereby the petitioner had challenged impugned Assessment Order dated 4th June 2021 relating to Assessment Year 2018-2019 under Section 143(3) read with Section 144B of the Income Tax Act, 1961, on the alleged ground of violation of the principle of natural justice by the respondent for not giving an adequate and effective opportunity of hearing to the petitioner and also, on the merit of the Assessment Order on the ground that the Assessing Officer had committed a jurisdictional error and that the alternative remedy had no bar in entertaining this Writ Petition since violation of natural justice is considered as a jurisdictional error. It appeared from the impugned Assessment Order of the Writ Petition that the said impugned Order contained elaborate discussion covering material evidence and the documents filed by the petitioner during the assessment proceeding before passing the impugned Assessment Order. The attached annexures in the Writ Petitioner showed that the petitioner was granted sufficient opportunity for hearing from time to time during the said assessment proceeding which appeared from the records attached by the petitioner itself. It further appeared from a notice that was issued seeking clarification on the issue of investments/advancements/loans and business loss in response to the return in the question of the petitioner. Another notice was issued under Section 142(1) of the Act which asked the petitioner to furnish the relevant documents on or before 15th December 2020. Another subsequent notice under Section 142(1) of the Act was issued for furnishing the documents in question that were asked for since there was no compliance to the earlier notice under Section 143 of the Act which was duly served upon the petitioner via email. Another notice was issued on 18th January 2021, asking for the complete details as called in the previous notices. Likewise, several notices were issued calling for the complete details of the required documents. The petitioner, as it appeared at Annexure ‘P-4’ of the Writ petition, had filed an application, dated 23rd April 2021, praying for further adjournment and extension of time until 24th May 2021 for filing reply to the show-cause notice under Section 143(3) of the Act. A Covid Test Report was submitted, dated 5th May 2021, by the petitioner, Mr. Shyam Sundar Chowkhani who claimed to be the erstwhile director for the first time before the respondent authority, and prayed for such extension, to which the Hon’ble Court cleared and clarified stating that no further extension would be provided. The petitioner, then, filed a reply on 24th May 2021, before the Assessing Officer, in response to the show-cause dated 23rd April 2021, discussing facts, laws, evidence, and case laws in detail, as well as, on merit relating to the impugned assessment proceeding, and hence, concluding with a prayer for a further adjournment of the impugned assessment proceeding and to give adequate opportunity for full compliance of the notice, but not asking for a personal hearing. It also appeared that the petitioner had filed documents containing details of loan creditors. On the other hand, the Assessing Officer had passed the impugned Assessment Order containing elaborate reasons after observing the principles of natural justice in course of the impugned assessment proceeding which appeared from annexed to the Writ Petition by the petitioner itself. Thus, the petitioner, hence, challenged the impugned Assessment Order both on merit as well as on the alleged ground of violation of the principle of natural justice by the respondent concerned for not providing the opportunity of hearing which the petitioner considered as jurisdictional error. The Hon’ble Court before the Hon’ble Mr. Md. Nizamuddin considered these facts and shreds of evidence, and said, “… The Income Tax Act is a self-complete code and the petitioner has specific statutory appellate forum for redressal of its grievance if so aggrieved against the impugned assessment order, before the Commissioner of Income Tax (Appeals) and further appeal before the Income Tax Appellate Tribunal which has the power to decide both on facts as well as on law and further before the High Court under Section 260A of the Income Tax Act.” The Hon’ble Court was also of the opinion that, “High Court sitting in Writ Jurisdiction under Article 226 of the Constitution of India should not disturb or interfere with the finding of the Assessing Officer in his assessment order which are based on material facts and evidence and to substitute the findings of an Assessing Officer in the assessment order with its own finding when statutory alternative remedy for adjudication of assessment order on merit, evidence and law is available under Income Tax Act, 1961 before the Appellate forum.” With regard to the question of whether principles to natural justice were violated or not by the respondent concerned in course of the impugned assessment proceeding, the Hon’ble Court held that this wasn’t a case where opportunity was not provided to the petitioner and there was no violation of the principle of natural justice. It had also been established that despite a series of adjournments on the prayer of the petitioner and after several notices provided to the petitioner by the Assessing Officer during the assessment proceeding, the petitioner could not make a case of any patent jurisdictional error, or that the assessing officer acted against any specific provision of law during the course of the impugned proceeding.

Present : Hon’ble Mr. Justice Md. Nizamuddin IN THE HIGH COURT AT CALCUTTA Constitutional Writ Jurisdiction Appellate Side W.P. A No. 110421 Unisource Hydro Carbon Services Pvt. Ltd. & Ors. Vs. Union of India & Ors. Through Video Conference) For the Petitioner For the Respondents Judgement On MD. NIZAMUDDIN J. Mr. R. N. Dutta Adv. Ms. Sutapa Roychowdhury Adv. Mr. Abhijit Das Adv. Mr. S. N. Dutta Adv. Mr. Asok Bhowmik Adv. 25.08.2021 Heard learned Advocates appearing for the parties. In the instant Writ Petition petitioner has challenged the impugned Assessment Order dated 4th June 2021 relating to Assessment Year 2018 19 under Section 143read with Section 144 B of the Income Tax Act 1961 on the alleged ground of violation of principle of natural justice by the respondent concerned by not giving adequate and effective opportunity of hearing to the petitioner and also on merit of the Assessment Order on the ground that the assessing officer has committed jurisdictional error and that the alternative remedy is no bar in entertaining this Writ Petition since violation of natural justice is a jurisdictional error. It appears from the impugned Assessment Order being Annexure ‘P 7’ at page 111 of the Writ Petition that the aforesaid impugned order which is of about 17 pages containing elaborate discussion covering material evidence and considering the documents filed by the petitioner in course of the assessment proceeding before passing the impugned Assessment Order. Petitioner was granted ample opportunity of hearing from time to time in course of impugned assessment proceeding which would appear from records being documents annexed to the Writ Petition by the petitioner itself which will be referred and discussed below. It appears that a notice under Section 143of the Act was issued on 22nd September 2019 being Annexure ‘P 2’ to the Writ Petition seeking clarification on the issue of investments advancements loans and business loss in response to the return in question of the petitioner. It appears at page 42 of the Writ Petition that a notice under Section 142 of the Act was issued on 30th November 2020 asking the petitioner to furnish the relevant documents referred there on or before 15th December 2021. It appears at page 48 of the Writ Petition that on 16th December 2020 another notice under Section 142 of the Act was issued for furnishing the documents in question since there was non compliance to the earlier notice under Section 143 of the Act which was duly served upon the petitioner via e mail on 22nd September 2019 and it had been also recorded in Annexure ‘P 2’ to the notice dated 16th December 2020 that the earlier notice dated 30th November 2021 issued under Section 142 of the Act was also not complied with though the date of compliance of the said notice was fixed on 16th December 2020 and specifically recorded that final opportunity of being heard was being allowed to the petitioner to submit the details as called for by earlier notice dated 30th November 2020 online by 20th December 2020. It appears at page 50 of the Writ Petition that another notice under Section 142 dated 18th January 2021 of the Act was issued asking the petitioner to furnish the complete details as called for by the earlier notice dated 30th November 2020 by 20th January 2021. It appears at page 52 of the Writ Petition that another notice under Section 142of the Act was issued on 20th January 2021 for furnishing on or before 4th March 2021 the accounts and documents specified in the annexure to the said notice. It appears at page 54 of the Writ Petition that on 11th February 2021 a further notice under Section 142 of the Act was issued for compliance on or before 17th December 2021 by furnishing the documents referred in annexure to the said notice. It appears from Annexure ‘P 4’ at page 66 of the Writ Petition that the petitioner had filed an application making prayer for granting further adjournment and extension of time till 24th May 2021 for filing reply to the show cause notice under Section 143of the Act dated 23rd April 2021. The petitioner has annexed one Covid Test Report dated 5th May 2021 as appeared at page 68 of the Writ Petition of one Mr. Shyam Sundar Chowkhani claiming to be erstwhile director for the first time before the respondent authority though impugned proceeding was initiated much earlier and initially notice under Section 143 of the Act was issued on 22nd September 2019 and thereafter series of notices were issued and adjournments were granted from to time. It appears at page 73 of the Writ Petition that the prayer of adjournment being Annexure ‘P 3’ to the Writ Petition by the petitioner seeking further time till 24th May 2021 was granted clarifying that no further opportunity will be given. It appears from page 74 being Annexure ‘P 6’ to the Writ Petition that the petitioner had filed a reply on 24th May 2021 before the Assessing Officer concerned by e filing containing 34 pages in response to the show cause notice dated 23rd April 2021 discussing facts laws evidences and case laws in detail and as well as on merit relating impugned assessment proceeding and finally at the concluding portion at page 34 of the said application reply to the aforesaid show cause notice making further prayer for adjournment of the impugned assessment proceeding till 10th May 2021 and to give further adequate opportunity for full compliance of the notice but had not asked for personal hearing. It also appears from page 108 of the Writ Petition being index annexed to the Writ Petition that the petitioner has filed documents consisting of 400 pages containing details of loan creditors along with the aforesaid application reply to the show cause notice filed on 24th May 2021 in course of the impugned assessment proceeding. It appears from page 111 being Annexure ‘P 7’ to the Writ Petition that the Assessing Officer has passed the impugned Assessment Order containing 17 pages containing elaborate reason which will speak for itself after observing principles of natural justice in course of impugned assessment proceeding which will appear from the documents annexed to the Writ petition by the petitioner itself. In Paragraphs 11 and 12 of the Writ Petition petitioner itself has pleaded that by one of its letter dated 18th May 2021 respondent concerned had provided last and final opportunity to produce the relevant evidence on or before 24th may 2021 and has also pleaded that the petitioner uploaded a detailed reply to the show cause notice along with some documents and supporting evidence in the official portal of the respondent authorities from which it appears that the petitioner has discussed on merit including making submission with regard to loan transactions in question in reply to the aforesaid show cause notice. Petitioner has challenged the aforesaid impugned Assessment Order both on merit as well as on the alleged ground of violation of principle of natural justice by the respondent concerned by not providing opportunity of hearing which according to the petitioner is jurisdictional error. So far as the challenge to the impugned Assessment Order on merit and dealing with facts and evidences are concerned I am of the considered view that the Income Tax Act is a self complete code and the petitioner has specific statutory appellate forum for redressal of its grievance if so aggrieved against the impugned assessment order before the Commissioner of Income Tax and further appeal before the Income Tax Appellate Tribunal which has the power to decide both on facts as well as on law and further before the High Court under Section 260A of the Income Tax Act. In my considered opinion High Court sitting in Writ Jurisdiction under Article 226 of the Constitution of India should not disturb or interfere with the finding of the Assessing Officer in his assessment order which are based on material facts and evidence and to substitute the findings of an Assessing Officer in the assessment order with its own finding when statutory alternative remedy for adjudication of assessment order on merit evidence and law is available under Income Tax Act 1961 before the Appellate forum. Now the only question which remains to be considered for entertaining this Writ Petition is as to whether principles of natural justice was violated or not by the respondent concerned in course of impugned assessment proceeding to which my answer is in negative and detail reasoning for this view will appear in later part of this judgment. Petitioner in support of its contention of violation of principles of natural justice has relied on several unreported decisions of different High Courts which are discussed herein below. Petitioner has relied on a decision of the Madras High Court dated 28th April 2021 in WP No. 10693 of 2021 in the case of M s. Magick Woods Exports Pvt. Ltd. vs Additional Joint Deputy Assistant Commissioner of Income Tax & Anr. It appears that the facts of the said decision is different from the present case since in the said case adjournment was sought only for once and that was neither rejected nor the assessee was intimated before making assessment while in the present case series of adjournments were granted to the petitioner from time to time and was allowed to file documents which are matters of record. Another unreported decision upon which the petitioner has relied on is of Delhi High Court dated 8th July 2021 in the case of International Management vs National Faceless Assessment Centre & Anr. Facts of the said case is also different from the present case since in the said case basis of assessment was not furnished to the petitioner and no draft Assessment Order was issued to the petitioner which is not the facts herein and not the ground of challenge in the instant Writ Petition. Petitioner has relied on another unreported decision of the Bombay High Court dated 12th May 2021 in Writ Petition No. 10639 of 2021 in the case of Suresh Kumar Lokhotia vs National e Assessment Centre & Ors. In the said case also the fact is different from the present case as appears from the said decision that in the said case the petitioner’s response to the draft assessment was not considered and notice of demand was raised. Petitioner has relied on another decision of the Bombay High Court in the case of Raja Builders vs National Faceless Assessment Centre reported in 2021) 127 taxmann.com 339 dated 13th May 2021 where facts of the said case is also different from the present case since in the said case the allegation of the petitioner was that there was glitches in the operation of Faceless Assessment Scheme and in that case a show cause notice was issued on 20th April 2021 and a draft Assessment Order was issued to the petitioner requiring to show cause as to why the assessment should not be completed in terms of the draft assessment order and the said show cause notice appeared for the first time on the E filing portal on 22nd April 2021 and on the same day petitioner filed a detailed reply and sought an opportunity of being heard and on 23rd April 2021 the petitioner had filed a detail reply to the show cause notice with documentary evidence and without considering his request for hearing or the detailed reply Assessment Order was passed on the same day that is on 23rd April 2021 while in the instant case Writ Petitioner was given ample opportunities of reply to the notices issued from time to time and to file documents in support of its case before passing the impugned assessment order which are matters of record. Petitioner has also relied on an unreported decision of the Delhi High Court dated 2nd June 2021 in W.P.(C) 5741 2021 in the case of Sanjay Aggarwal vs National Faceless Assessment Centre Delhi where facts of the said case is also different from the present case since in the said case adjournment was sought for grant of personal hearing on two dates that is 15th April 2021 and 20th April 2021 which was not considered by the revenue and it proceeded with the show cause notice with a draft Assessment Order dated 20th April 2021 and petitioner was directed to file its response objection by 23.59hrs of 25th April 2021 and the Assessment Order was passed on 28th April 2021 while in the instant case principles of natural justice by way of enough opportunities were provided to the petitioner. Petitioner has relied on Paragraph 20 of one judgment of this Court in the case of Hindustan Pilkington Glass Works Ltd. vs Superintendent Central Excise Asansole & Ors. reported in 1978 E.L.T. on the proposition of breach of principle of natural justice. The said case is also distinguishable from the present case as it would appear from Paragraph 8 of the said judgment that in the said case before determining the assessable value the respondent never provided any opportunity whatsoever to the petitioner to make the representation and the petitioner was never required by the respondent to explain before making disallowance and addition and no notice was issued to the petitioner requiring him to make its representation in the matter before passing various impugned orders determining the assessable value of different periods in respect of different varieties of goods. Facts of the present case are totally different from the said case which are matters of record and the said case is distinguishable and not at all applicable to the facts of the instant case. On perusal of relevant records including the documents annexed to the Writ Petition and considering the submission of the petitioner and the decisions relied upon by it in my considered opinion it cannot be said that this is a case where no opportunity of hearing was provided to the petitioner and that there was any violation of principle of natural justice. It is established from record that series of adjournments were granted on the prayer of the petitioner from time to time and the petitioner did not comply with many notices and sometime in response to some of the notices on some occasion replied to the show cause notice in detail and furnished material evidence and documents in support of its case before the Assessing Officer in course of impugned assessment proceeding. In my considered opinion petitioner could not make out a case of any patent jurisdictional error or that the assessing officer acted contrary to any specific provision of law in course of the impugned assessment proceeding. In view of the discussion made above and after taking into the consideration records available annexed to the Writ Petition in my considered opinion sufficient opportunities of hearing were given to the petitioner and there was no violation of principles of natural justice in course of impugned assessment proceeding and in passing the assessment order and in the instant case it cannot be said that the assessing officer respondent concerned who passed the assessment order was having inherent lack of jurisdiction or his action in course of impugned assessment proceeding was contrary to any specific provision of law and the impugned assessment order is not liable to be interfered with in constitutional writ jurisdiction of this Court under Article 226 of the Constitution. with no order as to costs Accordingly this Writ Petition being WPA No. 11041 of 2021 is dismissed Urgent certified photocopy of this judgment if applied for be supplied to the parties upon compliance with all requisite formalities. After the delivery of the judgment Ms. Roychowdhury learned advocate for the petitioner prays for stay of operation of this judgment. The same is considered and MD. NIZAMUDDIN J.)

The SHO shall assess the threat perception of the petitioners under Article 226: High Court of Punjab and Haryana

The petitioner has filed for a petition seeking writ in the nature of Mandamus with regard to the protection of life and liberty of the petitioners under Article 226 of the constitution of India, which “empowers the high courts to issue, to any person or authority, including the government (in appropriate cases), directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto, certiorari or any of them.” In the High Court of Punjab and Haryana at Chandigarh, this judgement was given by Honorable Mr Justice Jasgurpreet Singh Puri on the 24th of September 2021 in the case of Safina Begum and another Versus the State of U.T Chandigarh and others [Criminal Writ Petition-9185-2021] Mr Kuldeep Singh represented as the advocate for the petitioner, and the proceedings of the court were held via video conference. The brief facts of the case are as follows, petitioner no.1 who is a girl 30 years of age was earlier married to somebody else however this marriage was dissolved by divorce. Petitioner no.1 is currently in a live-in-relationship with petitioner no.2 and they have been receiving threats from private respondents as they do not approve of their relationship. The counsel representing the petitioners held that since both the parties are adults, they have the right to decern right from wrong and they have the right to reside according to their convenience and also have the right to live with whom they want to live with. The present petitioner has been filed only with regard to the protection of life to the petitioners which is their fundamental right under article 21 of the Indian constitution. The Additional Public Prosecutor, U.T, Chandigarh appeared on behalf of the respondents and held that the police have already enquired about the place of residence of the petitioners which is also on record, it was transpired that the petitioners were actually not residing at that place and therefore without further investigation and enquiry no legal action can be taken. The counsel representing the petitioner submitted that the reason the residing place of the petitioners is not constant is due to the threat posed by the private respondents and that’s why the petitioner has been wandering around. The counsel further submitted that the petitioner without fail will appear before the concerned SHO at Sector-36, Police Station immediately and get their statements recorded. Therefore, the counsel prays that protection is granted to them. The Honourable Court held that this petition is only regarding the protection of the life of the petitioners and nothing to do with regard to the relationship of the petitioners. The Court further stated that “the petitioners may appear before the concerned SHO (Station House Officer) of Section 36, Police Station and in the event of their doing so, the concerned SHO shall assess the threat perception of the petitioners and in case, so required, then shall take appropriate steps for the protection of the life of the petitioners.  The Honourable Court concluded that “It is made further clear that the scope of the petition is only to the extent of protection of the life of the petitioners and it will not be deemed to be any kind of impediment for taking any other action against the petitioner if otherwise, it is so required under the law. The present petition stands disposed of.”

on 26 09 CRWP 9185 2021 1 IN THE HIGH COURT OF PUNJAB AND HARYANA ATCHANDIGARHCRWP 9185 2021 Date of Decision: 24.09.2021Safina Begum and another ....Petitioner(s)VersusThe State of U.T Chandigarh and others .....Respondent(s)CORAM:HON’BLE MR. JUSTICE JASGURPREET SINGH PURIPresent:Mr. Kuldeep Singh Advocate for the petitioners. Through Video ConferencingJASGURPREET SINGH PURI J.The present petition has been filed under Article 226 of theConstitution of India with a prayer for issuance of writ in the nature ofMandamus seeking protection of life and liberty of the petitioners.The learned counsel for the petitioners has submitted that boththe petitioners are major and the petitioner No.1is 30 years of ageand was earlier married to somebody else but the marriage has since beendissolved by divorce as stated in para No.3 of the petition. He submittedthat the petitioner No.1 and petitioner No.2 are in a live in relationship.He submitted that there is an imminent threat at the hands of the privaterespondents because they are objecting to the relationship. He submitted thatsince both the petitioners are adults they have right to choose the place oftheir living and person with whom they want to live. He further submitted on 26 09 CRWP 9185 2021 2 that the scope of the present petition is only pertaining to the protection oflife to the petitioners. Notice of motion to respondent Nos. 1 to 3. Mr. Shashank Bhandari learned Additional Public Prosecutor U.T Chandigarh has caused appearance on behalf of the aforesaidrespondents and has submitted that in fact the police has got enquired fromthe place of residence which has been stated in the memo of parties and itwas found that the petitioners are not residing at the place which has beenmentioned in the memo of parties and therefore it will not be possible forfurther processing with the enquiry. Mr. Kuldeep Singh learned counsel for the petitioner hassubmitted that in view of the threat from the private respondents it is justpossible that the petitioners are wandering around. He however submittedthat both the petitioners will appear before the concerned SHO at Sector 36 Police Station immediately and get their statements recorded and has prayedthat protection be granted to them.I have heard the learned counsel for the parties.The scope of the present petition is pertaining only to the extentof grant of protection to the life of the petitioners. It however does notreflect anything with regard to the relationship of the petitioner inter se.In view of the statement made by the learned counsel for thepetitioners the petitioners may appear before the concerned SHO of Section36 Police Station and in the event of their doing so the concerned SHOshall assess the threat perception of the petitioners and in case so required then shall take appropriate steps for the protection of the life of thepetitioners. on 26 09 CRWP 9185 2021 3 It is made further clear that the scope of the petition is only tothe extent of protection of the life of the petitioners and it will not be deemedto be any kind of impediment for taking any other action against thepetitioner if otherwise it is so required under the law.The present petition stands disposed of.24.09.2021 (JASGURPREET SINGH PURI)rakesh JUDGEWhether speaking:Yes NoWhether reportable:Yes No

An application for second amendment to the plaint, does not mean introduction of a fresh cause of action: Calcutta High Court.

In the present case, the second amendment to the plaint is clarificatory in nature and necessary for proper adjudication of the suit. Where the requirements of the plaintiff have already been pleaded in the first amendment, the application for the second amendment should not be perceived as introducing a fresh cause of action through a new set of facts. A single Judge bench comprising of Hon’ble Justice Sabyasachi Bhattacharyya, in the matter of Exide Industries Limited Vs. Urmila Pasari and others (C.O. No. 1146 of 2021), dealt with an issue where the Petitioner, has filed an application under Article 227 of the Constitution of India, arising from a suit for eviction filed on the ground of reasonable requirement under the West Bengal Premises Tenancy Act, 1997. Initially, the eviction suit was filed by Smt. Surma Devi Pasari on the ground of personal requirement of the plaintiff and her Daughter-in-law. Subsequently, during the pendency of the suit the original plaintiff as well as the defendant nos. 2, both expired. Savitri Devi Pasari had executed a will in favor of opposite party no. 1 to 3, prior to her demise. After her death, the executor of the will executed a registered deed of assignment in favor of the opposite party nos. 1 to 3. Since the property was now bequeathed by the Opposite party nos.1 to 3, they came up with an application under Order I Rule 10(2) of CPC initially, for being substituted in place of defendant no. 2 and also asked for transposition to the category of plaintiffs in the suit. Such application was dismissed and the matter was taken to the Supreme Court. The apex court, vide order dated 4th February 2020, allowed the substitution of Opposite part nos. 1 to 3 and also directed transposition of the said opposite parties to the suit, as plaintiffs. Also, the Supreme Court remanded the matter to the High court for fresh consideration and directed the court to decide the eviction suit expeditiously within 6 months from the receipt of the said order before the concerned High Court. Later the plaintiffs took out an application for the amendment of the plaint which was allowed on consent. Where in para 6 it was specifically pleaded that initially the said premise was required by Savitri Devi Pasari as well as her family for their occupational purpose, whereas presently the plaintiffs and their respective families had no reasonable accommodation at Calcutta. Further, the plaintiffs took out a second amendment application to introduce elaborately, the nature of the requirement of the plaintiffs and their families. Defendants filed a written objection to the amendment application. The trial judge allowed the second amendment application, against which the first defendant has referred a revision. The Counsel for the Petitioner contended that substituting the entire cause of action by a new cause of action through a second amendment, is not permissible by law. The counsel also submitted that without jurisdiction, the trial court allowed the second amendment of the plaint. The counsel for the Opposite party nos.1 to 3, contended that there was no change made in the cause of action, through the second amendment application. The counsel further submitted that such amendment was necessary for proper and complete adjudication of the suit and hence it was rightly allowed by the trial court.  The court observed that- “Since the requirement of the present plaintiffs had already been pleaded in the first amendment, there cannot be any scope of perceiving the second amendment as the introduction of a new set of facts, comprising a fresh cause of action. Rather, as correctly observed by the Trial Court in the impugned order, the said amendment was merely clarificatory in nature and was necessary to adjudicate the dispute between the parties effectively”. The court also, contended that the second amendment to the plaint arises no substitution of a new cause of action, as the second amendment to the plaint, was within the ambit of pleadings, which was already on record.

In the High Court at Calcutta Civil Revisional Jurisdiction Appellate Side The Hon’ble Justice Sabyasachi Bhattacharyya C.O. No. 11421 Exide Industries Limited formerly known as Chloride India Limited) Vs. Urmila Pasari and others For the petitioner For the opposite party Nos.1 2 & 3 Hearing concluded on Judgment on Sabyasachi Bhattacharyya J: Mr. Surojit Nath Mitra Mr. P.K. Dutt Mr. Rupak Ghosh Mr. S.K. Dutt Mr. S. Banerjee Mr. Jayanta Kumar Mitra Mr. Suddhasatva Banerjee Ms. Radhika Singh The present application under Article 227 of the Constitution of India arises from a suit for eviction under the West Bengal Premises Tenancy Act 1997 filed inter alia on the ground of reasonable requirement. The defendant in the said suit has challenged an order of amendment of the plaint taken out by the substituted and transposed plaintiffs. The eviction suit was initially filed by one Smt. Surma Devi Pasari on the ground of personal requirement of the plaintiff as well as her daughter inlaw the original proforma defendant Savitri Devi Pasari as well as their family. Subsequently both the original plaintiff and proforma defendant No. 2 expired during pendency of the suit. Savitri Devi Pasari prior to her demise had executed a Will in favour of the opposite party Nos. 1 to 3. The executor of the said Will obtained probate of the said will dated October 26 2009 on October 8 2013. The executor thereafter executed a registered deed of assignment in favour of the legatees that is opposite party Nos. 1 to 3. The opposite party Nos. 1 to 3 took out an application for being substituted in place of proforma defendant No. 2 and sought transposition to the category of plaintiffs in the suit since the suit property was bequeathed to the opposite party Nos. 1 to 3. Such application was initially captioned to be under Order I Rule 10(2) of the Code of Civil Procedure. Upon the same being dismissed such order was challenged and ultimately the matter went up to the Supreme Court. The Supreme Court vide order dated February 4 2020 passed in Civil Appeal No. 10020 allowed opposite party Nos. 1 to 3 to be substituted within the purview of Order XXII Rule 10 of the Code and by the same order directed transposition of the said opposite parties as plaintiffs in the suit. The Supreme Court remanded the matter to the High court for fresh consideration and directed the eviction suit itself to be decided expeditiously preferably within a maximum period of six months from the date of receipt and or production of the said order before the court concerned. Consequent to the transposition opposite party Nos. 1 to 3 took out an application for amendment of the plaint which was allowed on consent. In Paragraph 6 of the amended plait it was specifically pleaded that the said premises were initially reasonably required by Savitry Devi Pasari for her own occupation as well as for the occupation of her family and presently by the plaintiffsand their respective families having no reasonable suitable accommodation at Calcutta. Subsequently the plaintiffs opposite party Nos. 1 to 3 took out a second amendment application seeking to introduce the exact nature of the requirement of the said opposite parties and their families in elaborate details. The defendants contested such application by filing a written objection to the amendment application. 10. Vide impugned order dated March 31 2021 the Trial Judge allowed the second amendment application against which the present revision has been preferred by the first defendant. 11. Learned Senior Counsel appearing for the petitioner contends that by the second amendment the entire cause of action was sought to be substituted by a new cause of action which according to counsel is not permissible in law. In this context counsel places reliance on Smt. Phool Rani and Ors. Vs. Sh. Naubat Rai Ahluwalia reported at1 SCC 688. In the said case it was observed by the Supreme Court that the requirement pleaded in the ejectment application on which the plaintiff had founded his right to relief in his requirement would assume a complexion wholly beyond the compass of the original cause of action in the event the member of the family were subsequently permitted to amend the plaint and introduce their own personal requirement in the pleadings. Such a personal cause as the original cause of action it was held must perish with the plaintiff. 12. Learned Counsel next places reliance on Kanda and Ors. V. Waghu reported at AIR 1950 PC 68 where it was held by a Three Judge bench of this court that an amendment which could involve setting up a completely new case could not be allowed. 13. Learned Counsel appearing for the petitioner next cites the case of Manika Banerjee V. Biswabikash Sengupta reported at AIR 1986 CAL 113 for the proposition that the plaintiff should not be allowed to make out two different cases at two stages of the proceedings on which ground the plea for amendment of the plaintiff was rejected. In Modi Spinning and Weaving Mills Co. Ltd. & Anr. V. Ladha Ram & Co. reported at AIR 1997 SC 680 the Supreme Court held that the application for amendment was not bona fide in as much as the plaintiff sought to resile from an admission made in earlier pleadings. Contending that such proposition ought to be adopted in the present case as well learned Senior Counsel argues that the Trial Court acted without jurisdiction in allowing the second amendment of plaint. 14. Learned Senior Counsel for the opposite party Nos. 1 to 3 contends that there was no change in the cause of action by virtue of the second amendment in view of the specific order of substitution and transposition of opposite party Nos. 1 to 3 dated February 4 2020 passed by the Supreme Court. It is further contended that since the first amendment which was allowed on consent already included the basis of the personal requirement of the present plaintiffs that is the opposite party Nos. 1 to 3 the second amendment was only in the nature of an elaboration of such pleadings upon furnishing requisite details. Since such pleadings were necessary for proper and complete adjudication of the suit the Trial Court was justified in allowing the second amendment. Learned Senior Counsel for the opposite party Nos. 1 to 3 places reliance on the judgment of Ramesh Kumar Agarwal V. Rajmala Kxports Private Limited & Ors. reported at 5 SCC 337 in support of the proposition that amendments which merely introduce facts evidence in support of the contention already pleaded do not alter the cause of action of the suit and as such ought to be allowed. 16. Next placing reliance on B.K.N. Narayana Pillai V. P. Pillai and Ors. reported at1 SCC 712 wherein the Supreme Court relying on judgements reiterated that the power to allow an amendment is wide and may at any stage be appropriately exercised in the interest of justice the law of limitation notwithstanding. It was further observed that the expression ‘cause of action’ in the context does not mean ‘every fact which is material to be proved to entitle the plaintiff to succeed’. For the limited purpose of considering an amendment it only means it was held a new claim made on a new basis constituted by new facts. 17. Thus Learned Senior Counsel argues that it is a well settled proposition of law that amendments in the nature as sought to be introduced in the present case by way of a second amendment application ought to be allowed for the ends of justice. 18. Upon considering the submission of the parties as well as the materials on record and the cited reports it is evident that the Supreme Court prima facie sanctioned the rights of opposite party Nos. 1 to 3 to proceed with the suit as transposed plaintiffs thereby recognising the maintainability of the suit at their instance. 19. That apart what clinches the issue in favour of the opposite party Nos. 1 to 3 is that the first amendment to the plaint which was allowed on consent categorically averred the requirement of the present plaintiffs and their respective families having no reasonable suitable accommodation at Calcutta. Paragraph 6 of the first amended plaint clearly discloses such pleadings. 20. By virtue of the second amendment the present plaintiffs only sought to introduce and elaborate further facts within the four corners of the amended plaint. The amendments sought let alone introducing a ‘new’ cause of action were only in the nature of elaborating the pleadings already existent after the first amendment. Since the requirement of the present plaintiffs had already been pleaded in the first amendment there cannot be any scope of perceiving the second amendment as introduction of a new set of facts comprising a fresh cause of action. Rather as correctly observed by the Trial Court in the impugned order the said amendment was merely clarificatory in nature and was necessary to adjudicate the dispute between the In any event the petitioner and the other defendants were given the liberty to file additional written statement thereby denying the parties effectively. amended pleadings. It is well settled that while adjudicating an amendment application the merits of the proposed amendment cannot be gone into. In view of the second amendment to the plaint in the present case falling squarely within the ambit of the pleadings already on record and are necessary for a complete determination of the questions in controversy in the suit the said amendment was necessary and rightly allowed by the Trial Court. There arises no question of substitution of a new cause of action in view of the above discussions. 23. Thus the revisional application fails. C.O. 11421 is dismissed thereby affirming the impugned order dated March 3 2021 passed by the Civil Judge Fourth Court at Alipore District: South 24 Parganas in Title Suit No. 408. 8 24. However for the ends of justice the time for filing additional written statement by the defendants with regard to the second amendment is extended for a fortnight from date. 25. There will be no order as to costs. 26. Urgent certified copies of this order shall be supplied to the parties applying for the same upon due compliance of all requisite Sabyasachi Bhattacharyya J. )

Consideration of property shall only pass to a stranger in the absence of a heir having a preferential right u/S 22 of the HSA, 1956: Calcutta High Court

An interesting, important and significant point was raised in the instant appeal as to whether the gift of an immovable property to a stranger to the exclusion of the other heirs of Class-I can be regarded as a transfer before the High Court in the matter of Pabitra Kumar Maity v Shyamali Manna [F.A.T 661 OF 2017]. The bench of Harish Tandon J. and Kausik Chanda J. extensively dealt with the provisions under Section 22 of the Hindu Succession Act, 1956. The plaintiff/appellant filed suit for declaration, permanent injunction and preferential right to acquire the property in the 2nd Court of the Civil Judge. Originally, the larger property comprised in Schedule ‘Kha’ belong to Subhendu Kumar Maity , Joykrishna Maity and Ajay Krishna Maity. On the death of the respective owners, the heirs and legal representatives inherited the said “Kha” Schedule Property and subsequently executed a partition deed being no. 7515 on 19.7.2002. Subsequently, a deed of gift bearing no 2118 was executed and registered on 16.4.2015 by the Defendant no. 2 in favour of the Defendant no. 1 bequeathing some other properties, described in Schedule ‘Ka/1’ to the plaint with an intent to avoid the right of pre-emption. The Trial Court held the nature of the transfer contemplated under Section 22 of the said Act is not applicable to the transaction of gift which is without consideration and negatived the claim of the plaintiff in this regard. The case of Madanlal Vs. Prema Das AIR 2008 was referred to wherein it was held that the interpretation of the said expression involved the incident of the underlying legislative intent. The Court held that it is imperative upon the co-sharer proposing to transfer his share in the immovable property to the outsider to offer the same to the other co-sharer first before embarking its journey by selling his share to the outside. Section 2 should be interpreted when the court deprives a stranger to the property acquiring an interest by way of a gift and such right is being vested upon the heir specified in Class-I of the Schedule. It is anomalous when a co-sharer who gifted the property and the donee who received the property shall not be entitled to any consideration if the property by the operation of the law is directed to be given to the co-sharer or the heir is specified in Class-I of the Schedule. The proper meaning which can be assigned to sub-Section(2) of Section 22 is the moment the Court finds that an heir is entitled to a preferential right under sub-Section(1), in absence of any agreement, the consideration so determined shall pass to the stranger purchaser. Any other interpretation would render the provision otiose and redundant. The word ‘transfer’ has to be given a pragmatic meaning and not in conjunction with the consideration appearing in subSection(2) of Section 22 of the Act. If any restrictive meaning of the word transfer is given, it would be a premium to the heir divesting his right by way of a gift to wriggle out of mischief of the provision contained in sub-Section(1) of Section 22 of the Act. The court held that, “So far as the concluded transfer is concerned, we do not find any restriction having put under Section 22 to have its restricted applicability in case of proposed transfer if the transfer has been affected without his knowledge, still the heir can maintain the proceeding invoking the preferential right enshrined under Section 22 of the Act.”

IN THE HIGH COURT AT CALCUTTA CIVIL APPELLATE JURISDICTION APPELLATE SIDE Present: THE HON’BLE JUSTICE HARISH TANDON THE HON’BLE JUSTICE KAUSIK CHANDA IN C.A.N 11623 OF 2017 F.A.T 661 OF 2017 Sri Pabitra Kumar Maity Smt. Shyamali Manna & Ors Vs. Mr. Suman Kumar Dutt. Mr. Suvasish Sengupta. Mr. Sarosij Dasgupta. Mr. Subhra Das. For the Appellant Mr. Probal Mukherjee For the respondent No.1 Mr. Sounak Bhattacharya. For the Respondent No. 2 Judgment On: 08.04.2021 Harish Tandon J.: An interesting important and significant point is raised in the instant appeal as to whether the gift of a immovable property to a stranger to the exclusion of the other heirs of Class I can be regarded as a transfer under Section 22 of the Hindu Succession Act 1956. Though the instant appeal is at the nebulous stage but aimed at the aforementioned legal point to which we digress from the ordinary rule of procedure applicable to get the first appeal ready for hearing and invited the respective counsels to argue on the said point so that the instant appeal can be decided on merit. In order to determine the aforesaid legal point the hereinafter. The plaintiff appellant filed suit for declaration permanent injunction and preferential right to acquire the property in the 2nd Court of the Civil JudgeTamluk Purba Medinipur being Title Suit no. 89 of 2015. Originally the larger property comprised in Schedule ‘Kha’ belong to Subhendu Kumar Maity Joykrishna Maity and Ajay Krishna Maity. On the death of the respective owners the heirs and legal representatives inherited the said “Kha” Schedule Property and subsequently executed a partition deed being no. 7515 on 19.7.2002. By virtue of the said partition deed the “Kha” Schedule Property fall into the share of the Subhendu Kumar Maity and the plaintiff and defendant no. 2 6 being heirs and legal representative of the said predecessor inherited the property described in Schedule “Ka” to the plaint. Thereafter the Defendant no. 2 transferred his 8 decimals of land situated in suit dag nos 186 189 and 192 to Defendant no 1 and her husband which constrained the plaintiff to file a pre emption application before the Civil Judge 2nd Court Tamluk being Judicial Miscellaneous Case no. 10 of 2014 which was allowed on contest and the plaintiff acquired the said property upon deposit of the value thereof determined by the court. Subsequently a deed of gift bearing no 2118 was executed and registered on 16.4.2015 by the Defendant no. 2 in favour of the Defendant no. 1 bequeathing some other properties described in Schedule ‘Ka 1’ to the plaint with an intent to avoid the right of pre emption. Thus the composite suit is filed not only for declaration of the right title interest and respect of the “Kha” Schedule property by virtue of an inheritance as also the pre emption right recognised in the earlier proceeding but further asserted the preferential right under Section 22 of the said Act in respect of the properties included in “Ka 1” Schedule. The other defendants did not contest the suit except the Defendant no. 1 and 2. It is a collective stand of the Defendant no. 1 and 2 that by virtue of a deed of gift the property described in Schedule Ka 1 to the plaint was gifted by the Defendant no. 2 in favour of the Defendant no. 1 whose mother was a ‘Dharmabhogini’(sister) of the Defendant no. 2 without any consideration and out of sheer love and affection. The Trial Court held the nature of the transfer contemplated under Section 22 of the said Act is not applicable to the transaction of gift which is without consideration and negatived the claim of the plaintiff in this regard. To put the record straight the Trial Court declared the right of the plaintiff in respect of “Kha” Schedule property and also passed a permanent injunction against the disturbance of possession of the plaintiff therein but refused to pass an order or a decree on preferential right. All the respective counsels vociferously argued on a solitary point whether the concept of gift comes within the ambit of Section 22 of the said Act. Mr. Suman Dutt the learned Advocate appearing for the appellant submits that the decision of the Trial Court in holding that the gift does not attract the provision of Section 22(1) of the said Act is misconceived. According to Mr. Dutt Section 122 of the Transfer of Property Act defining the gift clearly stipulates is a mode of transfer having two essential characteristics namely that it is made voluntarily and without consideration. Mr. Dutt arduously submits that the Transfer of Property Act defining Section 5 of Transfer of Property Act means an Act by which a living person conveys property in present or future to one or more living person or to himself or to one or more other living person and therefore the gift cannot be excluded from the purview of the transfer contemplated under Section 22(1) of the Hindu Succession Act. By relying upon the judgment of the Madras High Court in case of Bharat Machindra Parekar and others Vs Anjanabai and Others reported in 2007(6) Maharashtra Law Journal 706 Mr. Dutt submits that the expression “one of such heir proposes to transfer his or her interest” has to be construed conjointly with the object underlying incorporation of the said section. According to Mr. Dutt the gift being an incident of transfer would also fall within the conceivable incident of transfer even it is made without consideration. Mr. Dutt vehemently submits that the object of Section 22 of the said Act is to keep away the stranger not associated with the heirs of Class I in order to maintain the integrity of the property and placed relying upon the judgment of the Orissa High Court in case of Ganesh Chandra Pradhan Vs. Rukmani Mohanty and others reported in AIR 1961 Orissa 65. Mr. Dutt would further contend that the expression “proposes to transfer” should not be given a restrictive meaning as “intended transfer” but includes the transfer already taken effect to to attract the provision contained under Section 22 of the said Act and placed reliance upon the Division Bench of this court in case of Arati Das Vs. Bharati Sarkar reported in AIR 2009 Calcutta 8. According to Mr. Dutta if the section is silent on the incident of transfer borrowing other incident of transfer which is prohibited in a different statute cannot be mischievously incorporated when the legislature have conspicuously omitted the same and therefore each provision has to be construed in the perspective of the legislative intent and the interpretation must be assigned to make it workable and not to frustrate it. Mr. Dutt ardently submits that the object of Section 22 is to keep the properties belonging to the family within the family and not to the outsider as held in a recent judgment of the Supreme Court in case of Baburam Vs. Santokh Singh(deceased)through alias and others reported in 2019 SCC Online SC 376. To sum up Mr. Dutt submits that the gift being an incident of transfer may be without consideration comes within the ambit of Section 22(1) of the Act and therefore the finding of the Trial Court that it does not come under the aforesaid Section is palpably wrong infirm and illegal cannot be sustained. Mr. Probal Mukherjee the learned Senior Advocate appearing for the Defendant no. 1 Respondent no. 1 submits that the harmonious interpretation of the language employed in sub Section (2) and of Section 22 of the Hindu Succession Act 1956 leads to a clear stipulation that the quantification of consideration is the essential element to attract others provisions and any other incident of transfer like gift which admittedly lacks consideration is outside the purview of the said mischief provision. Mr. Mukherjee further submits that the expression ‘proposes to transfer his or her interest in the property’ has to be understood to proper mean and include an intended transfer and not otherwise. According to him the aforesaid expression conveys a clear legislative intention that before the transfer actually takes place the intention to transfer should be manifested which includes an agreement for transfer which is conspicuously absent in the parlance of a gift. Mr. Mukherjee further submits that the intention can be borrowed from the other provision relating to the right of pre emption and by referring the provision contained in Section 8 of the West Bengal Land Reforms Act He further submits that the gift has been excluded from the purview of transfer and therefore the legislative intent can be gathered from harmonising the other provision as well in juxtaposition with the Section 22 of the Act. Mr. Mukherjee arduously submits that the gift is nothing but a gratuitous transfer out of love affection affinity and on the emotional quotient without quantifying the consideration therefore does not come within the purview of Section 22 of the Act. Mr.Mukherjee heavily relies upon a judgment of the Karnataka High Court in case of Amma Jamma vs. Mahadevamma reported in ILR 1996 Karnataka 3499 and contends that the identical question fell for consideration and it has been held that Section 22(1) of the Act does not recognise the incident of transfer by way of a gift. Mr. Mukherjee further relies upon a judgment of the Supreme Court in case of Kumari Sonia Bhatia Vs. State of UP and Ors reported in 1981 SCC 585 in support of his contention that the gift has been aptly described as gratitude and an act of generosity and if there is any consideration involved therein it would cease to be a gift. He thus submits that the word “consideration” appearing in sub Sectionof Section 22 of the Act cannot be ignored and to be given its true and proper meaning and the gift being an incident of transfer without consideration cannot be brought within the ambit of Section 22 of the Act. Mr. Mukherjee lastly submits that there is no infirmity in impugned judgment and decree and the instant appeal should be dismissed. Mr. Sounak Bhattacharya learned Advocate appearing for the Defendant no 2 Respondent no. 2 adopted the submission of Mr. Mukherjee and submits that the incident of gift does not come within the word ‘transfer’ under Section 22(1) of the said Act. Additionally it is submitted that sub Sectionof Section 22 of the Act contemplates an agreement between the parties which necessarily implies that there must be an agreement of sale otherwise the consideration involved in the said agreement will lose its importance. He submits that the said provision is applicable only in case of “intended transfer” and not to “concluded transfer” therefore the suit at the instance of the plaintiff Appellant is not maintainable since the property has already been transferred upon execution and registration of the deed of gift and right has already been created in favour of the Defendant no. 1. Act Before we proceed to deal with the point involved from the respective submissions of the parties and narrated hereinbefore it would be axiomatic to quote the relevant provisions which runs thus: Section 2 of Hindu Succession “Preferential right to acquire property in certain cases Where after the commencement of this Act an interest in any immovable property of an intestate or in any business carried on by him or her whether solely or in conjunction with others devolves upon two or more heirs specified in Class I of the Schedule and any one of such heirs proposes to transfer his or her interest in the property or business the other heirs shall have a preferential right to acquire the interest proposed to be 2) The consideration for which any interest in the property of the deceased may be transferred under this section shall in the absence of any agreement between the parties be determined by the court on application being made to it in this behalf and if any person proposing to acquire the interest is not willing to acquire it for the consideration so determined such person shall be liable to pay all costs of or incident to the application. 3) If there are two more heirs specified in class IL of the Schedule proposing to acquire any interest under this 10 section that heir who offers the highest consideration for the transfer shall be preferred. Section 122 of Transfer of Property Act “Gift” defined “Gift” is the transfer to 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. Acceptance when to be made Such acceptance must be made during the lifetime of the donor and while he is still capable of giving. If the donee dies before acceptance the gift is void.” Upon the meaningful reading of the provision contained in Section 22 of the Act the preferential right is confined to the heirs specified in Class I of the Schedule and not to other class of heirs. Such right is restricted to an immovable property and the Parliament in his wisdom has not made any differentiation into the categories of the properties. Apart from the same such preferential right is also extended to any business carried on by the owner who upon his death devolves upon the heirs specified in Class I of the Schedule. It is an additional right to the other well recognised right of pre emption envisaged under Section 4 of the Partition Act and Section 8 of the West Bengal Land Reforms Act 1956. It is more expansive provision in comparison to the other right of pre emption recognised in the sections or the Act. Section 4 of the Partition Act is restricted to a dwelling house belonging to an undivided family but Section 22 stretches its horizon to any property or business carried on by the Hindu dying intestate either solely or in conjunction with others. The only restriction or reservation one can see from the Section 22 is that it is available to the heirs specified in Class I of the schedule. The plain and meaningful reading of the language employed in Section 22 of the Act leaves no ambiguity that if a person dies intestate and his interest in the immovable property devolves upon his heirs specified in Class I of the schedule and if anyone of the heirs proposes to transfer his or her interest in the property the other heirs within the said class have a preferential right to acquire such interests under the aforesaid provision which immediately gets activated the moment one of the heir specified in Class I of the Schedule proposes to transfer his share in the immovable property or a business carried on by the predecessor other than the person specified in the Class I of the schedule. This leads to another question what meaning can be assigned to the expression “proposes to transfer his or her interest in the immovable property”. There are divergent views on the above. Karnataka High Court in Amma Jamma(Supra) has laid much stress to the aforesaid expression and held that the concluded transfer or in other words transfer already effected would not come within the peripheral of the aforesaid provision. It is held that the plain and simple meaning must be attributed to such expression appearing in the section and no additional or an extra words can be attached or incorporated which would otherwise frustrate the legislative intent. It would be profitable to quote the relevant observations made in the aforesaid judgment which read thus: “The expression ‘proposes to transfer’ and the expression ‘proposes to be transferred’ have got their material importance and significance in the context of preferential right to acquire the property by a co heir as Sub section(1) of Section 22 indicates that prospective in its operation confers a preferential right to a co owner and provides that if any immovable property or interest in immovable property of an intestate or any interest in the business carried on by an intestate either solely or in conjunction with others devolves upon two or more heirs as specified in Class I of the Schedule of the intestate and then any one of such heirs proposes to transfer his or her interest in the property or business then in those cases the other heirs will have a preferential right to acquire the interest proposed to be transferred. The use of expression ‘proposes to transfer’ or ‘interest proposed to be transferred’ indicate that the intention of the legislature is that the preferential right to acquire such interest would arise or would accrue to other heirs in case of transfers where the transfer is in the nature of a contract in the form of proposal and acceptance and at the stage when there is a proposal to transfer. The use of these expressions indicate that there should be concept of proposal to transfer from one of the vendors. Proposal as per provisions of the Contract Act means when one person signifies to another his willingness to do or to abstain from doing anything with the view of obtaining the assent of that another to such actor abstinence he may be said to make the proposal and when a person to whom the proposal is made signifies and assents thereto the proposal is said to be accepted and on acceptance the proposal becomes a promise the promise means an accepted proposal and in case of promise or proposal at the desire of the promissor a promisee or any other person has done or abstains or abstained from doing or promises to do something such act or abstinence or promise is called consideration for the promise and every promise or set of promises which form consideration from each other is called to be an agreement and an agreement enforceable by law is termed to be a contract and all agreements which are made by free consent of the parties competent to contract for a lawful consideration with a lawful object and which are not declared under the provisions of the Contract Act to be void it means all agreements in which there are two parties who enter into the contract with free consent provided those competent to contract and they have to contract for lawful consideration and object they are said to enter into a contract. A contract is an agreement between the promissor and the promisee. A contract without consideration is said to be void and is not enforceable under Section 25 of the Contract Act except the cases mentioned under Clause 1 2 and 3 of the Contract Act.” However the Bombay High Court in case of Bharat Machindra Parikar(Supra) held that sub Section of Section 22 of the Act though contemplated a preferential right but akin to a right of pre emption and include the concluded transfer by way of sale and gift in this words: “It is manifest that Sub sectionconfers upon one co heir a preferential right to purchase the property of the other co heirs. The right is akin to the right of pre emption. The expression “one of such heirs proposed to transfer his or her interest’ also include the final transfer of such interest by way of sale gift or any other mode. The right of pre emption is not obliterated after the transfer of the interest is completed through an instrument like sale deed or gift deed. There is no provision in either of the sub clauses to take away right 15 of the other heirs who are not party to such transfer of interest to acquire the interest of the heir heirs who proposed to transfer their interest or actually transferred the same.” In case of Ganesh Chandra Pradhan(Supra) the Orissa High Court has an occasion to deal with the similar situation and the true meaning of the expression ‘proposes to transfer’ appearing in Section 22(1) of the Act fell for consideration. It is held that the said expression should not be unreasonable squeezed to a restrictive meaning to include the stage of proposal to transfer but should be given a wider meaning to include the transfer having taken place. It is further held that the co sharer transferring without consent of the other heirs within the Class I of the Schedule should not be permitted to get away with the recovery of the said possession nor can defeat the right accrued to the other heirs and therefore the preferential right can be asserted by such other heirs even in case of a concluded transfer in the following words: “But in the words “proposes to transfer” appearing in sub section(1) of the section to my mind there indeed appears to be a requirement that the transferor heirs and it is only when they do not exercise their preferential right conferred under the section that he would be free to make the transfer to strangers not coming within the fold of the section. Once it is held that such a statutory duty is cast on the transferor heir where it is shown that the transferee has purchased the property without notice having been given to the remaining class I co heirs the transfer could still be impugned after it was completed. Such an interpretation would not only be in keeping with the true legislative intention but it would also not work inequitably. Thereby the preferential right would be kept up the transferor would not have an undue impediment on his right to transfer and the transferee should after being satisfied that the class I co heirs have in spite of notice failed to exercise their preferential right of acquisition purchase the property and obtain the same free from the liability under Section 22 of the Act. Expressed in other words it would mean when an heir proposed to transfer his or her interest in the property inherited the legal consequences which would necessarily emerge would be thus: a) In the remaining co heirs a right of preference to acquire such interest proposed to be transferred in preference to any other person accrues. Such right may be availed of or may be given up. b) A corresponding legal obligation on the intending transferor would stand imposed not to transfer the interest in violation of the preferential right of the other Class I co heirs. c) A statutory notice is given to all transferees that class I co heirs have a preferential right and until that is exhausted either by its exercise or by its non exercise in spite of notice they are not free to take the transfer. Unless such an interpretation is given to the provisions of Section 22(1) of the Act preferential right contemplated therein would really bean airy one and the true legislative intention cannot be given effect to. I would therefore interpret sub section 1) of Section 22 in the aforesaid manner and would hold transferor heir must propose or notify his intention to transfer to the other class I co heirs and a transfer made without following that procedure would be vulnerable even after it is completed on proof by the co heir who has the preferential right that the transfer was made without notice of the proposal of transfer to him.” This takes us to the another case of Arati Das(Supra) decided by the Division Bench of this court where the point was raised whether a preferential right can be invoked by the other heirs if the transfer has already been effected by one of the heirs specified in Clause I schedule to a stranger. The Court held: “After hearing the learned Counsel for the parties and after going through the provisions quoted above we find that the aforesaid provision of the Act has conferred an additional right of pre emption otherwise than the ones provided in Section 4 of the Partition Act or in Section 8 of the West Bengal Land Reforms Act. Unlike the provision contained in the Partition Act here the right of pre emption is not limited to the dwelling house belonging to an undivided family but to any immovable property or business carried on by a Hindu dying intestate either solely or in conjunction with others. However such right is available only to the heirs specified in Class I of the Schedule. The provision of Section 8 of the West Bengal Land Reforms Act it is needless to mention is limited to the plot of land held by a rayat as provided in the said Act and specific manner of enforcement of that right has been prescribed therein. A distinguishing feature of Section 22 of the Act is that whereas in case of pre emption provided in the other Statutes the right to apply for pre emption generally accrues only on the registration of the deed of transfer but in this provision such right has been conferred upon the pre emptor even before the actual transfer if any of the heirs of Class I proposes to transfer his undivided share. Another peculiar element present is that here the value of the consideration of the proposed transfer 19 should be decided by the Court unless otherwise agreed to by the parties i.e. the transferor and the pre emptor. The first question that falls for determination before us is if the transfer has already taken place filing of an application under Section 22(2) of the Act whether the right of pre emption conferred under the sub Section(1) of Section 22 is lost. Our considerate view is that even if the transfer has taken place the right of the pre emptor under this Section is not lost. It is absurd to suggest that the right conferred upon an heir as provided in sub section(1) of Section 22 can be frustrated by merely completing the transfer without disclosing the intention of the transfer to the persons who have the right of pre emption. However if in spite of disclosing the intention of transfer the persons who have the right of pre emption decide to waive such right the Court in a given situation can refuse to grant the relief of pre emption the right of pre emption being a weak right.” In case of Madanlal Vs. Prema Das AIR 2008 Himachal Pradesh 71 though the question which is involved in the instant appeal does appear to be directly connected with the questions raised therein Yet the observations made therein on the interpretation of the expression “proposes to transfer” may be of some relevance in the instant case. It is held that the interpretation of the said expression involved the incident of the underlying legislative intent. The Court held that it is imperative upon the co sharer proposing to transfer his share in the immovable property to the outsider to offer the same to the other co sharer first before embarking its journey by selling his share to the outsider. It is further held that the transfer already effected without following the said procedure is still vulnerable as any other interpretation would eschew the mischief of the said provision. It is ultimately held that the proceeding under the aforesaid provision is maintainable even after the transfer is completed. Though there has been a divergent view on interpretation of the expression “proposes to transfer” but this court in Arati Das(Supra) has held that it cannot destory the right of the heir specified in Class I to maintain the proceedings asserting the preferential right. The Mayne’s Treatise on Hindu Law and Usage encompasses his views while conceptualising the situation that has arisen on divestation of right title and interest by making gift to an outsider. The author commented: “A difficult question arises as to the meaning of the expression ‘transfer’. The word ‘transfer’ is of wide import and would ordinarily include a sale exchange mortgage gift and lease which are the usual modes of transfer recognised under the Transfer of Property Act as also a transfer by way of trust. The main object of the section is to prevent the heirs other than the transferor from being compelled to be in joint enjoyment of immovable property or a business with a stranger or other person with whom they do not wish to associate themselves. The transferee of the interest of the heirs is likely to insist on partition of the immovable property or to be in actual possession as a tenant in common with the other heirs or to carry on business with them or to claim dissolution by taking away his share resulting in great hardship to the other heirs. It is to prevent such hardship that the section is enacted and the other heirs are given a right of pre emption. It would therefore appear proper to interpret the expression ‘transfer’ to cover the case of a mortgage or a gift as the other heirs may not like the mortgage or the donee to share the property with them. The mere fact that there is no consideration for a gift is of no consequence. Even in such a case the heirs may be anxious to avoid the donee’s presence by offering to pay consideration. Again in the case of a mortgage with possession the heirs may not like the presence of the mortgage. Though the expressions ‘consideration’ and “acquiring the interest” are used it does not follow that they are appropriate only in the case of a sale. They may be made to apply to other cases of transfer also. As the main object is to avoid introduction of a stranger perhaps 22 the expression ‘transfer’ may be interpreted as to exclude transfer where the transferee has no right to obtain possession physically of a part of the property either by partition or otherwise. For example it may exclude the case of a simple mortgage where the mortgage is only entitled to recover the money.” The nuances of the gift has been a seminal point in Sonia Bhatia(Supra) where the Apex Court held that the gift is purely a gratuitous transfer made out of love and affection or for the spiritual of benefit of the donor. There is no element the adequate consideration nor the same can be incorporated while conceptualising the gift. The consideration or the adequate consideration postulates such consideration capable of being measured in terms of money value which is conspicuously absent in case of gift. There is no ambiguity that the gift is a transfer without consideration. The legislature never conceptualised the gift for consideration or adequate consideration but it is a gratuitous transfer out of love and affection and sometimes for the spiritual benefit of the donor. It is incongruous to say that the gift is not a transfer. It has all the incident of transfer and the right title and interest of the donor passes to the donee upon execution registration and acceptances thereof. A distinction is sought to be made on interpretation of Section 22 of the said Act that the word ‘proposes to transfer’ appearing in sub Section(1) of Section 22 of the Act must be read conjointly with the provision contained in sub Section(2) thereof and therefore the consideration plays a vital role in bringing the incident of transfer within the conntour of the said provision. In our opinion Sub Section 1 and 2 of Section 22 of the Act contemplates different eventualities and does not override the integral facet on the preferential right. Sub Section(1) expounded the right of the heir specified in Class I of the schedule to invoke preferential right to acquire the interest of the other heir who transferred his or her interest in the property or business to third party. Sub Section(2) can be visualised as the consequential steps for acquisition of such share and does not control sub Section(1) thereof. The moment the transfer is affected by a well recognised mode of transfer sub Section(2) requires acquisition of such share upon payment of the consideration either on the basis of an agreement subsequently arrived or in absence thereof the consideration determined by the court. The element of “transfer” divest the executant of the deed of all his right which came to be vested upon the recipient thereof may be by way of a gift which does not contain the consideration. Such right of the recipient cannot be taken without the payment of the consideration and precisely for such reason sub Section(2) has been incorporated. The vested right can only be divested 24 by well recognised mode of transfer. The hypothetical example can be made in this regard when ‘A’ gifted his immovable property to ‘B’ out of love and affection. B in turn wanted to sale the said property to any stranger as such deed of gift is not conditional one. He is entitled to receive the consideration although he acquired the right title and interest by way of a gift which admittedly does not contain consideration. In the light of the above Section 2 should be interpreted when the court deprives a stranger to the property acquiring an interest by way of a gift and such right is being vested upon the heir specified in Class I of the Schedule. It is anomalous when a co sharer who gifted the property and the donee who received the property shall not be entitled to any consideration if the property by the operation of the law is directed to be given to the co sharer or the heir is specified in Class I of the Schedule. The proper meaning which can be assigned to sub Section(2) of Section 22 is the moment the Court finds that an heir is entitled to a preferential right under sub Section(1) in absence of any agreement the consideration so determined shall pass to the stranger purchaser. Any other interpretation would render the provision otiose and redundant. The word ‘transfer’ has to be given a pragmatic meaning and not in conjunction with the consideration appearing in sub Section(2) of Section 22 of the Act. If any restrictive meaning of the word transfer is given it would be a premium to the heir 25 divesting his right by way of a gift to wriggle out of mischief of the provision contained in sub Section(1) of Section 22 of the We thus held that even a gift being the transfer comes within the ambit of Section 22 of the Act and the heir coming within Class I of the Schedule is entitled to preferential right. So far as the concluded transfer is concerned we do not find any restriction having put under Section 22 to have its restricted applicability in case of proposed transfer if the transfer has been affected without his knowledge still the heir can maintain the proceeding invoking the preferential right enshrined under Section 22 of the Act. We thus modifying the decree of the Trial Court to the extent that plaintiff has a preferential right in respect of Ka(1) Schedule Property. In view of the modification of the decree the matter is remitted to the Trial Court for determining the market price of the share in respect of the immovable property acquired by the defendant by way of a gift and such determination shall be made after affording an opportunity of the hearing to the respective parties. In the event of such consideration so determined is deposited by the plaintiff the court shall pass consequential order thereupon. However in case of a default the modalities have been provided in the Section itself which we expect that the Trial Court will pass appropriate order. The appeal is thus disposed of. 26 No order as to costs. Urgent certified website copies of this judgment if applied for be supplied to the parties upon compliance with all requisite formalities. I agree ( Harish Tandon J.)

“Exit load charged by Asset Management Companies (AMCs) in various mutual fund schemes, is not maintained by SEBI…”: SEBI, Part 2.

Further, it was noted that the Hon’ble CIC in the matter of Sh. Pattipati Rama Murthy vs. CPIO, SEBI (Decision dated July 8, 2013), held: “… if it (SEBI) does not have any such information in its possession, the CPIO cannot obviously invent one for the benefit of the Appellant. There is simply no information to be given.” In view of these observations, it was found that the information sought by the appellant was not available with SEBI and therefore, the respondent cannot be obliged to provide such non–available information. Further, the appellant, in his appeal, has submitted that SEBI should compile the details and forward the same to the appellant. Mr Baiwar found that the respondent is only expected to see that the information to be furnished to an applicant is the one which exists with the public authority when it receives an application under the RTI Act. The respondent has categorically stated in its response that the information sought was not available with SEBI. The respondent is not expected to obtain any information for the sole purpose of providing the same to an applicant under the RTI Act. On perusal of the appeal, it appears that the appellant has grievance regarding levy of exit load in MFs redeemed prior to completion of one year. It was noted that the Hon’ble CIC, in the matter of Sh. Triveni Prasad Bahuguna vs. LIC of India, Lucknow (Decision dated September 6, 2012), held: “The Appellant is informed that … redressal of grievance does not fall within the ambit of the RTI Act rather it is up to the Appellant to approach the correct grievance redressal forum…”. In view of these observations, it was found that if the appellant has any grievance, the remedy for the same would not lie under the provisions of the RTI Act.

Appeal No. 43621 BEFORE THE APPELLATE AUTHORITY Under the Right to Information Act 2005) SECURITIES AND EXCHANGE BOARD OF INDIA Appeal No. 43621 Vinod Kumar Agarwal CPIO SEBI Mumbai The appellant had filed an application dated July 01 2021under the Right to Information Act 2005gained over last 20 Years due to the exit load levied in accordance with SEBI orderand how they have utilized it. The respondent in response to the query informed that the information sought by the appellant with regard to exit load charged by Asset Management Companiesin various mutual fund schemes is not maintained by SEBI in normal course of regulation of securities market. Hence the same is not available with SEBI. appellant. 4. Ground of appeal The appellant has filed the appeal on the ground that the information provided was incomplete misleading or false. The appellant in his appeal alleged incorrect levy of exit load. Further the appellant has also submitted that SEBI should compile the details and forward the same to the I have perused the application and the response provided thereto. On consideration I do not find any reason to disbelieve the observation that the requested information is not available with SEBI as the same is not maintained by SEBI in normal course of regulation of securities market. In this context I Appeal No. 43621 note that the Hon’ble CIC did not find any need to intervene in the matter of Mrigesh Manubhai Thakkar vs. Securities and Exchange Board of Indiawhile observing that “10. the respondents can provide only that information which is existing and available with them and the RTI Act does not mandate it for the respondent authority to create information if it is not collected and collated in the normal course of their duties. The Commission therefore does not find any need to intervene in the matter. The appeal is disposed of.” Further I note that the Hon’ble CIC in the matter of Sh. Pattipati Rama Murthy vs. CPIO SEBIheld: “… if itdoes not have any such information in its possession the CPIO cannot obviously invent one for the benefit of the Appellant. There is simply no information to be given.” In view of these observations I find that the information sought by the appellant was not available with SEBI and therefore the respondent cannot be obliged to provide such nonavailable information. Further the appellant in his appeal has submitted that SEBI should compile the details and forward the same to the appellant. I find that the respondent is only expected to see that the information to be furnished to an applicant is the one which exists with the public authority when it receives an application under the RTI Act. The respondent has categorically stated in its response that the information sought was not available with SEBI. The respondent is not expected to obtain any information for the sole purpose of providing the same to an applicant under the RTI Act. 7. On perusal of the appeal it appears that the appellant has grievance regarding levy of exit load in MFs redeemed prior to completion of one year. I note that the Hon’ble CIC in the matter of Sh. Triveni Prasad Bahuguna vs. LIC of India Lucknowheld: “The Appellant is informed that … redressal of grievance does not fall within the ambit of the RTI Act rather it is up to the Appellant to approach the correct grievance redressal forum…”. In view of these observations I find that if the appellant has any grievance the remedy for the same would not lie under the provisions of the RTI Act. In view of the above observations I find that there is no need to interfere with the decision of the respondent. The Appeal is accordingly dismissed. Place: Mumbai Date: August 09 2021 ANAND BAIWAR APPELLATE AUTHORITY UNDER THE RTI ACT SECURITIES AND EXCHANGE BOARD OF INDIA

Under section 482 CrPC, reliability or genuineness of allegations made in FIR/Complaint cannot be scrutinized: Supreme Court of India

While exercising its jurisdiction under section 482 CrPC, a High court cannot embark upon any enquiry regarding the reliability and genuineness of the allegations made in the FIR/complaint. The power conferred on the High Courts by section 482 CrPC is very wide and thus the High Courts should be more cautious while exercising the. Such an observation was made by the Hon’ble Supreme Court before Hon’ble Justice M.R. SHAH & Hon’ble Justice B.V. NAGARATHNA in the matter of STATE OF ODISHA vs PRATIMA MOHANTY ETC [CRIMINAL APPEAL NOS. 1455­1456 OF 2021]. The facts of the matter were that certain public servants occupying crucial positions in   Bhubaneswar Development Authority and in the Housing and Urban Development Department, Government of Odisha surreptitiously distributed prime plots in Commercial   Complex   District   Centre,   Chandrasekharpur, Bhubaneswar. Thus an FIR was lodged against the accused. Thus accused approached the High Court with a prayer to quash the criminal proceedings against them in the exercise of powers under Section 482 Cr. P.C and by the impugned common judgment and order the High Court has partly allowed the aforesaid applications and has quashed the criminal proceedings against original accused   No.4, original accused   No.5, and original accused No.3. Aggrieved by the said common judgment the instant appeal is preferred. The Hon’ble Supreme Court noted that in the instant case, the allegations are an instance of abuse of the powers with a mala fide intention and allotment of the plots to the family members by hatching a criminal conspiracy and to allot the plots to the family members at throwaway price causing loss to the B.D.A. and the public exchequer. Additionally, the Hon’ble High Court observed “It is trite that the power of quashing should be exercised sparingly and with circumspection and in rare cases.  As per settled proposition of law, while examining an FIR/complaint quashing of which is sought,   the court cannot embark upon any enquiry as to the reliability or genuineness of allegations made in the   FIR/complaint. Quashing of a complaint/FIR should be an exception rather than any ordinary rule.  Normally the criminal proceedings should not be quashed in exercise of powers under Section 482 Cr.P.C. when after a thorough investigation the charge sheet has been filed.    At the stage of discharge and/or considering the application under Section 482 Cr.P.C. the courts are not required to go into the merits of the allegations and/or evidence in detail as if conducting the mini­trial.  As held by this Court the powers under Section 482 Cr.P.C. are very wide, but conferment of wide power requires the court to be more cautious.  It casts an onerous and more diligent duty on the Court.” Finally, the Hon’ble Supreme Court allowed the instant appeal and quashed the impugned order of the Hon’ble High Court in view of the above. Click Here To Read The Judgment Judgment Reviewed by: Rohan Kumar Thakur The facts of the matter were that certain public servants occupying crucial positions in   Bhubaneswar Development Authority and in the Housing and Urban Development Department, Government of Odisha surreptitiously distributed prime plots in Commercial   Complex   District   Centre,   Chandrasekharpur, Bhubaneswar. Thus an FIR was lodged against the accused. Thus accused approached the High Court with a prayer to quash the criminal proceedings against them in the exercise of powers under Section 482 Cr. P.C and by the impugned common judgment and order the High Court has partly allowed the aforesaid applications and has quashed the criminal proceedings against original accused   No.4, original accused   No.5, and original accused No.3. Aggrieved by the said common judgment the instant appeal is preferred. The Hon’ble Supreme Court noted that in the instant case, the allegations are an instance of abuse of the powers with a mala fide intention and allotment of the plots to the family members by hatching a criminal conspiracy and to allot the plots to the family members at throwaway price causing loss to the B.D.A. and the public exchequer. Additionally, the Hon’ble High Court observed “It is trite that the power of quashing should be exercised sparingly and with circumspection and in rare cases.  As per settled proposition of law, while examining an FIR/complaint quashing of which is sought,   the court cannot embark upon any enquiry as to the reliability or genuineness of allegations made in the   FIR/complaint. Quashing of a complaint/FIR should be an exception rather than any ordinary rule.  Normally the criminal proceedings should not be quashed in exercise of powers under Section 482 Cr.P.C. when after a thorough investigation the charge sheet has been filed.    At the stage of discharge and/or considering the application under Section 482 Cr.P.C. the courts are not required to go into the merits of the allegations and/or evidence in detail as if conducting the mini­trial.  As held by this Court the powers under Section 482 Cr.P.C. are very wide, but conferment of wide power requires the court to be more cautious.  It casts an onerous and more diligent duty on the Court.” Finally, the Hon’ble Supreme Court allowed the instant appeal and quashed the impugned order of the Hon’ble High Court in view of the above. Click Here To Read The Judgment Judgment Reviewed by: Rohan Kumar Thakur The Hon’ble Supreme Court noted that in the instant case, the allegations are an instance of abuse of the powers with a mala fide intention and allotment of the plots to the family members by hatching a criminal conspiracy and to allot the plots to the family members at throwaway price causing loss to the B.D.A. and the public exchequer. Additionally, the Hon’ble High Court observed “It is trite that the power of quashing should be exercised sparingly and with circumspection and in rare cases.  As per settled proposition of law, while examining an FIR/complaint quashing of which is sought,   the court cannot embark upon any enquiry as to the reliability or genuineness of allegations made in the   FIR/complaint. Quashing of a complaint/FIR should be an exception rather than any ordinary rule.  Normally the criminal proceedings should not be quashed in exercise of powers under Section 482 Cr.P.C. when after a thorough investigation the charge sheet has been filed.    At the stage of discharge and/or considering the application under Section 482 Cr.P.C. the courts are not required to go into the merits of the allegations and/or evidence in detail as if conducting the mini­trial.  As held by this Court the powers under Section 482 Cr.P.C. are very wide, but conferment of wide power requires the court to be more cautious.  It casts an onerous and more diligent duty on the Court.” Finally, the Hon’ble Supreme Court allowed the instant appeal and quashed the impugned order of the Hon’ble High Court in view of the above. Click Here To Read The Judgment Judgment Reviewed by: Rohan Kumar Thakur Additionally, the Hon’ble High Court observed “It is trite that the power of quashing should be exercised sparingly and with circumspection and in rare cases.  As per settled proposition of law, while examining an FIR/complaint quashing of which is sought,   the court cannot embark upon any enquiry as to the reliability or genuineness of allegations made in the   FIR/complaint. Quashing of a complaint/FIR should be an exception rather than any ordinary rule.  Normally the criminal proceedings should not be quashed in exercise of powers under Section 482 Cr.P.C. when after a thorough investigation the charge sheet has been filed.    At the stage of discharge and/or considering the application under Section 482 Cr.P.C. the courts are not required to go into the merits of the allegations and/or evidence in detail as if conducting the mini­trial.  As held by this Court the powers under Section 482 Cr.P.C. are very wide, but conferment of wide power requires the court to be more cautious.  It casts an onerous and more diligent duty on the Court.” Finally, the Hon’ble Supreme Court allowed the instant appeal and quashed the impugned order of the Hon’ble High Court in view of the above. Click Here To Read The Judgment Judgment Reviewed by: Rohan Kumar Thakur Finally, the Hon’ble Supreme Court allowed the instant appeal and quashed the impugned order of the Hon’ble High Court in view of the above.

judgment and order passed by the High Court of Orissa dated 04.09.2019 passed in Criminal Miscellaneous Application No.3177 of 2017 and Criminal Miscellaneous and has quashed the criminal proceedings against the Shri Rajendra Kumar Samal the State of Odisha has of Police Vigilance Vigilance Cell Unit Office Bhubaneswar before the Superintendent of Police Vigilance Bhubaneswar Division Bhubaneswar alleging inter alia that on preliminary enquiry it was found that certain public servants occupying crucial positions in Bhubaneswar Development Authority surreptitiously distributed prime plots in Commercial Complex District Centre Chandrasekharpur Bhubaneswar. It was alleged that in pursuance of the the officials of the B.D.A. and of the H.&U.D. Deptt. Government of Odisha surreptitiously distributed prime Smt. Pratima Mohanty was serving as Steno to Vice­ Chairman B.D.A. Original accused No.5 ­ Shri Prakash Chandra Patra was serving as Jr. Assistant Allotment Section B.D.A and original accused No.3 ­ Shri Rajender ­ II B.D.A. and Personal Assistant to Minister Housing and plots for sale and their sale prices. It was alleged that B.D.A. who had access to such information as insiders distributed the prime plots among themselves or the B.D.A. was to the tune of Rs.30 27 849.80 and Rs.71 57 055.00. Therefore it was alleged that all the Prevention of Corruption Act 1988Shri Prakash Chandra Patra and Shri Rajendra Kumar had influenced any co­accused or any officer of B.D.A. or H.&U.D. Deptt. for getting the plots illegally in favour of their family members. It was also further observed that a pre­concert mind and they were in criminal conspiracy common judgment and order passed by the High Court quashing the criminal proceedings against the private offences under Section 13(2) read with Section 13(1)(d) of the Act and Section 420 read with Section 120B IPC the 3.1 It is submitted that while quashing the criminal proceedings against the respondents accused the High Court has exceeded its jurisdiction vested under Section It is submitted that the High Court has not at all appreciated and considered the fact that at the stage of is submitted that no advertisement was issued by the The accused officers deliberately concealed the matter submitted that it was found that on the undated applications the plots were allotted to the relatives of the accused herein and public servants. It is submitted that therefore the First Information Report was filed by the sheet has been filed before the learned Special Judge prima facie case and being satisfied that a case for the offences under Section 13(2) read with Section 13(1)(d) of the Act and Section 420 read with Section 120B IPC was made out the learned Special Judge Bhubaneswar has taken cognizance. It is submitted therefore the High Court ought not to have exercised the powers under Section 482 Cr.P.C. and not ought to have 3.3 It is submitted that as such the High Court quashed the criminal proceedings by scrutinising the FIR material 3.4 It is further submitted that even otherwise while was of hatching a criminal conspiracy by the public allotment of the plots in the discretionary quota and that the allegations were for the offences under Section 120B mainly by observing that the respondents ­ accused have not dealt with the allotment file in any manner and that H.&U.D. Deptt. for getting the plots illegally in favour of their family members. It is submitted that the aforesaid aspects are required to be considered established and misusing the powers in allotting the plots to the family members and that a huge loss has been caused to the that relatives of the respondents accused and other co­ accused public servants pursuant to a conspiracy submitted applications on plain papers and even some of the found that the allotment of the 10 plots were made arbitrarily and the respondents accused got the plots urged that the High Court has erred in quashing the Learned counsel appearing on behalf of the respondents original accused Nos. 4 5 and 3 has of the case and having found that the respondents ­ officer of B.D.A. or H.&U.D. Deptt. for getting the plots rightly quashed the criminal proceedings against the respondents accused in exercise of its powers under has quashed the criminal proceedings and therefore the 5. We have heard learned counsel for the respective At the outset it is required to be noted that by the its powers under Section 482 Cr.P.C. has quashed the criminal proceedings for the offences under Section 13(2 order passed by the High Court it appears that the High which as such as observed and held by this Court in a Court in the case of State of Haryana And Ors. vs Ch Bhajan Lal And Ors. AIR 1992 SC 604 the powers under abuse of process of any court and or otherwise to secure the ends of justice. In the said decision this Court had the various relevant provisions of the Code under Chapter XIV and of the principles of decisions relating to the exercise of 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 or otherwise to secure the ends of justice any precise clearly defined and sufficiently channelized and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power 1) Where the allegations made in the first report and other materials if any accompanying the FIR do not disclose a cognizable offence of a Magistrate within the purview of Section 3) Where the uncontroverted allegations made in the FIR or complaint and the evidence the commission of any offence and make out a 4) Where the allegations in the FIR do not constitute a cognizable offence but constitute only a non­cognizable 42 PART E offence no investigation is permitted by a police officer 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 in any of the provisions of the Code or the concerned Act to the institution and continuance of the proceedings and or where there is a specific provision in the Code or the concerned Act providing efficacious redress for 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 6.1 Looking to the allegations in the present case against the respondents accused and considering the fact that charge­sheet has been filed by the Vigilance Cell after a para 102 in the case of Bhajan Lal 6 SCC 530 the Apex Court has held as plots houses petrol pumps gas agencies behalf of the people. He has to deal with the by the people In Onkar Lal Bajaj and Ors. v Union of India 2 SCC 673 the Apex Court has summarised the cardinal principles of 35. The expression "public interest" or "probity in governance interest" takes into its fold several fast rule to determine what is public interest. The circumstances in each case would determine whether www.manupatra.com Hon ble Mr Justice M.R. Shah was taken to and decision taken thereof should manifest equity fair play and justice not only has to base a transparency consideration of Government has to rise above the and eschew window­dressing. The act test of judiciousness and impartiality and avoid arbitrary or capricious actions. Therefore the principles of governance has to be tested on the touchstone of justice equity and fair justice equity and fair play and has though on the face of it the decision fact the reasons are not based on that decision cannot be allowed to this Court in the case of Common Cause A Registered Society that if a public servant abuses his office whether by his act of omission or commission and the consequence of that is injury to an individual or loss of can arrogate to himself powers in a manner which is “The concept of public accountability and performance of functions takes in its ambit Public duty and public obligation both are Services Ltd. Vs. State of U.P. 9 “The higher the public office held by a his part.” [See Charanjit Lamba Vs. Army “The holder of every public office holds a trust for public good and therefore his actions should all be above board.” [See Padma Vs which he acts on behalf of the State or public body is ultimately accountable to the people in so vested in him are meant to be exercised for public good and promoting the public interest the country and therefore every act of the holder of a public office irrespective of the label era of transparency previous practices of unwarranted secrecy have no longer a place Accountability and prevention of corruption is possible only through transparency.” [See ICAI Therefore action has to be initiated against the the allotment of the plots to the relatives and or family 9. While quashing the criminal proceedings the High genuineness of the evidence collected during the passed by the High Court quashing the criminal proceedings against the respondents herein ­ original accused Nos. 4 5 and 3 Smt. Pratima Mohanty Shri unsustainable both in law and or facts and the same Criminal Miscellaneous Application No.3177 of 2017 and Criminal Miscellaneous Application No.4804 of 2015 are hereby quashed and set aside in so far as quashing the properties. Allotment of public properties must be matters public interest only has to be the prime guiding best or maximum price so that it may serve the public purpose and public interest so as to avoid loss to the authority and or the public exchequer. The allotment of the persons in power and or the public servants who are dealing with the allotment of plots in the discretionary When a democratic government in exercise of its discretion selects the recipients for its largess then discretion should be exercised objectively rationally intelligibly fairly and in a non­arbitrary manner and it should not be subjective and according to the private opinion and or the whims and fancies of the persons in power and or the public servants. Even if guidelines are such discretionary quota and allotments of the public properties plots must be through public auction by and play and non­arbitrariness and should have objective

Appellant has to specify the exact information he wants from the SEBI.: Appellate Authority, SEBI.

The appellate authority under the RTI (Right to Information) Act of the Securities and Exchange Board of India comprising of Mr. Anand Baiwar adjudicated in the matter of Mohan Kumar Gupta v CPIO, SEBI, Mumbai (Appeal No. 4299 of 2021) dealt with an issue in connection with Section 2 (f) of the Right to Information Act, 2005. The appellant, Mr Mohan Kumar Gupta had filed an application via RTI MIS Portal on the 17th of May, 2021 under the Right to Information Act, 2005. The respondent responded to the application by a letter on the 7th of June, 2021, filed by the appellate. After receiving a letter from the respondent on 7th of June, 2021 on his application, the appellate decided to file an appeal on the 9th of June, 2021. In his application, the appellate was seeking the information of trading document like agreement copy of 1. Guru Trade 2. OE Trade 3. Olymp Trade 4. Export Option 5. V option 6. Capital Com 7. T trade etc. The respondent, in response to the query, informed that the same is incomplete and vague. Accordingly, the same cannot be construed as “information”, as defined under section 2(f) of the RTI Act, 2005. The appellant filed the appeal on the grounds of that the information provided was incomplete, misleading or false information. The appellant, in his appeal, queried whether these companies are registered through SEBI or not. The appellant authority noted that the same is vague. Further, it is difficult to ascertain what specific information has been sought by the appellant. For the queries, the appellate authority, Mr Anand Baiwar, made reference to the matter of Hon’ble CIC, in the matter of Shri S. C. Sharma vs. CPIO, Securities and Exchange Board of India (Decision dated August 30, 2012), the Hon’ble CIC held: “Since the Appellant had not clearly stated what exact information he wanted, the CPIO could not have provided any specific information to him. We would like to advise the Appellant that he might like to specify the exact information he wants from the SEBI and prefer a fresh application before the CPIO.” In view of these observations, the appellant authority found that the respondent is not obliged to provide a response where the information sought is vague and not specific. Mr. Baiwar noted that the appellant, in his appeal, queried whether these companies are registered through SEBI or not and found that the request for this particular information was raised by the appellant for the first time in this appeal. As held by the Hon’ble CIC in Harish Prasad Divedi vs. Bharat Petroleum Corporation Limited (decided on January 28, 2014), an information seeker cannot be allowed to expand the scope of his RTI enquiry at appeal stage.

Appeal No. 42921 BEFORE THE APPELLATE AUTHORITY Under the Right to Information Act 2005) SECURITIES AND EXCHANGE BOARD OF INDIA Appeal No. 42921 Mohan Kumar Gupta CPIO SEBI Mumbai The appellant had filed an application dated May 17 2021under the Right to Information Act 2005 of the RTI Act 2005. 4. Ground of appeal The appellant has filed the appeal on the ground that incomplete misleading or false information was provided. The appellant in his appeal queried whether these companies are registered through SEBI or not. 5. Upon a perusal of the query I note that the same is vague. Further it is difficult to ascertain what specific information has been sought by the appellant. I am inclined to agree with the observation of the respondent that the request for information made therein was vague and not specific and the same cannot be construed as seeking “information” as defined under section 2(f) of the RTI Act. In this context I note that in the matter of Shri S. C. Sharma vs. CPIO Securities and Exchange Board of India Decision dated August 30 2012) the Hon’ble CIC held: “Since the Appellant had not clearly stated what exact Appeal No. 42921 information he wanted the CPIO could not have provided any specific information to him. We would like to advise the Appellant that he might like to specify the exact information he wants from the SEBI and prefer a fresh application before the CPIO.” In view of these observations I find that the respondent is not obliged to provide a response where the information sought is vague and not specific. I note that the appellant in his appeal queried whether these companies are registered through SEBI or not. I find that the request for this particular information was raised by the appellant for the first time in this appeal. As held by the Hon’ble CIC in Harish Prasad Divedi vs. Bharat Petroleum Corporation Limited decided on January 28 2014) an information seeker cannot be allowed to expand the scope of his RTI enquiry at appeal stage. In view of the above observations I find that there is no need to interfere with the decision of the respondent. The Appeal is accordingly dismissed. Place: Mumbai Date: July 08 2021 ANAND BAIWAR APPELLATE AUTHORITY UNDER THE RTI ACT SECURITIES AND EXCHANGE BOARD OF INDIA

Additional Sessions Judge to prepare synopsis after reading Supreme Court judgments on Anticipatory Bail as he failed to exercise jurisdiction: Punjab & Haryana High Court

Additional Session Judge was ordered by the High Court to read 10 landmark judgment of the Supreme Court of India on Anticipatory Bail covered under Section 438 of the Code of Criminal Procedure and to submit a written synopsis on the same. The High Court passed the order after observing that the Judge wrongly dismissed the application for anticipatory bail. The Punjab and Haryana High Court presided over by J. A.S. Sangwan laid down this ratio in the case of Amarjit Singh & Ors. Vs. State of Punjab & Anr., [CRM No. 31214 of 2020] The brief facts of this case are that one Haardeep Singh son of Nagendra Singh was arrested by the Petitioners in the year 2005 under the NDPS Act. When he was being taken to the Magistrate for a hearing he escaped and there was no information regarding his physical being. After, sometime the father of the accused i.e. Nagendra Singh filed a habeas corpus petition contending that his son was illegally held by the Police. Later on, there was a body found in a pond which was alleged to be of Hardeep and Nagendra accused the police for murder of his son. A report was filed by the Police stating that the body was not of Hardeep and the High Court directed the Sessions Court to further investigate on this matter. The Sessions Court confirmed on the report that the body found was of Haardeep and hence an order was passed to close the Habeas Corpus proceedings and register an FIR in this case. Meanwhile, a report by the Special Investigating officer was filed which stated that the body was not of Haardeep and that he had escaped while he was being taken to the court. Hence, a cancellation petition was filed before the trial court in the year 2011. Nagendra opposed this petition and filed a protest petition in the year 2012. The Court considered this petition as a criminal complaint and recorded statements of all the parties in the case. Later the court issued summons for the case proceedings to the three petitioners and in the year 2019 non-bailable warrants were issued by the Magistrate against the three Petitioners. The Petitioners contended that Haardeep Singh was alive and in custody of the Police for the crimes committed under the NDPS Act. The Police Commissioner verified the same. An anticipatory bail application was filed by the Petitioners on the grounds that a fraud was played on the courts and Criminal Complaint was filed against the three petitioners whereas the son of the Complainant i.e. Haardeep was alive and the complainant had the knowledge about the same. The Additional Session Judge proceeded to dismiss the anticipatory bail application. The Magistrate court then dismissed the application moved before the it to dispose of the protest petition, stating that it did not possess the power to dispose of the application since cognizance had already been taken and accordingly the matter would have to be tried by a court of higher jurisdiction. The High Court was of the opinion that, “The Magistrate, while dismissing the application vide impugned order dated 02.12.2020 even again issued Non-bailable Warrants against the petitioners. This part of the order is also illegal as in view of provision of Section 87 of Cr.P.C., the Magistrate can withdraw Warrants as per the information supplied and also in view that the petitioners through counsel had already appeared. The proper course was to direct the counsel for the petitioners to furnish bail/surety bonds as they intended to appear before the Magistrate, but for dismissal of anticipatory bail by the Additional Sessions Judge, they apprehended arrest for no fault.”

on 21 01 CASE HEARD THROUGH VIDEO CONFERENCINGCRM M No.4050191IN THE HIGH COURT OF PUNJAB AND HARYANA ATCHANDIGARHCRM No.312120 IN ANDCRM M No.405019are taken on recordsubject to all just exceptions. on 21 01 CASE HEARD THROUGH VIDEO CONFERENCINGCRM M No.4050192CRM M No.405019isnot buried by the Courts below. This is the state of affairs that despite the National JudicialAcademy as well as the Chandigarh Judicial Academy holdingseminars and imparting training to the Sessions Judges or theMagistrates that judicial consciousness demand real and substantivejustice and there is nothing illegal in the judicial system if inexceptional case a Court in quest of truth and justice passes an orderacknowledging the constitutional right of a citizen the AdditionalSessions Judge I Ludhiana and Judicial Magistrate Ist Class Ludhiana have failed to exercise jurisdiction vested with them.The constitutional vision of imparting justice by theDistrict Judiciary also encourages the Courts to be an instrument toestablish a welfare state based on an equal justice to all as Article 21 ofthe Constitution of India provides that the right to life and personalliberty cannot be taken away except by procedure established by lawwhich should be just fair and reasonable. Similarly Article 38 of theConstitution of India provides that the state should strive to promote thewelfare of people by securing and protecting as effectively as it may bea social order in which justice social economic and political shall beensured. Even Article 39 A of the Constitution of India provides equaljustice and free legal aid and commands the State to secure theoperation of legal system to promote justice based on an equal on 21 01 CASE HEARD THROUGH VIDEO CONFERENCINGCRM M No.4050193opportunity.Brief facts of the case are that the petitionerswere posted in Police Station Dehlon DistrictLudhiana and had arrested one Hardeep Singh @ Raju son ofNagender Singhin FIRNo.139 dated 25.08.2005 registered under Sections 15 and 25 of theNarcotic Drugs and Psychotropic Substances Act 1985to get an enquiryconducted and submit a report. “The Additional Inspector General ofPolicegave a report that the dead body recovered from thepond was not of the son of the complainant and he was alive and was on 21 01 CASE HEARD THROUGH VIDEO CONFERENCINGCRM M No.4050194in regular touch with the complainant father.” Thereafter this Courtdirected the Sessions Judge Ludhiana to hold an enquiry and submit areport about the whereabouts of the son of the complainant. TheSessions Judge submitted an enquiry report on 31.08.2008 holdingthat the son of the complainant was eliminated by the police while incustody. In view of the said report the aforesaid CRWP No.448 of2005 was disposed of on 21.05.2010 with a direction to register an FIRagainst the accused and thus FIR No.115 dated 21.08.2010 wasregistered under Sections 302 and 201 IPC at Police Station Dehlon District Ludhiana. During the investigation of the FIR an S.I.T. wasconstituted which again submitted a report that the son of thecomplainant was alive as no evidence has come against the accusedpersons and in fact Hardeep Singh @ Raju had escaped from the policecustody. On the basis of the report a cancellation report dated31.10.2011 was filed before the Illaqa Magistrate. The complainant thereafter filed a protest petition on 21.01.2012.The Illaqa Magistrate Judicial Magistrate Ist Class treatedthe protest petition as a criminal complaint and recorded the statementof CW 1 Satpal Singh CW 2 Gurdial Singh CW 3 Dr. Rohit K. Singlaand CW 4 Naginder Singh5challenging the aforesaid summoning order which was however dismissed primarily on the ground that the case is still at thepreliminary stage.Counsel for the petitioners has referred to the said orderdated 09.05.2018 to submit that the primary challenge in the saidpetition was that the impugned summoning order is a non speakingorder.Counsel for the petitioners further submitted that in themeantime the Illaqa Magistrate issued Non bailable Warrants againstthe petitioners and on 02.09.2019 the petitioners through their counselmoved an application before the trial Court that in fact Hardeep Singh(claimed to be deceased son of the complainant) was in fact alive andhe was declared proclaimed offender in the aforesaid FIR No.140 dated25.08.2005 and now he has been arrested and he is in judicial custody.Thereafter the case was adjourned.In the meantime the petitioners have filed the presentpetition in which while issuing notice of motion the following orderwas passed: “Challenge in this petition is to the summoningorder dated 07.12.2017 vide which the petitioners havebeen summoned as an accused in a protestpetition complaint filed by respondent No.2 NaginderSingh after the police submitted a cancellation report inFIR No.115 dated 21.08.2010 under Sections 302 and 201IPC Police Station Dehlon District Ludhiana.Counsel for the petitioners has submitted that infact the son of the complainant was an accused in a case on 21 01 CASE HEARD THROUGH VIDEO CONFERENCINGCRM M No.4050196registered under the NDPS Act and in the year 2005 heescaped from the police custody and later on 17.09.2005 a dead body was recovered by the police and on thatpretext an enquiry was conducted and it was found thatthe dead body is not the son of the petitioner namelyHardeep Singh @ Raju. It is further submitted that thecomplainant then filed a petition before this Court inwhich on 21.05.2010 a direction was issued to conduct anenquiry and the aforesaid FIR No.115 was registered on21.08.2010 thereafter.Counsel for the petitioners has further submittedthat again the matter was enquired into and a cancellationreport was filed in which respondent No.2 has filed aprotest petition and in the said petition the impugnedsummoning order has been passed. Counsel for thepetitioners has relied upon a DDR No.2 dated 30.08.2019registered in Police Station Dehlon Ludhiana accordingto which the accused Hardeep Singh @ Raju @ Doctor son of Naginder Singh resident of village Rangia PoliceStation Dehlon Ludhiana who was declared asproclaimed offender on 24.08.2010 was arrested by ASIJanak Raj CIA Staff Jagraon and was taken in custodyin FIR No.1405 which according to counsel forthe petitioners was registered under the NDPS Act.Counsel for the petitioners has thus argued that theimpugned summoning order which has been passed on thecomplaint given by Naginder Singh that his son HardeepSingh @ Raju has been murdered by the accusedperson petitioner is in fact alive and was arrested in theaforesaid FIR No.1405 by the police of PoliceStation Dehlon on 30.08.2019.”In pursuance thereof the Commissioner of Police Ludhiana filed an affidavit stating that Hardeep Singh @ Raju son of on 21 01 CASE HEARD THROUGH VIDEO CONFERENCINGCRM M No.4050197the complainant Naginder Singh is the same person who was allegedlymurdered in FIR No.115 dated 21.08.2010. Thereafter on 30.09.2019 the following order was passed: “In pursuance of order dated 23.9.2019 affidavitof Commissioner of Police Ludhiana filed in the Courttoday and as per the same Hardeep Singh @ Raju son ofNaginder Singh respondent No.2 is the same person who was allegedly murdered in FIR No. 115 dated21.8.2010. During enquiry the police also recorded thestatement of Parminder Singh Ex Sarpanch and oneSikander Singh @ Shinda. It is further stated that onverification from the SHO Police Station Dehlon Ludhiana it is found that aforesaid Hardeep Singh @Raju @ Doctor was earlier declared a proclaimedoffender in FIR No. 139 dated 25.8.2005 under Sections15 and 25 of the NDPS Act FIR No.140 dated 25.8.2005 under Sections 212 216 224 120 B IPC and FIR No.88dated 26.8.2006 under Sections 420 467 468 471 120 BIPC8compensation of Rs.Two lacs. Adjourned to 29.10.2019. In view of the same the Station House Officer Police Station Dehlon District Ludhiana is directed toproduce respondent No.2 Naginder Singh on the next dateof hearing who will explain why the amount of Rs.Twolacs received by him be not recovered and deposited backwith the State government. However it will be open for the trial Court todispose of the protest petition in view of the fact thatHardeep Singh @ Raju son of Naginder Singh is alive.” In the meantime the complainant appeared throughcounsel and sought time to file reply on the point that since thecomplainant on the ground that his son has been murdered wasgranted an ex gratia amount of Rs.2.00 lacs and the same be recoveredfrom him.Counsel for the petitioners has further submitted thatnoticing that the Magistrate has issued Non bailable Warrants againstthe petitioners all the petitioners moved application under Section 438Cr.P.C. for grant of anticipatory bail in view of the fact that HardeepSingh @ Raju is alive however the Additional Sessions Judge failedto exercise his jurisdiction and dismissed the application on22.07.2020 by passing the following order: “7. At this stage learned Additional PublicProsecutor for the State submitted that when the protestpetition is yet to be disposed of in the light of the orders ofthe Hon ble High Court as submitted above the applicantis not having any ground to seek the grant of concession ofanticipatory bail. on 21 01 CASE HEARD THROUGH VIDEO CONFERENCINGCRM M No.40501998. After having gone through the record of the caseand in view of the submissions made on behalf of theapplicant as well as State the application having beenmoved by the applicant seeking the grant of concession ofanticipatory bail at this stage is disposed of with theobservation that the applicant through his counsel mayapproach the concerned Court for disposal of the protestpetition as directed by the Hon ble High Court in CRM M 405019 vide order dated 30.09.2019 and there afterthe applicant is at liberty to avail the remedy if so advisedaccordingly in the light of the order to be passed by theconcerned Court regarding disposal of protest petition.Learned Lower Court record be returned along with acopy of this order and file be consigned to the recordroom.”The petitioners have now moved present application formodification of the order dated 30.09.2019 on the ground that even theIllaqa Magistrate Judicial Magistrate Ist Class vide order dated02.12.2020 has refused to dispose of the protest petition by passing thefollowing order: “In these circumstances counsel Shri AmitAgnihotri is requesting for disposal of the case. Thoughcounsel is requesting for disposal of the case in view oforder of Hon’ble High Court and learned Sessions Courtbut the same cannot be done by undersigned due tofollowing reasons: 1) Predecessor of undersigned already tookcognizance of this case when he passed thesummoning order dated 07.12.2017. After passingof the summoning order if offences are triable bythe court of Sessionsthiscourt only has to procure presence of accused andto commit the case. Except this no power to do 1 on 21 01 CASE HEARD THROUGH VIDEO CONFERENCINGCRM M No.40501910anything else remains with the undersigned. It isalso worth mentioning here that there is noprovision of review given to judicial magistrate inCr.P.C. Meaning thereby the stage at whichanything can be done by a judicial magistrate hasalready passed.2) Secondly vide said order accused weresummoned under section 302 201 read with section34 of the IPC. Offence under section 302 of I.P.C isexclusively triable by the court of Sessions andcourt of Sessions is trial court in this case. This facthas to be read in the light of order dated 30.09.2019passed by the Hon’ble High Court. Vide said order it is ordered that it will be open for the trial court todispose of the protest petition in view of the fact thatson of complainant is alive. Now this court is nottrial court as in offence under section 302 of I.P.C accused are triable by the court of Sessions. 6. In view of the aforesaid circumstances no orderqua disposal of protest petition can be passed by theundersigned. Thus request for dispose of the protestpetition is declined accordingly.7. Earlier the case was fixed for procuring presenceof the accused persons through non bailable warrants ofarrest but accused have not put in appearance. So freshnon bailable warrant of arrest of accused be issued for07.01.2021.”Counsel for the petitioners has further argued that to add tothe agony of the petitioners when the application was moved before theMagistrate to dispose of the protest petition even the Magistraterefused to exercise the jurisdiction and dismissed the application.Counsel for the petitioners has further argued that despitethe fact that the person who is alleged to be murdered is alive and is injudicial custody the trial Court failed to appreciate that the Non bailable Warrants need to be withdrawn and it is not a case where 1 on 21 01 CASE HEARD THROUGH VIDEO CONFERENCINGCRM M No.40501911anticipatory bail application could be dismissed by the AdditionalSessions Judge.Counsel for the petitioners has thus submitted that sinceboth the Courts below i.e. the Judicial Magistrate Ist Class as well asthe Additional Sessions Judge I Ludhiana having failed to exercise thejurisdiction vested with them the petitioners are left with no alternativeremedy but to move an application for modification of the order dated30.09.2019 and to decide the main petition on merits.Counsel for the petitioners has further submitted that theAdditional Sessions Judge while passing the order dated 22.07.2020completely ignored that the petitioners are summoned in a protestpetition in an FIRfor thealleged murder of one Hardeep Singh @ Raju who is admittedly aliveand therefore in pursuance of the Non bailable Warrants issued by theIllaqa Magistrate there was no reason for the Additional SessionsJudge not to exercise his jurisdiction vested under Section 438 Cr.P.C.and thus the order of dismissal of the anticipatory bail show that theAdditional Sessions Judge has failed to apply its judicial mind.Counsel for the petitioners has also submitted that theanticipatory bail application was filed as the petitioners intended toappear before the Illaqa Magistrate in pursuance of the summoningorder but later on Non bailable Warrants were again issued. It is furthersubmitted that even the Magistrate in not disposing of the protestpetition has also failed to exercise the jurisdiction.Counsel for the petitioners has further argued that two 1 on 21 01 CASE HEARD THROUGH VIDEO CONFERENCINGCRM M No.40501912reasons given by the Magistrate are not legally correct as it is wronglyobserved that since the predecessor Judge has taken cognizance of thecase while passing the summoning order dated 07.12.2017 theMagistrate cannot dismiss the protest petition though the power underSection 239 Cr.P.C. can be exercised.With regard to Point No.(2) decided by the trial Court thatthe Magistrate not being the trial Court cannot decide the protestpetition it is submitted that there is no bar under the Act to dismiss theprotest petition once it has come to the notice of the Magistrate that thecomplainant by playing fraud with the Court as well as the prosecutingagency and the petitioners have succeeded of getting the summoningorder passed for an offence which has never been committed by thepetitioners.Counsel for the petitioners has further submitted thatjudicial propriety demand that the Magistrate should have passed anorder with judicial consciousness as the law does not expressly prohibitto dismiss the protest petition as fraud is committed by the complainant which vitiates the entire proceedings. Counsel has further submittedthat the Court may not to pass an order which is a mere formality butshould pass an order applying judicial mind and to do substantialjustice in favour of the petitioners who are facing the agony ofunwanted litigation for the last 15 years.Counsel for the petitioners has relied upon certainjudgments to submit that fraud avoids all judicial acts. Reliance isplaced on the judgment “S.P. Chengalvaraya Naidu vs Jagannath” 1 on 21 01 CASE HEARD THROUGH VIDEO CONFERENCINGCRM M No.405019131994SCC 1 wherein the Hon ble Supreme Court has held thatfraud avoids all judicial acts. Counsel for the petitioners has further referred to thejudgment “Meghmala and others vs G. Narasimha Reddy andothers” 2010 SCC383 wherein the following observations havebeen made: “28. From the above it is evident that even injudicial proceedings once a fraud is proved alladvantages gained by playing fraud can be taken away. Insuch an eventuality the questions of non executing of thestatutory remedies or statutory bars like doctrine of resjudicata are not attracted. Suppression of any materialfact document amounts to a fraud on the Court. EveryCourt has an inherent power to recall its own orderobtained by fraud as the order so obtained is non est.”Counsel for the lastly has relied upon the judgment“Vikram Johar vs State of Uttar Pradesh and another” 20191 SCC 568 hadoccasion to consider discharge under Section 227 it washeld by the court that Section 227 was incorporated in theCode with a view to save the accused from prolongedharassment which is a necessary concomitant of aprotracted criminal trial. It is calculated to eliminateharassment to accused persons when the evidentialmaterials gathered after investigation fall short ofminimum legal requirements.”Counsel for the petitioners has also argued that the orderpassed by the Magistrate expressing helplessness is not exhibition of 1 on 21 01 CASE HEARD THROUGH VIDEO CONFERENCINGCRM M No.40501914judicial consciousness.Counsel for the petitioners has further submitted that whiledoing substantive justice in the judicial system a Court should inexceptional cases can pass an order acknowledging the constitutionalrights of an aggrieved party.It is worth noticing that the Hon ble Supreme Court though has held in “Adalat Prasad vs Rooplal Jindal” 7 SCC338 that the Court cannot recall the summoning order but the decisionin Adalat Prasad casecannot be misconstrued to mean thatonce a summoning order has been issued the trial must followespecially in cases where the complainant has played fraud in gettingthe summoning order which vitiates the entire proceedings.Counsel for the petitioners has lastly argued that onaccount of the endless agony of 15 years faced by the petitioners whichhas caused them mental torture financial loss and endless pain andagony the petitioners be awarded suitable compensation. Counsel forthe petitioners has also referred to the judgment of the Hon ble SupremeCourt in “Sube Singh vs State of Haryana” 2006(1) RCRwill not come in the way of the aggrieved person 1 on 21 01 CASE HEARD THROUGH VIDEO CONFERENCINGCRM M No.40501915claiming additional compensation in a civil court inenforcement of the private law remedy in tort nor come inthe way of the criminal court ordering compensationunder section 357 of Code of Civil Procedure.”Counsel for the State on the basis of the affidavit filed bythe Commissioner of Police Ludhiana as well as the cancellationreport has submitted that no fault can be found with the investigation bythe State police as it was found during number of enquiries that the sonof the complainant is alive however the summoning order was passedon the basis of the statement of CW 1 to CW 4 who have deposed infavour of the version of the complainant and the enquiry report ofSessions Judge Ludhiana indicating the petitioners that the son of thecomplainant died in police custody16cancelled however on the basis of the report of the Sessions Judge Ludhiana and the statement of CW 1 Satpal Singh CW 2 Gurdial Singhand CW 4 Naginder singh the Magistrate has summoned the petitionerstreating protest petition as complaint under Section 190 Cr.P.C. inexercise of power under Section 204 Cr.P.C. for the purpose ofcommitting them to the Court of Sessions under Section 209 Cr.P.C.Though the trial Court has rightly observed that once thecognizance has been taken the Court cannot recall the summoningorder however it has ignored the fact that the application was movedby the petitioners to dismiss the protest petition in view of the fact thatthe summoning order was procured by the complainant by playing fraudwith the Court as the son of the complainant is alive and therefore nothing precluded the trial Court to dismiss the protest petition.Further observation made by the Magistrate that since theoffences were triable by the Court of Magistrate Court of Sessions though are correct but the Magistrate in exercise of power underSection 239 Cr.P.C. in order to prevent any injustice to the petitionerscould have allowed the application and discharge them by dismissingthe protest petition.The Magistrate while dismissing the application videimpugned order dated 02.12.2020 even again issued Non bailableWarrants against the petitioners. This part of the order is also illegal asin view of provision of Section 87 of Cr.P.C. the Magistrate canwithdraw Warrants as per the information supplied and also in view thatthe petitioners through counsel had already appeared. The proper 1 on 21 01 CASE HEARD THROUGH VIDEO CONFERENCINGCRM M No.40501917course was to direct the counsel for the petitioners to furnish bail suretybonds as they intended to appear before the Magistrate but fordismissal of anticipatory bail by the Additional Sessions Judge theyapprehended arrest for no fault.However the Additional Sessions Judge having failed toexercise the jurisdiction under Section 438 Cr.P.C. in dismissing theanticipatory bail application of the petitioners despite the fact that itwas brought to his notice that they are being prosecuted in pursuance toa fraud committed by the complainant has passed a totally illegal order.Accordingly this petition is allowed the protest petitiondated 20.01.2012 filed in case No.45 dated 21.11.2011 under Sections302 201 IPC read with Section 34 IPC as well as the impugnedsummoning order dated 07.12.2017 passed by the Judicial MagistrateIst Class Ludhiana and the order dated 02.12.2020 passed by theJudicial Magistrate Ist Class Ludhiana refusing to dismiss the protestpetition are set aside and the petitioners are discharge in FIR No.115dated 21.08.2010 registered under Sections 302 201 34 IPC at PoliceStation Dehlon Ludhiana District Ludhiana.Considering the fact that the petitioners are subjected tounwanted and unnecessary criminal prosecution for a period of last 15years it is directed that the State Legal Services Authority Punjabthrough District Legal Services Authority Ludhiana will pay the costsof Rs.50 000 each to all the 03 present petitioners namely AmarjitSingh Jaswant Singh and Kabal Singh within a period of 04 monthsfrom today. 1 on 21 01 CASE HEARD THROUGH VIDEO CONFERENCINGCRM M No.40501918It will be open for the prosecution to initiate theproceedings under Section 340 Cr.P.C. against CW 1 Satpal Singh CW 2 Gurdial Singh and CW 4 Naginder Singh i.e. the complainant.It will also be open for the prosecution to recover theamount of Rs.2.00 lacs from the complainant namely Naginder Singh orhis legal representatives and to recover the costs of Rs.50 000 eachfrom CW 1 Satpal Singh CW 2 Gurdial Singh and CW 4 NaginderSingh or their LRs after paying the same to the petitioners.Considering the fact that the Additional Sessions Judge has failed to exercise its jurisdiction it is directed that he will gothrough at least 10 judgments of the Hon ble Supreme Court includingthe 02 Constitutional Bench Judgments i.e. “Gurbaksh Singh Sibbia vsState of Punjab” 1980AIR 1632 and “Sushila Aggarwal vsStateRCR833 wherein theHon ble Supreme Court has interpreted the provisions of Section 438Cr.P.C.The Additional Sessions Judge I Ludhiana will submit thewritten synopsis on the exercise of jurisdiction by a Judge underSection 438 Cr.P.C. after going through the judgments within a periodof 30 days to the Director Chandigarh Judicial Academy.Disposed of. JUDGE12.01.2021yakubWhether speaking reasonedYes NoWhether reportable:Yes No

If the Magistrate has dismissed the complaint without giving reasons, the error is of a kind that goes to the root of the matter: Orissa High Court

If the Magistrate has rejected the case for no cause, the mistake is a kind that is at the bottom of the situation. Without the justifications, the order would become null. The complainant has the right to know why a revisional court approach has rejected his case. His right to seek the revisionary tribunal is prejudiced by his ignorance of the grounds. The judgment was passed by The High Court of Orissa in the case of Lalit Mohan Patnaik V. Sadasiba Mohapatra and Ors. [CA No. 52 of 1993] by a Single Bench consisting of Hon’ble Shri Justice S.K. Sahoo. This appeal has been filed by the appellant challenging the impugned order passed by the learned S.D.J.M., in refusing to take cognizance of the offences under sections 143, 382, 451, 504, 395 read with 2 sections 109 of the Indian Penal Code and also in dismissing the complaint petition. The appellant applied section 378(4) of Cr.P.C. seeking for special leave to prefer an appeal against the order and special leave was granted as per order, whereafter this appeal was preferred which was admitted. It is the case of the appellant that the respondents had no right or authority to enter inside his house and to forcibly remove all the valuable properties in his absence. It is the further case of the appellant that he had not incurred any loan from the co-operative societies nor he was a defaulter nor any certificate proceeding or E.P. case had been initiated against him for recovery of any outstanding loan amount. Hence, the forcible and wrongful entry of the respondents inside his house and forcibly removing all his valuables as per the list keeping his sister’s son under wrongful restraint and fear of assault is highly illegal and done with mala fide intention to make personal gains of the respondents. The learned court referred to M/s. Rourkela Construction Private Ltd. V. Ravindra Kumar Goyal wherein it was held that “under section 203 of the Cr.P.C., the Magistrate gets jurisdiction to dismiss a complaint if on perusal of the complaint and the evidence recorded U/s. 202, he finds that the essential ingredients of the offence alleged are absent or that the dispute is only civil or that there are such patent absurdities in the complaint or the evidence that it would be a wastage of time to proceed further.”

IN THE HIGH COURT OF ORISSA CUTTACK CRIMINAL APPEAL No. 593 From the order dated 13.09.1984 passed by S.D.J.M. Khurda in 1.C.C. Case No.784. Lalit Mohan Patnaik Versus Sadasiba Mohapatra and others For Appellant: For Respondents: For State of Odisha Mr. Dipak Ranjan Parida Addl. Standing Counsel P R E S E N T: THE HONOURABLE MR. JUSTICE S.K. SAHOO S. K. Sahoo J. The matter is taken up through Video Conferencing. This appeal has been filed by the appellant Lalit Mohan Patnaik challenging the order dated 13.09.1984 passed by the learned S.D.J.M. Khurda in 1.C.C. Case No.74 of 1984 in refusing to take cognizance of the offences under sections 143 382 451 504 395 read with section 109 of the Indian Penal Code and also in dismissing the complaint petition. The appellant filed an application under section 378(4) of Cr.P.C. seeking for special leave to prefer an appeal against the aforesaid impugned order dated 13.09.1984 vide Criminal Misc. Case No.796 of 1984 and special leave was granted as per order dated 18.01.1993 whereafter this appeal was preferred which was admitted on 11.03.1993. None appears on behalf of the appellant so also on behalf of the respondents. Mr. Dipak Ranjan Parida learned Additional Standing Counsel in absence of the learned counsel for the appellant as well as learned counsel for the respondents placed the complaint petition the statements of the witnesses and the impugned On perusal of the order sheet of this Court dated 11.10.1993 and the consequential order dated 05.04.1994 it this appeal has been dismissed as against respondents nos.9 to 12. The appellant Lalit Mohan Patnaik is the complainant in I.C.C. Case No.74 of 1984 which was filed in the Court of learned S.D.J.M. Khurda. In the said complaint petition it is alleged that Satyabadi Pattnaik and Trailokyanath Pattnaik are two brothers and they were separated by metes and bounds since long and their possession was also separately recorded in the C.S. R.O.R. The residential rooms of the appellant in village Anda were in his exclusive physical possession where all the properties given in the schedule of the complaint petition were kept under his possession. The appellant was serving as an Art Instructor under the State Institute for Rural Development at Bhubaneswar and was staying at Bhubaneswar with his wife whereas his mother and sister’s son Atulya Kumar Patnaik were residing in the village house. On 06.06.1984 the appellant got information that the respondents entered inside his house and removed all the movable properties worth of Rs.50 595 from his house by force immediately thereafter he came to the village and ascertained that on 05.06.1984 after sunset the respondents came to his village in three jeeps and got down in front of his house and knocked at his door. When his sister’s son Atulya Kumar Patnaik opened the door the respondents namely Sadasiba Mahapatra Rabindranath Mishra Debidutta Mohanty and Basant Kumar Panda told him that they had come to attach the movable properties from the house of the appellant. Atulya Kumar Patnaik told them that the owner of the house being absent and he is at Bhubaneswar he would not allow the attachment and removal of properties from the house. At this Atulya Kumar Patnaik was forcibly dragged by the respondents to the village road and under their orders respondent Bhagaban Mohanty S.I. of Police kept him under wrongful restraint and confinement through the help of A.P.R. constables whose names were not known to him. Thereafter the respondents nos.1 to 9 along with twenty other persons who were armed with lathis forcibly entered inside the house of the appellant. When the mother of the appellant and others cried out loudly in fear against the illegal action of the accused persons they were abused in filthy language and were threatened with assault and were also driven out of the house. Thereafter the respondents removed all the valuable properties as per the list given in the schedule of the complaint petition by breaking open his trunks which were five in number almirah and locks of the rooms. While removing the articles from the almirah the cups plates and other articles of China clay and glasses were also broken to pieces. They put those articles in a gunny bag and removed the same. The pad locks of the trunks and of the rooms were broken by the accused persons and those were also taken away. The accused persons also removed the papers and documents regarding the landed properties the certificates and five almirah containing photographs besides the properties as given in the list. It is the case of the appellant that the respondents had no right or authority to enter inside his house and to forcibly remove all the valuable properties in his absence. When on hearing the alarm raised by the mother of the appellant and Atulya Kumar Patnaik the villagers gathered near his house and asked the reason for such highhanded action of the respondents they were scared away by A.P.R. forces and threatened to be assaulted. The respondents namely Sadasiba Mohapatra Chandrasekhar Tripathy Debudutta Mohanty and some others told them that since the appellant defaulted in making payment of the dues of the co operative societies his properties were being attached for satisfaction of the loan dues. It is the further case of the appellant that he had not incurred any loan from the co operative societies nor he was a defaulter nor any certificate proceeding or E.P. case had been initiated against him for recovery of any outstanding loan amount. Hence forcible and wrongful entry of the respondents inside his house and forcibly removing all his valuables as per the list keeping his sister’s son under wrongful restraint and fear of assault is highly illegal and done with malafide intention to make personal gains of the respondents. On getting information the appellant came to the village on the next day in the afternoon and ascertained the facts from the inmates of his house and other villagers and went to Khurda police station on 07.06.1984 to lodge the F.I.R. but the officer in charge of the police station did not accept the F.I.R. and therefore the appellant sent the copies of the F.I.R. to the Superintendent of Police Puri Collector Puri Registrar and Deputy Registrar of the Co operative Societies Bhubaneswar and Puri respectively and the Director General of Police Orissa Cuttack and other public authorities for redressal of his grievance and for return of his articles by registered post. Since no action was taken he filed the complaint petition. After filing of the complaint petition the initial statement of the complainant was recorded and contemplated under section 202 of Cr.P.C. was conducted and during course of which complainant examined five witnesses namely P.W.1 Minaketan Misra P.W.2 Indrajit Baral P.W.3 Atulya Kr. Patnaik who is the nephew of the appellant P.W.4 Rajkishore Baliarsingh and P.W.5 Natabar Das. After the conclusion of the inquiry learned S.D.J.M. passed the impugned order which is as follows: “Perused the complaint petition initial statement and statement of four witnesses examined on behalf of the complainant under section 202 Cr.P.C. The complaint petition as well as the initial statement of the complainant Lalit Mohan Patnaik reveals that on the alleged date and time of occurrence while he was at the place of his service at Bhubaneswar and his own mother and nephew Atulya Kumar Patnaik were present in his house accused persons came to his house informed his nephew to remove his movables in connection with an Execution Case. The same was objected by Atulya but the accused persons being armed with lathis forcibly entered inside his house and removed different articles which according to him the accused persons committed dacoity in his house. The statement of P.W.1 reveals that in his the accused persons removed movables from the house of the complainant in his absence. According to him the accused persons had nothing in their hands and they the properties of the complainant without applying force and causing hurt to his family members. The version of P.W.2 supports the case of the complainant but according to him the accused persons were armed with lathis forcibly removed the movables of the complainant. His evidence also reveals that the accused persons neither threatened the mother nephew nor assaulted them. He has also stated that he has not seen any Bank employees Magistrate and A.P.R. force committing dacoity in the house of an innocent person. P.W.3 the nephew of the complainant has supported the version of the complainant in toto. According to him the accused persons committed dacoity in the house of the complainant. Similarly P.W.4 has supported the case of the complainant and has stated that the accused persons committed dacoity in the house of the complainant but has stated that he has not seen any dacoity in the evening in presence of Magistrate Police Officers and A.P.R. force. Therefore such statement of prosecution witnesses and the facts stated in the complaint petition no human being in this world can conceive for a moment that the responsible Bank officers can commit dacoity in the evening in presence of villagers of Anda in presence of one Magistrate one Police Officer and A.P.R. force. Besides that the complaint petition as well as the statement of the complainant reveals that the alleged occurrence took place on 05.06.1984 but the complainant has come to the Court for redress only on 26.06.1984. The complainant has stated in his initial statement that on the next day morning he went to the police but police refused to accept his F.I.R. No doubt if police had refused to accept his F.I.R. certainly the complainant should have come to Court for redress immediately on the same day or at least on 7th of June. But coming to Court after a long lapse of 21 days was enough the complainant to concoct a story of this nature against responsible Bank Officer as well as the responsible Government servants like that of accused nos.10 11 and 13. The sum total of my above discussion does not inspire any confidence in my mind that any offence has been committed by the accused persons under Indian Penal Code. In the worst the statement of the witnesses complainant reveals that accused nos.10 11 and the A.P.R. force were at the spot being government servants in discharging of their legal duties. As such sanction to prosecute them is necessary from the State Government and as no sanction has been obtained from the State Government by the complainant the present complaint is also not maintainable. Summing up the sum total of the facts and law involved in this case I find that there is no material before me to take cognizance against the accused persons and as such the petition for complaint stands dismissed.” Section 203 of Cr.P.C. deals with the dismissal of the complaint in which it is stated that if after considering the statements on oath of the complainant and of the witnesses and the result of the inquiry or investigation under section 202 of Cr.P.C. the Magistrate is of opinion that there is no sufficient ground for proceeding he shall dismiss the complaint and in every such case he shall briefly record his reasons for so doing. A Magistrate may dismiss the complaint under section 203 of Cr.P.C. on three grounds. In the first place if he upon the statements made by the complainant and his witnesses reduced to writing under section 200 of Cr.P.C. finds that no offence has been committed in the second place if he distrusts the complainant and his witnesses’ statements and in the third place if he conducts an inquiry or direct for investigation under section 202 of Cr.P.C. and considering the result of the inquiry or investigation coupled with the statements of the complainant and his witnesses he is not satisfied that there is sufficient ground for proceeding against the accused the Magistrate may dismiss the complaint. The words “sufficient ground” used in section 203 of Cr.P.C. mean the satisfaction of the Magistrate that a prima facie case is made out against the person sought to be summoned as accused. It does not mean sufficient ground the purpose of conviction. The determination of sufficient ground for conviction or acquittal comes only at the end of the trial and not when Court considers whether process is to be issued or the complaint petition is to be dismissed. Section 203 of Cr.P.C. is not a regular stage for adjudicating the truth but where existence of prima facie case is to be looked into. The test to be applied by the Court is as to whether the uncontroverted allegations as made prima facie establish the offence. It is also for the Court to take into consideration any special features which appear in a particular case to consider whether it is expedient and in the interest of justice to permit a prosecution to continue. The Court cannot be utilized for any oblique purpose. That is the reason why the Court has been given ample power to dismiss the complaint petition at the threshold if it finds lack of sufficient ground for In section 203 of Cr.P.C. the phrase ‘if any’ is included within brackets. The reason is that when the public servant acting or purporting to act in the discharge of his official duties or a Court makes the complaint in writing there may not be statements of the complainant and the witnesses on oath in view of the proviso to section 200 of Cr.P.C. but only the statements on the complaint. In such cases there may not also be any inquiry or investigation under section 202 of Cr.P.C. Similarly a Magistrate is not bound to examine the witnesses cited by the complainant in his complaint petition. The inquiry or investigation under section 202 of Cr.P.C. is discretionary one and it can be so conducted or directed if the Magistrate thinks fit to postpone the issue of process. The Magistrate can dismiss the complaint under section 203 of Cr.P.C. inter alia on any of the following grounds: a) Where the allegations made in the complaint or the statements of the witnesses recorded in support of the same taken at their face value make out absolutely no case against the accused The complaint does not disclose the essential ingredients of an offence which is alleged against the accused c) Where the allegations made in the complaint are patently absurd and inherently improbable so that no prudent person can come to the conclusion that there is sufficient ground for proceeding against the accused effects and d) Where the complaint suffers from fundamental illegal e) Where the complaint is not by competent authority only empowered to make a complaint. Ref: Vol.74 Cuttack Law Times 136 Chudamani Sahoo Vrs. Bhojaraj Behera) In case of M s. Rourkela Construction Private Ltd. Vrs. Ravindra Kumar Goyal reported in 341 State of Punjab Vrs. Bhag Singh). In case of Chandra Deo Singh Vrs. Prokash Chandra Bose reported in A.I.R. 1963 S.C. 1430 it is held that if the Magistrate has dismissed the complaint without giving reasons the error is of a kind which goes to the root of the matter. Absence of the reasons would make the order a nullity. The complainant is entitled to know why his complaint has been dismissed with a view to consider an approach to a revisional Court. Being kept in ignorance of the reasons clearly prejudices his right to move the revisional Court. Section 203 Cr.P.C. consists of two parts the first part lays down the materials which the Magistrate must consider and the second part states that if after considering those materials there is no sufficient ground for proceeding the Magistrate may dismiss the complaint. While exercising such power under section 203 of the Code it is incumbent upon the Magistrate to reflect in his order the basis for arriving at the conclusion that there are no sufficient grounds to proceed with the complaint case. While arriving at his judgment the Magistrate is not fettered in any way except by judicial considerations. He is not bound to accept what the inquiring officer says nor is he precluded from accepting a plea provided always that there are satisfactory and reliable material on which he can base his judgment as to whether there is sufficient ground for proceeding on the complaint or not. If the Magistrate has not misdirected himself as to the scope of inquiry under section 202 of Cr.P.C. and has applied his mind judicially to the materials on record it would be erroneous in law to hold that he should not consider or discuss the materials available and the statements recorded. A Magistrate is empowered to hold an inquiry into a complaint as to commission of certain offence in order to ascertain whether there was sufficient foundation for it to issue process against the person or persons complained against and such order under Section 203 Cr.P.C. should be a speaking one. In other words when a Magistrate intends to dismiss a complaint petition he has to give reasons.Orissa Law Reviews 234 Dhruba Charan Behera Vrs. State of Orissa). In view of the law laid down and after carefully going through the impugned order and the materials available on record I do not find any illegality or irregularity or perversity in the order. Moreover a revision petition is maintainable against an order dismissing the compliant under section 203 of Cr.P.C. Special leave to prefer an appeal is sought for under section 378(4) of Cr.P.C. against an order of acquittal in any case instituted upon a complaint and dismissal of a complaint is not an acquittal as per explanation provided under section 300 of The dismissal of complaint by the Magistrate under section 203 of Cr.P.C. although it is at preliminary stage nevertheless results in termination of proceedings in a complaint against the persons who are alleged to have committed crime. Once a challenge is laid to such order at the instance of a complainant in a revision petition before the High Court or Sessions Judge by virtue of section 401 of the Code the suspects get right of hearing before revisional Court although such order was passed without their participation. The right given to “accused” or “the other person” under section 401of being heard before the revisional Court to defend an order which operates in his favour should not be confused with the proceedings before a Magistrate under sections 200 202 203 and 204. In the revision petition before the High Court or the Sessions Judge at the instance of complainant challenging the order of dismissal of complaint one of the things that could happen is reversal of the order of the Magistrate and revival of the complaint. It is in this view of the matter that the accused or other person cannot be deprived of hearing on the face of express provision contained in section 401 of the Code. The stage is not important whether it is pre process stage or post process stage. In other words where complaint has been dismissed by the Magistrate under Section 203 of the Code upon challenge to the legality of the said order being laid by the complainant in a revision petition before the High Court or the Sessions Judge the persons who are arraigned as accused in the complaint have a right to be heard in such revision petition. This is a plain requirement of Section 401of the Code. For the reasons afore stated I am not inclined to interfere with the impugned order. Accordingly the Criminal Appeal stands dismissed. Orissa High Court Cuttack The 7th January 2021 RKM S.K. Sahoo J.

No second FIR and no new investigation for the same cognizable offence: The High Court of Delhi

In a suit filed under the purview of the Prevention of Damage to Public Property Act, 1984, the Delhi High Court held that the court shall not entertain any second FIR or any form of another investigation for the same offence. The above was ordained in the case of ATIR v. State of NCT Delhi [CRL.M.C. 1197/2021 & CRL.M.A. 6104/2021] which was presided by a single judge bench of Justice Subramonium Prasad on September 1st 2021. The facts of the above cases are perplexing due to the obscurity highlighted by multiple FIRs of the same facts. The complainant came back home to his house in the evening, after work, and found his house on Arson. The house was located in Maujpur Area, Delhi. Furthermore, it was also claimed that a Fire Brigade was called to the site to put the fire off. In the same FIR, he also claimed that he bore a loss of 7-10 lakhs of rupees. To his astonishment, the perpetrator of the offence was unknown. In furtherance to the above FIR, the complainant filed multiple FIRs bearing same facts. Only changes were of the value of the things that were compromised as the result of the arson. While the case being heard, many landmark judgments of T.T. Antony v. State of Kerela [2001 6 SCC 181], Babubhai v. State of Gujarat [(2010) 12 SCC 254], Anju Chaudhary v. State of U.P. [(2013) 6 SCC 384] were quoted in order to put emphasis on the pertinent case. The court, after perusal of facts and evidence, held that “The law on the subject has been settled keeping in line with the principles enunciated by the Supreme Court of India. There can be no second FIR and no fresh investigation in respect of the same cognizable offence or same occurrence giving rise to one or more cognizable offences”. In addition to the above, the court related the case with the principle and held that “It, therefore, cannot be said that there are five separate incidents and, therefore, five separate FIRs cannot be registered for the very same incident as it is contrary to the laws laid down by the Supreme Court. It cannot be said that the incidents were separate or the offences are different. As stated earlier, a perusal of the charge-sheets filed in the respective FIRs show that they are more or less identical and the accused are also same. However, if there is any material that has been found against the accused the same can be placed on record in FIR No.106/2020 (original petition)”. Click here to view the judgement.

IN THE HIGH COURT OF DELHI AT NEW DELHI Date of decision: 01st September 2021 IN THE MATTER OF: CRL.M.C. 1197 2021 & CRL.M.A. 6104 2021 ATIR Petitioner Through: Ms. Tara Narula Ms. Nupur and Ms. Aparajita Sinha Advocates. STATE OF NCT DELHI Through: Mr. Anuj Handa SPP with Mr. Sarang Shekhar Advocate. Respondents CRL.M.C. 1198 2021 & CRL.M.A. 6106 2021 ATIR Petitioner STATE OF NCT DELHI & ANR. Through: Ms. Tara Narula Ms. Nupur and Ms. Aparajita Sinha Advocates. Through Mr. Anuj Handa SPP with Mr. Sarang Shekhar Advocate. Respondents CRL.M.C. 1230 2021 & CRL.M.A. 6231 2021 ATIR Petitioner Through: Ms. Tara Narula Ms. Nupur and Ms. Aparajita Sinha Advocates. STATE OF NCT DELHI Through: Mr. Anuj Handa SPP with Mr. Sarang Shekhar Advocate. Respondents CRL.M.C. 1233 2021 & CRL.M.A. 6242 2021 ATIR Petitioner CRL.M.C. 1197 2021 & ORS. Ms. Aparajita Sinha Advocates. Through: Ms. Tara Narula Ms. Nupur and STATE OF NCT DELHI HON BLE MR. JUSTICE SUBRAMONIUM PRASAD Through: Mr. Anuj Handa SPP with Mr. SUBRAMONIUM PRASAD J. Respondent Shekhar CRL.M.C. 1197 2021 has been filed for quashing FIR No. 112 2020 dated 02.03.2020 registered at Police Station Jaffrabad for offences under Sections 147 148 149 436 and 34 IPC and Sections 3 4 of the Prevention of Damage to Public Property Act 1984 and subsequent charge sheet dated 07.05.2020 registered as CR Case No. 2039 2020 and committed as SC No.71 2021 and summoning orders dated 08.05.2020 28.10.2020 10.11.2020 19.11.2020 03.12.2020 18.12.2020 12.01.2020 in CR Case No. 2039 2020 and orders dated 10.02.2020 10.03.2021 passed in SC No.71 2021. CRL.M.C. 1198 2021 has been filed for quashing FIR No. 132 2020 dated 05.03.2020 registered at Police Station Jaffrabad for offences under Sections 147 148 149 436 480 and 34 IPC and subsequent charge sheet registered at CR. Cases No.1664 2020 and summoning order dated CRL.M.C. 1230 2021 has been filed for quashing FIR No. 107 2020 dated 01.03.2020 registered at Police Station Jaffrabad for offences under Sections 147 148 149 436 and 34 IPC and subsequent charge sheet dated 07.05.2020 and supplementary Charge sheet dated 02.12.2020 registered as CRL.M.C. 1197 2021 & ORS. CR. Cases No.2949 2020 and committed as SC No.102 2021 and summoning orders dated 08.05.2020 05.10.2020 05.11.2020 18.11.2020 01.12.2020 14.12.2020 24.12.2020 06.01.2021 19.01.2021 02.02.2021 16.02.2021 in CR Cases No. 2949 2020 and orders dated 02.03.2021 and 16.03.2021 passed in SC No.102 2021. CRL.M.C. 1233 2021 has been filed for quashing FIR No. 113 2020 dated 02.03.2020 registered at Police Station Jaffrabad for offences under Sections 147 148 149 436 and 34 IPC and Sections 3 4 of the Prevention of PDPP Act and subsequent charge sheet dated 07.05.2020 registered as CR. Cases No.2043 2020 and committed as SC No.49 2021 and summoning orders dated 08.05.2020 22.05.2020 15.10.2020 18.11.2020 28.11.2020 14.12.2020 24.12.2020 06.01.2021 19.01.2020 in CR Cases No. 2043 2020 and orders dated 02.02.2021 11.02.2021 24.02.2021 and 10.03.2021 passed in SC No.49 2021. The main facts as mentioned in FIR No. 106 2020 is that a complaint of arson in house No. T 209B main road Maujpur Area near Victor Public School Maujpur Delhi. It was stated by the complainant that he reached his house in the evening from work and saw his house was set on fire. It stated that a Fire Brigade bearing number ‘926225’was called to the site and the fire was doused it states the articles in the house valued at Rs.7 10 lakhs rupees was charred in the fire. It stated further that the accused were not known to the complainant. The facts stated in FIR No.107 2020 are that the complainant reached his home T 209B main road Maujpur Area near Victor Public School Maujpur Delhi on the evening of 24.02.2020 and saw that his house was set ablaze it was stated that damage of worth Rs.7 10 Lakhs was caused in the CRL.M.C. 1197 2021 & ORS. fire. It was mentioned that a fire brigade truck bearing No. 926225 was called to douse the fire. It is further stated that the complainant did not know the culprits who were responsible for the arson. FIR No.112 2020 was filed on 02.03.2020 at 2:36 PM at Police Station Jaffarabad. The complainant therein resident of T 210 Main Road Maujpur Near Victor Public School stated that on the morning of 25.02.2020 at 10:00 AM he reached his home and saw his house burning in the fire. The complainant estimated the damage caused as between Rs.8 12 Lakhs. It was also mentioned that the complainant did not know who the mischief makers were who started the fire. FIR No.113 2020 was filed on 02.03.2020 at 2:45 PM at Police Station Jaffarabad. The complainant herein stated that on 25.02.2020 at 10 AM he reached his residence T 209 Main Road Maujpur Near Victor Public School and saw that his house had largely been burnt down and was still burning. He states that fire brigade truck bearing No. 926225 was dousing the fire. It is stated that an estimated loss of Rs.8 12 Lakhs has been caused and he did not know and could not specifically identify the accused who were responsible for the arson. FIR No.132 2020 was filed on 05.03.2020 at 4:20 PM at Police Station Jaffarabad. The complainant who is a fruit seller at Gali No.7 B Block Kardampuri Vistar Delhi North East Delhi he is also a tenant at T 209 Main Road Maujpur near Victor Public School he states that on 25.02.2020 a mob entered his godown and pilfered the stock of fruits amounting to Rs.2 Lakhs along with four batteries and handcarts. It is further stated that the premises was burnt down by the rioting mob. CRL.M.C. 1197 2021 & ORS. 10. Ms. Tara Narula learned counsel appearing for the petitioner contends that all the five FIRs are in respect of one unit i.e. T 209B Main Road Maujpur Near Victor Public School. It was argued by her that FIR Nos.106 2020 107 2020 112 2020 113 2020 have been filed by different members of the same family she submits that the fire brigade which extinguished the inferno was by the same truck bearing unique No. 926225. She further contends that the consecutive FIRs could not have been filed in respect of the same offence and it directly comes in the teeth of the principles laid down in the case of TT Antony V. State of Kerala 2001 6 SCC 181 which states that more than one FIR cannot be registered for one offence. 11. Per Contra Mr. Anuj Handa learned SPP appearing for the State submits at the very outset that this petition is ill conceived and deserves a summary dismissal. He further submits that all the five FIRs 106 2020 107 2020 112 2020 113 2020 and 132 2020 have been filed in respect of distinct properties and the subject matter of each of the FIRs is different from the others. In support of this contention the learned APP has relied on a site map which according to him demonstrates that each incident of arson in respective FIRs is in respect of distinct properties and the damages borne has been incurred by residents of the burnt premises have been individually suffered. It is further submitted by the learned SPP that the complainant in FIR No.132 2020 is a costermonger and was not residing at T 209 B Maujpur Area near Victor Public School but had a warehouse in the same premises and his goods had been stolen by rioters and the premises was burnt. CRL.M.C. 1197 2021 & ORS. on record. 12. Heard Ms. Tara Narula learned counsel for the petitioner and Mr. Anuj Handa learned SPP appearing for the State and perused the material 13. All the aforementioned FIRs are registered with respect to a incident of fire that was stoked in single dwelling i.e. T 209 B Maujpur Area near Victor Public School. All the above FIR’s are identical in their content and more or less a facsimile of one another and pertain to the same occurrence. They all pertain to one house where fire was started mischievously and spread to immediate neighboring premises as well as floors of the same house. All the FIR’s state that the incident took place a single date i.e. 24.2.2020. All the FIR’s state that monetary loss was caused to each of the complainants residing in parts of the buildings in the same compound and in the immediate neighborhood as their belongings and other valuables had been burnt down. Lalit Kumar the complainant in FIR No.113 2020 has stated that the premises was his ancestral property and had been divided into four portions pursuant to a family arrangement. 14. The abovementioned FIR’s state that the arson was extinguished by the same Fire Brigade bearing unique number 926225. Furthermore the charge sheet containing the site plan shows that all the properties are part of the same premises or they are in very close proximity with one another. CRL.M.C. 1197 2021 & ORS. 15. A careful perusal of the site map of the incident reproduced hereinabove shows that on 24.02.2020 a mob entered the compound where the properties are situated ransacked it and set it ablaze. It may be so that the properties are different or distinct from one another but are located in one compound. It is also to be noted that most of the houses in the said compound belong to the same family and were owned by different members of the family after being divided by their forefathers. In T.T. Antony v. State of Kerala 2001 6 SCC 181 the Supreme Court has held “27.A just balance between the fundamental rights of the citizens under Articles 19 and 21 of the Constitution and the expansive power of the police to investigate a cognizable offence has to be struck by the Court. There cannot be any controversy that sub section of Section 173 Cr.P.C. empowers the police to make further investigation obtain further evidenceand forward a further report or reports to the Magistrate. In Narangs case it was however observed that it would be appropriate to conduct further investigation with the permission of the Court. However the sweeping power of investigation does not warrant subjecting a citizen each time to fresh investigation by the police in respect of the same incident giving rise to one or more cognizable offences consequent upon filing of successive FIRs whether before or after filing the final report under Section 173(2) Cr.P.C. It would clearly be beyond the purview of Sections 154 and 156 Cr.P.C. nay a case of abuse of the statutory power of investigation in a given case. In our view a case of fresh investigation based on the second or successive FIRs not being a counter case filed in connection with the same or connected cognizable offence alleged to have been committed in the course of the same CRL.M.C. 1197 2021 & ORS. transaction and in respect of which pursuant to the first FIR either investigation is underway or final report under Section 173(2) has been forwarded to the Magistrate may be a fit case for exercise of power under Section 482 Cr.P.C. or under Article 226 227 of the Constitution.” In Babubhai V. State of Gujarat 12 SCC 254 the Supreme Court held as under: “ 14. The investigating agency has to proceed only on the information about the commission of a cognizable offence which is first entered in the police station diary by the officer in charge under Section 158 of the Code of Criminal Procedure 1973 and all other subsequent information would be covered by Section 162 would be covered by Section 162 CrPC for the reason that it is the duty of the investigating officer is not merely to investigate the cognizable offence reported in the FIR but also other connected offences found to have been committed in the course of the same transaction or the same occurrence and the investigating officer has to file one or more reports under Section 173 CrPC. Even after submission the report under Section 173(2) CrPC if the investigating officer comes across any pertaining t the same incident he can make further investigation but it is desirable that he must take leave of the court and forward further evidence if any with further report or reports under Section 173(8)CrPC. In case the officer receives more than one piece of information in respect of the same incident involving one or more than one cognizable offencessuch information cannot properly be treated as an FIR as it would in effect be a second FIR and the same is CRL.M.C. 1197 2021 & ORS. not in conformity with the scheme of the CrPC.” In Anju Chaudhary V. State of U.P. 6 SCC 384 the Supreme Court held as under: “14. On a plain construction of the language and scheme of Sections 154 156 and 190 of the Code it cannot be construed or suggested that there can be more than one FIR about an occurrence. However the opening words of Section 154 suggest that every information relating to commission of a cognizable offence shall be reduced into writing by the officer in charge of a police station. This implies that there has to be the first information report about an incident which constitutes a cognizable offence. The purpose of registering an FIR is to set the machinery of criminal investigation into motion which culminates with filing of the police report in terms of Section 173(2) of the Code. It will thus be appropriate to follow the settled principle that there cannot be two FIRs registered for the same offence. However where the incident is separate offences are different or even where subsequent crime is of the magnitude that it does not fall within the ambit and scope of the FIR first recorded then a second FIR could be registered. The most important aspect is to examine the inbuilt safeguards provided by the legislature in the very language of Section 154 of the Code. These safeguards can be safely deduced from the principle akin to double jeopardy rule of fair investigation and further to prevent abuse of power by investigating authority of the Police. Therefore second FIR for the same incident cannot be registered. Ofcourse the investigating CRL.M.C. 1197 2021 & ORS. agency has no determinative right. It is only a right to investigate in accordance with the provisions of the filing of report upon completion of code. The for cancellation or alleging investigation either commission of an offence is a matter which once filed before the court of competent jurisdiction attains a kind of finality as far as the police is concerned maybe in a given case subject to the right of further investigation but wherever the investigation has been completed and a person is found to be prima facie guilty of committing the offence or otherwise re examination by the investigation agency on its own should not be permitted merely by registering another FIR with regard to the same offence. If such protection is not given to a suspect then possibility of abuse of investigating powers by the police cannot be ruled out. It is with this intention in mind that such interpretation should be given to Section 154 of the Code as it would not only further the object of law but even that of just and fair investigation. More so in the backdrop of the jurisprudence reinvestigation or de novo investigation is beyond the competence of only the investigating agency but even that of the learned Magistrate. The Courts have taken this view primarily for the reason that it would be opposed to the scheme of the Code and more particularly Section167(2) of the Code. 45. It is not possible to enunciate any formula of universal application for the purpose of determining the same two or more acts constitute transaction. Such things are to be gathered from the CRL.M.C. 1197 2021 & ORS. circumstances of a given case indicating unity or proximity of time continuity of action commonality of purpose or design. Where two incidents are of different times with involvement of different persons there is no commonality and the purpose thereof different and they emerge out of different circumstances it would not be possible for the court to take a view that they form a part of the same transaction and therefore there could be a common FIR or subsequent FIR could not be permitted to be registered or there could be a common trial.” 19. The law on the subject has been settled keeping in line with the principles enunciated by the Supreme Court of India. There can be no second FIR and no fresh investigation in respect of the same cognizable offence or same occurrence giving rise to one or more cognizable offences. 20. As stated above the places which have been set on fire looted are all in the same compound and are all enclosed in one boundary wall. There might be discrepancy regarding the width of the passage within the same compound or the exact place where the fire was set but both sides agree that it is within one compound. The complainant in FIR No.113 2020 himself has stated that the property is an ancestral property which has been sub divided pursuant to a family arrangement. The entire incident has occurred when the mob entered the compound and set fire at different places within the same compound. Same truck bearing unique No.926225 came to the spot to douse the fire. It therefore cannot be said that there are five separate incidents and therefore five separate FIRs cannot be registered for the very same incident as it is contrary to the laws laid down by the Supreme Court. It cannot be said that the incidents were separate or the offences are CRL.M.C. 1197 2021 & ORS. different. As stated earlier a perusal of the charge sheets filed in the respective FIRs show that they are more or less identical and the accused are also same. However if there is any material that has been found against the accused the same can be placed on record in FIR No.106 2020. In view of the said principles and precedents save FIR No. 106 2020 registered on 01.03.2020 at Police Station Jaffrabad FIR No. 107 2020 FIR No.112 2020 FIR No. 113 2020 and FIR No.132 2020 all registered at Police Station Jaffrabad and all proceedings emanating therefrom are 22. Accordingly the petitions are disposed of along with the pending hereby quashed and set aside. application(s). SEPTEMBER 01 2021 SUBRAMONIUM PRASAD J. CRL.M.C. 1197 2021 & ORS.

Power U/S. 15(7) of the Delhi Rent Control Act, 1958 should be exercised sparingly: High Court of New Delhi

The effect of striking off the defense under Section 15(7) of the Act is not only in form of depriving the tenant of his right to defend the Eviction Petition, but would also lead to him losing the protection under Section 14(2) of the Act. Therefore, there can be no denial that such power is to be exercised sparingly and judiciously. This was held in SATISH PARASHAR V. PREM BIHARI (SINCE DECEASED) [TCM(M) 476/2020] in the HIGH COURT OF NEW DELHI by a single bench consisting of JUSTICE NAVIN CHAWLA. Facts are that the respondent had filed an eviction petition, against the petitioner under Section 14(1)(a) of the Act. The learned ARC passed the order U/S.15(1) of the Act. The petitioner aggrieved by the ARC order filed an application seeking review along with condonation of delay, which was dismissed. And on subsequent dismissal by RCT, the present petition was filed. The counsel for the petitioner contended that the order of Arc proceeded on an incorrect presumption of the rate of rent. The reason for the delay in filing the application seeking review was the legal advice received in form of an application under Section 152 of the CPC. Reliance was placed on the judgment of Rafiq & Ors. vs. Munshilal & Ors. The counsel for the respondent contended that the two Courts below had exercised their discretion in not condoning the delay and had allowed the application of the respondent under Section 15(7) of the Act, this Court should not interfere with the same in exercise of its powers under Article 227 of the Constitution of India. The court also made reference to the judgement of the Apex court in, Miss. Santosh Mehta v. Om Prakash and Ors., wherein it was held that “Section 15(7) of the Act is a penal provision and is discretionary in nature. It has a built-in self-restraint and is to be resorted to in only exceptional circumstances and not in a routine manner following upon a mere failure to pay rent. It is an extreme power and therefore, should be exercised where the Court finds a willful failure, deliberate default, or volitional non-performance. It is not an automatic weapon and therefore, the last resort must not be converted into the first resort.” The court in order to shed light on the use and application of section 15(7) DRC, Act, to strike out defense, also made reference to the Supreme Court judgement in Kamla Devi (Smt.) vs. Vasdev, wherein the following observations were made, “It is not obligatory for the Rent Controller to strike out the defense of the tenant under Section 15(7) of the Act if the tenant fails to make payment or deposit. It would depend upon the facts of the case and the discretion of the Controller whether such drastic order should or should not be passed.”

IN THE HIGH COURT OF DELHI AT NEW DELHI Date of Decision: 07.04.2021 CM(M) 476 2020 & CM No.24292 2020 SATISH PARASHAR ..... Petitioner Through: Mr.Sanat Kumar Sr. Adv. with Mr.Sanjay Sharma Adv. PREM BIHARIThrough: Mr.Sanjay Rohtagi Adv. ..... Respondent HON BLE MR. JUSTICE NAVIN CHAWLA NAVIN CHAWLA J.This petition has been filed by the petitioner challenging the order dated 04.03.2020 passed by the learned Rent Control Tribunal in short „RCT‟) in appeal being RCT No.138 2018 dismissing the appeal of the petitioner against the order dated 17.08.2018 passed by the learned Additional Rent Controller 01 Central dismissing the application of the petitioner seeking condonation of delay in filing of an application seeking review of the order dated 14.03.20211 passed by the learned ARC under Section 15(1) of the Delhi Rent Control Act 1958 and consequently allowing the application of the respondent herein under Section 15(7) of the Act. CM(M) 476 2020 Page 1 respondent had filed an eviction petition being E.No.821 2014 against the petitioner under Section 14(1)(a) of the Act claiming that the petitioner is a tenant with respect to property being Middle Flat on the first floor of building no.27 Alipur Road Civil Lines Delhi 110054 at rate of rent of Rs.850 per month exclusive of electricity and water charges. Paragraph 14 of the Eviction Petition asserts that the date of letting out of the tenanted premises is 16.07.1998 “on the basis of written agreement”. It is important to note here itself that the Agreement dated 16.07.1998 however gives the rent as Rs.750 per month. In the eviction petition the respondent claimed arrears of rent of Rs.22 950 for the period with effect from 01.04.2008 to 30.06.2010 at the rate of Rs.850 per month. The petitioner herein filed his reply to the eviction petition disputing the rate of rent and claiming the same to be Rs.750 per month. On the first date of his appearance before the learned ARC on 27.10.2010 the petitioner also tendered a demand draft of Rs.26 350 dated 21.10.2010 to the respondent. On 14.03.2011 the learned ARC passed the following order on the application filed by the respondent under Section 15(1) of the Act: “14.03.2011 Present: Counsel for petitioner. Counsel for respondent. Parties in person. A sum of Rs. 26 350 has already been paid on behalf of respondent to the petitioner through Bank Draft on 27 10 2010 against CM(M) 476 2020 Page 2 Argument heard on the application U s. 15of the DRC Act. The rate of rent is Rs.850 per month the parties and is admitted by is also not denied. Hence application U s. 15 of the DRC Act is disposed of without prejudice to the rights and contentions of the parties. Respondent to deposit the legally recoverable rent which is due till the month of March 2011 within one month from today in the Bank Account number i.e. 0115000100442064 PNB Civil Lines Delhi and will continue to deposit the future rent in the aforesaid Bank Account during the pendency of the present petition. Nothing discussed hereinabove shall have any bearing upon the merits of the present case. Hence put up for PE on 06 07 2011. Advance copy of affidavit be supplied atleast 15 days before the next date of hearing. Parties to file their list of witnesses within 15 days from today.” A perusal of the above order would show that Rs.850 per month was taken as the rent admitted by the parties. It is not disputed by the respondent that the petitioner however continued to pay deposit the rent at the rate of Rs.750 per month thereafter. Based on the purported default by the petitioner on 26.09.2012 the respondent filed an application under Section 15(7) of the Act seeking striking off of the defence of the petitioner herein. The petitioner on the other hand filed an application under Section 152 of the Code of Civil Procedure 1908 on 16.11.2012 claiming rectification of the order dated 14.03.2011 to record that the admitted rate of rent was Rs.750 per CM(M) 476 2020 Page 3 month and not Rs.850 per month as had been recorded in the order dated 14.03.2011. The applications remained pending as in the meantime the respondent expired and his legal heirs were finally brought on record by the order dated 28.03.2014. On 30.09.2015 after some arguments the petitioner withdrew the application filed under Section 152 of the Code. 10. The learned senior counsel for the petitioner submits that the same was withdrawn on the legal advice that the remedy of the petitioner was not in form of an application under Section 152 of the Code but instead in form of an application seeking review of the order dated 14.03.2011. 11. The petitioner thereafter on 08.10.2015 filed the application seeking review of the order dated 14.03.2011. Alongwith the said application the petitioner also filed an application under Section 5 of the Limitation Act 1963 seeking condonation of delay in filing of the application seeking review. 12. The said applications were dismissed by the learned ARC by the order dated 17.08.2018 refusing to condone the delay in filing of the application seeking review. The learned ARC in his order dated 17.08.2018 observed that there was a delay of around 4 ½ years in filing of the application seeking review which could not be explained merely by putting the blame on the previous counsel. It was further CM(M) 476 2020 Page 4 held that even the new counsel had taken ten months to withdraw the previous application filed under Section 152 of the Code. 13. Consequent to the dismissal of the application of the petitioner under Section 5 of the Limitation Act 1963 and the application seeking review of the order dated 14.03.2011 the application of the respondent under Section 15(7) of the Act was allowed by the learned ARC vide its order dated 17.08.2018. It is relevant to note here that the learned ARC allowed the application under Section 15(7) of the Act as a mere sequitur to the dismissal of the application of the petitioner seeking review of the order dated 14.03.2011 without considering whether on the facts of the case the petitioner could be held to have contumaciously not deposited the rent pursuant to the order dated 14.03.2011 of the learned ARC. Relevant extract from the order is reproduced herein the Limitation Act of “Cogent reasons have not been disclosed in the application for condonation of delay of the long period of around 4 ½ years. In these facts the application under and circumstances Section 5 of respondent is dismissed. Since the application under Section 5 of the Limitation Act has been dismissed review modification recall of the order dated 14.03.2011 is also dismissed. Now the application of the petitioner under Section 15(7) of the Delhi Rent Control Act is taken up for consideration. Reply to the application has been filed. CM(M) 476 2020 Page 5 It is an admitted case of the respondent that rent has not been paid or deposited at the rate of Rs.850 per month. Since rent has not been paid or deposited in accordance with the order dated 14.03.2011 which has attained finality the defence of the respondent is struck out.” 15. The petitioner thereafter filed an appeal before the learned RCT which has been dismissed by the Impugned Order dated 04.03.2020. The learned RCT has affirmed the decision of the learned ARC refusing to condone the delay in filing of the application seeking review. The learned RCT has also affirmed the order of the learned ARC passed under Section 15(7) of the Act observing that in the reply of the petitioner to the application filed under Section 15(7) grounds similar to those pleaded under Section 5 of the Limitation Act 1963 had been pleaded by the petitioner. The learned RCT further held that the petitioner has not filed any application seeking condonation of delay or default in compliance with the order under Section 15(1) of the Act nor offered to pay the balance amount of arrears of rent which reflected bold obstinacy on the part of the petitioner in not complying with the order passed under Section 15(1) of the Act which has attained finality. 16. The learned senior counsel for the petitioner submits that the order dated 14.03.2011 clearly proceeded on an incorrect presumption that the rate of rent was admitted by the petitioner to be Rs.850 per month. He submits that in fact this was the bone of contention between the parties in the eviction petition and the dispute to be adjudicated between the parties. The admitted rent as far as the CM(M) 476 2020 Page 6 petitioner is concerned was Rs.750 per month as was reflected in the Rent Agreement dated 16.07.1998 which is an admitted document. He further submits that as on 14.03.2011 there was no evidence before the learned ARC evidencing Rs.850 per month to be the last paid rent on the basis of which alone the learned ARC could have directed the petitioner herein to pay deposit the rent at the rate of Rs.850 per month. He submits that this mistake was realized only when the respondent filed an application under Section 15(7) of the Act on 26.09.2012. The petitioner immediately thereafter on 16.11.2012 filed the application under Section 152 of the Code. The petitioner was advised that the remedy of the petitioner would be in form of an application seeking review of the order and therefore withdrew the said application on 30.09.2015 and within nine days thereafter on 08.10.2015 filed an application seeking review of the order dated 14.03.2011. He submits that therefore the reason for delay in filing of the application seeking review was the legal advice then received by the petitioner that the remedy would be in form of an application under Section 152 of the Code. 17. Placing reliance on the judgment of the Supreme Court in Rafiq Ors. vs. Munshilal & Ors. AIR 1981 SC 1400 he submits that the petitioner cannot be prejudiced for having acted on the advice received from his counsel. 18. He further submits that in any case the petitioner could not have been held to have contumaciously not deposited the rent as directed by the learned ARC. The petitioner has been duly depositing CM(M) 476 2020 Page 7 the rent at the rate of Rs.750 per month and was pursuing his legal remedies seeking rectification of the order dated 14.03.2011 passed under Section 15(1) of the Act. He submits that the closure of the right to defence is a drastic measure and is to be resorted to only when the tenant is found to have acted contumaciously and in total disregard of the order passed. In this regard he has placed reliance on the judgment of the Supreme Court in Miss. Santosh Mehta v. Om Prakash and Ors. 3 SCC 610 and of this Court in Nirmal Kapoor vs. Sushila Devi Jain & Ors. 10 DRJ 323. 19. On the other hand the learned counsel for the respondent submits that the two Courts below having exercised their discretion in not condoning the delay and subsequently allowing the application of the respondent under Section 15(7) of the Act this Court would not interfere with the same in exercise of its powers under Article 227 of the Constitution of India. 20. On merit he submits that the order dated 14.03.2011 was passed in the presence of the petitioner as also his learned counsel. The petitioner took no steps to have the same reviewed rectified till the respondent filed the application under Section 15(7) of the Act. The petitioner thereafter let such application remain pending for almost four years before withdrawing the same and then filed an application seeking review of the order dated 14.03.2011. He submits that in the meantime inspite of the order dated 14.03.2011 having not been rectified reviewed the petitioner failed to deposit the rent at the rate of Rs.850 per month thereby clearly showing an intention not to CM(M) 476 2020 Page 8 comply with the direction passed by the learned ARC. He submits that therefore the learned ARC and the learned RCT have rightly exercised their discretion in not condoning the delay in filing of the review application by the petitioner and striking off his defence under Section 15(7) of the Act. for the parties. I have considered the submissions made by the learned counsels 22. A perusal of the pleadings that is the eviction petition filed by the respondent and the reply thereto filed by the petitioner clearly indicates that there is a dispute between the parties as to the rate of rent qua the tenanted premises. While the respondent claims the same to be Rs.850 per month the petitioner has taken a stand that it is Rs.750 per month. It is not denied by the learned counsel for the respondent that the Rent Agreement dated 16.07.1998 relied upon by the respondent in the eviction petition mentioned the rent as Rs.750 per month. It is also not denied that there was no other document before the learned ARC as on 14.03.2011 which would have shown the admitted rate of rent last paid by the petitioner as Rs.850 per month. 23. Section 15(1) of the Act reads as under: “15. When a tenant can get the benefit of protection against eviction.In every proceeding of the recovery of possession of any premises on the ground specified in clause a) of the proviso to sub sectionof section 14 the Controller shall after giving the parties an opportunity of being heard make an CM(M) 476 2020 Page 9 order directing the tenant to pay to the landlord or deposit with the Controller within one month of the date of the order an amount calculated at the rate of rent at which it was last paid for the period for which the arrears of the rent were legally recoverable from the tenant including the period subsequent thereto up to the end of the month previous to that in which payment or deposit is made and to continue to pay or deposit month by month by the fifteenth of each succeeding month a sum equivalent to the rent at that rate.” 24. A reading of the above would show that on an application of the landlord the Controller may make an order directing the tenant to pay to the landlord or deposit with the Controller an amount “calculated at the rate of rent at which it was last paid” for the period for which the arrears of rent were legally recoverable from the tenant. As on 14.03.2011 therefore the learned ARC had before him the admitted rate of rent of Rs.750 per month as against the rate of rent of Rs.850 as claimed by the respondent. The order dated 14.03.2011 has been reproduced hereinabove. The same records rent at the rate of Rs.850 per month has been admitted by the petitioner. This would be clearly contrary to the record before the learned ARC and therefore erroneous on the face of the record. 25. The respondent filed the application under Section 15(7) of the Act on 26.09.2012. It is not denied that before the returnable date on the said application the petitioner filed an application under Section 152 of the Code on 16.11.2012 praying that the order dated 14.03.2011 be rectified to record the admitted rate of rent as Rs.750 CM(M) 476 2020 Page 10 per month instead of and in place of Rs.850 per month. It is not denied that the said application remained pending till 30.09.2015 when the same was withdrawn by the petitioner. Within nine days thereafter the petitioner filed an application seeking review of the order dated 14.03.2011 alongwith an application seeking condonation of delay under Section 5 of the Limitation Act 1963 in filing such application seeking review. The reasons given for the delay was the pendency of the earlier application which was claimed to have been filed on an incorrect legal advice by the previous counsel. It is not denied that in the meantime the petitioner has been duly depositing the rent at the rate of Rs.750 per month. 26. Keeping in view the above facts it could not have been said that the petitioner was either not diligent in seeking rectification of the order dated 14.03.2011 passed by the learned ARC or has acted contumaciously or with obstinacy in making compliance with the said order. The petitioner was pursuing his legal remedies as had been advised to him and clearly there was no delay in pursuing the same. In Miss. Santosh Mehta the Supreme Court has held that Section 15(7) of the Act is a penal provision and is discretionary in nature. It has a built in self restraint and is to be resorted to in only exceptional circumstances and not in a routine manner following upon a mere failure to pay rent. It is an extreme power and therefore should be exercised where the Court finds a wilful failure deliberate default or volitional non performance. It is not an automatic weapon and therefore the last resort must not be converted into the first resort. CM(M) 476 2020 Page 11 In Kamla Devi vs. Vasdev 1 SCC 356 the Supreme Court reiterated that it is not obligatory for the Rent Controller to strike out the defence of the tenant under Section 15(7) of the Act if the tenant fails to make payment or deposit. It would depend upon the facts of the case and the discretion of the Controller whether such drastic order should or should not be passed. It is also noted that the effect of striking off the defence under Section 15(7) of the Act is not only in form of depriving the tenant his right to defend the Eviction Petition but would also lead to him losing the protection under Section 14(2) of the Act. Therefore there can be no denial that such power is to be exercised sparingly and judiciously. 30. The findings of the learned ARC on the application under Section 15(7) of the Act have been quoted hereinabove. The same do not consider that the petitioner had continued to make deposit of rent in the integerrum at the rate of Rs.750 per month on a regular basis. Similarly the learned RCT also has not considered the effect of the petitioner having made such deposit on a regular basis. Clearly the factum of such deposit reflects that the petitioner has not acted with obstinacy or in utter defiance of the order passed under Section 15(1) of the Act as held by the learned RCT. 31. As noted hereinabove there appears to be a mistake in the order dated 14.03.2011 passed by the learned ARC wherein Rs.850 per month was taken as the admitted rate of rent while this was clearly a dispute between the parties. The said order was liable to be rectified by the learned ARC. CM(M) 476 2020 Page 12 32. Accordingly I find that the learned ARC and the learned RCT have failed to exercise the jurisdiction which was vested in them in failing to condone the purported default of petitioner in complying with the order dated 14.03.2011 passed by the learned ARC and consequently striking off his defence. In view of the above the Impugned Order dated 04.03.2020 is set aside. 34. At this stage I may also note that the Eviction Petition has been pending since 2010. The learned ARC is therefore requested to expedite the hearing in the said petition and make endeavor to adjudicate on the same within a period of nine months from the date when it is next listed before it. In this endeavor the learned ARC shall refuse any all unwarranted requests for adjournment by either party. 35. As admittedly the petitioner did not notice the mistake in the order dated 14.03.2011 till the time the respondent filed the application under Section 15(7) of the Act the petitioner shall without prejudice to his rights and contentions clear all arrears of rent at the rate of Rs.850 per month alongwith interest at the rate of 15% per annum thereon in compliance with the order dated 14.03.2011 within eight weeks from today. The petitioner shall continue to pay deposit the rent at the rate of Rs.850 per month as directed in the order dated 14.03.2011 in future as well. CM(M) 476 2020 Page 13 36. The petitioner shall further pay costs of Rs.25 000 to the respondent for the delay that has been caused in the adjudication of the Eviction Petition. 37. The present petition is allowed in the above terms. NAVIN CHAWLA J APRIL 7 2021 Arya CM(M) 476 2020 Page 14

Larger public interest supercedes individual interest: Allahabad High Court

Jeremy Bentham’s principle of Utilitarianism was based on the ideology of greatest good for the greatest number.Similar principle was adhered to and importance of giving greater weightage to greater number of people and larger public interest instead of individual interest in a land acquisition matter at Allahabad High Court in a division bench consisting of Chief Justice Rajesh Bindal and Justice Piyush Agarwal examined in Smt. Prabha Shukla v. State of Uttar Pradesh & Ors. Writ -C No.- 18526/2021 decided on 5.1.2022. The facts of this case are that the petitioner challenged acquisition of his agricultural land by government for construction of railway over bridge, which was which was for residential purpose.The acquisition was done under section 11 and Section 19 of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013.The petititoner objected to the acquisition by filing the writ. The counsel on behalf of the petitioner contended that land was acquired without providing fair opportunity of hearing and the notification of acquisition stated that no compensation or rehabilitation will be given to landowners. The counsel on behalf of the Respondent contended that minimum land was acquired by the notification with the object of welfare of people  and larger public interest.Though the land was intended for residential purposes, yet at the time of acquisition no house was constructed in the land and the Petitioner already has a residence somewhere else and so no claim for rehabilitation can arise arise, but assurance of compensation was given.The project is being undertaken to facilitate larger public interest and excess interference into it would result in wastage of time and money. The Allahabad High Court relied upon Supreme Court in Ramniklal N. Bhutta and another v. State of Maharashtra and Ors. stating that even if there are minor discrepancies in the land acquisition notification, yet it shall not be prudent to squash the acquisition order as the project has been significantly completed and setting it aside would not be in larger public interest.The court opined that “projects of public importance should not be halted as the same would be against the larger public interest and the constitutional courts should weigh public interest vis-à-vis private interest, while exercising its discretion.”

IN THE HIGH COURT OF JUDICATURE AT ALLAHABAD Chief Justice s Court Additional Cause List Serial No. 1 WRIT C No. 185221 Reserved on: December 1 2021 Delivered on: January 05 2022 Smt. Prabha Shukla ...Petitioner Through: Mr. Udayan Nandan Advocate State of U.P. and others ...Respondents Through: Mr. Suresh Singh Additional Chief Standing Counsel for respondents no. 1 3 and 5 Mr. Pranjal Mehrotra Advocate for respondents no. 2 and 4. Coram: HON BLE RAJESH BINDAL CHIEF JUSTICE HON BLE PIYUSH AGRAWAL JUDGE RAJESH BINDAL C.J The petitioner has filed the present writ petition praying for quashing of notification dated April 06 2021 issued under Section 11 of the Right to Fair Compensation and Transparency in Land Acquisition Rehabilitation and Resettlement Act 2013 as published in newspaper on April 24 2021 and notification dated July 16 2021 issued under Section 19 of the 2013 Act The learned counsel for the petitioner submitted that the petitioner is owner and in possession of plot no. 293 measuring 0.0688 hectare. The same is being utilized for agricultural purposes. However 2 WRIT C No. 185221 off late she intended to construct a house for residential purposes for which pillars have been raised as foundation. For the purpose of acquisition of aforesaid land notification under Section 113 Act was issued on April 06 2021. The land was sought to be acquired for the purpose of construction of a Railway over bridge. The total area sought to be acquired was 0.5344 hectare. The petitioner filed objections to the aforesaid acquisition on May 26 2021. However without affording opportunity of hearing to the petitioner and also violating the mandate of Section 19(2) of the 2013 Act notification under Section 19 was issued Section 15 of the 2013 Act clearly provides that in case any objection is filed to the proposed acquisition of land the aggrieved parties have to be afforded opportunity of personal hearing. Section 19(2) of the 2013 Act provides that rehabilitation scheme has to be published for the persons who may be displaced The learned counsel for the petitioner referred to notification issued under Section 113 Act which mentions that as per the survey carried out none of the land owner is required to be rehabilitated whereas the case set up by the petitioner was that number of families will be displaced hence rehabilitation scheme was required The petitioner has family of five persons. Unless the rehabilitation scheme is published final notification under Section 19 of the 2013 Act for acquisition of the land could not be issued Further argument raised is that the Collector is not final authority to dispose of the objection. He has to merely send his report to the appropriate Government to take a final decision thereon. However in the present case the objections have been decided by Collector himself with no application of mind by appropriate Government. Right of hearing under pari materia provision i.e. Section 5 A of the Land Acquisition Act 1894has been held to be fundamental right hence for violation thereof the acquisition 3 WRIT C No. 185221 proceedings deserves to be quashed. In support of his argument reliance is placed on Kamal Trading Private Limited Vs. State of West Bengal and others 2 SCC 25 Usha Stud and Agricultural Farms Private Limited and others Vs. State of Haryana and others4 SCC 210 and Nareshbhai Bhagubhai and others Vs. Union of India and others15 SCC 1. On the other hand learned counsel appearing for the State submitted that the acquisition is for a total area of 0.5344 hectare of land As per survey carried out minimum possible land was acquired for construction of railway over bridge which is required to take care of traffic problem on the spot. It is to facilitate the people of the area and is in larger public interest. As should be the normal attitude the development activities are not opposed by the inhabitants of the area when they are appropriately compensated. This happened in the present case also as none of the other owners objected to the acquisition. It is only the petitioner who raised objection and the same was considered and with the opinion of the Collector the entire record was sent to the Government which finally issued the notification. It shows that there was proper application of mind by the appropriate Government before issuance of the notification under Section 19 of the 2013 Act He further submitted that it is admitted case of the petitioner herself that the plot in question which is a small portion of the total land acquired was merely being used for agricultural purposes. It is proposed to be used for residential purposes. However there was no house existing thereon. Thus it is not a case where petitioner or her family members are required to be rehabilitated as they already have a residence. Merely on account of some small discrepancy if any in the process of acquisition where the same is not opposed to by 90% of the land owners the acquisition proceedings should not be quashed as the entire project which is being executed in large public interest will be 4 WRIT C No. 185221 put to a halt. He further submitted that award of entire land was announced by the Collector on September 13 2021 except the land of the petitioner as there was interim stay granted by this Court. The total cost of the project is about ₹ 38 crore. The project is expected to be completed in March 2022. About 45% work has already been executed Any interference by this Court at this stage in the writ petition filed by the petitioner will put the project on hold as a result whereof the entire amount spent on the project will go waste and it will be delayed unnecessarily. It is not the stage where even the alignment can be changed as the land on the site except small portion for which petitioner has raised dispute already stands acquired. The over bridge is connected on both sides with road. Land of the petitioner was also lying vacant except that she claims that certain pillars of foundation had been raised for construction of a house. But the fact is that no one was residing there The prayer is for dismissal of the writ petition Learned counsel appearing for respondents no. 2 and 4 submitted that the construction of over bridge has already started. The pillars on the Karchhana side have already been erected upto the required height till the railway line. However the side on which the land of the petitioner is located pillars are yet to be raised Hon’ble the Supreme Court has time and again opined that projects of public importance should not be halted as the same would be against the larger public interest and the constitutional courts should weigh public interest vis à vis private interest while exercising its discretion. The view could very well be gathered from the judgments of Hon ble the Supreme Court in Ramniklal N. Bhutta and another Vs State of Maharashtra and others reported as AIR 1997 SC 1236 Pratibha Nema and others Vs. State of M.P. and others reported as AIR 2003 SC 3140. The same view has been expressed by Rajasthan High Court s in Jaipur Metro Rail Corporation Limited Vs. Alok 5 WRIT C No. 185221 Kotahwala and others reported as AIR 2013 CC 754. Relevant extracts from the aforesaid judgments are reproduced hereunder: i) Ramniklal N. Bhutta s case: 10. Before parting with this case we think it necessary to make a few observations relevant to land acquisition proceedings. Our country is now launched upon an ambitious programme of all round economic advancement to make our economy competitive in the world market. We are anxious to attract foreign direct investment to the maximum extent. We propose to compete with China economically. We wish to attain the pace of progress achieved by some of the Asian countries referred to as "Asian tigers" e.g. South Korea Taiwan and Singapore. It is however recognised on all hands that the infrastructure necessary for sustaining such a pace of progress is woefully lacking in our country. The means of transportation power and communications are in dire need of substantial improvement expansion and modernisation These things very often call for acquisition of land and that too without any delay. It is however natural that in most of these cases the persons affected challenge the acquisition proceedings in Courts. These challenges are generally in the shape of writ petitions filed in High Courts. Invariably stay of acquisition is asked for and in some cases orders by way of stay or injunction are also made. Whatever may have been the practices in the past a time has come where the Courts should keep the larger public interest in mind while exercising their power of granting stay injunction. The power under Article 226 is discretionary. It will be exercised only in furtherance of interests of justice and not merely on 6 WRIT C No. 185221 the making out of a legal point. And in the matter of land acquisition for public purposes the interests of justice and the public interest coalesce. They are very often one and the same. Even in a Civil Suit granting of injunction or other similar orders more particularly of an interlocutory nature is equally discretionary. The courts have to weigh the public interest vis a vis the private interest while exercising the power under Article 226 indeed any of their discretionary powers. It may even be open to the High Court to direct in case it finds finally that the acquisition was vitiated on account of non compliance with some legal requirement that the persons interested shall also be entitled to a particular amount of damages to be awarded as a lump sum or calculated at a certain percentage of compensation payable. There are many ways of affording appropriate relief and redressing a wrong quashing the acquisition proceeding is not the only mode of redress. To wit it is ultimately a matter of balancing the competing interests Beyond this it is neither possible nor advisable to say. We hope and trust that these considerations will be duly borne in mind by the Courts while dealing with challenges to acquisition proceedings."(emphasis supplied Pratibha Nema s case: 38. When no prejudice has been demonstrated nor could be reasonably inferred it would be unjust and inappropriate to strike down the Notification under Section 4(1) on the basis of a nebulous plea in exercise of writ jurisdiction under Article 226. Even assuming that there is some ambiguity in particularizing the public purpose and the possibility of doubt cannot be ruled 7 WRIT C No. 185221 out the constitutional Courts in exercise of jurisdiction under Article 226 or 136 should not as a matter of course deal a lethal blow to the entire proceedings based on the theoretical or hypothetical grievance of the petitioner. It would be sound exercise of discretion to intervene when a real and substantial grievance is made out the non redressal of which would cause prejudice and injustice to the aggrieved party. Vagueness of the public purpose especially in a matter like this where it is possible to take two views is not something which affects the jurisdiction and it would therefore be proper to bear in mind the considerations of prejudice and injustice." iii) Jaipur Metro Rail Corporation Limited s case 31. With respect to ecological balance there has to be sustainable development and such projects of immense public importance cannot he halted. It is not the case that requisite permissions from the Central Government and the State Government have not been obtained thus objections were flimsy. In other petitions also pertaining to the same Project this Court has held that such project of immense public importance should not be put to halt. Thus flimsy and untenable objections were raised which have been rightly rejected after due application of mind x x x x 48. On merits we find the order of interim stay passed by the single Bench to be untenable thus we have no hesitation in setting aside the same. Suffice it to observe that in such cases of public importance of Metro Rail Project there should not be any interim stay rather an effort 8 WRIT C No. 185221 should be made to decide the matter finally at an early date Staying the land acquisition proceedings is not appropriate and would be against the larger public interest involved in such projects. Thus relying upon the decision in the case of Ramniklal N. Bhuttawe hold that in the matter of immense public importance like the present one the power to grant interim stay under Article 226 of the Constitution should not be exercised in the normal course In the case in hand respondents’ stand is that 45 per cent work of railway over bridge is already complete. On one side pillars have been erected whereas on the other side where the land of the petitioner is situated the same are yet to be erected. She otherwise owns small portion i.e. about 10 % of the total acquired land which at present is lying vacant though it is claimed that the petitioner sought to construct a house thereon for residential purposes. From the photographs placed on record it is evident that there exist certain pillars that too only upto ground level. Once a project of public importance which is good in larger public interest is being executed and has been completed about 45% setting aside of acquisition in a petition filed by one of the land owners owning a small portion of the land will not be in larger public interest. It is not the stage where alignment of over bridge can be changed which otherwise could not have been possible as the railway over bridge will be connecting the existing roads on both the sides. Private interest has to give way to the larger public interest. Even if there are some small discrepancies in the process of acquisition in our opinion in the facts of the present case the acquisition does not deserve to be set aside as otherwise the project will be delayed which will cause loss to the State besides suffering to the residents of the area who may be deprived of using the railway over bridge on account of delayed completion of the 9 WRIT C No. 185221 project. In any case the petitioner will be duly compensated for the land owned by her. For the reasons mentioned above we do not find any merit in the present petition. The same is accordingly dismissed. Piyush Agrawal) (Rajesh Bindal Judge Chief Justice January 05 2022 P. Sri. Whether the order is speaking : Whether the order is reportable : √ Yes No

The person accused of an offence punishable under the act cannot be released on bail until the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence: The High Court of Sikkim

Section 18(1) of the Sikkim Anti-Drugs Act where the learned Public Prosecutor opposes the application for bail the person accused of an offence punishable under the act cannot be released on bail until 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. In the Hon’ble High Court of Sikkim led through the single-bench by Justice Bhaskar Raj Pradhan in the matters of Pratik Biswakarma v/s State of Sikkim[BAIL APPLN./12/2021]. The facts of the case are Pratik Biswakarma has moved this application for bail under Section 439 of the Code of Criminal Procedure, 1973. He was arrested on 18.02.2021 in connection with the First Information Report (FIR) lodged on 18.02.2021 after the seizure of controlled substances from the vehicle in which he and five others were travelling. The counsel from the applicant submits that besides the FIR he has not been implicated by any of the materials or statements filed along with the charge-sheet. It is submitted that he has no past criminal record; he is a young man of 23 years and therefore, he should be granted bail. The learned Public Prosecutor, however, opposes the grant of bail on the ground that there is no material to reflect that he is not guilty of the offence. The prosecution against the applicant is under section 9(1) (c) and 9(4) of Sikkim Anti-Drugs Act, 2006 (SADA) read with section 34 of the Indian Penal Code, 1860 (IPC). Section 18 of the Sikkim Anti-Drugs Act, 2006 provides for (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 – (a) every offence punishable under this Act shall be cognizable; (b) no person accused of an offence punishable under this Act shall be released on bail or on his own bond unless – (i) the Public Prosecutor has been heard and also given an opportunity to oppose the application for such release, and (ii) where the Public Prosecutor opposes the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail. (2) The limitations on granting of bail specified in clause (b) of sub-section (1) 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 of bail.” The High Court of Sikkim concluded, “Under section 18(1) of the SADA where the learned Public Prosecutor opposes the application for bail the person accused of an offence punishable under the act cannot be released on bail until 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 HIGH COURT OF SIKKIM: GANGTOK Criminal Jurisdiction) SINGLE BENCH: THE HON’BLE MR. JUSTICE BHASKAR RAJ PRADHAN JUDGE Bail Application No. 121 Pratik Biswakarma S o Nar Bahadur Biswakarma R o Zoom Daragoan West Sikkim Presently at judicial custody in Boomtar Jail. Namchi South Sikkim. ….. Applicant State of Sikkim ….. Respondent Application under Section 439 of the Code of Criminal Procedure 1973. Ms. Tashi Doma Bhutia Advocate for the Applicant. Mr. Sudesh Joshi Public Prosecutor with Mr. Sujan the State Sunwar Assistant Public Prosecutor Date of hearing : 23.10.2021. ORDERBhaskar Raj Pradhan J. Pratik Biswakarma has moved this application for bail under Section 439 of the Code of Criminal Procedure 1973. He was arrested on 18.02.2021 in connection with the First Information Report lodged on 18.02.2021 after the seizure Bail Application No. 121 Pratik Biswakarma vs. State of Sikkim of controlled substances from the vehicle in which he and five others were travelling. According to the applicant he had applied for bail before the learned Special Judge on five occasions which have all been rejected on various grounds. 2. Ms. Tashi Doma Bhutia learned counsel for the applicant submits that besides the FIR he has not been implicated by any of the materials or statements filed along with the charge sheet. It is submitted that he has no past criminal record he is a young man of 23 years and therefore he should be granted bail. The learned Public Prosecutor however opposes the grant of bail on the ground that there is no material to reflect that he is not guilty of the offence. The prosecution against the applicant is under section 9(1) c) and 9(4) of Sikkim Anti Drugs Act 2006 read with section 34 of the Indian Penal Code 1860Notwithstanding anything contained in the Code of Criminal Procedure 1973 a) every offence punishable under this Act shall be cognizable b) no person accused of an offence punishable under this Act shall be released on bail or on his own bond unless i) the Public Prosecutor has been heard and also given an opportunity to oppose the application for such release and ii) where the Public Prosecutor opposes the application the court is satisfied that there are reasonable grounds for believing that he is not Bail Application No. 121 Pratik Biswakarma vs. State of Sikkim guilty of such offence and that he is not likely to commit any offence while on bail. 2) 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 of bail.” The learned Public Prosecutor opposes the bail application and has also filed a reply in opposition dated 08.10.2021. Under section 18(1) of the SADA where the learned Public Prosecutor opposes the application for bail the person accused of an offence punishable under the act cannot be released on bail until 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. This court has examined the records of the case and it is of the firm view that there are no reasonable grounds for believing that the applicant is not guilty of such offence and that he is not likely to commit any offence while on bail. The application for bail is accordingly rejected. Bhaskar Raj Pradhan ) Judge Approved for reporting: Yes No :Yes No Internet

STATE OF WEST BENGAL V/S JUGAL KISHORE MORE & ANR.

“Laws of the land, even to support a gesture of comity to another nation,” 1.     Fugitive Offenders Act, 1881, was inconsistent with Art. 14 of the Constitution of India and was on that account unenforceable after 26th January 1950, Ministry of External Affairs, Government  of India, issued a notification on May 21, 1955, indicating the  procedure for securing the presence of a fugitive offender in India from the United Kingdom and other Commonwealth countries.  2.     The Magistrate concerned is to issue a warrant of arrest of  the  fugitive offender under the Criminal Procedure Code, 1898, and the warrant is to be sent to the Government of India, Ministry of  External  Affairs through the  concerned State Government. After this, the Ministry is to address the appropriate authority in the Commonwealth country through the High Commissioner for India for the surrender of the fugitive offender. 3.     The Indian Extradition Act was passed in 1962, but as Hong Kong was not included in the First Schedule, that Act could not be resorted for the surrender of the respondent who was a fugitive offender residing in Hong Kong.  4.     In the Present case, The Chief Presidency Magistrate Calcutta issued a warrant under the Criminal Procedure Code for the arrest of the respondent and the warrant was forwarded by the Government of West Bengal to the Ministry of External Affairs, Government of India. 5.     The Ministry forwarded the warrant to the High Commissioner for India, Hong Kong, who in his turn requested the Colonial Secretary, Hong Kong, for an order extraditing the respondent under the Fugitive Offenders Act 1881. The Central Magistrate, Hong Kong, endorsed the warrant and directed the Hong Kong police to arrest the respondent referring to the Republic of India as a British possession to which the Fugitive Offenders Act was applicable. ISSUE BEFORE THE COURT: 1.     Is the surrender by one State to another of a person desired to be dealt with for crimes of which he has been accused or convicted and which are justifiable in the courts of the other State? 2.     Whether the Fugitive Offenders Act, 1881, applies to India after 26th January, 1950, when India became a Sovereign Democratic Republic? RATIO OF THE COURT B. Sen and P. K. Chakravarti, the learned counsels for the appellants contended the following:- On April 4, 1966, ordered that the Central Magistrate, Hong Kong, over-ruled the objection raised on behalf of More that the Court had no jurisdiction to proceed in the matter under the Fugitive Offenders Act, 1881, since the Republic of India was no longer a “British Possession”.On May 16, 1966, Hanuman Prasad-father of More moved to the High Court of Calcutta and  filed a petition. The petition was heard before a Division Bench of the High Court. A. Roy, J., held that the warrant issued by the Chief Presidency Magistrate was not illegal and the procedure followed for securing extradition of More was not irregular. In his view, the assumption made by the Central Magistrate, Hong Kong, that for the purpose of the Fugitive Offenders Act, India was a “British possession” was irrelevant since that was only a view expressed by him. S. R. Chari, B. P. Maheshwari and Sobhag Mal Jain (counsels for the respondents) Counsels for the respondent ‘More’ urged that the warrant issued by the Chief Presidency Magistrate was intended to be and could in its very nature be a legal warrant enforceable within India. It had no extra-territorial operation, and could not be enforced outside India, and when the Central Magistrate Hong Kong, purported to endorse that warrant for enforcement within Hong Kong he had no authority to do so.    The respondent being arrested in a foreign country lawfully, by the, order of the Central Magistrate, Hong Kong, had not been surrendered and the invalidity of the warrant issued by the Chief Presidency Magistrate is set up as a ground for refusing to obtain extradition of the offender.  The Justice Shah J. ordered In the course of investigation of offences under ss. 420, 467, 471 and 120 B.I.P. Code, the Officer in charge of the investigation submitted an application before the Chief Presidency Magistrate, Calcutta, for an order that a warrant for the arrest of Jugal Kishore More and certain other named persons be issued and that the warrant be, forwarded with the relevant records and evidence to the Ministry of External Affairs, Government of India, for securing extradition of More who was then believed to be in Hong Kong.  The Chief Presidency Magistrate forwarded to the Government of West Bengal, the warrant with attested copies of the evidence recorded at the enquiry and Photostat copies of documents tendered by the prosecution in evidence “in accordance with the procedure laid down by Ministry of External Affairs, Government of India, letter No. K/52/ 6131/41 dated May 21, 1955.” The warrant was forwarded by the Government of West Bengal to the Ministry of External Affairs, Government of India. Hong Kong, which in his turn, requested the Colonial Secretary, Hong Kong, for an order extraditing More under the Fugitive Offenders Act, 1881, (44 and 45 Vict., c. 69), to India for trial for offences described in the warrant. The Central Magistrate, Hong Kong, endorsed the warrant and directed the Hong Kong Police, pursuant to section 13 of Part 11 and section 26 of Part IV of the Fugitive Offenders Act, 1881. The learned Judge accordingly ordered that the warrant of arrest dated July 30, 1965, issued by the Chief Presidency Magistrate, Calcutta, against More and all subsequent proceedings taken by the Chief Presidency Magistrate and the other respondents be quashed. The State of West Bengal has appealed to this Court with special leave.              The State of Madras v. C. G. Menon and Another In 1954 this Court was called upon to decide a case relating to extradition to Singapore, a British Colony, of a person alleged to be a fugitive offender. The High Court held that the Fugitive Offenders Act was in-consistent with the fundamental right of equal protection of the laws guaranteed by Art. 14 of the Constitution and was void to that extent and unenforceable against the petitioners.  Enactment of the Extradition Act 34 of 1962, the Government of India is prohibited from securing through diplomatic channels the extradition of an offender for trial of an offence committed within India. There was, no illegality committed by the Chief Presidency Magistrate, Calcutta, in sending the warrant to the Secretary, Home (Political) Department, Government, of West Bengal, for transmission to the Ministry of External Affairs, Government of India. DECISION HELD BY COURT:The court held that the appeal must be allowed and the order passed by the High Court is set aside.

STATE OF WEST BENGAL Vs JUGAL KISHORE MORE & ANR DATE OF JUDGMENT SHAH J.C SHAH J.C RAMASWAMI V GROVER A.N 1969 AIR 1171 1969 SCR 320 1969 SCC 440 Extradition Nature of Fugitive Offenders ActInapplicability in Republic of India if bar to obtain extradition of fugitive offenders from another Commonwealth country Extradition Acteffect After this Court held in State of Madras v. C. G. Menon 1955] 1 S.C.R. 280 that the Fugitive Offenders Act 1881 was inconsistent with Art. 14 of the Constitution and was on that account unenforceable after 26th January 1950 the Government of India Ministry of External Affairs issued a notification on May 21 1955 indicating the procedure for securing the presence of a fugitive offender in India from the United Kingdom and other Commonwealth countries. Under the Notification the Magistrate concerned is to issue a warrant of arrest of the fugitive offender under the Criminal Procedure Code 1898 and the warrant is to be sent to the Government of India Ministry of External Affairs through the concerned State Government. Thereafter the Ministry is to address the appropriate authority in the Commonwealth country through the High Commissioner for India for the surrender of the fugitive offender In 1962 the Indian Extradition Act was passed but as Hong Kong was not included in the First Schedule that Act could not be resorted for the surrender of the respondent who was a fugitive offender residing in Hong Kong. Action was therefore taken in the present case pursuant to the notification. The Chief Presidency Magistrate Calcutta issued a warrant under the Criminal Procedure Code for the arrest of the respondent and the warrant was forwarded by the Government of West Bengal to the Ministry of External Affairs Government of India. The Ministry forwarded the warrant to the High Commissioner for India Hong Kong who in his turn requested the Colonial Secretary Hong Kong for an order extraditing the respondent under the Fugitive Offenders Act 1881 Whether the Chief Presidency Magistrate had no power to issue the warrant as it would have extraterrestrial operation Whether the Fugitive Offenders Act having ceased to be part of the law of India could be resorted to for obtaining extradition of fugitive offenders Whether the instructions of the Government of India for obtaining extradition are an invasion upon the authority of courts andWhether the Extradition Act 1962 operates as a bar to the requisition made by the Ministry of External Affairs for the extradition of the respondent HELD : The Courts of the country which make a requisition for surrender proceed upon prima facie proof of the offence and leave it to the State to make a requisition upon the other State in which the offender has taken refuge. Under s. 82 of the Criminal Procedure Code when a warrant is issued by a Magistrate in India it can be in India and has no extra territorial operation. By making a requisition to another State in pursuance of such a warrant for assistance in securing the presence of the offender the warrant is not invested with extraterritorial operation. If the other State requested Agrees to lend its aid to arrest the fugitive the arrest is made by the issue of an independent warrant or endorsement or authentication of the warrant of the court which issued it. By such endorsement or authentication the State expresses its willingness to lend its assistance in implementation of treaties or international commitments to secure the arrest of the offender. The offender arrested pursuant to the warrant or endorsement is brought before the Court of the country to which requisition is made and that court holds enquiry to determine whether the offender may be extradited.1 All E.R. 1960 Re. Kweshi Armah2 All E.R. 1006 Zacharia v. Republic of Cyprus 2 All. E.R. 438 and Halsbury’s Laws of England 3rd edn. Vol. 5 Art. 987 p 433 referred to 3) This Court by holding in C. G. Menon’s case that since India became a Republic the Fugitive Offenders Act could not be enforced in his country presented the Government of India with a problem which had to be resolved by devising a machinery for securing the presence of fenders who were fugitives from justice. The notification was issued only in the nature of advice about the procedure to be followed and was not in any manner intended as an affront to the Courts or to impose any executive will upon the courts in judicial matters.to India for trial for offences described in the warrant. The Central Magistrate Hong Kong endorsed the warrant and directed the Hong Kong Police "pursuant to section 13 of Part 11 and section 26 of Part IV of the Fugitive Offenders Act 1881" to arrest More. The order recited "WHEREAS I have perused this warrant for the apprehension of Jugal Kishore More . . accused of an offence punishable by law in Calcutta Republic of India which warrant purports to be signed by the Chief Presidency Magistrate Calcutta and ’is sealed with the seal of the Court of the said Magistrate and is attested by S. K. Chatterjee .Under Secretary in the Ministry of External Affairs of the Republic of India and sealed with the seal of the said Ministry AND WHEREAS I am satisfied that this warrant was issued by a person having lawful authority to issue the same AND WHEREAS it has been represented to me that the said Jugal Kishore More . . . is suspected of being in the Colony AND WHEREAS Order in Council S.R. and 0. No 28 of 1918 by virtue of which Part 11 of the Fugitive Offenders Act 1881 was made to apply to a group 324 of British Possessions and Protective States including Hong Kong and British India appears to remain in full force and effect so far as the law of Hong Kong is concerned Now therefore under section 13 of the Fugitive Offenders Act 1881 I hereby endorse this Warrant and authorise and command you in Her Majesty’s name forthwith to execute this Warant in the Colony to apprehend the said Jugal Kishore More . . . wherever he may be found in the Colony and to bring him before a Magistrate of the said Colony to be further dealt with according to law More was arrested on November 24 1965. By order dated April 4 1966 the Central Magistrate Hong Kong over ruled the objection raised on behalf of More that the Court had no jurisdiction to proceed in the matter under the Fugitive Offenders Act 1881 since the Republic of India was no longer a "British Possession On May 16 1966 Hanuman Prasad father of More moved in the High Court of Calcutta a petition under S. 439 of the Code of Criminal Procedure and Art. 227 of the Constitution for an order quashing the warrant of arrest issued against More and all proceedings taken pursuant thereto and restraining the Chief Presidency Magistrate and the Union of India from taking any further steps pursuant to the said warrant of arrest and causing More to be extradited from Hong Kong to India. The petition was heard before a Division Bench of the High Court. A. Roy J. held that the warrant issued by the Chief Presidency Magistrate was not illegal and the procedure followed for securing extradition of More was not irregular. In his view the assumption made by the Central Magistrate Hong Kong that for the purpose of the Fugitive Offenders Act India was a "British possession" was irrelevant since that was only a view expressed by him according to the municipal law of Hong Kong and by acceding to the requisition for extradition and surrender made upon that country by the Government of India in exercise of sovereign rights the status of the Republic of India was not In the view of Gupta J. the warrant issued by the Chief Presidency Magistrate and the steps taken pursuant to the warrant were without jurisdiction that the request made to the Hong Kong Government by the Government of India was also without authority in the absence of a notified order under S. 3 of the Extradition Act 1962 and the High Court could not ignore the "laws of the land even to support a gesture of comity to another nation " that 325 what was done by the Hong Kong authorities pursuant to the request made for the surrender of More was "not an instance of international comity but was regarded as the legal obligation under the Fugitive Offenders Act under which the Central Magistrate Hong Kong regarded India as a Colony or Possession of the British Commonwealth". The case was then posted for hearing before R. Mukherji J. The learned Judge held that the. Chief Presidency Magistrate had no power to issue the warrant of arrest in the manner he had done a manner which in his view was "unknown to the Code of Criminal Procedure" since the Fugitive Offenders Act 18 8 1 had ceased on the coming into force of the Constitution to be part of the law of India and could not on that account be resorted to for obtaining extradition if offenders from another country that the instructions issued by the Government of India by letter No. 3516 J dated June 14 1955 laying down the procedure to the followed by the courts for securing extradition ’of offenders from the Commonwealth countries should have been ignored by the Chief Presidency Magistrate and that the Extradition Act 34 of 1962 did not authorise the Chief Presidency Magistrate to issue a warrant and to send it to the Secretary Home Political) Department Government of West Bengal that there "was no legal basis for the requisition made by the Central Government to Hong Kong" for extradition or surrender of More or for the issue of the warrant by the Chief’ Presidency Magistrate and that the demand made by the Government of India to the Government of Hong Kong by making a requisition to Hong Kong for the arrest of More was not a political act beyond the purview of law and judicial scrutiny" and being inconsistent with the law was liable to be rectified. He observed that the Central Government had the power under s. 3 of the Extradition Act 1962 to issue a notification for including Hong Kong in the list of countries from which offenders may be extradited but since the Government had not issued any notification under that clause in exercise of the executive power the Government could not attempt in violation of the statutory procedure seek extradition which the law of India did not permit. The learned Judge accordingly ordered that the warrant of arrest dated July 30 1965 issued by the Chief Presidency Magistrate Calcutta against More and all subsequent proceedings taken by the Chief Presidency Magistrate and the other respondents be quashed. The State of West Bengal has appealed to this Court with special Extradition is the surrender by one State to another of a person desired to be dealt with for crimes of which he has been accused or convicted and which are justiciable in the courts of the other State. Surrender of a person within the State to another State whether a citizen or an alien is a political act done in pursuance of a treaty or an arrangement ad hoc. It is founded on the broad principle that it is in the interest of civilized communities that crimes should not go unpunished and on that account it is recoginised as a part of the comity of nations that one State should ordinarily afford to another State assistance towards bringing offenders to justice. The law relating to extradition between independent States is based on treaties. But the law has operation national as well as international It governs international relationship between the sovereign States which is secured by treaty obligations. But whether an offender should be handed over pursuant to a requisition is determined by the domestic law of the State on which the requisition is made. Though extradition is granted in implementation of the international commitments of the State the procedure to be followed by the Courts in deciding whether extradition should be ’granted and on what terms is determined by the municipal law As observed in Wheaten’s International Law Vol. 1 6th Edn. p. 213 "’The constitutional doctrine in England is that the Crown may make treaties with foreign States for the extradition of criminals but those treaties can only be carried into effect by Act of Parliament for the executive has no power without statutory authority to seize an alien here and deliver him to a foreign power Sanction behind an order of extradition is therefore the international commitment of the State under which the Court functions but Courts jealously seek to protect the right of the individual by insisting upon strict compliance with the conditions precedent to surrender. The Courts of the country which make a requisition for surrender deal with the prima facie proof of the offence and leave it to the State to make a requisition upon the other State in which the offender has taken refuge. Requisition for surrender is not the function of the Courts but of the State. A warrant issued by a Court for an offence committed in a country from its very nature has no extra territorial operation. It is only a command by the Court in the name of the sovereign to its officer to arrest an offender and to bring him before the Court. By making a requisition in pursuance of a warrant issued by a Court of a State to another State for assistance in securing the presence of the offender the warrant is not invested with extra territorial operation If the other State requested agrees to lend its aid to arrest the fugitive the arrest is made either by the issue of an independent warrant or endorsement or authentication of ’the warrant of the Court which issued it. By authentication of a warrant the country in which an offender has taken refuge signifies its willingness to lend its assistance in implementation of the treaties or international commitments and to secure the arrest of the offender. The offender arrested pursuant to the warrant or endorsement is brought before the Court of the country to which the requisition is made and the Court holds an inquiry to determine whether the offender may be extradited International commitment or treaty will be effective only if the Court of a country in which the offender is arrested after enquiry is of the view that the offender should be The functions which the Courts in the two countries perform are therefore different. The Court within whose jurisdiction the offence is committed decides whether there is prima facie evidence on which a requisition may be made to another country for surrender of the offender. When the State to which a requisition is made agrees consistently with its international commitments to lend its aid the requisition is transmitted to the Police authorities and the Courts of that country consider according to their own laws whether the offender should be suffendered the enquiry is in the absence of express provisions to the contrary relating to the prima facie evidence of the commission of the offence which is extraditable the offence not being a political offence nor that the requisition being a subterfuge to secure custody for trial for a political Prior to January 26 1950 there was in force in India the Indian Extradition Act 103 which as the preamble ex pressly enacted was intended to provide for the more convenient administration of the Extradition Acts of 1870 and 1873 and the Foreign Jurisdiction Act of 1881 both enacted by the British Parliament. The Act enacted machinery in Ch. II for the surrender of fugitive criminals in case of Foreign States i.e. States to which the Extradition Act of 1870 and 1873 applied and in Ch. II for surrender of fugitive offenders in case of "His Majesty’s Dominions". The Extradition Acts of 1870 and 1873 sought to give effect to arrangements made with foreign States with respect to the surrender to such States of any fugitive criminals Her Majesty may by Order in Council direct and to prescribe the procedure for extraditing fugitive offenders to such foreign states As observed in Halsbury’s Laws of England Vol. 16 3rd Edn. para 1161 at p. 567 "When a treaty has been made with a foreign State and the Extradition Acts have been applied by Order in Council one of Her Majesty’s principal Secretaries of State may upon a requisition made to him by some person recognized by him as a diplomatic representative of 328 that foreign State by order under his hand and seal signify to a police magistrate that such a requisition has been made and require him to issue his warrant for the apprehension of the fugitive criminal if the criminal is in or is suspected of being in the United Kingdom The warrant may then be issued by a police magistrate on receipt of the order of the Secretary of State and upon such evidence as would in his opinion justify the issue of the warrant if the crime had been committed or the criminal convicted in England The procedure for extradition of fugitive offenders from British possessions" was less complicated. When the Extradition Act was applied by Order in Council unless it was otherwise provided by such Order the Act extended to every "British possesSion" in the same manner as if throughout the Act the "British possession" were substituted for the United Kingdom but with certain modifications in Under Part I of the Fugitive Offenders Act 1881 a warrant issued in one part of the Crown’s Dominion for apprehension of a fugitive offender could be endorsed for execution in another Dominion. After the fugitive was apprehended he was brought before the Magistrate who heard the case in the same manner and had the same jurisdiction and powers as if the fugitive was charged with an offence committed within the Magistrate’s jurisdiction. If the Magistrate was satisfied after expiry of 15 days from the date on which the fugitive was committed to prison he could make an order for surrender of the fugitive on the warrant issued by the Secretary of State or an appropriate officer. There was also provision for "inter colonial backing of warrants within groups of "British possessions" to which Part I of the Fugitive Offenders Act 1881 has been applied by Order in Council. In such groups a more rapid procedure for the return of fugitive offenders between possessions of the same group was in force. Where in a "British possession" of a group to which Part II of the Act applied a warrant was issued for the apprehension of a person accused of an offence punishable in that possession and such term is or was suspected of being in or on the way to another British possession of the same group a magistrate in the last mentioned possession if satisfied that the warrant was issued by a person having lawful authority to issue the same was bound to endorse such warrant and the warrant so endorsed was sufficient authority to apprehend within the jurisdiction of the endorsing magistrate the person named in the warrant and to bring him before the endorsing magistrate or some other magistrate in the same possession. If the magistrate before whom a person apprehended was brought was satisfied that the war rant was duly authenticated and was by a person having lawful authority to issue it and the identity of the prisoner was established he could order the prisoner to be returned to the British possession in which the warrant was issued and for that purpose to deliver into the custody of the persons to whom the warrant was addressed or of any one or more of them and to be held in custody and conveyed to that possession there to be dealt with according to law as if he had been there apprehended. This was in brief the procedure prior to January 26 1950 The President of India adapted the Extradition Act 1903 in certain particulars. The Fugitive Offenders Act 1881 and the Extradition Act 1870 in their application to India were however not repealed by the Indian Parliament and to the extent they were consistent with the constitutional scheme they remained applicable. In order to maintain the continued application of laws of the British Parliament notwithstanding India becoming a Republic the British Parliament enacted the IndiaAct 1949 which by S. 1 provided "(1) On and after the date of India’s becoming a republic all existing law that is to say all law which whether being a rule of law or a provision of an Act of Parliament or of any other enactment or instrument whatsoever is in force on that date or has been passed or made before that date and comes into force thereafter shall until provision to the contrary is made by the authority having power to alter that law and subject to the provisions of sub s.of this section have the same operation in relation to India and to persons and things in any way belonging to or connected with India as it would have had if India had not become a republic of this section shall have effect in relation to any such law as modified by such an order in so far as the contrary intention appears in the order. An Order in Council under this section Whether the Fugitive Offenders Act 1881 applies to India after 26th January 1950 when India became a Sovereign Democratic Republic and 1 S.C.R. 280 331 Act 1903 also a similar requirement is insisted upon before a person can be extradited The situation completely changed when India became a Sovereign Democratic Republic. After the achievement of independence and the coming into force of the new Constitution by no stretch of imagination could India be described as a British Possession and it could not be grouped by an Order in Council amongst those Possessions. Truly speaking it became a foreign territory so far as other British Possessions are concerned and the extradition of persons taking asylum in India having committed offences in British Possessions could only be dealt with by an arrangement between the Sovereign Democratic Republic of India and the British Government and given effect to by appropriate legislation. The Union Parliament has not so far enacted any law on the subject and it was not suggested that any arrangement has been arrived at between these two Governments. The Indian Extradition Act 1903 has been adapted but the Fugitive Offenders Act 1881 which was an Act of the British Parliament has been left severely alone. The provisions of that Act could only be made applicable to India by incorporating them with appropriate changes into an Act of the Indian Parliament and by enacting an Indian Fugitive Offenders Act. In the absence of any legislation on those lines it seems difficult to hold that section 12 or section 14 of the Fugitive Offenders Act has force in India by reason of the provisions of article 372 of the Constitution. The whole basis for the applicability of Part II of the Fugitive Offenders Act has gone : India is no longer a British Possession and no Order in Council can be made to group it with other British Possessions..................... The political background and shape of things when Part II of the Fugitive Offenders Act 1881 was enacted and envisaged by that Act having completely changed it is not possible without radical legislative changes to adapt that Act to the changed conditions. That being so in our opinion the tentative view expressed by the Presidency Magistrate was right After this judgment was delivered the Government of India Ministry of External Affairs issued a notification on May 21 1955 to all State Governments of Part A B C & D States. It was stated in the notification that ". . . in a certain case of extradition of an offender the Supreme Court of India recently ruled that in 332 the changed circumstances the English Fugitive Offenders Act 1881 is no longer applicable to India. There can therefore be no question of issuing a warrant of arrest addressed to a foreign police or a foreign court in respect of persons who are residing outside India except in accordance with the Code of Criminal Procedure 1898 2.In the circumstances to obtain a fugitive offender from the United Kingdom and other Commonwealth countries the following procedure may be adopted as long as the new Indian Extradition law is not enacted and the Commonwealth countries continue to honour our requests for the surrender of the fugitive offenders notwithstanding decisions of the Supreme Court to get the warrant endorsed in accordance with law. This letter will be addressed to the Secretary of State of para 2 above and other documents received therewith The Chief Presidency Magistrate Calcutta made out the warrant for the arrest of More pursuant to that notification and sent the warrant to the Secretary Home This Chapter shah apply only to any such commonwealth country to which by reason of an extradition arrangement entered into with that country it may seem expedient to the Central Government to apply the same of s. 2 the expression "commonwealth country means ’a commonwealth country specified in the First Schedule and such other commonwealth country as may be added to that Schedule by the Central Government by notification in the Official Gazette and includes every constituent part colony or dependency of any commonwealth country so specified or added :". But in the Schedule to the Act "Hong Kong" is not specified as one of the commonwealth country and no notification has been issued by the Government of India under S. 2(a) adding to the First Schedule "Hong Kong’ as a commonwealth country. It is common ground between the parties that the provisions of the Extradition Act 1962 could not be resorted to for making the requisition for surrender of the fugitive offender from Hong Kong and no attempt was made in that behalf Validity of the action taken by the Chief Presidency Magis trate must therefore be adjudged in the light of the action taken pursuant to the notification issued by the Government of India on May 21 1955. Counsel for the respondent More urged that the warrant issued by the Chief Presidency Magistrate was intended to be and could in its very nature be a legal warrant enforceable within India : it had no extra territorial operation and could not be enforced outside India and when the Central Magistrate Hong Kong purported to endorse that warrant for enforcement within Hong Kong he had no authority to do so. But this Court has no authority to sit in judgment over the order passed by the Hong Kong Central Magistrate. The Magistrate acted in accordance with the municipal law of Hong Kong and agreed to the surrender of the offender : his action cannot be challenged in this Court It may also be pointed out that Form II of the warrant prescribed in Sch. V of the Code of Criminal Procedure only issues a direction under the authority of the Magistrate to a Police Officer to arrest a named person and to produce him before the Court. It does not state that the warrant shall be executed in any designated place or area. By s. 82 of the Code of Criminal Procedure a warrant of arrest may be executed at any place in India. That provision does not impose any restriction upon the power of the Police Officer The section only declares in that every warrant issued by any Magistrate in India may be executed at any place in India execution of the warrant is not restricted to the local limits of the jurisdiction of the Magistrate issuing the warrant or of the Court to which he is subordinate In Emperor v. Vinayak Damodar Savarkar and Ors. the Bombay High Court considered the question whether a person who was brought to the country and was charged before a 1) I.L.R. 35 Bom. 225 335 trate with an offence under the Indian Penal Code was entitled to challenge the manner in which he was brought into the country from a foreign country. Savarkar was charged with conspiracy under ss. 121 121A 122 and 123 of the Indian Penal Code. He was arrested in the United Kingdom and brought to India after arrest. under the Fugitive Offenders Act 1881. When the ship in which he was being brought to India was near French territory Savarkar escaped from police custody and set foot on French territory at Marseilles. He was arrested by the police officers without reference to the French police authorities and brought to India. It was contended at the trial of Savarkar that he was not liable to be tried in India since arrest by the Indian police officers in a foreign territory was without jurisdiction. Scott C.J. who delivered the principal judgment of the Court rejected the contention. He "Where a man is in the country and is charged before a Magistrate with an offence under the Penal Code it will not avail him to say that he was brought there illegally from a foreign country It is true that Savarkar was produced before the Court and be raised an objection about the validity of the trial on the plea that he was illegally brought to India after unlawful arrest in foreign territory. In the present case we are concerned with a stage anterior to that. The respondent More though arrested in a foreign country lawfully by the order of the Central Magistrate Hong Kong had not been surrendered and the invalidity of the warrant issued by the Chief Presidency Magistrate is set up as a ground for refusing to obtain extradition of the offender. But on the principle of Vinayak Damodar Savarkar’s case(1) the contention about the invalidity of the arrest cannot affect the jurisdiction of the Courts in India to try More if and when he is brought here The Indian Extradition Act 103 which was enacted to provide for the more convenient administration of the English Extradition Act 1870 & 1873 and the Fugitive Offenders Act. 1881 remained in operation. But after January 26 1950 India is no longer a "British Possession In C. G. Menon’s caseit was decided by this Court that application of ss. 12 and 14 of the Fugitive Offenders Act 1881 for surrendering an offender to a Commonwealth country in pursuance of a requisition under the Fugitive Offenders Act 1881 is inconsistent with the political status of India. It is somewhat unfortunate that the Court hearing that case was not invited to say anything about the operation of the IndiaAct 1949 But C. G. Menon’s case(2) was a reverse case in that the Colonial Secretary of Singapore had made a requisition for 1) I.L.R. 35 Bom. 225.[1955] 1 S.C.R. 280 surrender of the offender for trial for offences of criminal breach of trust in Singapore. Whether having regard to the political status of India since January 26 1950 the Fugitive Offenders Act 1881 insofar as it purported to treat India as a "British Possession" imposed an obligation to. deliver offenders in pursuance of the India Consequential Provision) Act 1949. is a question on which it is not necessary to express an opinion. By the declaration of the status of India as a Republic India has not ceased to be a part of the Commonwealth and the United Kingdom and several Colonies have treated the Fugitive Offenders Act 1881 as applicable to them for the purpose of honouring the requisition made by the Republic of India from time to time. In Re. Government of India and Mubarak Ali Ahmed(1) an attempt to resist in the High Court in England the requisition by the Republic of India to surrender an offender who had committed offences in India and had fled justice failed. Mubarak Ali a native of Pakistan was being tried in the Courts in India on charges of forgery and fraud. He broke his bail and fled to Pakistan and thereafter to England. He was arrested on a pro ’ visional warrant issued by the London Metropolitan Magistrate on the application of the Government of India After hearing legal submissions the Metropolitan Magistrate made an order under s. 5 of the Fugitive Offenders Act 1881 for Mubarak Ali’s detention in custody pending his return to India to answer the charges made against him Mubarak Ali then filed a petition for a writ of habeas corpus before the Queen’s Bench of the High Court. It was held that the Fugitive Offenders Act 1881 was in force between India and Great Britain on January 26 1950 when India become a republic and it was continued to apply by virtue of S. 1of the India Act 1960 even after Ghana became are public Re.Kwesi Armah(3). On July 1 1960 Ghana while remaining by virtue of the Ghana 1)1 All E.R. 1060 3)[1966] 2 All E.R. 1006.(2)S.C.R. 328 Provision) Act 1960 a member of the Comon wealth became a Republic. Kwesi Armah who was a Minister in Ghana fled the country in 1966 and took refuge in the United Kingdom He was arrested under a provisional warrant issued under the Fugitive Offenders Act 1881. The Metropolitan Magistrate being satisfied that the Act of 1881 still applied to Ghana and that a prima facie case had been made out against the applicant in respect of two alleged contravention of the Ghana Criminal Code 1960 by corruption and extortion when he was a public officer commited Kwesi Armah to prison pending his return to Ghana to undergo trial. A petition for a writ of habeas corpus before the Queen’& Bench Division of the High Court was refused. Edmund Davies J. was of the view that the Act of 1881 applied to the Republic of Ghana in its new form just as it did before the coup d’etat of February 1966. The case was then carried to the House of Lords Armah v. Government of Ghana and Another(1 The questions decided by the House of Lords have no relevance in this case. But it was not even argued that a fugitive offender from a republic which was a member of the Commonwealth could not be extradited under the Fugitive Offenders Act 1881 There is yet another recent judgment of the House of Lords dealing with repatriation of a citizen of the Republic of Cyprus Zacharia v. Republic of Cyprus and Anr.Warrants were issued against Zacharia on charges before the Courts in Cyprus of offences of abduction demanding money with menaces and murder. Under the orders issued by a Bow Street Magistrate under s. 5 of the Fugitive Offenders Act 1881 Zacharia was committed to prison pending his return to Cyprus. An application for a writ of habeas corpus on the ground that the offences alleged against him were political and that the application for the return of the fugitive was made out of motive for revenge was rejected by the Queen’s Bench Division and it was ordered that Zacharia be repatriated. The order was confirmed in appeal to the House Merely because for the purpose of the extradition procedure in a statute passed before the attainment of independence by the former Colonies and dependencies certain territories continue to be referred to as "British Possessions" the statute does not become inapplicable to those territories The expression "British Possession" in the old statutes merely survives an artificial mode of reference undoubtedly not consistent with political realities but does not imply for the purpose of the statute or otherwise political dependence. of the Government of the territories referred to. It is not for the Courts of India to take umbrage at expressions used in statutes of other countries and to refuse to give effect to Indian laws which govern the problems arising before them 1)3 All E.R. 177 2)2 All E.R. 438 It is interesting to note that by express enactment the Fugitive. Offenders Act 1881 remains ’in force as a part of the Republic of Ireland : see Ireland Act 1949on p. 433 it is stated British India which included the whole of India except the princely States and the Government of India Act 1935 as amended by s. 8 of the India and Burma but the law relating to the definition’ of Her Majesty’s dominions was not thereby changed and it was continued in being by the IndiaAct 1949passed in contemplation of the adoption of a re publican constitution by India. India is now a sovereign republic but that by itself does not render the Fugitive Offenders Act 1881 inapplicable to India If the question were a live question we would have thought it necessary to refer the case to a larger Bench for considering the true effect of the judgment in C. G. Menon’s case("). But by the Extradition Act 34 of 1962 the Extradition Act 1870 and the latter Acts and also the Fugitive Offenders Act 1881 have been repealed and the question about extradition by India of fugitive offenders under those Acts will not hereafter arise We are not called upon to consider whether in exercise of the Power under the Fugitive Offenders Act a Magistrate in India may direct extradition of a fugitive offender from a British Possession" who has taken refuge in India. It is sufficient to observe that the Colonial Secretary of Hong Kong was according to the law applicable in Hong Kong competent to give effect to the warrant issued by the Chief Presidency Magistrate Calcutta and the Central 1)[1955] 1 S.C.R. 280 339 Magistrate Hong Kong had jurisdiction under the Fugitive Offender& Act and after holding inquiry to direct that More be surrendered to India. The order of surrender was valid according to the law in force in Hong Kong and we are unable to appreciate the grounds on which invalidity can be attributed to the warrant issued by the Chief Presidency Magistrate Calcutta for the arrest of More. That the Chief Presidency Magistrate was competent to issue a warrant for the arrest of More against whom there was prima facie evidence to show that he had committed an offence in India is not denied. If the Chief Presidency Magistrate had issued the warrant to the Commissioner of ’ Police and the Commissioner of Police had approached the Ministry of External Affairs Government of India either through the local Government or directly with a view to secure the assistance of the Government of Hong Kong for facilitating extradition of More no fault can be found. But Gupta J. and Mukherjee J. thought that the notification issued by the Government of India setting out the procedure to be followed by a Magistrate where the offender is not in Indian territory and his extradition is to be secured amounted to an invasion on the authority of the Courts. We do not think that any such affront is intended by issuing the notification. The Fugitive Offenders Act 1881 had not been expressly repealed even after January 26 1950 It had a limited operation: the other countries of the Commonwealth were apparently willing to honour the international commitments which arose out of the provisions of that Act. But this Court on the view that since India had become a Republic held that the Fugitive Offenders Act could not be enforced in this country presented to the Government of India a problem which had to be resolved by devising machinery for securing the presence of offenders who were fugitives from justice. The notification issued was only in the nature of advice about the procedure to be followed and did not in any manner seek to impose any executive will upon the Courts in matters judicial Observations made by Mukherji J. that the notification issued by the Central Government authorising the Chief Presidency Magistrate to issue the warrant in the manner he had done came "nowhere near the law" and "to a Court of law it is waste paper beneath its notice" appear to proceed upon an incorrect view of the object of tile notification The Chief Presidency Magistrate had the power to issue the warrant for the arrest of More because there was prima facie evidence before him that More had committed certain offences which he was competent to try. The warrant was in Form II of Sch. V of the Code of Criminal Procedure. If the warrant was to be successfully executed against More who was not in India assistance of the executive Government had to be obtained. It is not an invasion upon the authority of the Courts when they are informed that certain procedure may be followed for obtaining the assistance of the executive Department of the State in securing through diplomatic channels extradition of fugitive offenders. In pursuance of that warrant on the endorsement made by the Central Magistrate Hong Kong More was arrested. The warrant was issued with the knowledge that it could not be enforced within India and undoubtedly to secure the extradition of More. Pursuant to the warrant the Ministry of External Affairs Government of India moved through diplomatic channels and persuaded the Colonial Secretary of Hong Kong to arrest and deliver More. Issue of the warrant and the procedure followed in transmitting the warrant were not illegal not even irregular One more argument remains to be noticed. It is true that under the Extradition Act 362 no notification has been issued including Hong Kong in the list of the Commonwealth countries from which extradition of fugitives from justice may be secured. The provisions of the Extradition Act 1962 cannot be availed of for securing the presence of More for trial in India. But that did not in our judgment operate as a bar to the requisition made by the Ministry of External Affairs Government of India if they were able to persuade the Colonial Secretary Hong Kong to deliver More for trial in this country. If the Colonial Secretary of Hong Kong was willing to hand over More for trial in this country it cannot be said that the warrant issued by the Chief Presidency Magistrate for the arrest of More with the aid of which requisition for securing his presence from Hong Kong was to be made was We are unable to agree with the High Court that because of the enactment of the Extradition Act 34 of J962 the Government of India is prohibited from securing through diplomatic channels the extradition of an offender for trial of an offence committed within India. There was in our judgment no illegality committed by the Chief Presidency Magistrate Calcutta in sending the warrant to the Secretary HomeDepartment Government of West Bengal for transmission to the Government of India Ministry of External Affairs for taking further steps for securing the presence of More in India to undergo trial The appeal must therefore be allowed and the order passed by the High Court set aside. ’Me writ petition filed by More must be dismissed Y.P. Appeal allowed

The prescription has to be given only by institutionally qualified practitioners, for homeopathy medicines: Supreme Court

It goes without saying that Homeopathic medical practitioners have to follow the advisory dated 06.03.2020 issued by AYUSH Ministry, this remarkable stand was forwarded by Supreme Court three judge bench chaired by Hon’ble Justice Mr. Ashok Bhushan, Mr. R. Subhash Reddy & Mr. M.R. Shah in the Civil appeal case of Dr. AKB Sadbhavana Mission School of Homeo Pharmacy V. The Secretary, Ministry of Ayush & Ors. [C.A. No. 4049 of 2020],. This appeal has been filed by the appellant Dr. AKB Sadbhavana Mission School of Homeo Pharmacy aggrieved by the part of Division Bench judgment of Kerala High Court dated 21.08.2020 passed in Writ Petition (C) No.9459 of 2020. The appellant, who was not party in the writ petition feeling aggrieved by certain directions issued by the High Court have come up in this appeal. The writ petition was filed by respondent No.4, an Advocate praying for writ of Mandamus or for any other writ or order directing the Secretary, Department of AYUSH, Government Secretariat, Trivandrum to ensure that the Homeopathic practitioners are immediately allowed to perform in accordance with the Exhibit-P1 notification (Guidelines dated 06.03.2020 issued by Secretary, Department of AYUSH (Ministry of Ayurveda, Yoga & Naturopathy, Unani, Siddha, Sowa-Rigpa and Homeopathy) (AYUSH, New Delhi). “The only prayer made in the writ petition are to the following effect:- (i) To issue a Writ of Mandamus or any other Writ or Order directing the third respondent to ensure that the Homeopathic practitioners are immediately allowed to perform in accordance with the Exhibit P-1 notification. (ii) To grant such other reliefs as this Honourable Court deems fit and proper in the facts and circumstances of the case.” The Division Bench of the High Court disposed of the writ petition by judgment dated 21.08.2020. The High Court in its judgment has extracted advisory dated 06.03.2020 of the Government of India, Ministry of AYUSH, the Government Order dated 08.04.2020 and 21.04.2020 issued by Government of Kerala and after noticing the aforesaid, the High Court disposed of the writ petition. The appellant, who was not party to the writ petition, has filed this appeal before the Hon’ble SC stating that, “the Hon’ble High Court had not issued any notice either to Ministry of AYUSH, Government of India or to Homoeopathy doctors or its organization before passing the impugned order.” After examining all the submissions, arguments and evidences forwarded by the councils, the Hon’ble HC observed that, “The guidelines, however, specifically provides that “the prescription has to be given only by institutionally qualified practitioners”. The High Court in its impugned judgment has not fully comprehended the guidelines dated 06.03.2020 and taking a restricted view of the guidelines and have made observations for taking appropriate actions against the Homeopathic medical practitioners, which cannot be approved.” The bench further added that, “The High Court, however, is right in its observation that no medical practitioner can claim that it can cure COVID-19. There is no such claim in other therapy including allopathy. The High Court is right in observing that no claim for cure can be made in Homeopathy. The Homeopathy is contemplated to be used in preventing and mitigating COVID-19 as is reflected by the advisory and guidelines issued by the Ministry of AYUSH as noticed above.”

IN THE CIVIL APPELLATE JURISDICTION APPEAL NO. 4049 OF 2020 arising out of SLPNo. 15293 2020 Diary No 196320 DR. AKB SADBHAVANA MISSION SCHOOL OF HOMEO PHARMACY ...APPELLANT(S) THE SECRETARY MINISTRY OF AYUSH & ORS ...RESPONDENT(S) J U D G M E N T BHUSHAN J The application seeking permission to file special leave petition is allowed This appeal has been filed by the appellant Dr. AKB Sadbhavana Mission School of Homeo Pharmacy aggrieved by the part of Division Bench judgment of Kerala High Court dated 21.08.2020 passed in Writ PetitionNo.94520. The appellant who was not party in the writ petition feeling aggrieved by certain directions issued by the High Court have come up in this appeal. We need to notice the contents and prayers of the writ petition filed in the Kerala High Court by respondent No.4 (AYUSH New Delhi). The petitioner’s case in the writ petition is that petitioner is an ardent admirer of the Homeopathic medicine system which system of medicine in India is controlled and regulated by the Ministry of AYUSH. The petitioner pleaded that to control the spread of Coronavirus notification dated 06.03.2020 was issued by the Secretary Ministry of AYUSH to the Chief Secretaries of all States in which notification it was pointed out that interventions under AYUSH systems have been varyingly used for making an effective public health response in similar situations faced in many States Union Territories earlier. The petitioner’s grievance was that State of Kerala and the Secretary Department of AYUSH Government Secretariat Trivandrum did not take steps to implement the advisory dated 06.03.2020 whereas many other State Governments have taken steps much earlier. The petitioner pleaded that Homeopathic system would have been absolutely able to control the spread of COVID 19 through its immunity boosting medicines. Petitioner further stated in the writ petition that if the Homeopathic medicines had been distributed earlier in highly affected pockets and particularly to those under isolation and quarantine the explosive situation had not happened which has happened in the State of Kerala. The only prayer made in the writ petition are to the following To issue a Writ of Mandamus or any other Writ or Order directing the third respondent to ensure that the Homeopathic practitioners are immediately allowed to perform in accordance with the Exhibit P 1 To grant such other reliefs as this Honourable Court deems fit and proper in the facts and circumstances of the case. The Division Bench of the High Court disposed of the writ petition by judgment dated 21.08.2020. The High Court in its judgment has extracted advisory dated 06.03.2020 of the Government of India Ministry of AYUSH the Government Order dated 08.04.2020 and 21.04.2020 issued by Government of Kerala and after noticing the aforesaid the High Court disposed of the writ petition. In paragraphs 13 and 14 of the judgment the High Court has stated as follows: “13. It is the case of the petitioner that Exhibit P1 has not been implemented by the State of Kerala whereas it is the submission of learned Senior Government Pleader that Government has approved the action plan of Homeo Department for giving Homeo medicines as prophylactic. However the target population was not intended to include COVID 19 patients or their contacts or those people under quarantine. Advisory of the Ministry of AYUSH is being followed by the Government and tablets are given free of cost to those persons as immunity boosters. As per the State Medical Protocol COVID 19 affected persons should not be treated by anybody other than the Government and those authorised by the Government. As per the medical protocol of the Government doctors practising in AYUSH medicines are not supposed to prescribe any medicines stating that it is curative for COVID 19 disease. However as per the advisory there is nothing prohibiting the qualified medical AYUSH practitioners to prescribe immunity booster mixture or tablets as suggested by the Ministry of AYUSH Government of India New Delhi. When the Central as well as State Governments have approved prescription of certain mixtures and tablets as immunity boosters qualified medical practitioners in AYUSH can also prescribe the same but only as immunity boosters. 14. We also make it clear that if any qualified doctor practising AYUSH medicine makes any advertisement or prescribes any drugs or medicines as a cure for COVID 19 disease except those specifically mentioned in Annexure I advisory to Exhibit P1 D.O. letter dated 6.3.2020 it is open for the respondents to take appropriate action under the provisions of the Disaster Management Act 2005 and the orders of the Governments both Central as well as the State issued from time to time. Only those tablets or mixtures shall be given as immunity booster and not as cure for COVID 19 AYUSH medical practitioners are further directed not to violate the Government Order dated 6.3.2020. In this regard Medical Police Departments are also directed to monitor the action of AYUSH medical practitioners. Writ petition is disposed of accordingly.” The appellant who was not party to the writ petition has filed this appeal and the reasons given for filing this appeal by the appellant as stated in paragraph 4 of the application seeking permission to file special leave petition are as follows: “4. It is respectfully submitted that the Hon ble High Court had not issued any notice either to Ministry of AYUSH Government of India or to Homoeopathy doctors or its organisation before passing the impugned order. Homoeopathy Doctors are treating all patients who come for treatment. As is well known most of the Covid 19 patients are asymptomatic and therefore such blanket orders will cause grave prejudice to the Homoeopathy doctors who treat the patients. The direction to take action under the Disaster Management Act is very harsh and the said order has been passed without hearing the doctors who are affected by such orders. The Writ Petition has been filed by a lawyer who is an ardent follower of homoeopathy medicine. The prayer was to implement the direction passed by AYUSH on 06.03.2020. The Hon ble High Court unfortunately went beyond the pleadings and made observations which will affect the profession of Homoeopathy doctors. It is pertinent to mention here that many of the State Governments have been prescribing Homoeopathy medicines as an immunity booster. Even the Health Minister Government of Kerala had given a press statement that Homoeopathy medicines are very good for prevention of Covid 19 In the State of Gujarat the Government itself had prescribed the homoeopathy medicines for its citizens.” The appellant is aggrieved by the directions of the High Court contained in paragraph 14 only. The High Court in its judgment dated 21.08.2020 itself has extracted the G.O. dated 21.04.2020 of the Government of Kerala where Government of Kerala was pleased to approve the action plan outlining the Homeopathy Strategies for prevention and management of COVID 19 in Kerala. It is now useful to refer to the G.O. dated 21.04.2020 which has been quoted in the impugned judgment which is to the following “GOVERNMENT OF KERALA AYUSH Dept. COVID 19 Action Plan outlining the Homeopathy Strategies for Prevention and Management of COVID 19 in Kerala Approved Orders issued. Thiruvananthapuram Read: 1. Letter No. DHTVM 2606 2019 P2 dtd. 13.04.2020 of the Director of Homeopathy. In the circumstances explained by the Director of Homeopathy vide letter read above Government are pleased to approve the Action Plan outlining the Homeopathy Strategies for prevention and management of COVID 19 in Kerala as appended to this By order of the Governor) Bhooshan V. ” We have heard Shri Venkita Subramoniam learned counsel for the appellant and Shri Tushar Mehta learned Solicitor General of India for the An affidavit has been filed on behalf of Ministry of AYUSH to which rejoinder has also been filed. The appellant being aggrieved only with directions in paragraph 14 and no relief having been claimed by the appellant against the State of Kerala we have not issued notice to respondent Nos. 2 and 3 and we proceeded to decide this appeal after hearing the learned counsel for the petitioner as well as learned Solicitor General of India for the 10. Learned counsel for the appellant contends that the directions issued by the Division Bench of Kerala High Court in paragraph 14 to take actions against Homeopathic doctors who prescribe any drug as a cure for COVID 19 disease should be proceeded with under the provisions of Disaster Management Act 2005 was uncalled for and beyond the scope of the writ petition. Learned counsel submits that even the Government of India advisory dated 06.03.2020 permitted COVID 19 like illness to be managed by AYUSH systems. The advisory itself permits Homeopathy to be used as preventive prophylactic symptom management of COVID 19 like illnesses and add on interventions to the conventional care. The High Court has erred in confining right of Homeopathic medical practitioners to prescribe only as immunity booster which direction is not in accord to the Guidelines dated 06.03.2020 11. Learned counsel for the appellant submits that guidelines for Homeopathic practitioners for COVID 19 has been issued by Government of India Ministry of AYUSH which clearly permits medical practitioners which permission from local health authorities and Medical Superintendent of the hospital to prescribe medicines for COVID 19. When the guidelines issued specifically permits treatment of COVID 19 patients the High Court erred in observing that Homeopathy practitioners can only prescribe medicines as immunity booster. It is submitted that the direction issued by the High Court in paragraph 14 has made vulnerable the Homeopathic practitioners from being proceeded with under Disaster Management Act 2005 and actions by police and other medical staff which is demoralising the practitioners of Homeopathy. 12. Shri Tushar Mehta learned Solicitor General of India appearing for Ministry of AYUSH Government of India has submitted that Government of India keeping in view the unprecedented and unforeseen precarious situation caused by COVID 19 the Ministry of AYUSH decided to augment and strengthen the COVID 19 medical response of the country by using the traditional healthcare system of the country which includes AYUSH Organisation Homeopathic practices as well as Unani practices. Learned Solicitor General of India has referred to advisory dated 06.03.2020 which covers the field and he has also referred to the guidelines issued by Government of India. Shri Mehta has referred to the affidavit filed on behalf of Ministry of AYUSH. He submits that Homeopathy practitioners are permitted by the Ministry of AYUSH to prescribe medicines as preventive and prophylactic symptom management of COVID 19 iii) add on interventions to the conventional care 13. We have considered the submissions of the learned counsel for the parties and have perused the records 14. The advisory dated 06.03.2020 issued by the Ministry of AYUSH has been relied by the learned counsel for the appellant as well as learned Solicitor General and was also extensively extracted by the High Court in its judgment. The advisory dated 06.03.2020 contains the object of AYUSH systems. It is useful to extract followingwhich is part of advisory dated “i. Preventive and prophylactic Arsenicum album 30 daily once in empty stomach for three days. The dose should be repeated after one month by following the same schedule till Coronavirus infections prevalent in the community. In one of the studies Arsenic album as one of the constituents in a formulation affected HT29 cells and human macrophages Also it showed SNF KB hyperactivity reduced expression of reporter gene GFP in transfected HT29 cells) tTNF a release in macrophages. More over Arsenic album is a common prescription in the cases of respiratory infections in day to day ii. Symptom management of COVID 19 like Various medicines which found to be effective in treating flu like illness are Arsenicum album Btyonia alba Rhus toxico dendron Belladonna Gelsemium Eupatorium perfoliatum. All these medicines should be taken in consultation with qualified physicians of respective AYUSH systems. iii. Add on Interventions to the Medicine mentioned Symptom management of COVlD 19 like illnesses under subhead Homoeopathy can also be given as add on to conventional care. All these medicines should be taken in consultation with qualified physicians of respective AYUSH systems. 15. The above clearly indicate that Ministry of AYUSH specifically permits use of Homeopathy for following three ways: Preventive and prophylactic Symptom management of COVID 19 like illness iii) Add on interventions to the conventional 16. We may further notice the specific averments made by Ministry of AYUSH in its affidavit dated 23.11.2020 regarding what is permitted to the Homeopathy Medical Practitioner as per Ministry of AYUSH. Paragraph 16 of the affidavit sworn on behalf of the Ministry of AYUSH is as follows: “16. In addition to the above it is respectfully reiterated that Ministry of AYUSH has clearly permitted the homeopathic medical practitioners to prescribe the chugs as mentioned in the guidelines as an add on drug to the conventional treatment for patients who have been tested Covid positive and are undergoing conventional treatment. Thus in the respectful submission of the answering respondent prescription of the medication prescribed by the Ministry of AYUSH to Covid positive patients as an add on treatment is permitted and therefore any contention to the contrary stating that homeopathic medical practitioner cannot prescribe any treatment to Covid 19 positive patients even as an add on to conventional treatment is liable to be rejected. It is stated that the only embargo is that the said Medicines should not be administered or advertised as a cure but should be measure immunity booster or as an add on to the conventional treatment.” 17. It is clear from the advisory dated 06.03.2020 and the specific stand taken by the Ministry of AYUSH as contained in paragraph 16 extracted above that Homeopathic medical practitioners are not only confined to prescribe Homeopathic medicines only as immunity booster. The following observations in paragraph 13 by the High Court does not correctly comprehend the guidelines dated 06.03.2020: “13. When the Central as well as State Governments have approved prescription of certain mixtures and tablets as immunity boosters qualified medical practitioners in AYUSH can also prescribe the same but only as immunity 18. The High Court in the impugned judgment has emphasised that if any qualified doctor practising AYUSH medicine makes any advertisement or prescribes any drugs or medicines as a cure for COVID 19 disease except as prescribed in letter dated 6.3.2020 it is open to the authorities to take appropriate action under the provisions of the Disaster Management Act 2005. Insofar as advertisement by Homeopathic practitioners is concerned i.e. clearly prohibited by the regulations framed in Section 33 read with Section 24 of Homeopathy Central Council Act 1973 namely the Homeopathic Practitioners Regulations 1982. The Regulation 6 prohibits advertisement for solicitation of patients personally or advertisement in the newspaper by the Homeopathic practitioners Regulation 6 is to the following effect: “6.Advertising Solicitation of patients directly or indirectly by a practitioner of Homoeopathy either personally or by advertisement in the newspapers by placards or by the distribution of circular cards or handbills is unethical A practitioner of Homoeopathy shall not make use of or permit others to make use of him or his name as a subject of any form or manner of advertising or publicity through lay channels which shall be of such a character as to invite attention to him or to his professional position or skill or as would ordinarily result in his self aggrandisement provided that a practitioner of Homoeopathy is permitted formal announcement in press about the following matters namely : the starting of his practice change of the type of practice iii) change of address temporary absence from duty . resumption of practice succeeding to another s practice. 2) He shall further not advertise himself directly or indirectly through price lists or publicity materials of manufacturing firms or traders with whom he may be connected in any capacity nor shall he publish cases operations or letters of thanks from patients in non professional newspapers or journals provided it shall be permissible for him to publish his name in connection with a prospectus or a director s or a technical expert s 19. When statutory regulations itself prohibit advertisement there is no occasion for Homeopathic medical practitioners to advertise that they are competent to cure COVID 19 disease. When the Scientists of entire world are engaged in research to find out proper medicine vaccine for COVID 19 there is no occasion for making any observation as contained in paragraph 14 with regard to Homeopathic medical practitioners. The homeopathy does not cure the disease but it cures the patients. 20. We have already noticed that the writ petition which was filed in the Kerala High Court only with a limited relief for issuing direction to respondent to implement the advisory dated 06.03.2020 issued by Ministry of AYUSH there was no occasion for High Court to make observations and issue direction as it has been made in paragraph 14. 21. We however make it clear that what is permissible for Homeopathic medical practitioner in reference to COVID 19 symptomatic and asymptomatic patients is already regulated by the said advisory and guidelines. The Government of India Ministry of AYUSH has also brought on record the guidelines issued subsequent to 06.03.2020 for Homeopathy medical practitioners for COVID 19 where Homeopathic approach to COVID 19 has been elaborately dealt with The said guidelines which has been issued after 04.04.2020 has been brought on the record as Annexure C by the Ministry of AYUSH. The guidelines contained following under the heading “Homeopathic approach” It is advised that before taking up for homoeopathic medicines for prophylaxis Amelioration and mitigation physician must acquaint himself of above sections. In case of epidemics or pandemics first approach is to follow preventive measures and educate people about general measures and to provide such interventions which will keep their immunity enhanced Homeopathy therefore recommends issuing of public notice for Genus epidemics identified by the designated experts for immunity enhancement and practitioners may suggest the same to the people and as per the Advisory issued by Ministry of Second approach is to provide homoeopathic symptomatic mitigation to affected persons. Homoeopathic medicines are also useful in the treatment of communicable diseases like Influenza Like Illness(7 8) dengue(9) acute encephalitis syndrome(10). Several studies are also published which shows the immune modulatory potential of homoeopathic medicines in preclinical studies(12 13) (15) (18) (20). The medicines given here are suggestive based on their use and studies in the past in diseases of similar presentation like COVID 19 (22) as are required for dealing with COVID 19 The remedies according to different stages of disease are given below: Mild Disease ≤ 93% PaO2 FiO2 ratio < 300 and or lung infiltrates > 50% within 24 to 48 hours Suggested medicines are as adjuvant to Standard Management guidelines in the hospital setting only with the approval of authorities and willingness of the patient guardian. The prescription is to be given only Chelidonium Veratrum Viride Iodum Camphora Cinchona officinalis Lycopodium Ars. iod. Antim ars. Stannum met Carbo veg. can be prescribed on symptomatic indication. The medicine selected for each patient is tailored to person specific taking into consideration his her mental make up physical symptoms and characteristic particulars etc. In case of long term illness besides the above mentioned factors age occupation previous illnesses and life circumstance unique to that individual irrespective of the disease which he she is suffering from are also taken into consideration thus the dictum “Homoeopathy treats the patient but not the disease”. After the appropriate medicine is selected it is essential to decide the requisite potency dose and repetition which is imperative for optimum response and faster recovery in each case Different types of potencies such as decimal or centesimal potencies can be employed for treatment as are required for acute diseases. However selection of potency of the remedy is dependent on various factors like susceptibility of the patient type of disease acute chronic) seat nature and intensity of the disease stage and duration of the disease and also the previous treatment of the disease(24).” 22. The above guidelines make it clear that Homeopathy has been envisaged by the Ministry as the 23. The above guidelines refer to Homeopathy medicines as medicines for prophylaxis Amelioration and mitigation. The guidelines however specifically provides that “the prescription has to be given only by institutionally qualified practitioners”. The High Court in its impugned judgment has not fully comprehended the guidelines dated 06.03.2020 and taking a restricted view of the guidelines and have made observations for taking appropriate actions against the Homeopathic medical practitioners which cannot be approved. The High Court however is right in its observation that no medical practitioner can claim that it can cure COVID 19. There is no such claim in other therapy including allopathy. The High Court is right in observing that no claim for cure can be made in Homeopathy. The Homeopathy is contemplated to be used in preventing and mitigating COVID 19 as is reflected by the advisory and guidelines issued by the Ministry of AYUSH as noticed above. 24. We thus observe that directions issued by the High Court in paragraph 14 of the judgment need to be modified to the extent as indicated above. It goes without saying that Homeopathic medical practitioners have to follow the advisory dated 06.03.2020 issued by AYUSH Ministry as well as guidelines for Homeopathic medical practitioners for COVID 19 issued by Government of India Ministry of AYUSH as noted above. The Civil Appeal is disposed of accordingly The interlocutory applications filed seeking permission for impleadment is rejected. ( ASHOK BHUSHAN ( R. SUBHASH REDDY ( M.R. SHAH New Delhi December 15 2020

Non commercial quantity of drugs reflects an addict not a peddler: Himachal Pradesh High Court

The person in possession of a non commercial quantity of drugs reflects that the person is not a drug peddler; rather it seems that he is a drug addict, who needs proper counseling and treatment to give-up narcotics. This proclamation was made by Himachal Pradesh High Court presided by J. Chander Bhusan Barowalia in the case of Sushil Chauhan &amp; others vs State of Himachal Pradesh [Cr.MPs(M) No. 349, 350 &amp; 351 of2021]. The present bail applications have been maintained by the petitioners under Section 439 of the Code of Criminal Procedure seeking their release under Sections 21 and 29 of the ND&amp;PS Act, registered in Police Station Sadar Solan, District Solan, H.P. As per the averments made in the petitions, the petitioners were innocent and had been falsely implicated in the present case. The petitioners were permanent residents of Himachal Pradesh and neither in a position to tamper with the prosecution evidence nor in a position to flee from justice. No fruitful purpose would be served by keeping them behind the bars for an unlimited period, so they be released on bail. As per the prosecution story, when a police team was on routine patrol duty near Tapan Hyundai, Shamlech, police spotted a vehicle, which was parked alongside the national highway with the three petitioners in it. As the police had suspicion of petitioners’ having some contraband, police associated two independent witnesses and thereafter conducted search of the vehicle. During the search of the vehicle, police recovered a box of cigarette, which contained a plastic pouch having heroin. The recovered contraband was found to be 7 grams. During the course of interrogation, petitioners divulged that they purchased the contraband from a person at Haryana, but they did not disclose the whereabouts of that person. It came in the investigation that petitioner, Sushil procured the phone number of a person with whom he had a word and thereafter a person delivered the contraband to him, but petitioner Sushil divulged that he is not acquainted with that person. As per the police, the investigation was in its initial stage and in case the petitioners were enlarged on bail, they might tamper with the prosecution evidence and may also flee from justice.

Hig h C o urt of H.P on 28 02 HCHP IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr.MPs(M) No. 349 350 & 351 of2021 Decided on: 26th February 2021 1. Cr.MP(M) No. 3421: Sushil Chauhan ….Petitioner Versus State of Himachal Pradesh …Respondent 2. Cr.MP(M) No. 3521: Himanshu Negi ….Petitioner Versus State of Himachal Pradesh …Respondent 3. Cr.MP(M) No. 3521: Sahil Negi ….Petitioner Versus State of Himachal Pradesh …Respondent Coram The Hon’ble Mr. Justice Chander Bhusan Barowalia Judge. Whether approved for reporting 1 Yes. For the petitioner(s): Mr. Rohit Sharma and Mr. Anuj Gupta Advocate. For the respondent State: Mr. S.C. Sharma and Mr. P.K. Bhatti Addl. AGs with ASI Ramesh Chand I.O. Police Station Sadar Solan District Solan H.P. ___________________________________________________________________________ Chander Bhusan Barowalia Judge.which was parked alongside the national highway. When the police team looked into the vehicle the person sitting on the rear seat was sleeping. Thereafter the driver of the vehicle on being inquired by the police divulged his name as Sahil Negiand he abruptly started the vehicle due to which the sleeping person woke up. Police inquired the names of other persons who divulged their names as Himanshu Negi and Sushil Chauhaneach with one surety each in the like amount to the satisfaction of the learned Trial Court. The bail is granted subject to the following conditions: That the petitioners will appear before the learned Trial Court Police authorities as and when required. Hig h C o urt of H.P on 28 02 HCHP 6That the petitioners will not leave India without prior permission of the Court. That the petitioners will not directly or indirectly make any inducement threat or promise to any person acquainted with the facts of the case so as to dissuade him her from disclosing such facts to the Investigating Officer or Court. 8. In view of the above the petitions are disposed of. Copy dasti. 26th February 2021 Judge

It is of no use to keep seized vehicles at the police stations for a long period : High Court of Jammu and Kashmir and Ladakh

The only purpose for releasing of the vehicle is to ensure that the vehicle remains, roadworthy otherwise if the same is allowed to remain in police custody, the same shall lose its utility as  upheld by the High Court of Jammu and Kashmir and Ladakh through the learned bench led by Justice Rajnesh Oswal in the case of Sunil Singh v/s UT of J&amp;K (CRM (M) No. 689/2021). It is stated that the petitioner is the registered owner of the vehicle in question and a false and frivolous FIR bearing No. 145/2020 under sections 8/15/20/29 of the NDPS Act was registered as motorcycle in question was used for illegally carrying/transporting of contraband (20 pieces of charas like substance) weighing 300/350 gms. It is further stated that the petitioner is the registered owner of the said vehicle and had approached the trial court for release of the same. The learned trial court vide order dated 07.11.2020 (supra) directed the release of the motorcycle bearing No. JK21D 2661 and mobile Samsung temporarily and retaining RC of the said motorcycle in original in favour its registered owner on furnishing of bank guarantee of Rs. 30,000/- with certain undertakings. The petitioner through the medium of present petition has assailed order dated 07.11.2020 primarily on the ground that the aforesaid condition imposed by the learned trial court is not justifiable. The Hon’ble Court held, “The condition of imposing bank guarantee by the learned trial court is harsh, when other conditions have already been imposed by the trial court. So, this Court is of the considered view that the said condition is required to be modified and the petitioner shall furnish two sureties of Rs. 15,000/- each. For all what has been discussed above, this petition is allowed and the condition of furnishing of bank guarantee of Rs. 30,000/- imposed by the learned trial court vide order dated 07.11.2020 is modified to the extent that the petitioner shall furnish two sureties of Rs. 15,000/- each to the satisfaction of the trial court.”

Sr. No. 105 HIGH COURT OF JAMMU AND KASHMIR AND LADAKH AT JAMMU Sunil Singh CRMNo. 689 2021 Through : Mr. Jagpaul Singh Advocate UT of J&K Through : Mr. Ravinder Gupta AAG CORAM: HON’BLE MR. JUSTICE RAJNESH OSWAL JUDGE The present petition has been filed by the petitioner under section 482 Cr.P.C. for quashing the order dated 07.11.2020 passed by the learned Principal Sessions Judge Sambato the extent of imposing condition of furnishing bank guarantee of Rs. 30 000 for release of vehicle bearing registration number JK 21D 2661. It is stated that the petitioner is the registered owner of the vehicle in question and a false and frivolous FIR bearing No. 145 2020 under sections 8 15 20 29 of the NDPS Act was registered as motorcycle in question was used for illegally carrying transporting of contraband 20 pieces of charas like substance) weighing 300 350 gms. It is further submitted that the motorcycle in question is the only source of conveyance of the petitioner and being a poor man it is quite impossible for him to furnish a bank guarantee of Rs. 30 000 2 Bail App No. 202 2020 It is further stated that the petitioner is the registered owner of the said vehicle and had approached the trial court for release of the same. The learned trial court vide order dated 07.11.2020 directed the release of the motorcycle bearing No. JK21D 2661 and mobile Samsung temporarily and retaining RC of the said motorcycle in original in favour its registered owner on furnishing of bank guarantee of Rs. 30 000 with certain undertakings. The petitioner through the medium of present petition has assailed order dated 07.11.2020 primarily on the ground that the aforesaid condition imposed by the learned trial court is not justifiable. Learned counsels for both the sides submit that appropriate order may be passed in view of the law laid down by the Apex Court in Sunderbhai Ambalal Desai v State of Gujarat 10 SCC 283. Heard and perused the record. The only purpose for releasing of the vehicle is to ensure that the vehicle remains roadworthy otherwise if the same is allowed to remain in police custody the same shall lose its utility. The learned trial court has already imposed certain conditions while releasing the vehicle in question and the purpose is to ensure that the vehicle is not disposed of by the person on whose supurdnama the vehicle is kept and the same is produced before the court as and when required. The Apex Court in Sunderbahi Ambalal Desai’s case has held that: 3 Bail App No. 202 2020 “It is of no use to keep such seized vehicles at the police stations for a long period. It is for the Magistrate to pass appropriate orders immediately by taking appropriate bond and guarantee as well as security for return of the said vehicles if required at any point of time. This can be done pending hearing of applications for return of such vehicles.” The condition of imposing bank guarantee by the learned trial court is harsh when other conditions have already been imposed by the trial court. So this Court is of the considered view that the said condition is required to be modified and the petitioner shall furnish two sureties of Rs. 15 000 each. For all what has been discussed above this petition is allowed and the condition of furnishing of bank guarantee of Rs. 30 000 imposed by the learned trial court vide order dated 07.11.2020 is modified to the extent that the petitioner shall furnish two sureties of Rs. 15 000 each to the satisfaction of the trial court. Judge JAMMU Karam Chand Secy Whether the order is speaking: Whether the order is reportable:

We leave it open to RCF to adopt such proceedings as it may thinks fit and if it wishes to do so, whether on title or by way of damages: High Court Of Bombay

We leave it open to RCF to adopt such proceedings as it may thinks fit and if it wishes to do so, whether on title or by way of damages was upheld by the High Court Of Bombay through the learned bench led by G.S.Patel &amp; Madhav J Jamdar, JJ in the case of RASHTRIYA CHEMICALS AND FERTILIZERS LTD. Vs CHIEF EXECUTIVE OFFICER, SRA AND 14 ORS. (WRIT PETITION NO. 741 OF 2014) on 8th &amp; 9th March 2022. Brief facts of the case are that the dispute pertains to a fairly substantial tract of land, at village Wadhavali, Maravali, Chembur. By its order of 14th February 2020, the Supreme Court expedited the hearing of two Notices of Motion in the Writ Petition. One of those Motions was for interim relief. The other was to expedite the Writ Petition. This land is claimed by RCF as having been allotted to it. RCF claims an entitlement to all these lands and says specifically, to put it as compactly as possible, that these lands were acquired by the State for RCF or its predecessor-in-title, the Fertilizer Corporation of India Limited (“FCI”) specifically for staff quarters and staff housing. It says that once these lands vested in and were transferred to RCF, a wholly-owned undertaking of the Central Government, there was no possibility at all of any of these lands being subjected to the discipline of Maharashtra Slum Areas (Improvement, Clearance And Redevelopment) Act, 1971. Despite this position, RCF says slum housing societies — including those represented by Mr Godbole — were allowed to be constructed here, i.e., in situ on CTS No.200. In other words, this area was subject to first, a declaration of the area as a slum, followed by the sanction of a slum rehabilitation scheme with everything that this contemplates, including a table survey of slum structures. The Petition opened with an assertion that FCI was split into several companies some time in 1978. One of these splinter companies was RCF. It said that the assets and undertakings of FCI in Maharashtra stood transferred to the RCF. The submission by Mr Daver on behalf of RCF was that the land in question namely, CTS No. 200 belongs to RCF. This is the principal point of the argument and the Petition. All other arguments flow from this premise. But to reach the conclusion that RCF invites us to do, the starting premise must be shown to be undisputed. There is further Affidavit of 12th July 2015 from page 182 filed by the Petitioner which says that the Government of India had considered the entire issue and, on 17th March 2015, advised that RCF should take possession of lands allotted to it by the Government of Maharashtra make its claim for ownership clear and demand possession. The Court observed that “We leave it open to RCF to adopt such proceedings as it may thinks fit and if it wishes to do so, whether on title or by way of damages. We say nothing in that regard except that all contentions are kept open and any such proceedings will necessarily have to be decided on its own merits and unaffected and uninfluenced by the present order.” Click here to read the Judgement

Rashtriya Chemicals & Fertilizers Ltd vs Chief Executive Officer SRA & Ors 909 OSWP 741 14 WITH NMS 90 2018 NMS 53 2016.doc IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO. 741 OF 2014 NOTICE OF MOTION NO. 90 OF 2018 WRIT PETITION NO. 741 OF 2014 NOTICE OF MOTION NO. 53 OF 2016 WRIT PETITION NO. 741 OF 2014 1. Rashtriya Chemicals & Fertilizers Ltd Having its registered office at ‘Priyadarshini’ Eastern Express Highway Sion Mumbai 400 022 versus 8th & 9th March 2022 Rashtriya Chemicals & Fertilizers Ltd vs Chief Executive Officer SRA & Ors 909 OSWP 741 14 WITH NMS 90 2018 NMS 53 2016.doc 1. Chief Executive Officer Prof. Anant Kanekar Marg Bandra East) Mumbai 400 051 2. The Deputy Collector Near Ambedkar Garden Chembur East) Mumbai 400 071 3. The Collector of Mumbai Suburban District New Administrative Building New Chetna College Bandra4. New Ekta SRA Sahyadri Nagar Zopadpatti RC Marg Model High School Chembur Vashinaka Mumbai 400 071 5. Ekta Co op Hsg Soc Ltd Sahyadri Nagar Zopadpatti RC Marg Model High School Chembur Vashinaka Mumbai 400 071 6. Sai Krupa CHS Sahyadri Nagar Zopadpatti RC Marg Model High School Chembur Vashinaka Mumbai 400 071 7. Ashok Nagar CHS Ltd Sahyadri Nagar Zopadpatti RC Marg Model High School Chembur Vashinaka Mumbai 400 071 8. Sahayadri Nagar CHS Sahyadri Nagar Zopadpatti RC Marg Model High School Chembur Vashinaka Mumbai 400 071 8th & 9th March 2022 Rashtriya Chemicals & Fertilizers Ltd vs Chief Executive Officer SRA & Ors 909 OSWP 741 14 WITH NMS 90 2018 NMS 53 2016.doc 9. Sahayog CHS Ltd Sahyadri Nagar Zopadpatti RC Marg Model High School Chembur Vashinaka Mumbai 400 071 10. Om Ganesh SRA CHS Sahyadri Nagar Zopadpatti RC Marg Model High School Chembur Vashinaka Mumbai 400 071 11. Ekta SRA CHS Sahyadri Nagar Zopadpatti RC Marg Model High School Chembur Vashinaka Mumbai 400 071 12. Jai Hanuman CHS Sahyadri Nagar Zopadpatti RC Marg Model High School Chembur Vashinaka Mumbai 400 071 13. Wadhwa and Deserve Builders LLP a Limited liability partnership registered under the provisions of Limited Liability Partnership Act 2008 having its registered office at Unit No. 24 Brijwasi Estate Sonawala Road GoregaonMumbai 400 063 14. Deserve Builders & Wadhavali) Private Limited a company registered under the provisions of the Companies Act 1956 having its registered office at Unit No. 24 Brijwasi Estate Sonawala Road GoregaonMumbai 400 063 8th & 9th March 2022 Rashtriya Chemicals & Fertilizers Ltd vs Chief Executive Officer SRA & Ors 909 OSWP 741 14 WITH NMS 90 2018 NMS 53 2016.doc 15. Deserve Exim Private A company registered under the provisions of the Companies Act 1956 Having its registered office at Unit No. 24 Brijwasi Estate Sonawala Road GoregaonMumbai 400 063 for the petitioner Mr Anoshak Daver with MS Bodhanwalla Sheroy M Bodhanwalla & Sakshi Sharma i b MS Bodhanwalla & Co Advocates & Solicitors for respondent no. Mr Jagdish G AradwadMr Godbole for Respondents Nos. 4 to 6 8 and 10 to 12 all cooperative housing societies of erstwhile slum dwellers Dr Sathe who appears for Respondents Nos. 13 14 and 15 all entities who are developers. The SRA the Deputy Collector and the Collector Mumbai Suburban District are Respondents Nos. 1 to 3 and are represented respectively by Mr Aradwad for SRA and Mr More Additional Government Pleader for the State. The dispute pertains to a fairly substantial tract of land at village Wadhavali Maravali Chembur. The larger area is spread over several CTS or Survey Numbers. Relief is sought in respect of CTS No. 200. This land is claimed by RCF as having been allotted to it RCF claims an entitlement to all these lands and says specifically to 8th & 9th March 2022 Rashtriya Chemicals & Fertilizers Ltd vs Chief Executive Officer SRA & Ors 909 OSWP 741 14 WITH NMS 90 2018 NMS 53 2016.doc put it as compactly as possible that these lands were acquired by the State for RCF or its predecessor in title the Fertilizer Corporation of India Limitedspecifically for staff quarters and staff housing. It says that once these lands vested in and were transferred to RCF a wholly owned undertaking of the Central Government there was no possibility at all of any of these lands being subjected to the discipline of Maharashtra Slum Areas Improvement Clearance And Redevelopment) Act 1971 was directed to survey and measure the lands in preparation to the land being formally handed over to FCI. This was subject to the FCI submitting an undertaking that it would pay the full occupancy price of the land as fixed by the Government. 13. On 4th December 1970 the Government issued a memorandum stating that it had fixed the value of the land granted to FCI vide its memos dated 6th January 1965 and 23rd October 1967.3 The Additional Collector was directed to work out the total value of the land and to recover the amount of difference between the provisional occupancy price and the final occupancy price from 14. On 24th March 1971 the Additional Collector passed an order. This is important because it is really the springboard of Mr Daver s case for RCF.4 This order said that the lands were granted to FCI subject to four conditions noted below: the occupancy price of Rs.11 99 458 would be paid within one month any charges would be paid the land would be used within two years of taking possession and 8th & 9th March 2022 Rashtriya Chemicals & Fertilizers Ltd vs Chief Executive Officer SRA & Ors 909 OSWP 741 14 WITH NMS 90 2018 NMS 53 2016.doc FCI would execute an Agreement in Form HH 1 whenever called on to do so. 15. On 1st January 1972 the DILR wrote to the Additional Collector stating that a measurement of the lands has been done and possession delivered to FCI on 28th September 1971. 16. According to Mr Daver this is evidence of possession although it may not have the formal requirements of a ‘possession receipt’. It is his submission that this document unambiguously states that possession of the surveyed lands was formally given to FCI. The antecedent factor he submits is the previous correspondence. The survey was necessitated because it was found that FCI was in actual possession of the land though without a formal delivery of possession or grant hence the previous directions for a survey by the DILR. That survey having been done since FCI was already in physical possession all that was needed was a formal letter. There was no question of drawing a panchnama or making a separate list of lands. These are all part of the DILR survey report The letter only records the fact of the survey having been done Physical possession already being with FCI Mr Daver submits this is all that was required to confirm FCI’s possession and to vest title 17. On 7th March 1972 FCI wrote to the Additional Collector enclosing a cheque for Rs.4 56 860.95 towards a provisional occupancy price.6 8th & 9th March 2022 Rashtriya Chemicals & Fertilizers Ltd vs Chief Executive Officer SRA & Ors 909 OSWP 741 14 WITH NMS 90 2018 NMS 53 2016.doc 18. On 17th May 1972 the Additional Collector replied to FCI demanding payment of the differential occupancy price.7 19. Another letter followed two years later on 3rd September 1974 from the Additional Collector to FCI calling upon it to make payment of a differential occupancy price of Rs.8 50 963.50.8 20. On 22nd January 1979 the Government wrote to the Collector Mumbai Suburban District to recover the occupancy price from FCI then computed at Rs.13 07 824.50. On 21st August 1979 the Additional Collector wrote to FCI stating that the Government of Maharashtra had sanctioned the grant of Government land admeasuring 139 acres and 33 gunthas vide its Government Memo dated 4th December 1970 read with another of 24th March 1971.9 The letter also said that the Government had fixed the occupancy price at Rs.11 99 458.50 but FCI has only made a part payment on 7th March 1972.10 What is next said in this document was that FCI was unauthorisedly occupying lands listed in that letter. The next page said that the Government in Revenue and Forest Department had instructed the Additional Collector to take possession of this land and FCI was directed to pay rent at 8 of the occupancy price on the land unauthorisedly occupied. We note here that the land noted in this letter was in the villages Maravali and Wadhavali and seemed to cover portions of Survey Nos. 39A and 39B of village Maravali and certain other lands such 8th & 9th March 2022 Rashtriya Chemicals & Fertilizers Ltd vs Chief Executive Officer SRA & Ors 909 OSWP 741 14 WITH NMS 90 2018 NMS 53 2016.doc Survey Nos. 103 593 111115118 1 and 116 of village 21. On 16th June 1982 the Senior Administrative Officer of RCF wrote to the Additional Collector inter alia in regard to lands at Chembur Maravali and Wadhavali referring to the previous demand for payment made in 1972 accepting that only provisional occupancy price has been paid but claiming that the matter was pending with the Government from 1972 to 1982. RCF then said there was enclosing a cheque for Rs.7 42 597.55 as a full and final payment of occupancy price for the grant for Government land in terms of the 24th March 1971 initial grant. 22. On 4th December 1993 the Collector wrote to RCF referring to the letter of 22nd January 1979 and saying that he had been instructed to recover an occupancy price of Rs.13 07 824.50 with applicable interest. The Collector said that the balance due was Rs.1 08 366 and interest was Rs.7 36 728.40 making a total of Rs.8 45 094.40 . Immediate payment was demanded.11 23. On 16th October 1996 there was a Government Resolution regarding the implementation of slum rehabilitation scheme on lands belonging to the Government of Maharashtra 24. On 31st March 1999 RCF wrote to the Deputy Director of Land Records asking for a mutation of the land records to show the name of RCF. 12 8th & 9th March 2022 Rashtriya Chemicals & Fertilizers Ltd vs Chief Executive Officer SRA & Ors 909 OSWP 741 14 WITH NMS 90 2018 NMS 53 2016.doc 25. On 12th June 2001 RCF wrote to the Collector to record that the property of 783 acres 32 gunthas and 14 annas was in possession of RCF and asking for a mutation to show RCF’s possession.13 26. On 8th August 2006 the Government formulated directions for the processing of slum schemes by the Collector’s office and the formalities required for this purpose. 27. On 15th January 2007 RCF wrote to the City Survey Officer to complete the process of converting the Survey Numbers into CTS Numbers. 28. On 17th March 2008 the Collector passed an order requiring RCF to pay unearned income of Rs.3 07 85 293 as per condition 6 of the Government Resolution dated 20th September 1961. 29. On 16th April 2008 the Government Resolution relating to implementation of slum rehabilitation scheme on lands belonging to the Government of Maharashtra also in regard to the premium came to be issued. 30. On 25th May 2009 RCF wrote to the City Survey Officer again asking for a mutation in the revenue records and for a conversion of Survey Numbers to CTS Numbers.14 8th & 9th March 2022 Rashtriya Chemicals & Fertilizers Ltd vs Chief Executive Officer SRA & Ors 909 OSWP 741 14 WITH NMS 90 2018 NMS 53 2016.doc 31. On 20th April 2010 public notices were issued in regard to a SR scheme proposed on Survey No. 103(pt) and CTS No. 200 admeasuring 17 991.30 sq mtrs in the aggregate.15 32. On 18th October 2011 RCF wrote to the Collector to mutate its names in the 7 12 extracts for 26 of 103 acres and to issue instructions to the Tehsildar accordingly.16 33. On 4th January 2012 RCF wrote to the Collector submitting a list of properties that had not yet been transferred in RCF’s 34. On 11th January 201 RCF wrote to the Collector asking for an updating of records in respect of Survey Nos. 103 and 104 and a mutation in favour of RCF.18 35. On 16th January 2012 the Collector Mumbai Suburban passed an order in an Appeal No. 278 of 2011 titled Rashitriya Chemicals And Fertilizers Ltd v Tehsildar Kurla. This Appeal related to breaches of terms and conditions of allotment by RCF regarding the lands that had been allotted to it.19 The Collector’s order held a) That RCF had breached terms of allotments of lands at Kurla bearing CTS Nos. 775(part) 678 202 678 203 295 Survey No 68 totally 8th & 9th March 2022 Rashtriya Chemicals & Fertilizers Ltd vs Chief Executive Officer SRA & Ors 909 OSWP 741 14 WITH NMS 90 2018 NMS 53 2016.doc admeasuring 20 acres and 8 gunthas all of which was occupied by slums b) As per the Government Notification dated 28th September 1965 upon a breach the lands mentioned above had to be reverted in the land revenue records to the name of the Government of Maharashtra c) As to the unearned income recoverable the amount due in respect of this land was to be deducted and the balance amount of Rs. 3 07 85 293.00 was to be On 30th March 2012 a Letter of Intentwas issued by the SRA to Om Ganesh Nagar SRA CHSand Ekta Nagar SRA CHS (“Ekta Nagar”) regarding CTS No. 200 admeasuring 47 471.60 sq mtrs. There was a need to accommodate 771 slum dwellers for residential units in situ on this land 37. On 18th May 2012 RCF again wrote to the Collector requesting that the records be updated.20 38. On 20th May 2012 SRA wrote to the Collector Mumbai Suburban asking for an NOC to implement the slum scheme on CTS No. 200 under DC Regulation 33(10). 39. On 28th May 2012 SRA wrote to the Collector stating that the LOI was issued on 30th March 2012 in the name of Wadhwa and 8th & 9th March 2022 Rashtriya Chemicals & Fertilizers Ltd vs Chief Executive Officer SRA & Ors 909 OSWP 741 14 WITH NMS 90 2018 NMS 53 2016.doc Deserve Builder LLP for this SRA scheme on CTS No. 200. It was for the benefit of Om Ganesh Nagar and Ekta Nagar.21 40. On 19th June 2012 the Collector wrote to the Executive Engineer SRA refusing an NOC for the SRA scheme since the necessary documents had not been submitted.22 The SRA sent the documents by its letter of 1st August 2012.23 41. On 24th August 2012 RCF wrote to the Collector now saying that it needed protection for properties that “belonged to Government of India Entities” and complaining about non cooperation from various revenue officials.24 42. On 31st August 2012 RCF’s attorneys sent a Notice to the Additional Collector demanding that no slum rehabilitation scheme be allowed on Survey No.103 CTS No.200 since these “belonged” 43. On 2nd November 2012 the Collector wrote to the Additional Chief Secretary Revenue and Forest seeking approval to allow the SRA to grant permission to implement the SR scheme on CTS No.200 as per the policy of the Government of Maharashtra dated 8th August 2006 and 16th April 2008 and subject to 8th & 9th March 2022 Rashtriya Chemicals & Fertilizers Ltd vs Chief Executive Officer SRA & Ors 909 OSWP 741 14 WITH NMS 90 2018 NMS 53 2016.doc compliance with the Government decision dated 16th October 44. RCF complained about the implementations of the slum rehabilitation schemes by its letter of 25th January 2013. 45. On 28th February 2013 the Government approved the SR schemes to be developed on CTS No.200 since this land was in the name of the Government. There were 5500 slum dwellers on this land and their presence was noted as being before 1995 46. On the same day there was another Government order in relation to the SR scheme on CTS No. 200 and it was said to be subject to compliance with the LOI conditions stated in the LOI of 30th March 2012 and on payment of a premium at 25% of the market 47. On 13th May 2013 the Collector Mumbai Suburban District granted an NOC for implementation of the SR scheme Om Ganesh Nagar and Ekta Nagar. SRA wrote to the Collector on 28th May 2013 for an NOC for the slum scheme and under DCR 33(10) read with Section 2.8 of Appendix IV. 48. On 30th May 2013 the City Survey Officer wrote to the Collector seeking instructions about the mutation of lands on Survey No. 103 at RCF’s request.27 8th & 9th March 2022 Rashtriya Chemicals & Fertilizers Ltd vs Chief Executive Officer SRA & Ors 909 OSWP 741 14 WITH NMS 90 2018 NMS 53 2016.doc 49. On 20th September 2013 SRA replied to RCFand said that the SR schemes were sanctioned on lands belonging to the State Government. The proposals for eight societies were approved after the NOC was received from the land owning authority.28 50. On 24th October 2013 the Collector wrote to SRA staying the LOI issued to Om Ganesh Nagar and Ekta Nagar saying that a survey requested by RCF was being undertaken 51. On 12th November 2013public notices were issued in the newspapers regarding the slum scheme on CTS No.200.29 52. This Petition was filed on 30th November 2013 53. On 9th December 2013 the Collector made a Report stating that RCF had not fulfilled the conditions of allotment. It had also not paid the full occupancy price within the stipulated time. It had not obtained a sanad. Although RCF was in possession of the land it was not the owner. Therefore CTS No. 200 continued to stand in the name of the Government and the mutation entry for that purpose was correct.30 8th & 9th March 2022 Rashtriya Chemicals & Fertilizers Ltd vs Chief Executive Officer SRA & Ors 909 OSWP 741 14 WITH NMS 90 2018 NMS 53 2016.doc 54. On 30th December 2013 the Divisional Commissioner wrote to the Collector seeking information about discrepant reports as to which survey numbers were in the actual possession of RCF.31 55. On 22nd January 2014 the Collector made a report to the Commissioner reiterating what he had said earlier about RCF not having fulfilled conditions not having paid full occupancy price within the prescribed time not having obtained a Sanad and not being the owner of CTS No.200. This time the Collector added that the lands were occupied by slums and since the slum dwellers had submitted proposals under DCR 33(10) these proposals had been approved by the Government by a communication dated 28th 56. On 15th March 2014 the State Government wrote to RCF saying that the question of RCF’s claim that land had been allotted to it had been discussed with the Minister of Revenue. It was found large tracts of lands were occupied by slums before 1st January 1995 Under the Slum Rehabilitation Act and in law these slums were eligible for protection. To determine which lands were in RCF’s possession and which were covered by slums a survey or measurement was necessary. RCF was directed to get this done on payment of the necessary fees.33 The Revenue and Forest Department wrote to RCF on 15th March 2014 requesting RCF to get these measurements done and to make the remaining outstanding payments. 8th & 9th March 2022 Rashtriya Chemicals & Fertilizers Ltd vs Chief Executive Officer SRA & Ors 909 OSWP 741 14 WITH NMS 90 2018 NMS 53 2016.doc 57. On 21st July 2014 the City Survey Officer made an order in Case No. 5814the City Survey Officer rejected RCF’s request to record its name on CTS No. 200. The reason was that the City Survey Office had previously requested RCF to produce a possession receipt and survey records by several communications dated 28th February 2013 8th March 2013 30th May 2013 8th November 2013 4th December 2013 and 30th January 2014. RCF had never done so. Therefore RCF’s request to mutate its name in the property records of CTS No. 200 was rejected. 34 58. On 26th August 2014 the Revenue Minister made an order in an Appeal filed by Om Ganesh Nagar. That Appeal challenged the order of the Collector of 4th August 2014 staying the slum scheme The Revenue Minister allowed the Appeal and set aside the Collector’s orders. He allowed the subdivision and measurements of lands as per the Letter of Intent dated 30th March 2012 and the Government NOC dated 28th February 2013 59. On 14th November 2014 the Collector made an order granting an NOC for the implementation for a slum scheme for Om Ganesh Nagar and Ekta Nagar for a land admeasuring 44 471.60 sq mtrs of CTS No.200. 60. On 1st March 2017 the DILR made an appellate order in an appeal filed by RCF against the City Survey Officer’s order of 21st July 2014 rejecting RCF’s application for a mutation of the land 8th & 9th March 2022 Rashtriya Chemicals & Fertilizers Ltd vs Chief Executive Officer SRA & Ors 909 OSWP 741 14 WITH NMS 90 2018 NMS 53 2016.doc records. The appellate order rejected the appeal holding that RCF had not complied with the terms and conditions of the allotment 61. On 8th June 2018 LOIs were issued by SRA for Sai Krupa New Ekata and Sahyadri Nagar B. Their SRA schemes covered an area of 31 540.22 sq mtrs. 62. On 30th June 2018 there was a similar LOI for Kasturba Nagar SRA over land admeasuring 14 231.06 sq mtrs. 63. The last LOI was of 19th September 2018 for Sai Krupa New Ekta and Sahyadri Nagar B for land admeasuring 31 540.22 sq mtrs. 64. These are the background facts taken from the Petition and the Affidavits in Reply. 65. The submission by Mr Daver on behalf of RCF is that the land in question namely CTS No. 200 belongs to RCF. This is the principal point of the argument and the Petition. All other arguments flow from this premise. But to reach the conclusion that RCF invites us to do the starting premise must be shown to be undisputed. When RCF says that CTS No.200 belongs to it it must establish that there is a grant complete in all respects. It must show that all terms and conditions of the grant have been met. Any amounts that are to be paid must be shown to have been paid and paid on time. There must be some evidence of vesting and of possession. Mr Daver’s argument noted above that the DILR 8th & 9th March 2022 Rashtriya Chemicals & Fertilizers Ltd vs Chief Executive Officer SRA & Ors 909 OSWP 741 14 WITH NMS 90 2018 NMS 53 2016.doc survey report substitutes for possession cannot be taken for granted If the petition raises a question of title axiomatically it would put RCF out of Court. 66. The exact submission in paragraph 29(a) runs like this: “The Petitioner submits that the land in question bearing CTS No.200 belongs to the Petitioner” If this is disputed then surely RCF must be driven to a suit on title to substantiate its position. 68. The second problem with this submission is that the State Government “allowed” the slum societies to carry out work on land. This ignores or overlooks the position in law. According to Mr Daver CTS No.200 is exempted from the application of the Slum Rehabilitation Act because of the provisions of Section 3Z 6. The section reads thus Act nothing in this Chapter shall apply to the — Notwithstanding anything contained in this Scheduled areas declared as such by the President of India by an order under paragraph 6 of the Fifth Schedule to the Constitution of India forest area to which the ForestAct 1980 applies Coastal Regulation Zone as declared under clauseof section 3 of the Environment Protection) Act 1986 Eco Sensitive Zones of Ecologically Fragile Areas as declared under sub sectionand clauseof sub section 2) of section 3 of the EnvironmentAct 1986 8th & 9th March 2022 Rashtriya Chemicals & Fertilizers Ltd vs Chief Executive Officer SRA & Ors 909 OSWP 741 14 WITH NMS 90 2018 NMS 53 2016.doc e) Hill Stations as notified by the State Government Special Tourism Areas declared as such by the f ) Central or State Government g) Lands belonging to the Central Government or any entity thereof unless the same is voluntarily offered for the housing scheme any slum area which in the opinion of the State Government or the concerned Housing Committee is unsuitable for human habitation or to which it would not be in the public interest to apply the provisions of this 69. But in order to get to the exemption in 3Z 6(g) title must be unambiguously vested in the Central Government or entity of the Central Government. This cannot be an assumption. It is either an admitted position or it must be proved. There is no third option. If title is disputed then until and unless title to the land is established as vesting inthe Central Government the provisions of 3Z 6 and that entire chapter would not apply. But the exemption in Section 3Z 6 is only in respect of Chapter I C of the Slum Act. This Chapter contains special provisions for in situ rehabilitation housing schemes for protected occupiers in a slum area The exemption does not mean that the whole of the Act does not apply. The exemption also does not mean that other Chapters will not apply. If the suggestion is that lands privately held or held by the Union Government can never be declared as slums irrespective of conditions on site then we find no support for so broad a proposition in the Act. No judgment is shown to us to establish such 8th & 9th March 2022 Rashtriya Chemicals & Fertilizers Ltd vs Chief Executive Officer SRA & Ors 909 OSWP 741 14 WITH NMS 90 2018 NMS 53 2016.doc a proposition. All that the exemption means is that for Section 3Z 6 lands there is no in situ re development 70. At this stage it would be useful to consider the provisions of Section 4(1) 4(2) 4(3) 5 5(A) and 5(C) of the Act. “4(1) Where the competent authority is satisfied that— any area is or may be a source of danger to the health safety or convenience of the public of that area or of its neighbourhood by reason of the area having inadequate or no basic amenities or being insanitary squalid overcrowded or otherwise or b) the buildings in any area used or intended to be used for human habitation are— in any respect unfit for human habitation or of by dilapidation overcrowding faulty arrangement and design of such building narrowness or faulty arrangement of streets lack of ventilation light or sanitation facilities or any combination of these factors detrimental to the health safety or convenience of the public of that the Competent Authority may by notification in the Official Gazette declare such area to be a slum area. Such declaration shall also be published in such other manner as may be prescribed Explanation.—For the purposes of clause b) the expression “buildings” shall not include — a) cessed buildings in the island City 8th & 9th March 2022 Rashtriya Chemicals & Fertilizers Ltd vs Chief Executive Officer SRA & Ors 909 OSWP 741 14 WITH NMS 90 2018 NMS 53 2016.doc of Mumbai as defined in clauseof section 2 of the Maharashtra Housing and Area Development Act 1976 or old buildings belonging to the Corporation b) buildings constructed with permission of the relevant authority at any point of time c) any building in an area taken up under the Urban Renewal Scheme In determining whether buildings are unfit for human habitation for the purposes of this Act regard shall be had to the condition thereof in respect of the following matters that is to say — a) repairs b) stability c) freedom from damp d) natural light and air e) provision for water supply f ) provision for drainage and sanitary conveniences g) facilities for the disposal of waste water and the building shall be deemed to be unfit as aforesaid if and only if it is so far defective in one or more of the said matters that it is not reasonably suitable for occupation in Any person aggrieved by a declaration made under sub sectionmay within thirty days after the date of such declaration in the Official Gazette appeal to the Tribunal 1 No such appeal filed after the expiry of thirty days as aforesaid shall be entertained.” Where the Competent Authority is satisfied that any slum area or any part thereof is capable of being 8th & 9th March 2022 Rashtriya Chemicals & Fertilizers Ltd vs Chief Executive Officer SRA & Ors 909 OSWP 741 14 WITH NMS 90 2018 NMS 53 2016.doc improved at a reasonable expense so as not to be a source of danger to the health safety or convenience of the public of that area it may serve upon the owner or owners and every mortgage of the properties in that area or any part thereof a notice informing them of its intention to carry out such improvement works as in its opinion are necessary and asking each of them to submit his objections or suggestions if any to the Competent Authority within thirty days from the date of such notice. A copy of such notice shall also be displayed at some conspicuous places in the area for the information of the occupiers thereof and for giving them also an opportunity to submit their objections or suggestions if any. On such display of the notice the owners occupiers and all other persons concerned shall be deemed to have been duly informed of the matters stated After considering the objections and suggestions received within the time aforesaid from the owners occupiers and other persons concerned the Competent Authority may decide and proceed to carry out the improvement works with or without modifications or may postpone them for a certain period or cancel the intention to undertake the works 5A. For the purpose of this Act the improvement works may consist of all or any of the following :— laying of water mains sewers and storm water provision of urinals latrines community baths and water taps widening realigning or paving of existing roads lanes and pathways and constructing new roads lanes and pathways providing street lighting 8th & 9th March 2022 Rashtriya Chemicals & Fertilizers Ltd vs Chief Executive Officer SRA & Ors 909 OSWP 741 14 WITH NMS 90 2018 NMS 53 2016.doc cutting filling levelling and landscaping the partial development of the area with a view to providing land for unremunerative purposes such as parks playgrounds welfare and community centres schools dispensaries hospitals police stations fire stations and other amenities run on a non profit basis demolition of obstructive or dilapidated buildings or portions of buildings any other matter for which in the opinion of the Competent Authority it is expedient to make provision for preventing the area from being or becoming a source of danger to safety or health or a nuisance.” “5C.Where the Competent Authority upon report from any of its officers or other information in its possession is satisfied that any buildings in a slum area are in any respect unfit for human habitation or any slum area or part thereof is or is likely to be a source of danger to the health safety or convenience of the public in that area or in its neighbourhood by reason of the area having no basic amenities or having inadequate amenities or being insanitary squalid overcrowded or otherwise a source of such danger the Competent Authority may unless in its opinion the buildings or the area are not capable at a reasonable expense of being rendered so fit or free from such danger serve upon the owners of the buildings or lands in the area a notice requiring them within such time which shall not be less than thirty days as may be specified in the notice to execute such works of improvement either within or outside the buildings or the area as may be specified in the notice and stating that in the opinion of the Authority those works will render the buildings or the area 8th & 9th March 2022 Rashtriya Chemicals & Fertilizers Ltd vs Chief Executive Officer SRA & Ors 909 OSWP 741 14 WITH NMS 90 2018 NMS 53 2016.doc fit for human habitation or free from such danger as the case may be In addition to serving a notice under this section on the owners the Competent Authority may serve copy of the notice on every mortgagee of the building or land so far as it is reasonably practicable to ascertain such persons and further a copy of such notice shall also be displayed at some conspicuous place in the slum area for the information of the occupiers thereof. Such display of the notice shall be conclusive proof that the owners occupiers and other persons concerned have been duly informed of the matter stated in the notice In determining for the purposes of this Act whether the building can be rendered fit for human habitation or the area can be rendered free from danger aforesaid at reasonable expense regard shall be had to the estimated cost of the works necessary for these purposes and the value which it is estimated that the buildings or lands will have when the works are completed.” In Section 4(1) the word ‘area’ is not defined. It is not defined elsewhere in the Act either. It must therefore receive its normal everyday dictionary meaning. It would thus include any space measured by any metric. The qualification is in Sections 4(1 a) as to the conditions that must obtain on site in the “area”. The next sub Section 4(1)(b) speaks of the structures or buildings in any area being of a certain dilapidated or unacceptable quality. Building is defined in Section 2(b) thus “(b) “building” includes a house out house stable shed hut and other enclosure or structure whether of masonry bricks wood mud metal or any other material whatsoever whether used as human dwelling or otherwise and also 8th & 9th March 2022 Rashtriya Chemicals & Fertilizers Ltd vs Chief Executive Officer SRA & Ors 909 OSWP 741 14 WITH NMS 90 2018 NMS 53 2016.doc includes verandahs fixed platforms plinths doorsteps electric meters walls including compound walls and fencing and the like but does not include plant or machinery comprised in a building.” Land is defined in Section 2(d) thus “(d) “land” includes building and also benefits to arise out of land things attached to the earth or permanently fastened to anything attached to the earth.” 72. Therefore a declaration under Section 4(1) of any area as a slum area must be preceded by a satisfaction as required by the controlling part of Section 4(1). 73. The reason this becomes important is to be found in Chapter III and particularly Sections 5 5A and 5C extracted above. From RCF’s perspective therefore if it was in fact the owner of CTS No 200 it was under a statutory obligation to prevent the slums and slum like conditions from obtaining on any part of CTS No.200 Even if as an owner it failed to do so that area could have been declared as a slum though perhaps on account of the exception in 3Z 6(g) would not have been available for in situ redevelopment The question of ownership therefore does not affect the declaration of an area as slum per se but only whether in situ development can or cannot be permitted. If RCF was indeed the owner of the land and therefore exempted from the applicability of Chapter I C it could have challenged the slum notification under Section 4(1) by showing that there were no slum like conditions on site. This RCF is clearly 8th & 9th March 2022 Rashtriya Chemicals & Fertilizers Ltd vs Chief Executive Officer SRA & Ors 909 OSWP 741 14 WITH NMS 90 2018 NMS 53 2016.doc unable to do. Apart from this being yet another set of disputed questions of fact there is simply no such challenge. Therefore the slum like conditions that obtained and were to the satisfaction of the competent authority must be accepted as having existed on CTS 75. This therefore narrows the controversy to the initial question of whether in situ development is exempted. That as we have observed is a question of title and nothing else 76. The claim of ownership and the exemption in 3Z 6 is repeated in grounds(c) andFCI shall abide by conditions laid down in Government Resolution dated 17.10.1947 No. 1970 45 read with Resolution dated 7.8.1956 as amended by Resolution dated 12.9.1962. Petitioner has suppressed the aforesaid G.Rs and conditions specified therein. Petitioner has not shown that it has complied with said conditions iii) Company shall pay full NA assessment current in the locality and Land shall revert to Government if no longer required by FCI for the purpose it is granted I say that Sanad in form HH 1 as mentioned in Memo dated 6.1.1965 is not executed as all the conditions mentioned in the memorandum are not fulfilled and thus the ownership of the said Property was never transferred from the Government of Maharashtra to the Petitioner. Admittedly the ownership of the said property remains with the Government of Maharashtra as reflected in the Property Card. The ownership title of the said land does not vest in the Petitioner under the 8th & 9th March 2022 Rashtriya Chemicals & Fertilizers Ltd vs Chief Executive Officer SRA & Ors 909 OSWP 741 14 WITH NMS 90 2018 NMS 53 2016.doc said Order Memorandum dated 6.1.1965 and on this ground the writ petition is not maintainable and is liable to be dismissed Paragraphs 15 16 22 and 23 of the same Affidavit say this I say that the Collector vide his report letter dated 9.12.2013 read with letter dated 22.1.2014 to the Konkan Commissioner stated the entire facts and position relating to the land in question interalia records that the land bring Survey No.103 CTS No. 200 is recorded in the name of the Government of Maharashtra and the petitioner has not utilized the land for the purpose it was granted I say that the encroachment slums have come up over the said land. I further state that the slums are censused slums as defined by Regulation 33(10) of Development Control Regulation1991 I say that the ownership of land remains with the Government of Maharashtra and the claim of the Petitioner is barred by the law of Limitation and therefore cannot be agitated ever under Writ Jurisdiction of this I say that the Petitioner is not in possession of the property and not paid occupancy price under so called Grant. Therefore the claim of the Petitioner as owner cannot be accepted or adjudicated in this proceeding.” 83. These paragraphs are clear and emphatic assertions by the State of Maharashtra that the land in question does not belong to RCF at all 8th & 9th March 2022 Rashtriya Chemicals & Fertilizers Ltd vs Chief Executive Officer SRA & Ors 909 OSWP 741 14 WITH NMS 90 2018 NMS 53 2016.doc 84. We permitted a late Affidavit in Rejoinder for completeness This is dated 4th March 2022. It contains denials but does not further the case of the Petitioner at all In our view what we are actually being asked to decide is nothing but a title suit. We cannot embark on any such enquiry in a Writ Petition under Article 226 of the Constitution of India. It is simply not possible to grant the Petitioner RCF the kind of relief that it seeks. There is no manner of doubt on the record as it stands that CTS No.200 is encroached by slums. Slum societies have already come up. It is not possible to shift them. RCF has not been able to conclusively establish title to CTS No.200 or to show that this is an undisputed position 86. Despite Mr Daver’s most valiant efforts we are unable to find substance in the Petition. It will have to be rejected. In the view that we have taken it is only fair to observe although this is not strictly necessary that this order is not a determination of title one way or the other. We leave it open to RCF to adopt such proceedings as it may thinks fit and if it wishes to do so whether on title or by way of damages. We say nothing in that regard except that all contentions are kept open and any such proceedings will necessarily have to be decided on its own merits and unaffected and uninfluenced by the present order 88. Rule is discharged. In the fact and circumstances of the case there will be no order as to costs. 8th & 9th March 2022 Rashtriya Chemicals & Fertilizers Ltd vs Chief Executive Officer SRA & Ors 909 OSWP 741 14 WITH NMS 90 2018 NMS 53 2016.doc 89. We would be remiss in not acknowledging the fair approach of Mr Daver for RCF. He has conducted his case with patience and accuracy and admirable concision. 90. The Petitioners will remove the prefixes before the names of the parties in the cause title as this interferes with the correct listing in the Court CIS records. The registry will update the CIS records to remove the prefixes. Madhav J. Jamdar J 8th & 9th March 2022

Quality of the reasoning is more important than the length of the reasons while granting Bail: Supreme Court

While granting a bail application is considered a right of the accused since prolonged custody is considered against rule of law but any judicial order granting bail to the accused without any kind of reasoning will be set aside since granting bail without due application of mind to the relevant facts and circumstances as well to the provisions of the law is against the law. This auspicious judgment was passed by the Supreme Court in the matter of SONU V. SONU YADAV AND ANOTHER [Criminal Appeal No 377 of 2021] by Honourable Justice Dr. Dhananjaya Y Chandrachud.  This is an appeal case that arose from a judgment and order by a Single Judge Bench of the High Court of Allahabad in Criminal Miscellaneous Bail Application No 17334 of 2020. A First Information Report for offenses under Sections 498-A and 304-B of the Indian Penal Code and Sections 3 and 4 of the Dowry Prohibition Act 1861. This First Information Report was registered on the complaint of the appellant, who is the brother of the deceased. The deceased and the first respondent were married and it was alleged in the FIR that a cash amount of Rs 15 lakhs, a motor vehicle, and other household articles were provided in dowry at the time of marriage. However, the respondent and his parents were unsatisfied with the amount given and demanded Rs 5 lakh. Later the respondent called the complainant demanding the money from him by threatening the life of his sister on 8.02.2019 and he received a phone call requiring him to take away the dead body of his sister on 9.02.2019. After the charge sheet was filed, the respondent filed a bail application which was rejected by the Sessions Judge. He then moved the High Court under Section 439 of Code of Criminal Procedure 1973 and the High Court allowed the application. The Court observed that “A copy of the medical prescription, which has been submitted before this Court, would prima facie indicate that there was no serious ailment. The medical prescription of the Ayurvedic doctor and the remedies prescribed belie such a claim. Prima facie, there are serious allegations in the FIR in regard to the harassment suffered by the deceased in close proximity to her death over demands for dowry by the accused. In view of the provisions of Section 304-B of the Indian Penal Code, as well as the presumption which arises under Section 113-B of the Evidence Act, the High Court was clearly not justified in granting bail.” The Court also relied on the Brij Nandan Jaiswal vs. Munna alias Munna Jaiswal (2009) 1 SCC 678 to state that, “While it is true that at the time of considering an application for bail the High Court would not be required to launch into a detailed inquiry into the facts which have to be determined in the course of the trial, equally an application of mind by the High Court to the rival submissions is necessary. The High Court has merely recorded the submissions and in the extract which we have reproduced earlier proceeded to grant bail without any evaluation of the rival submissions.” The Court also stated that “An order without reasons is fundamentally contrary to the norms which guide the judicial process. The administration of criminal justice by the High Court cannot be reduced to a mantra containing a recitation of general observations. That there has been a judicious application of mind by the judge who is deciding an application under Section 439 of the CrPC must emerge from the quality of the reasoning which is embodied in the order granting bail. While the reasons may be brief, it is the quality of the reasons which matters the most. That is because the reasons in a judicial order unravel the thought process of a trained judicial mind. We are constrained to make these observations because the reasons indicated in the judgment of the High Court, in this case, are becoming increasingly familiar in matters which come to this Court. It is time that such a practice is discontinued and that the reasons in support of orders granting bail comport with a judicial process which brings credibility to the administration of criminal justice.” Thus, the Court held that “the order of the High Court granting bail without due application of mind to the relevant facts and circumstances as well to the provisions of the law requires the interference of this Court.”

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

Validity of tribe certificate doesn’t impair the legal heirs for getting pension: High Court of Bombay

The legal heirs are entitled to the benefits of family pension to the widow from the date of his death. A division bench comprising of Justice Ravindra V. Ghuge &amp; S.G. Mehare adjudicating the Sunita Late Pradip Thakar v. The State Of Maharashtra And Others (WRIT PETITION NO.6485 OF 2020) dealt with an issue of whether to allow the present writ petition or not. In the present case, the petitioner is a widow of an employee named Pradip Thakar who belonged to a Scheduled Tribe community. He was issued with the tribe certificate by the Executive Magistrate, Kallam. On 01.03.1982, he was appointed as “Chaukidar”, a post reserved for the Scheduled Tribe category with respondent No.3. He was promoted as “Supervisor” in 2009. He moved his application for seeking validation of his tribe he passed away on 06.11.2019, while being in employment. through the Employer but before the Committee could decide his claim, he passed away on 06.11.2019, while being in employment. The widow of the deceased moved applications dated 24.12.2019, 02.03.2020, and 24.08.2020 to the respondent authorities seeking the release of the family pension and payment of all retiral benefits like provident fund, gratuity, leave encashment, medical reimbursement, overtime, etc. It is contended by the petitioner that respondent No.3 orally intimated to her that as her husband was appointed on a post reserved for the Scheduled Tribe category and since he did not submit his validity certificate, steps to grant family pension cannot be taken until such validity certificate is produced. Then on 08.07.2020 and 27.07.2020, the petitioner requested the committee, seeking a decision on her late husband’s pending claim. On 05.08.2020, Committee closed the file of the petitioner’s husband since he had passed away. Also, the daughter of the petitioner also made an application on 08.07.2020 to respondent No.3, praying for a compassionate appointment. By the communication dated 10.08.2020, respondent No.3 informed her that as her father had not tendered the validity certificate of belonging to the Thakar tribe, her application for compassionate appointment needs to be kept pending in view of the Government Resolution dated 15.06.2020. The Respondent submits that this petition is not adversarial litigation to the Government. As the husband of the petitioner did not tender the validity certificate, the respondent authorities are helpless. The court held that there is no dispute that the deceased Pradip Thakar had joined duties on 01.03.1982 and he had passed away on 06.11.2019 after putting in 37 years in employment. His widow would, therefore, be entitled for family pension. Also the court directed that – (a) The Employer would process the pension papers for grant of family pension to the petitioner and the arrears of family pension shall be paid and payment of regular monthly pension shall commence, on or before 30.10.2021. (b) Insofar as the provident fund payments are concerned, the petitioner will have to approach the Provident Fund authorities for release of such funds and in the event of there being no other legal impediment, the Provident Fund authorities would also do the needful, on or before 30.10.2021. (c) Insofar as the gratuity, leave encashment, medical reimbursement and overtime bills are concerned, respondent No.3 shall do the needful and clear such dues as per rules. In the event of there being any dispute with regard to either of these payments, the petitioner would be at liberty to approach the statutory authorities or avail of a remedy as may be prescribed in law.

904.WP.221.21.odt IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL WRIT PETITION NO.221 OF 2021 2. 1. Nana @ Narsing Vishwarasrao Nayak Age : 40 years Occ. Business R o Tapdiya Estate Hingoli Rajkumar @ Raju S o Vilas Nagre Age : 39 years Occ Agril. R o as above Kailas S o Subhash Manbolkar of the Code of Criminal Procedure has been cancelled post a request put up by the 904.WP.221.21.odt prosecution to add in addition to the earlier sections under the Indian Penal Code the offences punishable under Sections 3 and 4 of the Maharashtra Control of Organized Crime Act 1999after a sanction under Section 21 of the MCOC Act was received The learned Senior advocate Mr. Deshmukkh would submit that the petitioners were granted a regular bail and in the absence of any supervening circumstance or a breach of terms and conditions subject to which the bail was granted it could not have been cancelled. He would submit that merely because the provision of the MCOC Act were invoked at a later point of time that would not constitute a supervening circumstance Liberty ought not have been curtailed in the manner in which it had been done. There are circumstances to indicate that the petitioner is being falsely involved under a serious charge. There is material to prima facie demonstrate that the sanctioning authority was perhaps hand in gloves with the original informant. A tainted sanction is not a sanction in the eye of law The learned Senior advocate would further point out that reliance placed by the learned Judge in the decision of Sarang Arvind Goswamy Vs. State of Maharashtra 2005Mh.L.J. 774 and Pradip Ram Vs. The State of Jharkhand 2019SCC 326 is misplaced. Both the decisions can be distinguished on facts. As can be seen the accused therein though were granted bail were already in custody in some other crime which is not a fact situation in the matter in hand. The learned Senior advocate would further point out that in the case of Narendra @ Naresh 904.WP.221.21.odt Kavdidas Chavan Vs The State of Maharashtra and Anr. Criminal WP No.165 2017 this Court in the similar set of facts refused to cancel the bail and the view taken in that be subscribed even in the matter in hand The learned Prosecutor and the learned advocate Mr. Rathi for the original informant strongly oppose the Writ Petitions and submit that invoking a serious charge at later point of time is indeed a supervening circumstance the cognizance of which ought to be taken for cancelling the bail. They submit that not only in the case of Sarang A. GoswamyNo.7 2016 and Karan Ranjit Paropate Vs. State of Maharashtra and Ors. Criminal Writ Petition No.1029 2017 this Court has taken same stand referring to the decision in the case of Sarang A. Goswamy. Therefore there is no illegality in the impugned order which merely follows the decision in the case of Sarang A The learned Prosecutor and the learned advocate Mr. Rathi would also point out that the decision in the case of Narendra @ Naresh Kavidas Chavanwhich is later in point of time does not refer to the earlier decision of this Court in the case of Sarang A. Goswamy and the learned Judge while passing the impugned order has rightly refused to rely upon the former decision The learned Prosecutor and the learned advocate Mr. Rathi would lastly submit that the decision of the Supreme Court in the case of 904.WP.221.21.odt Pradip Ramnow sets the controversy at rest. They would point out that in fact in such a fact situation where some aggravated offences are invoked at later point of time after grant of bail a relief of cancellation of bail under Section 439of the Code of Criminal Procedure is not required and only a permission to arrest the accused who has been granted bail is contemplated. The learned advocate would pertinently point out the fact that earlier decision in the case of Hamida Vs. Rashid 1 SCC 474 has been referred to wherein it has been specifically observed that after addition of serious non cognizable offences the accused who has been granted bail is required to surrender and again apply for bail under the newly added offences. They would therefore submit that though there could be some error in articulating the prayer in the application whereby bail was sought to be cancelled the procedure being hand maid of justice the impugned order can be read to mean that what was asked before the learned Judge and what was actually granted was merely a permission to arrest the petitioners I have carefully considered the rival submissions and the decision cited at the bar. The material facts are not in dispute. The petitioners were arrested when the offences under the Indian Penal Code Arms Act and the Maharashtra Police Act were invoked. They were granted regular bail. It is thereafter that a sanction was solicited and obtained under Section 21 of the MCOC Act and it is thereafter that the application was filed seeking cancellation of bail upon which the impugned order was passed 904.WP.221.21.odt So far as extending an opportunity of being heard before passing of the impugned order though it is apparent that the learned advocate who was supposed to argue the matter on behalf of the petitioners could not be extended sufficient opportunity of being heard the impugned order elaborately discusses the events preceding to passing of the impugned order. The learned Judge has laboured to point out as to how several opportunities were extended to petitioner s advocate to make submissions not only physically but even through video conferencing facility but the opportunity was not availed of Pertinently simultaneously with the application for cancellation of bail even the application filed by the petitionerswas agreed to be decided. As can be seen from the impugned order it was with the common understanding that the argument of both the sides were heard on both these applications with a further understanding that if the application Exhibit 15) by which the petitioners had prayed for making a reference to this Court under Section 395 of the Code of Criminal Procedure was prayed for would be decided first in point of time and if it was to be allowed decision on the application for cancellation of bail would be deferred. It clearly implies that if the applicationwas to be rejected this application for cancellation of bail was to be readily decided. It is with this understanding that the parties had allowed the learned Judge to proceed and therefore the petitioners cannot be allowed to make any capital on the ground that they were not extended an opportunity of being heard 904.WP.221.21.odt Now coming to the merits of the impugned order the issue in my considered view is no longer res integra. The decision in the case of Pradip Ramclearly settles the controversy. Suffice for the purpose to reproduce the points for determination formulated by the Supreme Court and its decision thereon “7. From the submissions of the learned Counsel for the parties and the pleadings on the record following are the issues which arise for consideration in these appeals i) Whether in a case where an Accused has been bailed out in a criminal case in which case subsequently new offences are added is it necessary that bail earlier granted should be cancelled for taking the Accused in custody 29. In view of the foregoing discussions we arrive at following conclusions in respect of a circumstance where after grant of bail to an Accused further cognizable and non cognizable offences are added i) The Accused can surrender and apply for bail for newly added cognizable and non bailable offences. In event of refusal of bail the Accused can certainly be ii) The investigating agency can seek order from the court Under Section 437or 439of Code of Criminal Procedure for arrest of the Accused and his iii) The Court in exercise of power Under Section 437of Code of Criminal Procedure can direct for taking into custody the Accused who has already been granted bail after cancellation of his bail. The Court in exercise of power Under Section 437as well as Section 439(2) can direct the person who has already been granted bail to be arrested and commit him to custody on addition of graver and non cognizable offences which may not be necessary always with order of cancelling of earlier bail 904.WP.221.21.odt iv) In a case where an Accused has already been granted bail the investigating authority on addition of an offence or offences may not proceed to arrest the Accused but for arresting the Accused on such addition of offence or offences it need to obtain an order to arrest the Accused from the Court which had granted the bail 30. The issue No.1 is answered accordingly.” As can be noticed it has now been emphatically concluded that after an accused is released on bail and some serious offences are invoked at a later point of time there is no question of seeking any cancellation of bail and the investigating agency would only be required to apply for permission from the Court which granted the bail to arrest the accused. It is important to note that in the case of Sarang A. Goswamy Vijendra M. Kuril and Karan R. Paropatethis Court has proceeded to look upon this as supervening circumstance entitling the Court granting the bail to cancel it. Even the learned Judge while passing the impugned order has proceeded on the same line relying upon the decision of Sarang A Goswamy. But as can be appreciated in view of the decision in the case of Pradip Ram cancellation of bail in such a fact situation is not True it is that the application on which the impugned order was passed perhaps in ignorance of the decision in the case of Pradip Ram supra) proceeded with and decided the request of cancelling the bail and even the learned Judge has accepted the prayer. However in my considered 904.WP.221.21.odt view instead of proceeding on the technicalities when the law does not require cancellation of bail and merely requires a permission to arrest the accused the wording of the prayer in this application can be interpreted to mean that what is contemplated in law was in fact sought by the Needless to state that the petitioners are not being put to any prejudice merely because the request by the prosecution can now be interpreted within the four corners of the law in the light of the observation in the case of Pradip Ram (supra Considering the above state of affairs I find no illegality in the impugned order. At the most it can be clarified that it be read as not amounting to cancellation of bail but granting permission to the Investigating Officer to arrest the petitioners The Writ Petitions are dismissed. The Rule is discharged. (MANGESH S. PATIL J

Ex-serviceman acquitted from previous accusations cannot be presumed to have the tendency to re-offend: Delhi High Court

The issue is whether a person acquitted from offences that he/she was accused off earlier can be presumed to have the probability to reoffend. This was clarified in the case of Pawan Singh v. Commissioner of Police and Others, in W.P.(C) 11517/2021, decided by Hon’ble Mr. Justice Rajiv Shakdher &amp; Hon’ble Mr. Justice Talwant Singh on December 1, 2021. The petitioner, who is an ex-serviceman, had applied against the post of Constable (Dog Handler), advertised by the Delhi Police in 2013. Out of the total 43 vacancies advertised qua the subject post, 10% stood reserved for ex-servicemen. Hence the petitioner applied in the quota reserved for ex-servicemen. the petitioner qualified the prescribed written test and was found medically fit took place between March 2014 and August 2014. on 21.04.2015, the petitioner was served a notice, calling upon him to show cause as to why his candidature for the post of Constable (Dog Handler) Male should not be cancelled. The notice, inter alia, alluded to the fact that since the petitioner had been involved in two criminal cases, [though acquitted], he has tendency to reoffend, and, perhaps, was imbued with a violent personality. This writ petition is directed against the judgment dated 06.07.2021, passed by the Central Administrative Tribunal in this matter. Contentions of the Parties: The counsel for petitioner contented that there is no contest with the law laid down in the case of The State of Madhya Pradesh &amp; Ors. vs. Bunty, it is no doubt also necessary to notice that for the first offence alleged against the petitioner in 1995, being about 16 years of age, he would have been dealt with under the provisions of the Juvenile Justice Act, 1986; and Section 25 of the said statute specifically provided that notwithstanding anything contained in any other law, a juvenile who commits an offence and has been dealt with under the provisions of that statute “shall not suffer disqualification, if any, attaching to a conviction of an offence under that law”; while in the petitioner’s case, he was acquitted. The second offence alleged against the petitioner under Section 379 IPC was one relating to theft with no other offence alleged; and in the second case also, the petitioner stood acquitted. Furthermore, the fact the petitioner had served in the Indian Army between the period 1996 to 2012 was also not brought to the notice of the respondents, or was not considered. Although the petitioner’s acquittal in the second case [i.e., FIR No.40/2000] was because the witness i.e., the complainant had turned hostile, the prosecution failed to examine the IO, who had recovered or enabled recovery of the vehicle. After considering the submissions made by the parties, the Court held that, the aspect of this case was emphasized in Union of India and Others. v. Ramesh Bishnoi, (2019) 19 SCC 710. The fundamental principle of criminal law is that an accused is innocent unless proved guilty beyond reasonable doubt. It is required to be borne in mind and this is where, in our opinion, both the Tribunal and the respondents have gone wrong that where material witnesses are produced in the course of the trial and they do not support the case of the prosecution, the same cannot be categorized as “technical acquittals”. Hence, the Court had set aside the order of the Tribunal dated 06.07.2021 as well as the order dated 23.04.2020, passed by the respondents, and ordered to remit the matter to the respondents for a fresh consideration. The writ petition is disposed of with other terms &amp; conditions.

COMMISSIONER OF POLICE AND ORS. ..... Respondents 10W.P.(C) 11517 2021 IN THE HIGH COURT OF DELHI AT NEW DELHI Date of Decision: 01.12.2021 PAWAN SINGH Through Mr Yashpal Rangi Adv. ..... Petitioner Through Mrs Avnish Ahlawat with Mr N.K. Singh Advs. HON BLE MR JUSTICE RAJIV SHAKDHER HON BLE MR JUSTICE TALWANT SINGH Physical Hearing Hybrid HearingRAJIV SHAKDHER J.in O.A. No.801 2021. In order to adjudicate the issues arising in the writ petition the following brief facts need to be noticed: 2.1 The petitioner who is an ex serviceman had applied against the post of Constableadvertised by the Delhi Police in 2013. Out of the total 43 vacancies advertised qua the subject post 10% stood reserved for ex servicemen. W.P.(C) 11517 2021 2.2. The petitioner who fell in the Other Backward Classcategory applied in the quota reserved for ex servicemen. 2.2 Concededly the petitioner qualified the prescribed written test and was found medically fit. This exercise took place between March 2014 and August 2014. 2.3 However on 21.04.2015 the petitioner was served a notice calling upon him to show cause as to why his candidature for the post of Constable Dog Handler) Male should not be cancelled. The notice inter alia alluded to the fact that since the petitioner had been involved in two criminal cases though acquitted] he has tendency to reoffend and perhaps was imbued with a violent personality. 2.4. Admittedly vide communication dated 27.04.2015 the petitioner filed a reply to the aforesaid show cause notice. In the reply the petitioner made a reference inter alia to the decision of this Court rendered in the matter of Sandeep Singh vs. Union of India and Ors. dated 03.12.2014 passed in W.P.(C) No.1029 2014. 2.5 The respondents however went ahead and cancelled the petitioner’s appointment vide order dated 07.05.2015. This impelled the petitioner to approach the Tribunal by way of an original application i.e. O.A. No. 2484 2015 2.6 The Tribunal vide order dated 08.03.2019 dismissed aforementioned O.A. Being aggrieved the petitioner challenged the said order in this court via W.P.(C) No.11942 2019. W.P.(C) 11517 2021 2.7. The Division Bench of this Court vide order dated 15.11.2019 set aside the order of the Tribunal and remitted the matter to the Screening Committee for a de novo decision. 2.8. The principal rationale provided by the respondents in reaching the conclusion that petitioner was not suitable for the job and therefore his candidature had to be cancelled was as noticed above his involvement in two criminal cases i.e. FIR No. 5 1995 registered under Section 307 34 of the Indian Penal Code 1860 and FIR No. 40 2020 registered under Section 379 of the IPC. 2.9. The Division Bench as observed above was of the view that the matter required fresh consideration. The observations made by the Division Bench in this behalf in paragraph 11 of the order dated 15.11.2019 being pertinent are extracted “ 11. While there is no contest with the law laid down in the case of The State of Madhya Pradesh & Ors. vs. Buntyit is no doubt also necessary to notice that for the first offence alleged against the petitioner in 1995 being about 16 years of age he would have been dealt with under the provisions of the Juvenile Justice Act 1986 and Section 25 of the said statute specifically provided that notwithstanding anything contained in any other law a juvenile who commits an offence and has been dealt with under the provisions of that statute “shall not suffer disqualification if any attaching to a conviction of an offence under that law” while in the petitioner’s case he was acquitted. It is noteworthy that the same thread of not imputing any subsequent disqualification to a juvenile offender runs even through the Juvenile JusticeW.P.(C) 11517 2021 Act 2000 and the subsequent Juvenile Justice Act 2015It is thereafter that the petitioner made a representation dated 16.12.2019 to the respondents which was disposed of by the respondents vide order dated 23.04.2020. This order we are informed was served on the petitioner on 21.05.2020. 3.2. Being dissatisfied the petitioner once again approached the Tribunal via a fresh O.A. i.e. O.A. No.801 2021. As noticed above the said O.A. was dismissed on 06.07.2021. 4. We have heard the learned counsel for the parties. 4.1. What has emerged clearly is that the petitioner was tried in respect of FIR Nos.5 1995 and 40 2000. In FIR No. 5 1995 the petitioner was accused of committing an offence under Section 307 34 of the IPC. The record shows that at that point in time the petitioner was about 16 years of age. Admittedly the petitioner was acquitted in the said case. The concerned Court gave the benefit of doubt to the petitioner and one Joginder Singh who was the co W.P.(C) 11517 2021 accused. 4.3. Insofar as FIR No. 40 2000 is concerned the same was registered under Section 379 of the IPC. However at the time when the chargesheet was filed the petitioner was charged with having committed an offence under Section 411 of the IPC. The accusation against the petitioner was that he was involved in the theft of a vehicle. It is relevant to note that the prosecution in that case did not examine the Investigating Officeras its witness. Insofar as the complainant one Mr Ashok Redu was concerned he deposed that the accused was unknown to him and that he was unaware as to the person from whom the stolen vehicle had been recovered. Given this position the case of the prosecution collapsed and the petitioner was acquitted. 4.4. Besides this it has emerged in the course of arguments that the petitioner served in the Indian Army without blemish between 1996 and 2012. This aspect was noticed by the Division Bench in its judgment dated 15.11.2019. In this behalf it would be relevant to extract hereafter certain relevant entries made by the Indian Army in the petitioner’s discharge book: “SERVICE PARTICULARS Enrolled Indian Army Navy Airforce as INF SOL on 10 06 96. Date of Attestation 28 08 97 Date of oath of Allegiance taken) Total Service 15 Years 10 Months 21 days. 30 04 2012(AN) by the order of OIC Records The JAT Status of the Individual as Ex Serviceman as per current on W.P.(C) 11517 2021 9. definition: Ex Serviceman. Reasons for Release Discharge Dismissal from service under Rule 13(3) IIIread in Conjunction with Rule 13(2A) of AR 1954 on Medical Grounds. 13. War Service showing Theatre of Operation OP HIFAZAT OP RHINO OP RAKSHAK OP 16. Medal Decoration Commendations Mention in Despatches. Soth INDEPANN MEDAL SIACHEN GLACIER MEDAL 9 Yrs LSM. time of 17. Character assessed at QUALIFICATION & COURSES 18. Civil Educational Qualification: 19. Service Test & Examination 20. Specialist Service Course a) At the time of Joining Service SECY b) Acquired while in service SR SECY MR Ist PT ASST INSTRS BASIC COURSE SER No.1 BZ” It is important to note that the discharge book was part of the record emphasis is ours] placed before the Tribunal in O.A. No. 801 2021. It appears that the Tribunal overlooked this crucial piece of material and formed a view that the petition could not be entertained as the petitioner even after being inducted in the Indian Army committed a crime and was acquitted on the ground of the witnesses turning hostile. 4.6. To our minds the approach adopted by the Tribunal was not W.P.(C) 11517 2021 appropriate in the given case. The reason we say so is that when the Division Bench remitted the matter to the Screening Committee the said committee was required to re examine the matter having regard inter alia to the fact that the petitioner had served in the Indian Army for more than 15 years i.e. between 1996 and 2012. 4.7 As would be evident from the entries made in the discharge book the fact that the petitioner had won commendations medals and certificates and had taken part in fourwar like operations was not adverted to either by the respondents or the Tribunal. In our opinion the respondents should have examined the antecedents of the petitioner while he was in service with the Indian Army. 4.8. Although the petitioner’s acquittal in the second case was because the witness i.e. the complainant had turned hostile what was lost sight of was that the accusation against the petitioner was one of having stolen a vehicle and the prosecution having recovered the vehicle did not produce the person who had recovered or enabled recovery of the vehicle. The prosecution failed to examine the IO. Therefore the respondents could not have concluded that because the witness may have been pressured the prosecution’s case went awry. It is possible the prosecution did not have case to begin with. In such a situation insofar as the petitioner is concerned his defence for which he has been given the benefit of doubt could only have been that he was not involved in the offence qua which the allegation was levelled against him. Offender profiling is not unknown to law. It is probable that the petitioner could have been involved in the second case because of his brush with law as a juvenile. W.P.(C) 11517 2021 5. Before we conclude we may observe that with regard to the allegations made against the petitioner which is the subject matter of the aforementioned FIRs the approach adopted by the Tribunal and the respondents was not what the law demanded of them. 5.1. As noticed hereinabove the first FIR was registered against the petitioner when he was a juvenile being a child below the age of eighteen years. This was an offence which the petitioner allegedly committed in or about 1995 when he was about sixteen years of age. 5.2. Undoubtedly on the date when the offence was said to have been committed by the petitioner he was a “juvenile” as defined under the Juvenile JusticeAct 2015of the 2015 JJ Act mandatesthat a fresh start should be afforded to a child who passes through the juvenile justice system by erasing all past records save and except where special circumstances demand otherwise. 5.3. This aspect was emphasized by the Supreme Court in a judgment rendered in Union of India and others versus Ramesh Bishnoi 19 SCC 710 where the appointment of the concerned person i.e. one Ramesh 1 Section 3 General principles to be followed in administration of Act— The Central Government the State Governments the Board and other agencies as the case may be while implementing the provisions of this Act shall be guided by the following fundamental principles namely: xiv) Principle of fresh start: All past records of any child under the Juvenile Justice system should be erased except in special W.P.(C) 11517 2021 Bishnoi was cancelled on the ground that a criminal case had been lodged against him under the provisions of Sections 354 447 and 509 of the IPC. In this case as well at the time when the alleged offence was committed Ramesh Bishnoi was well below eighteen years of age. 5.3(a). In the trial that ensued Ramesh Bishnoi was acquitted. The Supreme Court while noting that the offence could not be proved as neither the girl against whom the alleged offence had been committed nor her parents stepped into the witness box which resulted in acquittal of Ramesh Bishnoi made the following observations having regard to the principle of fresh start engrafted in Section 3(xiv) of the 2015 JJ Act: “8. From the facts it is clear that at the time when the charges were framed against the respondent on 30 6 2009 the respondent was well under the age of 18 years as his date of birth is 5 9 1991. Firstly it was not disputed that the charges were never proved against the respondent as the girl and her parents did not depose against the respondent resulting in his acquittal on 24 11 2011. Even if the allegations were found to be true then too the respondent could not have been deprived of getting a job on the basis of such charges as the same had been committed while the respondent was juvenile. The thrust of the legislation i.e. the Juvenile Justice Act 2000 as well as the Juvenile Justice Act 2015 is that even if a juvenile is convicted the same should be obliterated so that there is no stigma with regard to any crime committed by such person as a juvenile. This is with the clear object to reintegrate such juvenile back in the society as a normal person without any stigma. Section 3 of the Juvenile Justice Act 2015 lays down guidelines for the Central Government State Governments the Board and other agencies while W.P.(C) 11517 2021 implementing the provisions of the said Act. In clause of Section 3 it is clearly provided as follows: “3.Principle of fresh start: All past records of any child under the juvenile justice system should be erased except in special circumstances.” 9. In the present case it is an admitted fact that the respondent was a minor when the charges had been framed against him of the offences under Sections 354 447 and 509 IPC. It is also not disputed that he was acquitted of the charges. However even if he had been convicted the same could not have been held against him for getting a job as admittedly he was a minor when the alleged offences were committed and the charges had been framed against him. Section 3(xiv) provides for the same and the exception of special circumstances does not apply to the facts of the present 10. Further the case against the respondent is not with regard to the suppression of any conviction or charges having been framed against him. The respondent had very fairly disclosed about the charges which had been framed and his acquittal on the basis of no evidence having been adduced by the complainant against the respondent. In our considered view the same can also not be said to be a suppression by the respondent on the basis of which he could be deprived of a job for which he was duly selected after following the due process and appointment having been offered to him.” 5.4. Therefore clearly the respondents could not have in our view taken cognisance of the allegations contained in the first FIR being FIR No. 5 1995. which brings us to the second FIR. Insofar as the second FIR is concerned i.e. FIR No. 40 2000 where W.P.(C) 11517 2021 ultimately the chargesheet was filed under Section 411 of IPC the respondents and the Tribunal have adopted an approach which is suggestive of the fact that although the petitioner was acquitted in a criminal trial by procedure established by law i.e. by a court that was invested with the necessary jurisdiction the acquittal was in a sense tinged. 5.6. The fundamental principle of criminal law is that an accused is innocent unless proved guilty beyond reasonable doubt. It is required to be borne in mind and this is where in our opinion both the Tribunal and the respondents have gone wrong that where material witnesses are produced in the course of the trial and they do not support the case of the prosecution the same cannot be categorized as “technical acquittals”. This would also apply where prosecution fails to produce witnesses especially police personnel who are relevant to the case set up by the prosecution. It cannot be presumed that because a witness does not support the case of the prosecution he is necessarily in collusion with the accused. It is therefore necessary to emphasise that although verification of character and antecedents is important while assessing the suitability of the candidatethe assessment has to be carried out on the basis of an objective criteria and by taking into consideration all relevant aspects.8 SCC 471 paragraph 34] 5.9. As noticed above by us the respondents and the Tribunal failed to take into account the relevant material while forming a view in the matter. W.P.(C) 11517 2021 6. Before we conclude we may like to emphasise the importance of mainstreaming those who have had a brush with law. In our opinion it is important that persons who have committed crimes are given a chance of joining the mainstream i.e. the civil society community. Although the instant case is not a case of conviction the State needs to evolve a policy whereby even persons who have served their prison sentence are allowed meaningful re entry into the society community which can only occur if issues which concern employment health and housing are addressed by the State. It is hard to fathom a situation where such persons will be employed by an individual or a private enterprise. It may be because of the gravity of the offence with which an individual is charged that she he is not suitable for certain jobs but that cannot be the reason for the State not to create avenues for jobs which suit a person s profile. Denying jobs to such persons will trigger recidivism and perhaps put them in circumstances where they will re offend and cause greater harm to the society community. It is therefore our view that respondent No. 1 GNCTD should work on formulating a rehabilitation policy for such persons. Thus given the fact that the aforementioned crucial aspects having not been examined either by the respondents or the Tribunal we are inclined to set aside the order of the Tribunal dated 06.07.2021 as well as the order dated 23.04.2020 passed by the respondents and remit the matter to the respondents for a fresh consideration. W.P.(C) 11517 2021 7.1. It is ordered accordingly. 7.2. The respondents will ascertain the impact of the entries made in the petitioner’s discharge book by the Indian Army. 7.3. The respondents will also have liberty to make further inquiries with the concerned personnel in the Indian Army under whom the petitioner would have served and then proceed to form a view as to the suitability of the petitioner qua the subject post. 7.4. Needless to add the respondents will conclude the aforesaid exercise with due expedition though not later than twelve weeks from the receipt of a copy of this judgment. The writ petition is disposed of in the aforesaid terms. 9. Mrs Ahlawat will ensure that a copy of this judgment is placed before the Home Minister Government of National Capital Territory of Delhi in the background of the observations made in paragraph 6.1 6.2 and 6.3. 10. Parties will act based on the digitally signed copy of this judgment. DECEMBER 1 2021 pmc RAJIV SHAKDHER J TALWANT SINGH J Click here to check corrigendum if any W.P.(C) 11517 2021

“details of PACL – Status Report, FAQs, Press Releases and Public Notices etc. are available on SEBI website.”: Appellate Authority.

The appellate authority under the RTI (Right to Information) Act of the Securities and Exchange Board of India comprising of Mr. Anand Baiwar adjudicated in the matter of Bharat Dhanji Pindoria v CPIO, SEBI, Mumbai (Appeal No. 4324 of 2021) dealt with an issue in connection with Section 2 (f) of the Right to Information Act, 2005. The appellant, Mr Bharat Dhanji Pindoria had filed an application via RTI MIS Portal on the 18th of May, 2021 under the Right to Information Act, 2005. The respondent responded to the application by a letter on the 7th of June, 2021, filed by the appellate. After receiving a letter from the respondent on 7th of June, 2021, on his application, the appellate decided to file an appeal on the 7th of June, 2021. In his application, the appellant, dated May 18, 2021, inter alia, sought information as to why SEBI constituted committee under the Supreme Court for PACL. The appellant referred to his refund application and sought further information as to why the committee, in its mail dated February 26, 2021, did not specify the duration of months for refund and the name of the scrutinizing officer who had verified the policy. The appellant also queried why Retired Justice R M Lodha is not replying to the mails. In addition to the same, the appellant sought the reason for not releasing Rs. 6250. The respondent, in response to the queries, observed that the information sought by the appellant, is not available with SEBI. However, the appellant was advised to contact the Justice (Retd.) R.M. Lodha Committee. The respondent had provided the link for accessing the details of the Committee, for further communication. The appellant was also advised to refer the public notice dated July 31, 2020 for status of refund. It was also informed that vide public notice dated October 15, 2020, the Committee had provided the investors a facility to view the status of/ deficiency in their claim applications and make good those deficiencies for investors/applicants with claims upto Rs. 7,000/-. Further, the respondent had provided links for accessing the said public notices. Further, it is understood that the details of PACL – Status Report, FAQs, Press Releases and Public Notices etc. are available on SEBI website (www.sebi.gov.in) at : https://www.sebi.gov.in/PACL.html and details of property of PACL Ltd. are available at https://www.auctionpacl.com and www.sebipaclproperties.com. Further, there is a dedicated website with regard to PACL refund – https://sebicommitteepaclrefund.com. For the query, the appellate authority, Mr Anand Baiwar, made reference to the matter of Hon’ble CIC, in the matter of Vineet Pandey vs. CPIO, United India Insurance Company Limited (Judgment dated January 21, 2021), wherein similar observations were made by the Hon’ble CIC. Further, in the matter of Shri Shantaram Walavalkar vs. CPIO, SEBI (Decision dated January 17, 2013), it was noted that the Hon’ble CIC held: “… we would also like to observe that, under the Right to Information (RTI) Act, the citizen has the responsibility to specify the exact information he wants; he is not supposed to seek any opinion or comments or clarifications or interpretations from the CPIO…”. In view of these observations, the appellate authority found no deficiency in the response.

Appeal No. 43221 BEFORE THE APPELLATE AUTHORITY Under the Right to Information Act 2005) SECURITIES AND EXCHANGE BOARD OF INDIA Appeal No. 43221 Bharat Dhanji Pindoria CPIO SEBI Mumbai The appellant had filed an application dated May 18 2021under the Right to Information Act 2005 R.M. Lodha Committee. The respondent had provided the link for accessing the details of the Committee for further communication. The appellant was also advised to refer the public notice dated July 31 2020 for status of refund. It was also informed that vide public notice dated October 15 2020 the Committee had provided the investors a facility to view the status of deficiency in their claim applications and make good those deficiencies for investors applicants with claims upto Rs. 7 000 . Further the respondent had provided links for accessing the said public notices. Appeal No. 43221 4. Ground of appeal The appellant has submitted the appeal on the ground that he is not satisfied with the response provided by the respondent. I have perused the application and I find no reason to disbelieve the said observation of the respondent that the information sought is not available with SEBI. It is understood that the responsibility of disposal of the properties and repayment to investors is entrusted with the PACL Committee which has been constituted pursuant to the order dated February 2 2016 of the Hon’ble Supreme Court of India. I also note that the refund process is being handled by the said Committee. Upon a consideration of the aforesaid I find no deficiency in the respondent’s response to the instant query of the appellant’s Further with respect to the appellant’s application seeking reason for constitution of the PACL Committee reason for not specifying the duration of months for refund and the name of the scrutinizing officer who had verified the policy and reason for not replying to mails I am of the opinion that the same is in the nature of eliciting a clarification or opinion from the respondent. It is understood that the respondent is not supposed to create information or to interpret information or to furnish clarification to the appellant under the ambit of the RTI Act. I find that the said queries cannot be construed as seeking ‘information’ as defined under section 2of the RTI Act. Consequently the respondent did not have an obligation to provide such clarification under the RTI Act. In this context reference is made to the mater of Vineet Pandey vs. CPIO United India Insurance Company Limitedwherein similar observations were made by the Hon’ble CIC. Further in the matter of Shri Shantaram Walavalkar vs. CPIO SEBI I note that the Hon’ble CIC held: “... we would also like to observe that under the Right to InformationAct the citizen has the responsibility to specify the exact information he wants he is not supposed to seek any opinion or comments or clarifications or interpretations from the CPIO...”. Further it is understood that the details of PACL Status Report FAQs Press Releases and Public Notices etc. are available on SEBI website at : https: www.sebi.gov.in PACL.html and details of property of PACL Ltd. are available at https: www.auctionpacl.com and www.sebipaclproperties.com. Further there is a dedicated website with regard to PACL refund https: sebicommitteepaclrefund.com. Appeal No. 43221 I find that the respondent has adequately guided the appellant to access the contact details of the Committee. In addition to the same the email address of the Committee is mentioned below E mail address: nodalofficerpacl@sebi.gov.in. In view of the above observations I find that there is no need to interfere with the decision of the respondent. The appeal is accordingly dismissed. Place: Mumbai Date: July 15 2021 AMARJEET SINGH APPELLATE AUTHORITY UNDER THE RTI ACT SECURITIES AND EXCHANGE BOARD OF INDIA

Caste system in our society is deep rooted, we boast ourselves as educated society but we live our lives with double standards: Allahabad High Court

The issue in the case was a plea granting bail to a person accused of murder was dealt and decided by a bench of Allahabad High Court consisting of Justice Rahul Chaturvedi in the matters between Sanni Singh v. State of Uttar Pradesh CRIMINAL APPEAL No. – 4520 of 2021 decided on 20.1.2022. The facts of case are the FIR was registered after a complaint by the older brother of a man who was killed in broad daylight by a group of more than 17 people. The informant claimed that his brother, who belongs to the Scheduled Caste community, was appointed as Gram Panchayat Adhikari in Gorakhpur and allegedly developed an intimacy with an upper caste woman who was his party mate during his training period.Sanni Singh was charged in a murder case and charged under Sections 302, 307, 506 and 120B of the Indian Penal Code and Section 3(2)(V) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act. The court was hearing Singh’s criminal appeal for overturning the decision of a special judge who refused his bail. The counsel of appellant contended that the applicant’s case is much better founded than that of Dipti Mishra’s close relatives, who are said to have been involved in this case.It is clear from the FIR that a random statement was made in the last lines of the FIR that the name of the applicant was deliberately dragged due to previous hostilities. The applicant had no connection or reason to commit the crime. Sanni Singh is not emotionally attached to Dipti Mishra and is not a family member, and this theory was surfaced by the prosecution that it was an honour killing. The counsel of respondent claimed that Dipti Mishra, who set out with the deceased person’s family, faced threats from the above-mentioned defendants, and that only 11 of the 17 mentioned had been caught so far. by the police. The entire family of the deceased poses a great threat from the aforementioned defendants. If the applicant is released on bail, all released on bail, the defendants will make the life of Dipti Mishra and other family members of the deceased miserable.Heavy reliance was placed on the judgement of Rama Devi Nayar Vs. State of Rajasthan reported in 2020(4)SCC Crl.185 which was a honour killing case where the applicant was the main conspirator who conspired to kill his sister’s husband. The Allahabad High Court held that in an educated society, the caste system is deeply rooted, we pride ourselves on it, but we live our lives with double standards. Even after 75 years of independence, we cannot escape this social threat. The court complained that this is pathetic and tragic. The moral duty of sane people with their wealth is to protect the privileged and the oppressed so that they can feel safe, secure and comfortable. The plaintiff filed a lawsuit for bail, taking into account the nature of the crime, the evidence, the defendant’s complicity, the form and form of the crime and the period of detention, and also the statements of the counsel without expressing any opinion on the merits of the case. The court granted the bail and allowed the appeal in the above-mentioned case crime number as he has given a personal bond. The accused was ordered not to falsify evidence or witnesses and to appear before the court whenever requested and also instructed the police officers to provide the applicant’s family with the necessary security.

Court No. 76 Case : CRIMINAL APPEAL No. 45221 Appellant : Sanni Singh Respondent : State Of U P And Another Counsel for Appellant : Manish Gupta Vinay Kumar Counsel for Respondent : G.A. Arvind Kumar Rahul Chaudhary Hon ble Rahul Chaturvedi J Heard Sri Manish Gupta learned counsel for the appellant Sri M.S. Arya Advocate connected virtually from Delhi assisted by Sri Arvind Kumar learned counsel for the complainant as well as Sri Satendra Tiwari learned A.G.A for the State and perused the record This criminal appeal under Section 14 A of Scheduled Castes Scheduled TribesAct 1989has been filed for setting aside the impugned order dated 15.09.2021 passed by learned Special Judge SC ST Act Additional Session Judge Gorakhpur in Bail Application No. 4107 of 2021 arising out of Case Crime no.2921 under Sections 302 307 506 120B IPC I.P.C. and Section 3(2)(V) of SC ST Act Police Station Gola District Gorakhpur Pleadings between the parties have been exchanged and the matter is ripe for final submissions. Submission made by the learned counsel for the applicant drawing the attention of the Court to the FIR lodged by Anis Kumar for the incident dated 24.07.2021 the present FIR was lodged on 25.07.2021 at 2.45 hours against as many as 17 named accused persons and four persons on two The long and short of the entire prosecution case is that the informant s younger brother was Gram Panchayat Adhikari posted at Block Urwa Gorakhpur. He belongs to schedule caste community. During his training period he has developed some amount of intimacy with his course mate Ms. Dipti Mishra. Negating all odds and objection of the family members and other friends and relatives they have decided and have performed registered marriage and started residing as husband and wife. This marriage have raised eye brows of all family members of Dipti Mishra. All of them got infuriated and started waiting for the time to eliminate Anis Kumarseriously injured. Anis Kumar was taken to hospital where he declared dead by the doctors. It has further mentioned in the FIR that informant has firm belief that the named accused persons have hatched the conspiracy and eliminated his brother. The informant further alleged that Abhishek Tiwari and Vivek Tiwari and Sanni Singh on account of their previous enmity have actively participated in this offence and thus have facilitated them to commit this cold blooded day light murder of Anis Kumar Sri Manish Gupta learned counsel for the applicant at the outset has submitted that out of 17 named accused persons: 1 Nalin Mishra 2 Manikant Mishra 3 Ajay Mishra 4 Abhishek Tiwari and 5 Vivek Tiwari were admitted on bail by the coordinate Bench of this Court on 17.12.2021 after allowing their respective appeals. It is contended by the counsel that the case of the applicant stand on much better footing than that of close relatives of Dipti Mishra who were said to have been involved in this case It is further submitted by Sri Manish Gupta learned counsel for the applicant that from the FIR it is clear that a casual remark in the last lines of the FIR has been made that on account of previous animosity and the name of the applicant have been purposely dragged. The applicant has got no connection or motive in committing the crime. The applicant Sanni Singh has not emotional bonding with Dipti Mishra nor he is a family member and this theory floated by prosecution that this is case of HONOUR KILLING goes hay wire Per contra Sri M.S.Arya connected through virtual mode from Delhi vehementally opposed the bail application by advancing submission that on the earlier occasion the informant of the present FIR Anil Kumar in the year 2020 has lodged an FIR as case crime no. 1320 on 07.05.2020 under Sections 147 323 504 506 and 3(1)(Da)(Dha) of SC ST Act for the alleged act of "maar peet" against the applicant and others and on this score it is asserted that the applicant too was said to have been involved in this case. Besides this learned counsel for the informant has heavily relaied upon the judgment of Hon ble Apex Court in the case of Rama Devi Nayar Vs. State of Rajasthan reported in 2020(4)SCC Crl.185 whereby in the case of "honour killing" the applicant is said to have been the main conspirator who hatched the conspiracy to kill his sister s husband which they done as a honour killing. In the instant case as mentioned above the applicant is no concerned with the family member of Dipti Mishra and thus the applicant has got no emotional bonding with the lady and the theory of honour killing would not applicable with regard to the applicant and the case of Rama Deviis of no help to the learned counsel for the informant I have keenly perused the 161 Cr.P.C. statement of Dipti Mishra widow of Anis Kumar annexed as Annexure No. CA 2. In the entire 161 Cr.P.C statement she has not even whispered a single word against the applicant Learned counsel for the applicant further states that co accused persons Nalin Mishra in Crl. Appeal No. 40721 Abhinav Mishra in Crl Appeal No. 40321 Manikant Mishra in Crl. Appeal No. 33420 Abhishek Tiwari in Crl. Appeal No. 48721 and Ajay Mishra in Crl. Appeal No. 38821 were allowed by the coordinate Bench of this Court by order dated 17.12.2021. It is contended by the counsel that the applicant s case is on the better footing than that of Nalin Mishra Ajay Mishra and Abhishek tiwari etc.. who are the blood relation with Dipsti Mishra they might have some motive in commission of offence but so far as the applicant is concerned he is rank outsiders having no concerned whatsoever in commission of offence. Neither from the applicant nor his pointing out has recovered any incriminating material. The applicant is languishing in jail since 27.07.2021 and deserves to be bailed out The submission made by learned counsel for the appellant prima facie is quite appealing and convincing for the purpose of bail only. Learned counsel for the complainant submits that Dipti Mishra who is on the family way from the deceased facing threats from the named accused persons and out of 17 named only 11 persons are being nabbed so far. by the police. Entire family of the deceased is immense threat from the named accused persons. If the applicant is released on bail all of the bailed out accused would make the life of Dipti Mishra and other family members of the deceased miserable Caste system in our society is deep rooted we boast ourselves as educated society but we live our lives with double standards. Even after 75 years of Independence we are not able to get out with this social menace. This is pitiable and tragic. It is the moral duty of those sane person who are well ff to protect the under privileged and downtrodden so that they feel themselves safe secure and comfortable Simultaneously the other group also feel that they are the integral and inseparable part of the society and it is in the larger interest of the country and high time for the introspection for every one to give serious thought over the matter Indeed it is mind boggling that the counsel for the informant is complaining that the widow of the deceased and his other family members are at sun and wants to have safe shelter. The Court is recording its deep anguish and concern if this is the ground reality S.S.P. Gorakhpur would provide necessary security to the family members of the deceased and thereafter having periodical assessment deploy the requisite security during trial and take stringent action against every that person who wants to take the law in his hands Keeping in view the nature of the offence evidence complicity of the accused submissions of the learned counsel for the parties taking into account the manner and mode of the offence and the period of detention already undergone and also without expressing any opinion on merits of the case I am of the view that the appellant has made out a case for bail. Let the appellant Sanni Singh be released on bail in the aforesaid case crime number on his furnishing a personal bond and two heavy sureties each in the like amount to the satisfaction of the court concerned with the following conditions which are being imposed in the interest of justice: i) THE APPELLANT WOULD FULLY COOPERATE IN THE CONCLUSION OF TRIAL WITHIN ONE YEAR AND ANY TEMPERING OR WILLING TACTICS ON THE PART OF THE APPELLANT TO DELAY THE TRIAL WOULD WARRANT THE AUTOMATIC CANCELLATION OF BAIL ii) THE APPELLANT SHALL FILE AN UNDERTAKING TO THE EFFECT THAT HE SHALL NOT SEEK ANY ADJOURNMENT ON THE DATE FIXED FOR EVIDENCE WHEN THE WITNESSES ARE PRESENT IN COURT. IN CASE OF DEFAULT OF THIS CONDITION IT SHALL BE OPEN FOR THE TRIAL COURT TO TREAT IT AS ABUSE OF LIBERTY OF BAIL AND PASS ORDERS IN ACCORDANCE WITH LAW iii) THE APPELLANT SHALL REMAIN PRESENT BEFORE THE TRIAL COURT ON EACH DATE FIXED EITHER PERSONALLY OR THROUGH HIS COUNSEL. IN CASE OF HIS ABSENCE WITHOUT SUFFICIENT CAUSE THE TRIAL COURT MAY PROCEED AGAINST HIM UNDER SECTION 229 A IPC iv) IN CASE THE APPELLANT MISUSE THE LIBERTY OF BAIL DURING TRIAL AND IN ORDER TO SECURE HIS PRESENCE PROCLAMATION UNDER SECTION 82 CR.P.C. MAY BE ISSUED AND IF APPELLANT FAILS TO APPEAR BEFORE THE COURT ON THE DATE FIXED IN SUCH PROCLAMATION THEN THE TRIAL COURT SHALL INITIATE PROCEEDINGS AGAINST HIM IN ACCORDANCE WITH LAW UNDER SECTION 174 A IPC v) THE APPELLANT SHALL REMAIN PRESENT IN PERSON BEFORE THE TRIAL COURT ON DATES FIXED FOR FRAMING OF CHARGE AND (3 RECORDING OF STATEMENT UNDER SECTION 313 CR.P.C. IF IN THE OPINION OF THE TRIAL COURT ABSENCE OF THE APPELLANT IS DELIBERATE OR WITHOUT SUFFICIENT CAUSE THEN IT SHALL BE OPEN FOR THE TRIAL COURT TO TREAT SUCH DEFAULT AS ABUSE OF LIBERTY OF BAIL AND PROCEED AGAINST HIM IN ACCORDANCE WITH LAW However it is made clear that any wilful violation of above conditions by the appellant shall have serious repercussion on his bail so granted by this Accordingly the appeal succeeds and the same stands allowed. Impugned order dated 15.09.2021 passed by learned Special Judge SC ST Act Additional Session Judge Gorakhpur is hereby set aside. Order Date : 20.1.2022 Digitally signed by RAHUL CHATURVEDI Date: 2022.01.21 17:19:47 IST Reason: Document Owner Location: High Court of Judicature at Allahabad

For a conviction in case of Murder under Section 302 of the IPC a case beyond the Shadow of Reasonable Doubt needs to be established – Rajasthan High Court

In the present criminal appeal, the prosecution approached the High Court stating that the trial court had erred in its judgment of acquitting the accused for a charge of murder of her husband. The High Court closely analysed the testimony and evidence placed on record and held that the Prosecution had failed to establish its case beyond the shadow of reasonable doubt. The ratio was laid down by Justice Chandra Kumar Songara in the case of State of Rajasthan Vs. Meena W/o Shri Mohar Singh, D.B. [Criminal Leave to Appeal No. 551/2019]. The brief facts of the case are that the accused was married to Mohar Singh. The Respondent had faced trial in an FIR registered at Dholpur. After investigation, a challan was presented against the Respondent under Section 302 of IPC for the murder of her husband Mohar Singh. The Respondent did not plead guilty in the trial court. After the evidence and material were placed on record, the trial court acquitted the Respondent in the case of Murder. Hence the present Appeal. The Division bench of the High Court of Rajasthan adjudicated upon this matter after carefully analysing the testimony of fifteen witnesses and the other medical evidence placed on record. The Appellant argued that the trial court erred in its judgment as it failed to consider the two eyewitnesses of the incident i.e. PW-8 &amp; PW-9 (Bhuro and Varsha) daughters of the deceased. The Respondent on the other side argued that the testimony of the two eyewitnesses was different and proved that they were not present at the time of the incident. Further, as per the testimony the Murder was carried out by strangulating the deceased, but no marks of strangulation were found on the body of the deceased. The Prosecution further tried to prove illicit relationships of the Respondent with one Hakim Singh through the testimonies and made an attempt to prove that there was a conspiracy of Murder planned by two. The Testimony of the two daughters i.e. PW-8 and PW-9 was as that, “they have gone for sleep after dinner. On hearing voice of their father, they had got up and saw that their mother was strangulating their father. They informed their uncle about the incident in the morning. Their mother i.e Respondent had told them that their father had died on account of consumption of liquor. Versha in her cross-examination stated that everybody had seen a dead body in the morning and till then nobody knew as to how her father had died.” The High Court after due consideration was of the opinion that there were no strangulation marks on the body of the deceased and further keeping in view the material discrepancies in the statements of the witnesses, learned Trial Court rightly came to the conclusion that the Prosecution has failed to establish its case beyond the shadow of reasonable doubt hence High Court came to the conclusion to dismiss the case. Click here to read the judgement

on 15 12 2020 at 10:02:24 PM HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPURD.B. Criminal Leave To Appeal No. 551 2019State Of Rajasthan Through P.P. AppellantVersusMeena W o Late Shri Mohar Singh R o Seva Ka Pura PoliceStation Saipau Distt. Dholpur. RespondentFor Appellant(s) : Mr. N.S. Gurjar for the State.For Respondent(s): Mr. Sudhindra Kumawat Advocate through Video Conferencing.HON BLE MRS. JUSTICE SABINA HON BLE MR. JUSTICE CHANDRA KUMAR SONGARAJudgment Order04 12 2020Respondent had faced trial in FIR No.227 2015 registered atpolice Station Saipau District Dholpur under Section 302 34 ofIndian Penal Code 1860[CRLLA 551 2019]Learned State counsel has submitted that the trial court haserred in ordering acquittal of the respondent. Case rests on eye witness account. Daughters of the deceased had seen therespondent committing murder of her husband. Learned trial courthas erred in disbelieving the statements of PW 8 Bhuro and PW 9Versha.Learned Amicus Curiae appearing on behalf of therespondent has opposed the appeal and has submitted that fromthe complete reading of the statements of alleged eye witnessesPW 8 Bhuro and PW 9 Versha it was evident that they had notwitnessed the occurrence. There was no injury mark on the personof the deceased to corroborate the alleged eye witness account.Present case relates to murder of Mohar Singh husband ofthe respondent. It was the prosecution story that respondent washaving illicit relations with Hakim Singh and she had committedmurder of her husband alongwith her paramour. However afterinvestigation challan was presented against the respondent. To prove its case prosecution has placed reliance on thetestimonies of PW 8 Bhuro and PW 9 Versha. PW 8 Bhuro and PW 9 Versha in their examination in chiefhave stated that they had gone to sleep after eating dinner. Onhearing alarm raised by their father they had got up and saw thattheir mother was strangulating their father. They informed theiruncle about the incident in the morning. Respondent had toldthem that their father had died on account of consumption ofliquor. However PW 8 Bhuro in her cross examination deposedthat she had got up after half an hour of her father’s death. Shehad not seen any injury on her father at night but had seen injurymark in the morning. She also admitted that she had told her[CRLLA 551 2019]brothers after her father had died but nobody had seen deadbody as it was dark. PW 9 Versha in her cross examinationdeposed that everybody had seen dead body in the morning andtill then nobody knew as to how her father had died. Learned trial court after going through the cross examinationof PW 8 Bhuro and PW 9 Versha rightly held that their statementsdid not inspire confidence and were rendered doubtful. No reliancecould be placed on their statements.PW 5 Doctor Narendra Kumar Agarwal deposed that therewere no strangulation marks on the neck of the deceased. So far as PW 3 Dwarika is concerned he has stated that hehad been told by PW 8 Bhuro and PW 9 Versha that Hakim Singhhad given them some tablets and they had slept. At night theirmother had told them that their father had died. However the saidpart of the statement of PW 3 Dwarika is not corroborated byPW 8 Bhuro and PW 9 Versha. PW 4 Satyaprakash son of the deceased deposed that hisfather had been murdered by his mother and Hakim Singh. Hehad been informed by his sister Bhuro regarding the death of hisfather at 9.00 P.M.. Then he reached the spot and saw that hisfather was lying on the floor. In the morning his uncle and othershad seen the dead body and found that there were strangulationmarks on the neck of the deceased. Statement of PW 4Satyaprakash is hearsay. He had narrated the incident asdisclosed to him by his sister Bhuro. However Bhuro has notdeposed to the effect that her father had been murdered by HakimSingh also. Medical evidence does not corroborate his version thatthere were strangulation marks on the neck of the deceased. [CRLLA 551 2019]Keeping in view the material discrepancies in the statementsof the witnesses learned Trial Court rightly came to the conclusionthat the prosecution has failed to establish its case beyond theshadow of reasonable doubt.Hon ble the Supreme Court in Allarakha K.Mansuri v.State of Gujarat 2002(1) RCR748 has held thatwhere in a case two views are possible the one which favoursthe accused has to be adopted by the Court.Similarly in Mrinal Das & others v. The State of Tripura 2011Supreme Court Cases 479 the Hon ble SupremeCourt after looking into various judgments has laid downparameters in which interference can be made in a judgment ofacquittal by observing as under:“8) It is clear that in an appeal against acquittal in the absenceof perversity in the judgment and order interference by thisCourt exercising its extraordinary jurisdiction is not warranted.However if the appeal is heard by an appellate court being thefinal court of fact is fully competent to re appreciate reconsider and review the evidence and take its own decision.In other words law does not prescribe any limitation restrictionor condition on exercise of such power and the appellate courtis free to arrive at its own conclusion keeping in mind thatacquittal provides for presumption in favour of the accused. Thepresumption of innocence is available to the person and incriminal jurisprudence every person is presumed to be innocentunless he is proved guilty by the competent court. If tworeasonable views are possible on the basis of the evidence onrecord the appellate court should not disturb the findings ofacquittal. There is no limitation on the part of the appellatecourt to review the evidence upon which the order of acquittalis found and to come to its own conclusion. The appellate courtcan also review the conclusion arrived at by the trial Court withrespect to both facts and law. While dealing with the appeal[CRLLA 551 2019]against acquittal preferred by the State it is the duty of theappellate court to marshal the entire evidence on record andonly by giving cogent and adequate reasons set aside thejudgment of acquittal. An order of acquittal is to be interferedwith only when there are “compelling and substantial reasons” for doing so. If the order is “clearly unreasonable” it is acompelling reason for interference. When the trial Court hasignored the evidence or misread the material evidence or hasignored material documents like dying declaration report ofballistic experts etc. the appellate court is competent toreverse the decision of the trial Court depending on thematerials placed” Hence no ground for grant of leave to appeal is made out.Dismissed. J(SABINA) JSanjay Kumawat 8

One seat from the Management Quota of Respondent No.2-College for the next academic year shall be granted to Respondent No.1: Supreme Court

“Directions issued in S. Krishna Sradha case (supra) can be made applicable to admission to Post Graduate Courses as well”, this remarkable stand was forwarded by the Honorable SC in the Miscellaneous appeal case of National Medical Commission V. Mothukuru Sriyah Koumudi &amp; Ors., [Civil Appeal No. 3940 of 2020], chaired by Hon’ble Justice Mr. L.Nageswara Rao and Hon’ble Mr. Justice Hemant Gupta. The bench in this present case has Respondent 1 completed her 5 years MBBS course in 2019, after giving her final exams. She successfully completed her compulsory rotary internship by 27.03.2020. There after she appeared in the NEET examinations where she ranked 93563. The Respondent No.1 was called for counselling and was given provisional admission to the MS (General Surgery) course in the Mop-up Phase (MQ)- P3 on 28.07.2020 and was allotted to the Respondent No.2- College under Management Quota. According to the provisional allotment order, Respondent No.1 was required to report before the Principal of Respondent No.2-College by 04:00 PM on 30.07.2020. In spite of her presence in Respondent No. 2-College, the admission of Respondent No.1 was not completed. On 30.07.2020, the last date for admission into PG Medical Courses was extended till 30.08.2020 pursuant to the directions issued by this Court. Respondent No.1 made an attempt to meet the Chairman of Respondent No.2- College on 07.08.2020. However, she was not permitted to meet the Chairman. Having left with no other alternative, Respondent No.1 filed a Writ Petition for seeking a declaration that denial of admission to her in the PG Medical Course for the academic year 2020-2021 as illegal. Respondent No. 1 also sought a direction to Respondent No.2-College to grant admission in MS (General Surgery). Aggrieved by the denial of admission to 1st year Post-Graduate Medical Specialty course of MS (General Surgery) for the academic year 2020-2021, the Respondent No.1 filed a Writ Petition in the High Court of Judicature at Hyderabad for the State of Telangana. The High Court allowed the Writ Petition and delivered its decision in favor of the petitioners. The HC directed the Appellant-National Medical Commission/ Medical Council of India to create or sanction one seat in MS (General Surgery). A further direction was given to Respondent No.2- Kamineni Academy of Medical Sciences and Research Centre, Hyderabad to grant admission to the Respondent No. 1 in MS (General Surgery) course. The judgment of the High Court is challenged in the above Appeal. After examining all the submissions, arguments and evidences forwarded by the councils, the Hon’ble SC observed that, “As the last date for admissions for the present academic year is 30.08.2020, we are not inclined to grant admission to Respondent No.1 for this academic year. Even if the admission of Respondent No.5 is cancelled as having not been in accordance with the Regulations, it would not be of any use to Respondent No.1 or to any other eligible candidate. Furthermore, the High Court is right in holding that Respondent No.5 might not have known about the denial of admission to Respondent No.1 illegally.” The bench further added that, “Respondent No.2-College adopted unfair means to deprive Respondent No.1 admission to PG course. Respondent No.1 has lost one precious academic year for no fault of hers for which she has to be compensated by way of an amount of Rs.10 Lakhs to be paid by Respondent No.2- College within a period of four weeks from today. Furthermore, Respondent No.1 is entitled for admission to the MS (General Surgery) course in the next academic year 2021-22 and shall be given admission in a seat allocated to Respondent No.2-College.”

Non Reportable IN THE CIVIL APPELLATE JURISDICTION No . 3940 2020 of National Medical Commission Mothukuru Sriyah Koumudi & Ors. …. Respondentfor the academic year 2020 2021 the Respondent No.1 filed a Writ Petition in the High Court of Judicature at Hyderabad for the State of Telangana. The High Court allowed the Writ Petition and directed the Appellant National Medical Commission Medical Council of India to create or sanction one seat in MS course. The judgment of the High Court is challenged in the above The Respondent No.1 passed the final year MBBS Examination in January 2019. She completed the one year Compulsory Rotary Internship as a Resident Intern from 28.03.2019 to 27.03.2020 at Malla Reddy Narayana Multispecialty Hospital. Thereafter she was awarded Bachelor of Medicine and Bachelor of Surgery Degree on 11.06.2020. In the meanwhile she appeared in the All India National Eligibility cum Entrance Test course in the Mop up PhaseP3 on 28.07.2020 and was allotted to the Respondent No.2 College under Management Quota. According to the provisional allotment order Respondent No.1 was required to report before the Principal of Respondent No.2 College by 04:00 PM on 30.07.2020. In case of 2 | P a g e failure to report before Respondent No.2 College within the prescribed time the provisional selection of Respondent No. 1 shall be automatically cancelled According to Respondent No.1 she approached Respondent No.2 College along with her father on 29.07.2020 and 30.07.2020 for submission of certificates and payment of tuition fees as well as college fees. In spite of her presence in Respondent No. 2 College the admission of Respondent No.1 was not completed. On 30.07.2020 the last date for admission into PG Medical Courses was extended till 30.08.2020 pursuant to the directions issued by this Court. Respondent No.1 made an attempt to meet the Chairman of Respondent No.2 College on 07.08.2020. However she was not permitted to meet the Chairman. 3. Having left with no other alternative Respondent No.1 filed a Writ Petition for seeking a declaration that denial of admission to her in the PG Medical Course for the academic year 2020 2021 as illegal. Respondent No 1 also sought a direction to Respondent No.2 College to grant admission in MSto her. Admission that was granted to Respondent No.5 was not interfered with as he might have been an innocent party unaware of the circumstances in which seat was denied to Respondent No.1 by Respondent No.2 College. The Appellant is mainly aggrieved by the direction given by the High Court to create or sanction an additional seat in Post Graduate Medical Specialty course of MSfor the academic year 2020 2021. 5. Mr. Gaurav Sharma learned counsel appearing for the Appellant National Medical Commission submitted that Respondent No.1 did not pursue available remedies immediately after 30.08.2020. She should have approached the concerned authorities without delay to voice her grievance about the illegal action of Respondent No.2 College in not granting admission to 5 | P a g e her. As the last date of admission was 30.08.2020 Mr Sharma contended that no direction could have been granted by the High Court for admission to Respondent No.1 on 18.09.2020. He argued that the direction given for creation of a seat is contrary to the law laid down by this Court. 6. Mr. K. Parameshwar learned counsel appearing for Respondent No.1 submitted that the denial of admission by Respondent No.2 College to Respondent No.1 in GS MS in spite of her being more meritorious than Respondent No.5 who was granted admission on 11.08.2020 has resulted in irreparable loss to Respondent No.1. He contended that the High Court was right in directing the creation of a seat in MS General Surgery) in Respondent No.2 College and granting admission to Respondent No.1. Mr Parameshwar submitted that the judgment of this Court in S. Krishna Sradha v. The State of Andhra Pradesh & Ors.1 is applicable on all fours to Post Graduate Courses as well. Mr. Siddhant Buxy learned counsel appearing for Respondent No.2 College argued 1SCC OnLine SC 1609. 6 | P a g e that the procedure prescribed under the Regulations of the Medical Council of India for admission to PG Medical Courses was scrupulously followed by the College Having not approached the College before the last date of admission Respondent No.1 cannot complain that she was denied admission. According to Mr. Buxy Respondent No.5 was rightly given admission on 11.08.2020 and that Respondent No.2 College did not have any objection to the direction issued by the High Court for creation of a seat in favour of Respondent No.1 Mr. P. Venkat Reddy learned counsel appearing for Respondent No. 3 the Kaloji Narayana Rao University of Health Sciences and Mr. A. Venayagam Balan learned counsel appearing for Respondent No.5 have submitted that they have no objection to the judgment of the High Court. Mr. Balan submitted that Respondent No.5 joined MS on 11.08.2020 when he was offered admission and he was not aware of the instant events which gave rise to this dispute. There is no dispute that Respondent No.1 was provisionally granted admission to MSseat to Respondent No.1 for the academic year 2020 2021. 8. We are in agreement with the said finding of the High Court. A perusal of the counter affidavit filed by Respondent No.2 College in the High Court would show that there is a contradiction in the pleadings by Respondent No.2 College. On one hand it is stated that Respondent No.1 and her father did not approach Respondent No. 2 College either on 29.07.2020 or 30.07.2020 for the purpose of admission. Having said so Respondent No.2 College in its counter also stated Respondent No.1 had approached the College on 29.07.2020 to enquire about the admission procedure and the requisite fee. There is no reason to believe that Respondent No.1 did not approach Respondent No. 2 College for admission especially after paying the University Fee on 29.07.2020. The last date for admission to the PG Medical Courses for the academic year 2020 2021 was extended from 30.07.2020 to 30.08.2020. Respondent No.5 was granted admission on 11.08.2020 to the seat which was provisionally allotted to Respondent No.1. He is 2000 ranks below Respondent 9 | P a g e No.1. There is nothing on record to show that Respondent No. 2 College followed the procedure prescribed by the Regulations for filling up the seat due to non joining. As the last date for admission has been extended beyond 30.07.2020 there was sufficient time for Respondent No.2 College to have intimated Respondent No.1 to come and join in the seat that was allotted to her provisionally. In case of refusal by Respondent No.1 to join it was incumbent upon Respondent No.2 College to have followed the merit list and offered the seat to doctors who were immediately ranked below Respondent No.1. The manner in which Respondent No.2 College acted in depriving admission to Respondent No.1 and giving admission to Respondent No.5 on 11.08.2020 is deplorable. The Managements of the Medical Colleges are not expected to indulge in such illegalities in making admissions to Medical Courses. The question that arises for our consideration is whether the High Court was right in directing creation of a seat for this academic year for granting admission to Respondent No.1. It has been repeatedly held by this 10 | P a g e Court that directions cannot be issued for increasing annual intake capacity and to create seats. The annual intake capacity is fixed by the Medical Council of India now National Medical Commission) which has to be strictly adhered. Admissions to Medical Colleges cannot be permitted to be made beyond the sanctioned annual intake capacity of a medical college as has been repeatedly held by this Court. 10. The next point that arises for our consideration is whether Respondent No.1 can be left high and dry in spite of having suffered due to the illegal action of Respondent No.2 College in denying admission to her This Court in S. Krishna Sradha had occasion to consider the nature of relief to be granted to a student after the last date of admissions in case it is found that he or she was denied admission illegally. The conflicting in the judgments of this Court in Asha v. Pt. D.B Sharma University of Health Sciences & Ors.2 and Chandigarh Administration & Anr. v. Jasmine Kaur Ors.3 was resolved by this Court in the judgment of S 27 SCC 389 310 SCC 521 11 | P a g e Krishna Sradhait was held by this Court that the rule of merit for preference of medical courses and colleges admits no exception and that the said rule has to be followed strictly and without demur. The last date for admissions has to be strictly followed except in very rare and exceptional cases of unequivocal discrimination or arbitrariness or pressing emergency. In such cases admission can be granted by courts even after the last date. A contrary view was taken in Jasmine Kaur case supra) wherein this Court was of the opinion that a student is only entitled to a compensation in cases of illegal denial of admission and no admission can be directed after the last date. In S. Krishna Sradha case supra) this Court held as follows: “33. In light of the discussion observations made hereinabove a meritorious candidate student who has been denied an admission in MBBS Course illegally or irrationally by the authorities for no fault of his her and who has approached the Court in time and so as to see that such a meritorious candidate may not have to suffer for no fault of his her we answer the reference as under 12 | P a g e That in a case where candidate student has approached the court at the earliest and without any delay and that the question is with respect to the admission in medical course all the efforts shall be made by the concerned court to dispose of the proceedings by giving priority and at the ii) Under exceptional circumstances if the court finds that there is no fault attributable to the candidate and the candidate has pursued his her legal right expeditiously without any delay and there is fault only on the part of the authorities and or there is apparent breach of rules and regulations as well as related principles in the process of grant of admission which would violate the right of equality and equal treatment to the competing candidates and if the time schedule prescribed 30th September is over to do the complete justice the Court under exceptional circumstances and in rarest of rare cases direct the admission in the same year by directing to increase the seats however it should not be more than one or two seats and such admissions can be ordered within reasonable time i.e. within one month from 30th September i.e. cut off date and under no circumstances the Court shall order any Admission in the same year beyond 30th October However it is observed that such relief can be 13 | P a g e granted only in exceptional circumstances and in the rarest of rare cases. In case of such an eventuality the Court may also pass an order cancelling the admission given to a candidate who is at the bottom of the merit list of the category who if the admission would have been given to a more meritorious candidate who has been denied admission illegally would not have got the admission if the Court deems it fit and proper however after giving an opportunity of hearing to a student whose admission is sought to be iii) In case the Court is of the opinion that no relief of admission can be granted to such a candidate in the very academic year and wherever it finds that the action of the authorities has been arbitrary and in breach of the rules and regulations or the prospectus affecting the rights of the students and that a candidate is found to be meritorious and such candidate student has approached the court at the earliest and without any delay the court can mould the relief and direct the admission to be granted to such a candidate in the next academic year by issuing appropriate directions by directing to increase in the number of seats as may be considered appropriate in the case and in case of such an eventuality and if it is found that the management 14 | P a g e was at fault and wrongly denied the admission to the meritorious candidate in that case the Court may direct to reduce the number of seats in the management quota of that year meaning thereby the student students who was were denied admission illegally to be accommodated in the next academic year out of the seats allotted in the iv) Grant of the compensation could be an additional remedy but not a substitute for restitutional remedies. Therefore in an appropriate case the Court may award the compensation to such a meritorious candidate who for no fault of his her has to lose one full academic year and who could not be granted any relief of admission in the same academic year v) It is clarified that the aforesaid directions pertain for Admission in MBBS Course only and we have not dealt with Post Graduate Medical As the dispute in S. Krishna Sradha caseshould not be made applicable to Post Graduate Courses. We find force in the said argument of Mr. Parameshwar. This Court was only dealing with the admission to the MBBS Course for which reason directions given in the said judgment were restricted to the MBBS Course Directions issued in S. Krishna Sradha case course in the next academic year 2021 22 and shall be given admission in a seat allocated to Respondent No.2 College. In other words one seat in MS course from the Management Quota of Respondent No.2 College for the next academic yearshall be granted to Respondent No.1. 13. The Appeal is disposed off with the above directions. [L. NAGESWARA RAO ...................................J [HEMANT GUPTA New Delhi December 07 2020. 17 | P a g e