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Award will not be revoked if no document is produced before the Court substantiating the contention which would have necessitated the interference from the Court : Srinagar High Court

Insurance coverage guarantee is an essential part of an insurance policy. One relies on the guarantee of the insurance company and the company should not try to evade it. This was held in the judgment passed by a two-bench judge comprising Hon’ble Mr Justice Ali Mohammad Magrey, Judge Hon’ble Mr Justice Sanjay Dhar, Judge, in the matter Bajaj Allianz General Insurance Company Limited V. G. M. Motors & Anr. (FAO (D) No. 02/2019), dealt with an issue where the petitioner filed for an against the award dated 7th of December, 2018 passed by the Jammu and Kashmir State Consumer Disputes Redressal Commission, Srinagar in the complaint filed by the Respondent. Respondent was running an Automobile Service Center at Beerwah, Budgam and that the stocks in trade were insured with the appellant Insurance Company on 17th of November, 2017 with the validity thereof being from 17th of June, 2011 to 16th of June, 2012 for insured sum of Rs.5.00 lacs. On the intervening night of 4th/ 5th of March, 2012, when the policy was in force, there was a heavy and incessant rainfall which caused inundation to the walls of the building housing the workshop of the complainant/ Respondent No.1, as a result thereof, the rare wall and one side wall of the building collapsed and fell down on the stocks in trade. Thereafter, intimation was, accordingly, given to the Police Station, Beerwah as also to the appellant Insurance Company who deputed their Surveyor. As per the complainant/ Respondent No.1 herein, he suffered loss to the tune of Rs.3.00 lac to the stocks in trade and Rs.2.96 lac to the building which was not insured. The Commission, in terms of award dated 7th of December, 2018, allowed the complaint and awarded compensation of Rs.2.00 lacs in favour of the complainant/ Respondent No.1, besides holding the complainant/ Respondent No.1 entitled to litigation costs of Rs.10,000/- as well. After hearing both the parties, the Hon’ble Srinagar High Court dismissed the petition and held that The main and primary contention raised in this appeal seeking setting aside of the impugned award passed by the Commission has reference to the fact that the loss suffered by the complainant/ Respondent was due to subsiding of the land caused due to heavy and incessant rainfall which, as per the appellant Insurance Company, is not covered under the insurance policy governing the relationship of the parties. The contention so raised, we are afraid, has no substance as perusal of the condition of the insurance policy placed on record by the appellant Insurance Company makes it abundantly clear that the insurance is extended to cover the loss or damage (including loss or damage by fire) to any of the property insured by the policy occasioned by or through or in consequence of earthquake including flood or overflow of the sea, lakes, reservoirs and rivers and/ or landslides/ rockslides. Click here to view judgement

IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT SRINAGAR MA No. 09 2018No. 02 2019] Dated: 6th of August 2021. Bajaj Allianz General Insurance Company Limited Through: Mr N. A. Dendroo Advocate. ….. Petitioner(s) G. M. Motors & Anr. ….. Respondent(s) Through: Mr Wajid Haseeb Advocate for R 1 and Mr A. Hanan Advocate vice Mr Z. A. Shah Senior Advocate for R 2. Per Magrey Jand in the complaint filed by the Respondent No.1. The brief facts leading to the filing of the appeal in hand as come to fore from the perusal of the award impugned are that the complainant Respondent No.1 herein was running an Automobile Service MA No. 09 2019No. 02 2019] Center at Beerwah Budgam and that the stocks in trade were insured with the appellant Insurance Company on 17th of November 2017 with the validity thereof being from 17th of June 2011 to 16th of June 2012 for insured sum of Rs.5.00 lacs. On the intervening night of 4th 5th of March 2012 when the policy was in force there was a heavy and incessant rainfall which caused inundation to the walls of the building housing the workshop of the complainant Respondent No.1 as a result thereof the rare wall and one side wall of the building collapsed and fell down on the stocks in trade. Thereafter intimation was accordingly given to the Police Station Beerwah as also to the appellant Insurance Company who deputed their Surveyor. As per the complainant Respondent No.1 herein he suffered loss to the tune of Rs.3.00 lac to the stocks in trade and Rs.2.96 lac to the building which was not insured. On rejection of the claim on part of the appellant Insurance Company the complainant Respondent No.1 filed complaint before the Commission wherein the Insurance Company repudiated the claim of the complainant Respondent No.1 on the ground that there was no loss caused to the stocks in trade. The Commission in terms of award dated 7th of December 2018 allowed the complaint and awarded compensation of Rs.2.00 lacs in favour of the complainant Respondent No.1 besides holding the complainant Respondent No.1 entitled to litigation costs of Rs.10 000 as well. This award is assailed by the appellant Insurance Company inter alia on the following grounds: A. That at the very outset the appellant denies its liability to indemnify a concern namely G.M. Motors as the said concern does not stand MA No. 09 2019No. 02 2019] insured with the appellant. Hence the award impugned has been passed in favour of a concern which is not at all insured with the appellant B. That the loss is reportedly suffered by the respondent No.1 due to subsidence of the land caused due to heavy rains on the intervening night of 4th 5th March 2012. The said loss is not covered under the policy of insurance bearing No. OG 12 1205 4001 00005845 a Standard Fire and Special Peril Policy. The said policy specifically excludes the loss caused to the insured items due to incessant rains. The Hon’ble Commission has altogether ignored the relevance of terms of contract of insurance which has no nexus with the relief that has been granted in the impugned award C. That the subject policy insures only the stocks and no building is covered therein. Thus the appellant was not liable for any loss of & or damages to the un insured building. The policy of insurance specifically mentions the sum insured for Rs. 5.00 lacs only for stocks. The plinth foundation superstructure P&M and furniture fixtures of building etc. have been specifically excluded from the coverage of policy of insurances D. That after processing the clam of respondent No. 1 the appellant found the claim not payable and the respondent was accordingly informed vide letter dated 24.05.2012 that the claim lodged by him for the loss caused to his building has been closed as no claim on the ground that the building was not covered under the policy of insurance. The policy of insurance was covering the stocks lying in the workshop. It was further made clear in the letter of no claim that the loss to the stocks claimed due to incessant rain was not covered under the policy of insurances to Rs.1 93 156. However E. That the appellant submits that the appellant had deputed a surveyor namely Abdul Irfan to conduct the survey and assessment of loss. The said surveyor did not found any loss caused to the stocks. The said surveyor also prepared an inventory of sound stock found in the workshop amounting for purpose of assessment the said surveyor has quantified the loss caused to the structure at Rs. 44 883 012. Since the structure of workshop was not covered under the policy of insurance as such the loss was not found payable to the respondent No.1 and accordingly turned down by the appellant. The report of the surveyor also demonstrate that the estimate of loss that has been made by the insured couldn’t’ withstand with actuality and that the insured had kept some old items above the debris in damaged condition as well as some new parts and some empty lubricant bottles. Thus the insured has been trying to get undue advantage from the insurers. Also in the picture it is quite evident that lubricant cans that could have been opened manually and cardboard boxes over the debris could not have been able to withstand the fury of the rains. These intricate details portray how the respondent No.1 had tried to manipulate the loss to the stocks F. That the appellant submits that the claim of the respondent was closed as no claim by the appellants on the ground that the policy does not MA No. 09 2019No. 02 2019] insure the claimant’s assets except for the stocks in accordance to the terms and conditions of insurance policy G. That the Hon’ble Commission has landed into error by not scanning the terms and conditions of policy of insurance in proper perspective. Had the policy terms and contusion been scanned in proper way the actual terms of contract would have come to surface which exonerate the appellant from any liability arisen in respect of the loss caused to the workshop H. That the law is settled on the point that the courts cannot make new contract for parties. The contract of insurance has to be read in the same way in which it has been written made leaving no scope for the courts to add something to it. The Hon’ble commission has not appreciated the terms and conditions of the insurance policy coverage granted under the policy of insurances and has erroneously held the appellant liable for compensation and litigation costs I. That the appellant 1ad not rendered its services under the policy of insurance in a deficient manner. The decision of appellant in closing the claim of respondent as no claim on genuine grounds would not amount to deficiency of service on the part of the appellant. The Hon’b1e Commission has committed an error in allowing the complaint. The impugned award as such is bad in law and J. That the complaint filed by the respondent No.1 was liable to be dismissed. Contrary to this the same has been allowed erroneously. We have heard learned counsel for the parties perused the pleadings on record and considered the matter. The main and primary contention raised in this appeal seeking setting aside of the impugned award passed by the Commission has reference to the fact that the loss suffered by the complainant Respondent No.1 was due to subsiding of the land caused due to heavy and incessant rainfall which as per the appellant Insurance Company is not covered under the insurance policy governing the relationship of the parties. The contention so raised we are afraid has no substance as perusal of the condition of the insurance policy placed on record by the appellant Insurance Company makes it abundantly clear that the insurance is extended to cover the loss or MA No. 09 2019No. 02 2019] damageto any of the property insured by the policy occasioned by or through or in consequence of earthquake including flood or overflow of the sea lakes reservoirs and rivers and or landslides rockslides resulting thereto. The relevant extract of the policy is extracted hereinbelow verbatim: “Extension cover shall be granted only if the entire property in one Complex Compound location covered under the policy is extended to cover this risk and sum insured for this extension is identical to the sum insured against the risk covered under main policy expect for the value of the plinth and foundation of the building(s). If option to delete STFI peril is not exercised “in consideration of the payment by the Insured Company of the sum of __________ additional premium it is hereby agreed and declared that notwithstanding anything stated in the printed exclusions of this policy to the contrary this insurance is extended to cover loss or damageto any of the property Insured by this policy occasioned by or through or in consequence of earthquake including flood or overflow of the sea lakes reservoirs and rivers and or Landslide Rockslide resulting therefrom.” In view of the aforesaid clear mandate of the policy governing the relationship between the parties there thus is no substance in the aforesaid contention raised on behalf of the appellant Insurance Company that the complainant Respondent No.1 has no claim on the ground that the loss suffered was not covered by the insurance cover. Apart from the above the aforesaid contention though raised was not at all established before the Commission with the support of evidence constraining the Commission to allow the complaint. The appellant Insurance Company has also not produced any document before this Court substantiating this contention which would have necessitated interference from this Court with the impugned award. MA No. 09 2019No. 02 2019] In the above background we do not find any merit in this appeal which is accordingly dismissed. Interim directions if any subsisting as on date shall stand vacated. Pending applications if any shall also stand disposed of accordingly. August 6th 2021 Judge Judge Whether the Judgment is reportable Yes No. Yes No. Whether the Judgment is speaking TAHIR MANZOOR BHAT2021.08.06 15:32I attest to the accuracy andintegrity of this document

The court should first consider the other materials and evidence against the accused excluding the confessional statement of the co-accused: Gauhati High Court

In the first instance, the court should consider the other material and evidence against the accused, excluding the co-confessional accused’s statement and see if the conviction could be founded without such a confession and if the other recorded material is independent of belief, the judge may in such case call for aid to assure other evidence by making a confession. The judgment was passed by the High Court of Gauhati in the case of  Manita Borah v. State of Assam & Ors [Crl.Pet./19/2020] by Single Bench consisting of Hon’ble Justice Mir Alfaz Ali. The facts of the case are that the co-accused (Shanti Kumari Das), who happens to be a supervisor, ICDCS, came to the house of an Anganwadi worker, where she collected Rs. 3,000/ each from 22 numbers with a view to paying the money to the present petitioner (Monita Borah), who was the CPDO at the relevant time. The co-accused collected the entire amount threatening the Anganwadi workers, that if they do not pay the amount, their service may be hampered. The police apprehended her and recovered Rs. 50,500/ from her. The FIR was on the basis of which, police registered the case u/s of 384/34 IPC read with Section 7 of the P.C. Act. Learned counsel for the petitioner submits that there was no material on record to justify the framing of charge against the present petitioner, in as much as, per accusation and materials brought on record, it was Shanti Kumari Das, who collected money from the Anganwadi workers by threatening them, that if the money is not paid, their service may be hampered. The only allegation in the FIR was that she collected the money on the pretext of paying the same to the petitioner. Besides, this allegation, no other evidence could be collected during the investigation against the present petitioner, and as such, learned trial court ought not to have framed charge against the petitioner in absence of any material. Learned counsel for the respondent argued that while framing charge, the court is not required to assess the probative value of the materials on record and the charge can be framed even on the basis of strong suspicion. The learned court while replying to the contention referred to the judgment Union of India Vs. Prafulla Kumar Samal, “while considering the scope of Section 227 of the Cr PC, the Apex Court observed that in exercising jurisdiction u/s 227 of the Code of Criminal Procedure, the Judge cannot act merely as a post office or a mouthpiece of the prosecution, but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the court, any basic infirmities appearing in the case and so on. This, however, does not mean that the Judge should make a roving enquiry into the pros and cons of the matter, as if, it was conducting a trial. The Apex Court also observed that while considering the question of framing of charge u/s 227 CrPC, the court has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out.”

Page No.# 1 7 HIGH COURT OF ASSAM NAGALAND MIZORAM AND ARUNACHAL PRADESH) THE GAUHATI HIGH COURT Case No. : Crl.Pet. 19 2020 SMTI MANITA BORAH W O SRI PRANAB KUMAR BARUA R O SOUTH HAIBORGAON A.R.B. ROAD P.O. HAIBARGAON P.S. SADAR NAGAON DIST NAGAON ASSAM 782001 THE STATE OF ASSAM AND 5 ORS. REPRESENTED BY THE PUBLIC PROSECUTOR ASSAM 2:JAYANTI DOIMARI W O SRI PUNYESWAR BORO R O KHAGARIJAN P.S. THELAMARA DIST SNITPUR PIN 784149 3:SMTI RADHIKA DEVI W O SRI DAMBARU BASNET R O KAMARPATHAR P.S. THELAMARA DIST SONITPUR PIN 784149 4:SMTI GILISANDHYA DOIMARI W O MAHESAR DOIMARI R O NO. 2 SIMALAGURI P.S. THELAMARA DIST SONITPUR Page No.# 2 7 PIN 784149 5:SMTI RASHMI BASUMATARY W O LOHIT DOIMARI R O SILIKHABARI P.S. THELAMARA DIST SONITPUR PIN 784149 6:RAJANI DAS S O LATE BANESWAR DAS R O NIZ BORGAON P.S. THELAMARA DIST SONITPUR PIN 78414 Advocate for the Petitioner MR. R SARMA Advocate for the Respondent : PP ASSAM HONOURABLE MR. JUSTICE MIR ALFAZ ALI JUDGMENT & ORDERLearned Senior Counsel Mr. TJ Mahanta assisted by R. Sarma learned counsel for the petitioner and learned Addl. Public Prosecutor Mr. BB Gogoi for the State were heard. By this petition u s 482 CrPC the petitioner Monita Borah has challenged the order dated 26 12 2019 passed by the learned Special Judge Assam in Special Case No. 2 2014 whereby charges u s 384 34 IPC read with Section 7 of the P.C. Act were framed against the petitioner along with the co accused Shanti Kumari Das. The brief facts of the case which may be relevant for disposal of this petition are that on 19 10 2012 at about 11 am the co accused Shanti Kumari Das who happens to be a supervisor ICDCS came to the house of Lakhi Acharya an Anganwadi worker where she Page No.# 3 7 collected Rs. 3 000 each from 22 numbers of Anganwadi workers of Borgaon ‘Kha’ circle with a view to pay the money to the present petitioner Monita Borah who was the CPDO at the relevant time. The co accused Shanti Kumari Das collected the entire amount threatening the Anganwadi workers that if they do not pay the amount their service may be hampered. While the said Shanti Kumari Das was collecting money police was informed and immediately police accompanied by the circle officer arrived at the place of occurrence. The police apprehended Shanti Kumari Das and recovered Rs. 50 500 from her. The FIR was lodged by Jayanti Daimary on the basis of which police registered the case and eventually submitted charge sheet against the present petitioner and co accused Shanti Kumari Das u s u s 384 34 IPC read with Section 7 of the P.C. Act. The learned Special Judge took cognizance and framed charges against the petitioner by the impugned order which is under challenge in this petition. Mr. TJ Mahanta learned senior counsel for the petitioner submits that there was no material on record to justify the framing of charge against the present petitioner inasmuch as as per accusation and materials brought on record it was Shanti Kumari Das who collected money from the Anganwadi workers by threatening them that if the money is not paid their service may be hampered. The only allegation in the FIR was that Shanti Kumari Das collected the money on the pretext of paying the same to the petitioner Monita Borah. Besides the allegation that Shanti Kumari Das collected the money from the Anganwadi workers by threatening them on the pretext of paying the same to Monita Borah no other evidence could be collected during investigation against the present petitioner and as such learned trial court ought not to have framed charge against the petitioner in absence of any material. Learned senior counsel Mr. Mahanta further submits that only material available in the case diary was the statement of the circle officer who stated before police that the co accused Shanti Kumari Das made a statement before the police in his presence that she Shanti Das) collected the amount at the instruction of Monita Borah. The contention of Mr. Mahanta is that even if the statement of the Circle Officer is accepted as an extra judicial confession of the co accused the same is not sufficient to frame a charge and put a person into trial without any further materials inasmuch as confession of a co accused cannot be the basis of framing charge in absence of any other evidence. Mr. Mahanta further contends that Page No.# 4 7 the so called extra judicial confession is also inadmissible in evidence. In support of his submission Mr. TJ Mahanta relied on a decision of the Apex Court in Suresh Budalmal Kalani Vs. State of Maharashtra reported in7 SCC 337 wherein the Apex referring to an earlier decision in Kashmira Singh Vs. State of M.P. held that the court should first consider the other materials and evidence against the accused excluding the confessional statement of the co accused and see whether a conviction can be safely based without such confession and if the other materials brought on record are capable of belief independently in such event the Judge may call in aid the confession to lend assurance to other evidence. The Apex Court held that just in the light of the above principle the confession of the co accused cannot be called in aid to frame charge in absence of any other evidence to do so. Learned Addl. Public Prosecutor Mr. BB Gogoi submits that while framing charge the court is not required to assess the probative value of the materials on record and the charge can be framed even on the basis of strong suspicion. Since the learned Special Judge is required to follow the procedure laid down for trial of warrant cases by Magistrate before adverting to the submission made by the learned counsel it shall be useful to refer to Section 239 and 240 of the Code of Criminal Procedure which are reproduced below : Section 239 : When accused shall be discharged. If upon considering the police report and the documents sent with it under section 173 and making such examination if any of the accused as the Magistrate thinks necessary and after giving the prosecution and the accused an opportunity of being heard the Magistrate considers the charge against the accused to be groundless he shall discharge the accused and record his reasons for so doing. Section 240 : Framing of charge. 1) If upon such consideration examination if any and hearing the Magistrate is of opinion that there is ground for presuming that the accused has committed an offence triable under this Chapter which such Magistrate is competent to try and which in his opinion could be adequately punished by him he shall frame in writing a charge against the accused. 2) The charge shall then be read and explained to the accused and he shall be asked whether he pleads guilty of the offence charged or claims to be tried. A perusal of the provisions of Section 239 and 240 CrPC make it clear that if upon Page No.# 5 7 consideration of the police report and the documents filed therewith and making examination of the accused if any or after giving opportunity of being heard to the accused and the prosecution if the Magistrate considers that charge brought against the accused is groundless he shall discharge the accused. If upon such consideration examination and hearing Magistrate is of the opinion that there is ground for presuming that the accused has committed the offence he shall frame charge against the accused in writing. Thus while framing charge or discharging the accused the court is required to apply its judicial mind to come to a decision whether there is ground for framing charge or not. Therefore the court cannot afford to act merely as a post office or a mouthpiece of the prosecution or cannot frame charge mechanically without applying judicial mind. In Union of India Vs. Prafulla Kumar Samal reported in 1979 3 SCC 4 while considering the scope of Section 227 of the CrPC the Apex Court observed that in exercising jurisdiction u s 227 of the Code of Criminal Procedure the Judge cannot act merely as a post office or a mouthpiece of the prosecution but has to consider the broad probabilities of the case the total affect of the evidence and the documents produced before the court any basic infirmities appearing in the case and so on. This however does not mean that the Judge should make a roving enquiry into the pros and cons of the matter as if it was conducting a trial. The Apex Court also observed that while considering the question of framing of charge u s 227 CrPC the court has the undoubted power to shift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out. Similar view was expressed by the Apex Court in Sajjan Kumar Vs. CBI reported in 9 SCC 638 wherein the Apex Court observed that at the time of consideration of the charge the court has the power to shift and weigh the evidence for a limited purpose to find out whether a prima facie case against the accused has been made out or not. In Chitresh Kumar Vs. Statereported in16 SCC 605 the Supreme Court observed that the word “presume” means if on the basis of materials on record court could come to the conclusion that commission of offence is a probable consequence a case for framing charge exists. It goes without saying that in order to form a presumptive opinion as to existence of factual ingredients constituting the offence for the Page No.# 6 7 purpose of taking a decision whether to frame a charge or not the court is required to go through the materials and evidence brought on record and shift the same for the limited purpose so that an innocent person is not unnecessarily put to trial. 10. In the light of the above settled principle let me now examine the evidence and materials brought on record during investigation of the instant case. 11. Almost all the Anganwadi workers who paid money were examined u s 161 CrPC by the police. All of them stated in their statement recorded under Section 161 CrPC that Shanti Kumari Das came to the house of Lakhi Acharyya where the Anganwadi workers assemb led and said Shanti Kumari Das demanded Rs. 3 000 from each of the Angawadi Workers under the threat that if money is not paid their services will be hampered. It was stated by all of them that Shanti Kumari Das collected the money with a view to pay the same to the petitioner. The material on record shows that while Shanti Kumari Das was collecting money police was informed and she was caught with the money. However according to the statement of the Anganwadi workers Shanti Kumari Das collected money on the pretext of paying the same to the petitioner. There is no material on record to show that the petitioner demanded any money or threatened anyone to pay such money nor there was any material to show that the present petitioner engaged or instructed Shanti Kumari Das to collect money from the Anganwadi Workers. It is also on record that while Shanti Kumari Das was collecting money the police was informed and the police along with the Circle Officer arrived at the place of occurrence and seized money from the possession of Shanti Kumari Das in presence of witness including the Circle Officer Monoj Saikia. However it is in the statement of the Circle Officer recorded under Section 161 CrPC that in front of him Shanti Kumari Das stated that she collected money at the instruction of Monita Borah the present petitioner. Even if it is assumed for the sake of argument that such a statement was made by Shanti Kumari Das before the police in front of the Circle Officer and the same is accepted as a extra judicial confession it would be inadmissible in evidence in view of Section 25 & 26 of the Evidence Act and the court cannot rely on such evidence even to form a presumptive opinion as to the commission of crime because the materials which cannot be legally translated into evidence also cannot be the basis of framing charge. 12. On perusal of the record I do not find any cogent material which can be relied upon Page No.# 7 7 even for taking a presumptive opinion as to the probability of the commission of the offence by the present petitioner rather entire materials and evidence brought on record appears to be against the co accused Shanti Kumari Das who demanded and collected money from the Angawadi Workers under threat of causing harm to their job. Framing charge mechanically in absence of any legal evidence or material shall unnecessary put an innocent person to trial and as such court should take a pragmatic view while drawing a presumptive opinion as to the ground for framing charge. Viewed thus the evidence and materials brought on record in the instant case appears to be grossly inadequate even to form a presumptive opinion as to existence of a prima facie case for framing charge against the present petitioner. Therefore the impugned order to the extent of framing charge against the present petitioner calls for 13. Accordingly the petition is allowed and the impugned order to the extent of framing charge against the present petitioner Monita Bora is hereby set aside. 14. Return the LCR if any. Comparing Assistant

Bail to be granted to the accused applicant if he is accused solely on the basis of speculation and suspicion: Allahabad High Court

When the case against the accused is solely made of circumstantial evidences, there must be a link that indicates guilt. Pure suspicion and speculation without any intention of guilt cannot make a person ‘guilty’ of an offence and bail must be granted to such a person. This was decreed by the Hon’ble Justice Pradeep Kumar Srivastava in the case Mohd. Sharib Vs. State of U.P [CRIMINAL MISC. BAIL APPLICATION No. – 34667 of 2020] on the 09th of July 2021 in the Hon’ble High Court at Allahabad. The brief facts of the case are, On the night of 09.10.2018, an Ex-MLA was found dead in his house at Bulandshahar. The deceased was found lying on the bed in bleeding condition and there was gunshot injury on his head. The informant suspected that some unknown person killed him and lodged FIR against unknown. On the basis of FIR, the investigation started, the inquest report was prepared and post-mortem of dead body was undertaken. Investigating Officer investigated the offence and finding no evidence submitted Final Report. Re-investigation was conducted by CBCID. Evidence was collected and charge-sheet was filed against the accused applicant. The present application is filed by the accused applicant on the grounds that there was no evidence to accuse him. The learned counsel for the applicant submitted that he was not named in the FIR nor was he suspected. It was submitted that in order to implicate the applicant, evidence was manipulated, false evidence was created and certain witnesses were re- examined who made improvement to implicate the accused applicant. He was doing the work of guard and was for the protection of the deceased. There is no reliable evidence against him in support of the police version. The counsel for the informant and the AGA opposed this by submitting that, there is evidence on record which is in the nature of circumstances which conclusively indicated the involvement of the accused applicant in the commission of the offence. It was further submitted that the accused and deceased slept in the same room and the accused had the key to such a room. It was also submitted that the murder was committed by the pistol which was in the name of the wife of the deceased and in the evidence, it has come that pistol was always with the accused applicant. Submission of the learned counsel is that the accused applicant was having illicit relation with the wife of the deceased and because of that he planned the murder of the deceased and caused his death. However, no evidence was found in support of this claim. The learned judge heard both the parties and observed that initially, none of the witnesses had stated anything against the accused. Final Report was submitted by IO concluding that no evidence of murder was found and on 19.3.20019, the SHO made a written request for accepting the FR. Thus, it is clear that after the first round of investigation, nothing was found against the applicant. In the statement recorded on 13.07.2020, it was observed that the witnesses have only expressed their suspicion and the applicant was accused on the basis of the statements of two other persons who are the co-accused and thus much reliance cannot be placed. “It is pertinent to mention that the observations aforesaid made by the IO are based on speculation and suspicion. Moreover, the case against the accused applicant is totally based on the circumstantial evidence that he was sleeping in the same room with the deceased. This fact does not appear to be supported by any believable evidence or eyewitness account.” Considering the facts and circumstances of the case, the court went ahead and decreed that, “the accused applicant is not named in FIR; no motive was assigned to him for causing death of the deceased; there is no eyewitness account supporting the allegation against the applicant; even suspicion was not expressed against him in the FIR even though FIR was lodged by the brother which was lodged on fifth day after the date of incident and there was sufficient time with the informant for making allegations, or at least expressing suspicion against the applicant. The case is totally based on circumstantial evidence and it is difficult at this stage to say that the circumstances alleged against the applicant, if taken together and linked, form a chain of circumstance conclusively leading to an inference that the accused-applicant must have committed the said offence. Apparently unrelated circumstances if joined together must form a chain of circumstances indicating the guilt. I find at this stage that such link is missing”. Thus, the bail application was allowed.

Case : CRIMINAL MISC. BAIL APPLICATION No. 346620 Applicant : Mohd. Sharib Opposite Party : State of U.P. Counsel for Applicant : Raghuvansh Misra Counsel for Opposite Party : GA Amir Khan Sadaful Islam Jafri Hon ble Pradeep Kumar Srivastava J Heard Shri G.S. Chaturvedi learned Senior Counsel assisted by Shri Raghuvansh Misra learned counsel for the applicant and Shri N.I. Jafri learned Senior Counsel assisted by Shri S.I. Jafri learned counsel for the informant who are present virtually through video conferencing and learned AGA for the State who is present in the Court This bail application has been given by accused applicant Mohd Sharib in Case Crime No. 13618 under Section 302 120B IPC P.S. Kotwali Nagar District Bulandshahar The FIR has been lodged by informant Mohd. Yunus on 13.10.2018 in respect of incident dated 9.10.2018 10.10.2018 in the night and the allegation is that the deceased was an Ex MLA and was living in Bulandshahar. In the morning till 11 AM door of his bedroom did not open and therefore after breaking the window members of his family and others opened the door which was locked from inside. The deceased was found lying on the bed in bleeding condition and there was gun shot injury on his head. The informant suspected that some unknown person killed him and lodged FIR against unknown. On the basis of FIR the investigation started the inquest report was prepared and post mortem of dead body was undertaken. Investigating Officer investigated the offence and finding no evidence submitted Final Report. Re investigation was conducted by CBCID. Evidence was collected and charge sheet was filed against the accused applicant and others under aforesaid sections. Submission of the learned Senior counsel is that there is no reason for the accused applicant to commit murder of the deceased he was not named in the FIR and it was not even suspected in the FIR that he might have committed the murder of the deceased. There was no motive available to the applicant. In the initial statement recorded by IO nothing was stated against him. Subsequently in order to implicate the applicant evidence was manipulated false evidence was created and certain witnesses were re examined who made improvement to implicate the accused applicant. There is no criminal history of the accused applicant. He was doing the work of guard and was for the protection of the deceased. There is no reliable evidence against him in support of the police version. It is further submitted that charge sheet has already been filed after police investigation and applicant is prepared to furnish sureties and bonds therefore there is no possibility of his either fleeing away from the judicial process or tampering with the evidence. Applicant is languishing in jail since 19.03.2020 and undertakes that he will not misuse the liberty of bail if granted and cooperate in trial. Learned Senior counsel appearing for the informant and learned AGA for the State have strongly opposed the bail application and have submitted that the matter was investigated and after collecting enough evidence it was found that the accused applicant committed murder in a very planned way. It has been further submitted that there is extra judicial confession made to witness Mohd. Khalid who has stated to the IO that while he was on his saw applicant Sharib and servant Sajid came there and made a confessional statement that out of greed and on the saying of Anas the son of deceased they killed the deceased. Further submission is that there are other evidence on record which is in the nature of circumstances which conclusively indicated the involvement of the accused applicant in the commission of the Learned Senior Counsel for informant side has submitted that the deceased with the accused were going to Delhi from Aligarh and it was the accused applicant who insisted for stay in Bulandshahar. On his pursuance the deceased agreed to stay in Bulandshahar where his wife resides. In the evidence it has come that the accused and the deceased both slept in the same room and the key of the room was always with the accused applicant After committing the murder the accused persons locked the door and it is why the door was found locked from inside but no key was recovered from the room. Submission is that the accused applicant has every opportunity as he was with the deceased at the relevant time and having the key of the bedroom. The murder was committed by the pistol which was in the name of the wife of the deceased and in the evidence it has come that pistol was always with the accused applicant. It has been also submitted that the murder was committed in such a planned way that it gave the impression that it was a case of suicide. The witnesses have stated to IO that the deceased was very happy that day and there was no question of his committing suicide. From the spot two used cartridges were recovered and were sent for chemical examination in the Forensic Laboratory. Submission is that a person committing suicide will not be able to cause two fire arm injuries on his It has been also submitted by the learned senior counsel for the informant side that it has been stated by witness Usman on 31.08.2019 to the IO that accused applicant was sleeping in the room of the deceased in that night. Family members as per statement of witness Naieem Mansuri also suspected on the applicant. There was no reason with him that he could commit suicide. It has also come in the statement of Qaram Hussain alias Kalam driver that the deceased was inclined to go Delhi directly as he was of the view that on stay in Bulandshahar delay occurs in starting from Bulandshahr in the morning. Even on phone to his wife Farrah the deceased said that he was not willing to come there. The witness has stated that on reaching to Bulandshahar the deceased said that at 8 AM positively in the next day morning they will leave for Delhi. Thereafter he went inside the room and behind him accused person also went inside the room. He slept in the hall till then accused person did not come in the hall. When the door was opened the accused applicant was the first man to go inside and he started weeping and saying why he committed suicide. He has also stated that accused applicant used to have the pistol of the wife of deceased as he was not on official duty with the deceased. He has stated that the deceased was very happy as his son has become father recently. On that fateful night there was no other family member in the house and the deceased was alone. Similar kind of statement has been given by Sajid and he has stated that it was the accused applicant whom he left with the deceased before he went to sleep. Farrah has also stated that in the mid night of 09.10.2018 at 1 AM she talked to deceased on mobile and that time deceased was going from Aligarh to Bulandshahr. She reached at about 1 PM in Bulandshahr and then she came to know about the death of her husband. Submission of the learned counsel is that all the witnesses have suspected that accused applicant was having all intimacy with the deceased and he had the opportunity to commit the murder and he committed murder of the deceased. The reference has been made to the statement of co accused also and it has been argued that the statement of co accused Sajid also goes to show that accused applicant committed murder of the deceased. In the forensic lab report it was found that the gun shot injury was caused by the same pistol what was provided to him. Submission of the learned counsel is that the accused applicant was having illicit relation with the wife of the deceased and because of that he planned the murder of the deceased and caused his death. Submission is that in such kind of case sympathetic view should not be taken and bail application is liable to be rejected. Learned senior counsel for the accused applicant has submitted that there is no evidence against the accused applicant there is serious contradiction in the statement of the witnesses and all the statements relied upon by the state was recorded after a long gap and subsequently by way of improvement for implicating the accused applicant and the witnesses have changed their version and have given false and concocted statement against him. Learned senior counsel has also referred to the forensic lab report in which a conclusion has been given that there was possibility that suicide might have been committed by the deceased Considered the rival contentions of both sides and perused the record It appears that a number of witnesses namely Faizan Sajid Aqaram Wahid Amar Sharma Smt. Kavita Lalit Kumar Sharma Aamir Naieem Afaq Raiees Vinod Khalid Aasim AnasDr. Kafil Smt Qamarjahan first wife) Smt. Farahaand informant Younushave been examined by the I.O. initially. I find that the witnesses initially stated nothing against applicant. On 6.11.2018 Final Report was submitted by IO concluding that no evidence of murder was found and on 19.3.20019 the SHO made a written request for accepting the FR. Thus it is clear that after the first round of investigation nothing was found against the applicant Thereafter from the reading of the record it appears that CBCID was directed to reinvestigate vide letter dated 20.7.2019 as annexed at page 92 of the bail application. This time son Anas in his statement suspected that uncle Younus with the accused applicant and servant Sajid committed murder of the deceased in a planned way. Again son Zaid and two wives of the deceased said nothing against applicant. One Usman was examined who stated that he was told by SAJID that the applicant slept with deceased in his room in the night. It means that Usman has not seen the accused applicant sleeping inside the room of deceased. Witness Naieem stated similarly and expressed suspicion on the applicant. Witness Qaram Hussain alias Kalam said that the applicant on the way insisted to stay at Bulandshahar. Sajid stated that in his presence the deceased was asking the applicant to sleep in his room. The wife Smt. Faraha also expressed suspicion on the applicant On 13.7.2020 statement of Khalid was recorded by IO who said that the accused applicant with Sajid came to him in the month of November and confessed that on instigation of Anas they killed the deceased out of greed for money. Clearly the witnesses have only expressed their suspicion and Anas and Sajid are co accused persons against whom charge sheet has been 12. On 7.3.2020 record shows that the IO summarized the evidence collected by him and made observations to the effect that a conspiracy took place between Anas Sajid and accused applicant for the commission of the offence for which weapon was arranged by Anas although the same was not used in committing the offence as the same was committed by the pistol of Qamarjahan which was used to be with the accused applicant post incident conversation between the three and Danish on mobile corroborates the fact of conspiracy deceased was apprehensive that he might be killed by Anas accused applicant was sleeping with the deceased in his room in the night Anas had criminal antecedent and was in jail in relation to murder of his step mother and after coming out from jail on bail when he was given by the deceased the responsibility of his factory he misappropriated about 20 lacs of rupees for which he was scolded by the deceased Anas was aggrieved as the deceased was inclined to give his property to his wife Faraha and her daughter and not to the mother of Anas and his other brothers and all these factors prompted him to plan for the murder and he executed the same through accused applicant and Sajid. It has been submitted by AGA that charge sheet has been filed the copy of which is annexed with It is pertinent to mention that the observations aforesaid made by the IO are based on speculation and suspicion. Moreover the case against the accused applicant is totally based on the circumstantial evidence that he was sleeping in the same room with the deceased. This fact does not appear to be supported by any believable evidence or eyewitness account. It is co accused Sajid who said so but he is accused in this case and much reliance cannot be placed on his statement. This fact has been stated by Sajid only during reinvestigation after about 11 months from the date of incident. It is his second statement and nothing of this sort has come in his first statement Then it is not usual and natural why the deceased would ask the applicant to sleep in his room. It was not a guest house where accommodation may not be sufficient and the adjustment was to be made. It was a big house of the deceased an ex MLA with huge property and it appears highly improbable that he would ask the applicant a guard of his own to sleep in his room and that too without any reason. In view of above discussion it is clear that the accused applicant is not named in FIR no motive was assigned to him for causing death of the deceased there is no eyewitness account supporting the allegation against the applicant even suspicion was not expressed against him in the FIR even though FIR was lodged by the brother which was lodged on fifth day after the date of incident and there was sufficient time with the informant for making allegations or at least expressing suspicion against the applicant The case is totally based on circumstantial evidence and it is difficult at this stage to say that the circumstances alleged against the applicant if taken together and linked form a chain of circumstance conclusively leading to an inference that the accused applicant must have committed the said offence Apparently unrelated circumstances if joined together must form a chain of circumstances indicating the guilt. I find at this stage that such link is missing. Moreover the witnesses relied upon by state have not stated anything against the applicant when examined earlier and FR was submitted Later on after about 10 months and more during reinvestigation same witnesses started expressing suspicion and four witnesses including two co accused persons started saying the fact of applicant sleeping in the room of the deceased for which there appears to be no reason nor it appears to be natural in view of the status of the deceased. One of such witness is Usman who was so said by co accused Sajid and other is Kalam and it is doubtful that he himself had seen the applicant sleeping in the room. Moreover they are all subsequent and belated statements. The change in the version of witnesses appears to be after thought and possibility of improvement in order to implicate the applicant can not be ruled out. Further the theory of applicant sleeping with deceased is primarily based on the statement of Anas and Sajid and against both charge sheet has been filed. This is again a fact the advantage of which certainly goes to the applicant. It appears strange that extra judicial confession was record by IO after more than 15 months and after recording his concluding remarks on 7.3.2020 and it also creates a doubt that it was so done in order to give weight to the theory of guilt Again in the forensic lab report it has been mentioned that the possibility is there that suicide might have been committed by the deceased. The forensic report therefore also gives strength to the bail plea. The fact that the bail application of Anas has been rejected is of no avail while considering the bail application of the accused applicant. The applicant is in jail from the last more than 15 months which also needs to be taken into consideration in favour of applicant particularly during pandemic period. The case is based on circumstantial evidence and the circumstances are yet to be established Taking into consideration the entire facts and circumstances and the evidence available on record at this stage the bail application deserves to be The bail application is therefore allowed. Accused applicant Mohd Sharib be released on bail in Case Crime No. 13618 under Section 302 120B IPC P.S. Kotwali Nagar District Bulandshahar on following i) The applicant will co operate with the trial and remain present personally on each and every date fixed for framing of charge recording of evidence as well as recording of statement under Section 313 Cr.P.C. or through counsel on other dates and in case of absence without sufficient cause it will be deemed that she is abusing the liberty of bail enabling the court concerned to take necessary action in accordance with the provisions of Section 82 Cr.P.C. or Sections 174A and 229A I.P.C. ii) The applicant will not tamper with the prosecution evidence and will not delay the disposal of trial in any manner whatsoever. iii) The applicant will not indulge in any unlawful The identity status and residential proof of sureties will be verified by court concerned and in case of breach of any of the conditions mentioned above court concerned will be at liberty to cancel the bail and send the applicant to prison It is made clear that no observation made by this Court in the course of disposal of this bail application shall anyway influence the trial court while deciding the case on merits and the trial court will arrive at its own conclusion strictly on the basis of evidence on record 19. A computer generated copy may be produced before the court concerned for necessary compliance. Order Date : 9.7.2021

The antecedents of the petitioner is a very important factor which has to be kept in mind before deciding an application for anticipatory bail: High Court of Delhi

Court must consider the seriousness of the offence, the nature of investigation that is required, the likelihood of the petitioner’s absconding from justice, the antecedents of the accused and chances of the petitioner tampering with evidence or threatening the witnesses before granting an anticipatory bail as held by the Hon’ble High Court of Delhi through the learned bench lead by Justice Subramonium Prasad in the case of Kala Ram @Kamlesh v. State (BAIL APPLN. 3693/2021 & CRL.M.A. 16147/2021) The brief facts of the case are that the complainant Chintu Gupta, states that he has been working as a cash delivery boy. He got a call from Nitesh Jain to collect a sum of Rs.32.5 lacs. As per the instructions, the complainant collected the said amount of money from the said address and kept it in a bag while he was going towards his destination. It is stated that two persons came on a Red & Black Coloured TVS scooty and tried to snatch the bag from the complainant and when the complainant resisted, they pushed the complainant and the pillion rider pointed a pistol like weapon on the complainant and threatened him to hand over the bag. It is stated that the amount of Rs.32.5 lacs, complainant’s keys and his Aadhar Card was taken by the two persons and they both fled away from the spot. Subsequently, the instant FIR has been registered for offences punishable under Sections 392/34 IPC. The petitioner filed an application under Section 438 Cr.P.C, before the Sessions Court, seeking anticipatory bail. However, the same was dismissed by the learned Additional Sessions Judge. The learned ASJ has observed that the petitioner has the previous involvements. It is also stated that the co-accused – Ravi Gupta, gave details of the plan hatched by both of them before the commission of the present crime. The petitioner, thereafter, filed the instant bail application under Section 438 Cr.P.C before this Court for grant of bail to the petitioner in the event of arrest. Learned counsel appearing for the petitioner contended that no location charts have been prepared by the investigating agency to connect the petitioner with the alleged offence. The petitioner was driving previous scooty and he did not use the said weapon as stated in the complaint. That there are no CCTV footages of the alleged incident. It is further contended by the learned counsel for the petitioner that merely on the strength of a disclosure statement of the co-accused, the petitioner cannot be denied anticipatory bail. Learned counsel further relies upon a Judgment of Hon’ble Supreme Court in Prabhakar Tewari vs. State of U.P. & ANR. to contend that the severity of the allegations alone cannot be a ground for rejecting the anticipatory bail. Mr. Amit Chadha, learned APP for the State, contended that the investigation has revealed the complicity of the petitioner in the alleged crime. He stated that on the disclosure of the co-accused, the keys and the Aadhar Card of the complainant have been recovered 15 Kilometres away from the place of alleged incident. He states that there are CCTV footages of the petitioner and the co-accused, who went to Rajasthan after committing the alleged offence and stayed in a hotel. He further states that the petitioner is a habitual offender and has involved in total six (6) other cases in Delhi, including three cases with the co-accused. He further states that the Call Detail Records (CDRs) disclose that the petitioner was continuously in touch with the co-accused – Ravi Gupta. Therefore, states that the custodial interrogation of the petitioner is required in this case. After hearing both the parties at length, the Hon’ble High Court held, “The petitioner and the co-accused are involved in three more cases. The antecedents of the petitioner is a very important factor which has to be kept in mind before deciding an application for anticipatory bail. The petitioner is evading arrest and the chances of the petitioner threatening the complainant or tampering with evidence cannot be ruled out. This Court, therefore, is of the opinion that the petitioner is not entitled to the benefit of bail in the event of arrest. Custodial interrogation of the petitioner is required for unearthing the plans hatched by the petitioner and the co-accused and the way the plan was executed and also for the recovery of money. Accordingly, the application stands dismissed”

IN THE HIGH COURT OF DELHI AT NEW DELHI Date of decision: 07th October 2021 IN THE MATTER OF: BAIL APPLN. 3693 2021 & CRL.M.A. 16147 2021 KALA RAM @KAMLESH Petitioner Through: Mr. R. K. Tarun and Mr. Rohit Shukla Advocates. Through: Mr. Amit Chadha APP for the State with SI Thakur Singh PS Spl. Staff Central District. Respondent HON BLE MR. JUSTICE SUBRAMONIUM PRASAD SUBRAMONIUM PRASAD JThis application under Section 438 Cr.P.C. is for grant of bail to the petitioner in the event of arrest in FIR No.240 2021 dated 07.07.2021 registered in Police Station D.B.G. Road for offences punishable under Shorn of details the facts leading to the instant bail application are Sections 392 34 IPC. as under: a) The instant FIR has been registered on the complaint of one Chintu Gupta S o of Sh. Ram Gopal Gupta who states that he has been working as a cash delivery boy with one Sunil Harjai. It is stated that the complainant was engaged by another person namely Nitesh Jain who is known to Sunil Harjai. It is stated that on 07.07.2021 at BAIL APPLN. 3693 2021 about 11:30 AM he got a call from Nitesh Jain to collect a sum of Rs.32.5 lacs from one Tonu Modi’s having its office at C 45 5 1st Floor Lawrence Road Industrial Area Delhi. It is stated that as per the instructions from Nitesh Jain the complainant collected the said amount of money from the said address and kept it in a bag while he was going towards his destination near a Jeevan Mala Hospital New Rohtak Road Delhi. It is stated that two persons came on a Red & Black Coloured TVS scooty without any number plate and stopped their scooty near the motorcycle of the complainant. It is stated that the person riding the scooty was wearing a black colour T shirt and the pillion rider was wearing a purple colour T shirt. It is stated that the two persons tried to snatch the bag from the complainant and when the complainant resisted they pushed the complainant and the pillion rider pointed a pistol like weapon on the complainant and threatened him to hand over the bag. It is stated that the amount of Rs.32.5 lacs complainant’s keys and his Aadhar Card was taken by the two persons and they both fled away from the spot. Subsequently the instant FIR No.240 2021 has been registered at Police Station D.B.G. Road for offences punishable under Sections 392 34 IPC. b) The petitioner filed an application under Section 438 Cr.P.C being Bail Application No.2415 before the Sessions Court seeking anticipatory bail. However the same was dismissed by the learned Additional Sessions Judge 01 Central Tis Hazari Courts Delhi vide order dated 28.09.2021. The learned ASJ has observed that the petitioner has the previous involvements. It is also stated that the co accused Ravi Gupta who is stated to be the pillion BAIL APPLN. 3693 2021 rider gave details of the plan hatched by both of them before the commission of the present crime. It is also noticed by the learned ASJ that the co accused has given a detailed statement laying out the specific role of the Kala Ram @Kamlesh in the commission of the crime. The petitioner thereafter filed the instant bail application under Section 438 Cr.P.C before this Court for grant of bail to the petitioner in the event of arrest. Learned counsel appearing for the petitioner raised the following contentions: i. That no location charts have been prepared by the investigating agency to connect the petitioner with the alleged offence ii. That no sketch of area has been prepared iii. That the identification test parade of the co accused was sought for only after 20 days of arrest iv. That the petitioner was driving previous scooty and he did not use the said weapon as stated in the complaint v. That there are no CCTV footages of the alleged incident vi. And lastly that the complainant was working with Nitesh Gupta only for two month and it is yet not known that the said amount was there in the bag or not It is further contended by the learned counsel for the petitioner that merely on the strength of a disclosure statement of the co accused the petitioner cannot be denied anticipatory bail. For this proposition the learned counsel for the petitioner relies upon an Order of this Court in Bail Application No.1435 2010 dated 20.08.2021 case titled as Manoj Rana vs. State. He further states that the Trial Court ought not to have rejected the BAIL APPLN. 3693 2021 bail application of the petitioner only on the basis of the antecedents. He further states that the antecedents of the petitioner are of no consequence and for this purpose the learned counsel for the petitioner relies upon an Order of this Court in CRL.A. 178 2015 dated 09.07.2015 in case titled as Sachin vs. State of NCT of Delhi. Learned counsel for the petitioner further relies upon a Judgment of Hon’ble Supreme Court in Prabhakar Tewari vs. State of U.P. & ANR.to contend that the severity of the allegations alone cannot be a ground for rejecting the anticipatory bail. Per contra Mr. Amit Chadha learned APP for the State vehemently opposes the instant bail application by contending that the case is now no longer limited only to the disclosure statement of the co accused. He states that the investigation has revealed the complicity of the petitioner in the alleged crime. He states that on the disclosure of the co accused the keys and the Aadhar Card of the complainant have been recovered 15 Kilometres away from the place of alleged incident. He states that there are CCTV footages of the petitioner and the co accused who went to Rajasthan after committing the alleged offence and stayed in a hotel. He further states that the petitioner is a habitual offender and has involved in total six other cases in Delhi including three cases with the co accused. He further states that besides this there is also a case registered against the petitioner which is pending before the Hon’ble High Court of Gujarat in Criminal Misc. Application No.12621 2021 registered at Police Station Palanpur East Distt Banaskantha Gujarat for the offences under Sections 65(A) 116(B) and 98 of the Prohibition Act and is coming up for hearing on 11.10.2021. He further states that the Call Detail Recordsdisclose that the petitioner was continuously in touch with the co accused Ravi BAIL APPLN. 3693 2021 6. Mr. Amit Chadha learned APP on instructions from SI Thakur Singh Police Station Special Staff Central District further states that the petitioner is a resident of Sirohi Rajasthan. He states that despite raids being conducted the petitioner is evading arrest and as a result of which the proceedings under Section 82 Cr.P.C. has already been initiated against the petitioner. He further on instructions states that the location charts of the petitioner and the co accused in Delhi as well as in Rajasthan have been prepared. He therefore states that the custodial interrogation of the petitioner is required in this case. Heard learned counsels for the parties and perused the material on record. The parameters for granting anticipatory bail have been succinctly laid down in Siddharam Satlingappa Mhetre v. State of Maharashtra 1 SCC 694 wherein the Supreme Court has observed as under: “112. The following factors and parameters can be taken into consideration while dealing with the anticipatory bail: “(i) The nature and gravity of the accusation and the exact role of the accused must be properly comprehended before arrest is made ii) The antecedents of the applicant including the fact as to whether the accused has previously undergone imprisonment on conviction by a court in respect of any cognizable offence iii) The possibility of the applicant to flee from justice iv) The possibility of the accused s likelihood to repeat BAIL APPLN. 3693 2021 similar or other offences v) Where the accusations have been made only with the object of injuring or humiliating the applicant by arresting him or her vi) Impact of grant of anticipatory bail particularly in cases of large magnitude affecting a very large number of people vii) The courts must evaluate the entire available material against the accused very carefully. The court must also clearly comprehend the exact role of the accused in the case. The cases in which the accused is implicated with the help of Sections 34 and 149 of the Penal Code 1860 the court should consider with even greater care and caution because overimplication in the cases is a matter of common knowledge and concern for grant of viii) While considering anticipatory bail a balance has to be struck between two factors namely no prejudice should be caused to the free fair and full investigation and there should be prevention of harassment humiliation and unjustified detention of the accused ix) The court to consider reasonable apprehension of tampering of the witness or apprehension of threat to the complainant x) Frivolity 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.” in prosecution the prayer A perusal of the parameters for granting anticipatory bail laid down BAIL APPLN. 3693 2021 by the Hon’ble Supreme Court shows that the Court must consider the seriousness of the offence the nature of investigation that is required before the charge sheet is filed the likelihood of the petitioner’s absconding from justice the antecedents of the accused and chances of the petitioner tampering with evidence or threatening the witnesses. 10. The order of this Court relied upon by the petitioner in Manoj Rana vs. State is not applicable to the facts of this case because the charges in that case were under Sections 420 468 471 511 120B IPC wherein the evidence was primarily documentary in nature unlike the instant 11. The order of this Court relied upon by the petitioner in Sachin vs. State of NCT of Delhi wherein the proposition raised by the petitioner that the antecedents of the petitioner is irrelevant is also not applicable in this case because that was a case of the conviction of the petitioner and the antecedents of an accused is not a relevant factor while convicting an accused. 12. The Judgment of the Hon’ble Supreme Court relied on by the petitioner in Prabhakar Tewari vs. State of U.P. & ANR is not applicable to the facts of the present case. In that case the Supreme Court chose not to interfere with the orders of the High Court and has not laid down that the severity of the allegation alone cannot be a ground for rejecting the anticipatory bail of the accused. As stated in Siddharam Satlingappa Mhetrethe nature and gravity of the accusation and the exact role of the accused are the prime factors that has to be considered while granting or refusing to grant anticipatory bail to the accused. 13. As stated by Mr. Amit Chadha learned APP for the State that the BAIL APPLN. 3693 2021 stage of investigation in the present case is not limited to only the disclosure statement of the co accused. The learned APP for the State on instructions states that there are CCTV footages showing that the petitioner and the co accused after committing the crime have gone to Rajasthan and stayed in a Hotel there. 14. The petitioner and the co accused are involved in three more cases. The antecedents of the petitioner is a very important factor which has to be kept in mind before deciding an application for anticipatory bail. The investigation qua the petitioner is still ongoing. The petitioner is evading arrest and the chances of the petitioner threatening the complainant or tampering with evidence cannot be ruled out. This Court therefore is of the opinion that the petitioner is not entitled to the benefit of bail in the event of arrest. Custodial interrogation of the petitioner is required for unearthing the plans hatched by the petitioner and the co accused and the way the plan was executed and also for the recovery of money. 15. Accordingly the application stands dismissed along with all the pending application(s) if any. SUBRAMONIUM PRASAD J OCTOBER 7 2021 S. Zakir BAIL APPLN. 3693 2021

Challenging the death of the employee not arises during the course of the employment: Cuttack High Court

The appeals involve three sets of Employment compensation cases. Challenging the liability and the quantum in the employment compensation case as held by the Hon’ble Cuttack High court before the Hon’ble Justice Biswanath Rath in the matter of Tillotama Dash & Ors. V. Secretary Managing Committee, Paradeep Port Trust, Paradeep. [FAO No.321 of 2018]. The case arises from the fact wherein, the managing committee of Paradeep Port Trust in filling the appeal agitated the issue of liability and submitted that respondent management has no responsibility for making payment of compensation involving the death due to the accident in question and have no remote connection with the management involved herein. The appeal arises out of three sets of accidents involving the death of three persons. Section 2(e) of the Employment compensation act of 1923 states employer includes anybody to person whether incorporated or not and any managing agent of an employer and the legal representative of a deceased employer and the service is temporary lent or hire to another person. Respondent managing Committee contended that there is no establishment of the role of the Principal Employer in the accident. The claimant strongly disputed the claim of the Respondent Managing Committee filed FAO [First Appeal Order] seeing enhancement of the compensation amount. The material document and evidence are able to establish that the accident connects the Principal employer and there is a complete failure in distributing such material by the respondent management. Section 3 of the Employment Compensation Act of 1923 the employer is liable for compensation when the injury is caused during the course of employment and has permanent incapacitates. The Hon’ble Court held that the claim on the managing committee is related to the fact that the accident in question has not arisen in course of employment and management has no liability to pay the compensation and cannot be forced. The Hon’ble Justice Biswanath Rath stated from the pleadings and the discussion with the authority finds out that there is a force in the submitting of the material documents. It concluded by stating that, “There is a slight reduction in the compensation amount as awarded in the disposal of the employment compensation case. The compensation award by the authority to a sum of Rs. 5,80,000/- from Rs. 6,25,880/- from the interim director of the lower authority court to the respondent Management to release 30% of the compensation amount.”

ORISSA HIGH COURT : C U T T A C K FAO No.4518 An Appeal U s. 30 of the Employee’s Compensation Act. Secretary Managing Committee Paradeep Port Trust Paradeep Bandana Swain & Ors. Versus Secretary Managing Committee Paradeep Port Trust Paradeep Kabita Senapati & Ors. Versus W I T H FAO No.4518 : Appellant Respondents : Appellant Respondents W I T H FAO No.4618 Secretary Managing Committee Paradeep Port Trust Paradeep : Appellant Tilottama Dash & Ors. Versus Respondents 2 W I T H FAO No.3218 W I T H FAO No.3918 W I T H FAO No.4018 Tillotama Dash & Ors. Secretary Managing Committee Paradeep Port Trust Paradeep Versus Bandana Swain & Ors. Secretary Managing Committee Paradeep Port Trust Paradeep Versus Kabita Senapati & Ors Versus Secretary Managing Committee Paradeep Port Trust Paradeep For Appellant In FAO Nos.453 459 4618 : Appellants Respondents : Appellants Respondents : Appellants Respondents M s. A.P. Das P. Panda K.J. Prakash M s. G. Pujari R. Achary T. Barik N. Barik A. Pati S. Hidayatullah S.R. Ojha 3 For Appellant In FAO Nos.321 396 4018 For Respondents In FAO Nos. 321 396 4018 For Respondents In FAO Nos.453 459 4618 Mr. J.D. Barik M s. A.P. Das P. Panda K.J. Prakash M s. G. Pujari R. Achary T. Barik N. Barik A. Pati S. Hidayatullah S.R. Ojha Mr. J.D. Barik CORAM : JUSTICE BISWANATH RATH Date of hearing & Judgment :: 29.07.2021 1. This matter is taken up by video conferencing mode. All these appeals involve three sets of Employment Compensation Cases. F.A.O. Nos.459 396 of 2018 arises out of E.C. Case No.415. F.A.O. Nos.321 4618 arises out of E.C. Case No.54 of 2016 and F.A.O. Nos.400 4518 arises out of E.C. Case No.716. The Managing Committee Paradeep Port Trust have filed the FAO Nos.453 459 4618 challenging the liability and the quantum in the E.C. Cases referred to hereinabove. the Claimants Nos.453 459 464 of 2018 seeking enhancement of the compensation amount involved in the above three E.C. Cases respectively. In disposal of the E.C. No.48 of 2016 4 there has been award of a sum of Rs.6 25 880 . Similarly in disposal of the E.C. Case No.71 of 2016 there has been award of a sum of Rs.3 38 880 and in disposal of the E.C. Case No.54 of 2016 there has been award of a sum of Rs.5 42 240 . Appeals being filed the Management has already deposited the amount as awarded and the same are under fixed deposit on being invested by the lower authority for pendency of the appeals. It is needless to mention here that all the E.C. Cases involve three sets of accidents and the cases standing on similar footing are taken up together and decided accordingly on consent of all the parties. 3. Since all these appeals arises out of three sets of accident involving death of three persons and for the commonness involving all the appeals this Court on consent of both the parties disposes of all these appeals by this common 4. The Managing Committee Paradeep Port Trust in filing three sets of appeals agitated the issue of liability and submitted that they have no responsibility for making payment of compensation involving the death due to the accident in question and have even no remote connection with the Management involved herein. 5 5. Drawing the attention of this Court to the grounds raised learned counsel for the Managing Committee Paradeep Port Trust contended is no establishment of the role of the Principal Employer in the accident. On the issue of quantum learned counsel for the Managing Committee taking this Court to the plea taken in all the cases submitted that the cases no doubt involve death there has been wrong assessment on the head of strain and stress involving each deceased involved herein. It is in the premises Mr. Dash learned counsel for the Managing Committee requested this Court for interfering in the judgments in E.C. Cases indicated hereinabove and passing appropriate order. 6. To the contrary learned counsel for the Claimants drawing the attention of this Court to the claim made in the claim application and the averments made in the written statement strongly disputed the claim of the Managing Committee Paradeep Port Trust. It is hereby contended that there is sufficient pleading in the claim application and not only that the Claimants herein through material documents and evidence are even able to establish that the accident connects the principal employer and there is complete failure in disturbing such materials by the Management and therefore occurrence in question covers the role of the Management. So far as the challenge of the Managing Committee to the award of compensation on the 6 premises of wrong calculation on the head of strain and stress is concerned learned counsel for the Claimants however did not dispute to the same. 7. Considering the rival contentions of the parties and on perusal of the pleadings of the respective parties before the authority below as well as discussion involving the impugned judgment this Court finds the claim of the Managing Committee so far it relates to the fact that the accident in question has not arisen in course of employment and thereby Management has no liability to pay the compensation does not bear force. Further considering the challenge of the Managing Committee to the grant of compensation this Court from the pleadings and the discussions of the authority below finds there is force in the submission of Mr. Dash learned counsel for the Managing Committee. For the material disclosures and keeping in view the interest of the claimants involving death cases this Court finds there should be slight reduction in the compensation amount as awarded in disposal of the three E.C. Cases. As a consequence this Court interfering with the judgment passed in E.C. Case No.48 of 2016 reduces the compensation awarded by authority to a sum of Rs.5 80 000 from Rs. Rs.6 25 880 . Similarly in E.C. Case No.54 of 2012 this Court reduces the compensation amount to a sum of Rs.5 00 000 from Rs.5 42 240 and in E.C. Case No.71 of 2016 this Court reduces the 7 compensation amount to a sum of Rs.2 90 000 from Rs.3 38 880 . Further keeping in view that for the interim direction of this Court there is already release of 30% of the compensation amount as awarded by the lower authority and the whole amount involving the three E.C. Cases are in deposit this Court directs the claimants involving three E.C. Cases be released with balance amount after deduction of payment already made but keeping in view the reduced compensation indicated hereinabove in respective E.C. Cases and as the whole amount remains under fixed deposit the Claimants shall also be entitled to proportionate interest on the balance amount and the balance amount along with balance proportionate interest as accrued thereon in the meantime shall be released in favour of the Management in all the three respective E.C. Cases. 8. The entire exercise shall be completed within a period of one month from the date of communication of a copy of this order by the Appellants Respondents. 9. 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 8 Orissa High Court Cuttack. The 29th day of July 2021 Ayaskanta Jena Senior Stenographer 2020 as modified by Court’s Notice No.4798 dated 15th April 2021. …. …

Petitioner was released on bail as he was held in custody under Sections 25(1-B) a, 26, and 35 of the Arms Act, 1959.: High court of Patna

The petitioner was arrested under Sections 25(1-B) an Arms Act, 1959, “acquires, has in his possession or carries any firearm or ammunition in contravention of section 3”, section 26, “Secret contraventions, shall be punishable with imprisonment for a term which shall not be less than six months but which may extend to seven years and also with fine.”  Section 35 of the Arms Act, 1959, “Criminal responsibility of persons in occupation of premises in certain cases.” This is in connection with Danapur PS Case No. 45 of 2020 dated 16.01.2020.  This is the 2nd attempt at bail by the petitioners since the first appeal was rejected by the order dated 03.07.2020 passed in Cr. Misc. No. 20904 of 2020. This Judgment is given in the high court of Judicature at Patna by Honorable Mr. Justice Ahsanuddin Amanullah on the 28th of July 2021 in the case of Rajesh Kumar versus the state of Bihar criminal miscellaneous No. 12528 of 2021, Mr. Pramod represented as the advocate for the petitioner and Mr. Upadhyay represented the state of Bihar as the additional Public Prosecutor, the proceedings of the court were held through video conference. The petitioner was accused of possessing a loaded country-made pistol along with a magazine having five-line cartridges which were recovered from the petitioner. The counsel for the petitioner held that the petitioner has no record of committing crimes and he has been held in custody since the 17th of January 2020, the counsel for the petitioner conceded that the co-accused who was also arrested with the petitioner and there was the recovery of firearms from the co-accused as well yet they have been granted bail by this court itself. Therefore the counsel prayed before the high court for the petitioner to be released on bail. The Additional Public Prosecutor submitted before the court that recovery of country-made pistol and five live cartridges were recovered from the petitioner which is a threat to society and therefore objected to the plea for bail. After considering the facts and circumstances of the case and submissions of counsel for the parties, the court decided that the petitioner will be released on bail upon furnishing bail bonds of Rs. 25,000/- (twenty-five thousand) with two sureties of the like amount each to the satisfaction of the Judicial Magistrate1st Class, which is in connection with the Danapur PS Case No. 45 of 2020. However under certain conditions laid down in section 438(2) Cr.P.C., 1973 “(i) that one of the bailors shall be a close relative of the petitioner, (ii) that the petitioner and the bailors shall execute bond with regard to the good behavior of the petitioner, and (iii) that the petitioner shall also give an undertaking to the Court that he shall not indulge in any illegal/criminal activity.” The court concluded that  “Any violation of the terms and conditions of the bonds or the undertaking shall lead to cancellation of his bail bonds. The petitioner shall cooperate in the case and be present before the Court on each and every date. Failure to cooperate or being absent on two consecutive dates, without sufficient cause, shall also lead to the cancellation of his bail bonds. It shall also be open for the prosecution to bring any violation of the foregoing conditions of bail by the petitioner, to the notice of the Court concerned, which shall take immediate action on the same after giving the opportunity of hearing to the petitioner. The petition stands disposed of in the aforementioned terms.”

IN THE HIGH COURT OF JUDICATURE AT PATNA CRIMINAL MISCELLANEOUS No. 125221 Arising Out of PS. Case No. 45 Year 2020 Thana DANAPUR District Patna Rajesh Kumar aged about 22 years Male Son of Late Ravindra Yadav Resident of Village Malti PS Malti District Nalanda At Present Residing at New Police Line Government Quarter PS Budha Colony District Patna The State of Bihar ... Petitioner s For the Petitioner s For the State Mr. Pramod Kumar Advocate Mr. Jharkhandi Upadhyay APP CORAM: HONOURABLE MR. JUSTICE AHSANUDDIN AMANULLAH ... Opposite Party s ORAL JUDGMENT Date : 28 07 2021 The matter has been heard via video conferencing. 2. Heard Mr. Pramod Kumar learned counsel for the petitioner and Mr. Jharkhandi Upadhyay learned Additional Public Prosecutor for the 3. The petitioner is in custody in connection with Danapur PS Case No. 45 of 2020 dated 16.01.2020 instituted under Sections 25(1 B)a 26 and 35 of the Arms Act 1959 4. This is the second attempt for bail by the petitioner as earlier such prayer was rejected by judgment and order dated 03.07.2020 passed in Cr. Misc. No. 209020 Patna High Court CR. MISC. No.125221 dt.28 07 2021 5. As per the allegation a loaded countrymade pistol along with a magazine having five live cartridges have been recovered from the possession of the petitioner 6. Learned counsel for the petitioner submitted that he has no criminal antecedent and is in custody since 17.01.2020 Further it was submitted that other co accused who were also arrested along with the petitioner and from them also there was recovery of firearms have been granted bail by the Court below 7. Learned APP submitted that from the petitioner there is recovery of countrymade pistol and live cartridges 8. Having considered the facts and circumstances of the case and submissions of learned counsel for the parties let the petitioner be released on bail upon furnishing bail bonds of Rs 25 000 with two sureties of the like amount each to the satisfaction of the learned Judicial Magistrate 1st Class Danapur in Danapur PS Case No. 420 subject to the conditionsthat one of the bailors shall be a close relative of the petitioner that the petitioner and the bailors shall execute bond with regard to good behaviour of the petitioner andthat the petitioner shall also give an undertaking to the Court that he shall not indulge in any illegal criminal activity act in violation of Patna High Court CR. MISC. No.125221 dt.28 07 2021 any law statutory provisions tamper with the evidence or influence the witnesses. Any violation of the terms and conditions of the bonds or the undertaking shall lead to cancellation of his bail bonds. The petitioner shall cooperate in the case and be present before the Court on each and every date. Failure to cooperate or being absent on two consecutive dates without sufficient cause shall also lead to cancellation of his bail bonds 9. It shall also be open for the prosecution to bring any violation of the foregoing conditions of bail by the petitioner to the notice of the Court concerned which shall take immediate action on the same after giving opportunity of hearing to the 10. The petition stands disposed off in the (Ahsanuddin Amanullah J

VENKATA REDDI AND ORS. v. POTHI REDDI

Provision makes it clear that the law is and has always been that upon the father’s insolvency his disposing power over the interest of his undivided sons in the joint family property vests in the Official Receiver and that consequently the latter has a right to sell that interest Venkata Reddy, the father of the appellants. At that time only the appellants 1 and 2 were born while the third appellant was born later. The father’s one third share was put up for auction by the Official Receiver and was purchased by one Karuppan Pillai for Rs. 80/-. The Official Receiver then put up for auction the two-third share belonging to appellants 1 and 2 on July 27, 1936, which was purchased by the same person for Rs. 341/-. He sold the entire property to the respondent Pethi Reddy on May 25, 1939, for Rs. 300/-. The appellants instituted a suit on February 1, 1943, for the partition of the joint family property to which suit they made Pethi Reddy a party and claimed thereunder two-thirds share in the property purchased by him. In that suit it was contended on behalf of the respondent that on their father’s insolvency the share of the appellants in the joint family property also vested in the Official Receiver and that he had the power to sell it. The contention was negatived by the trial court which passed a preliminary decree for partition in favour of the appellants. PROCEDURAL HISTORY:The decree was affirmed in appeal by the District Judge and eventually by the High Court in second appeal, except with a slight variation regarding the amount of mesne profits. The decision of the High Court is dated November 18, 1946. On January 18, 1946 the appellants made an application for a final decree which was granted ex parte on August 17, 1946. At the instance of the present respondent this decree was set aside. By that time the new provision, that is, s. 28A of the Provincial Insolvency Act, had come into force. On the basis of this provision it was contended by the respondent that the appellants were not entitled to the allotment of their two-thirds share in the property purchased by him inasmuch as that share had also vested in the Official Receiver. The District Munsif held that Act 25 of 1948 which introduced s. 28A did not affect the preliminary decree for partition since it had been passed on August 20, 1943. Therefore, restored the ex parte final decree which had been set aside on December 17, 1950. The appeal preferred by the respondent against the decision of the District Munsif was dismissed by the Principal Subordinate Judge, Salem, whereupon he preferred a second appeal before the High Court. The High Court allowed the appeal and dismissed the application of the appellant for passing the final decree. Hence, present appeal was filed by Appellant. ISSUE BEFORE THE COURT:Whether the meaning to be given to the expression final decision’ occurring in the first proviso to s. 28 A of the Provincial Insolvency Act, 1920 (Act No. 5 of 1920), introduced by Act No. 25 of 1948?Whether the preliminary decree for partition passed in this case which was affirmed finally in second (1) I.L.R. [1943] Mad. 83?Whether it is in a mort- gage suit or a partition suit? RATIO OF THE COURT:The objects and reasons set out in the bill which sought to introduce this provision were to bring the provisions of the provincial insolvency Act in line with those of the Presidency Towns Insolvency Act in so far as the vesting of the joint family property in the Official Receiver upon the father”s insolvency was concerned. While under the Presidency Towns Insolvency Act, in a case of this kind, the disposing power of the father over the interest of his undivided sons also vests in the Official Receiver and not merely the father’s own interest in the joint family property’ there was divergence of opinion amongst the High Courts in India as to whether under the Provincial Insolvency Act the father’s disposing power over his undivided sons’ interest also vests in the Official Receiver.A Full Bench of the Madras High Court held in Ramasastrulu v. Balakrishna Rao (1) that it does not. It was in the light of this decision that in the appellants suit for partition, a preliminary decree was passed with respect to their two- thirds interest in the joint family property which had been sold by the Official Receiver. In the course of the decision of the full Bench a suggestion was made that the legislature should step in and bring the provisions of the Provincial Insolvency Act in the relevant respect in line with those of the Presidency Towns Insolvency Act. The new provision makes it clear that the law is and has always been that upon the father’s insolvency his disposing power over the interest of his undivided sons in the joint family property vests in the Official Receiver and that consequently the latter has a right to sell that interest. The-provision is thus declaratory of the law and was intended to apply to all cases except those covered by the two provisos. The court observed here only with the first provision. This proviso excepts from the operation of the Act a transaction such as a sale by an Official Receiver which has been the subject of a final decision by a competent Court.The short answer to the reason given by the High Court is that even a money decree passed in a suit would cease to be a final decision because if the judgment- debtor against whom the decree is pawed does not pay the amount voluntarily execution proceedings will have to be taken for re-‘ covering the amount from him. It would thus lead to an absurdity if the test adopted by the High Court is accepted. In support of the High Court’s view a few decisions were cited at the bar but as they are of no assistance we have not thought it fit to refer to them.The court however, refer to a decision of this court upon which reliance was placed by the respondents. That is the decision in Vakalapudi Sri Ranga Rao and others V. Mutyala Ammanna (1) in which it was held that a particular order was not a final decision within the meaning of the first proviso to S. 28-A. There, in a suit for partition and another suit for possession of the suit property and arrears of rent, it was contended that upon the father’s insolvency the Official Receiver was in- competent to sell the son’s interest in the joint family property. The contention was negatived by the trial court but upheld in appeals by the Subordinate judge who remanded the suits to the trial court with certain directions. Appeals preferred against his decision were dismissed by the High Court. Before the decision of the suits after remand, the Amending Act, XXV of 1948 came into force and it was contended before the trial court that in view of the new provision the sale by the Official Receiver must be held to be good even so far as the sons’ interest was concerned. This contention was negatived by the trial court on the ground that the decision of the High Court on the point was a “final order’ within the meaning of the proviso. The District judge, before whom appeals were preferred, however, negatived the contention and held that there was no final order with regard to the sale by the Official Receiver. The sale made by the Official Receiver during the insolvency of the appellants’ father was the subject of a final decision by a competent court inasmuch as that court decided that the sale was of no avail to the purchaser at the Official Receiver had no power to effect that sale.. Since they have established what was required to be established by them, they are entitled to a final decree and the High Court was in error in dismissing their application in that behalf. DECISION HELD BY COURT:The judgement of this case was given by JUSTICE MUDHOLKAR stated that in this case. In the result the court allows the appeal, set aside the judgment and decree of the High Court and restore that of the trial court as affirmed in appeal by the learned Subordinate judge. Costs in this court and in the High Court will be borne by the present respondent. The remaining costs will be home as ordered by the first appellate court. Appeal allowed.

Appeal186 of 2001 Special Leave Petition2436 of 2000 DR.SURAJMANI STELLA KUJUR Vs DURGA CHARAN HANSDAH & ANR DATE OF JUDGMENT: 14 02 2001 K.T.Thomas R.P.Sethi SETHI J Leave granted. Who is a "Hindu" for the purposes of the applicability of the Hindu Marriage Act 1955 hereinafter referred to as "the Act") is a question of law to be determined in this appeal. Section 2 of the Act specifies the persons to whom the Act is applicable Clauses (b) andof Sub sectionof Section 2 make the Act applicable to a person who is a Hindu by religion in any of its forms or developments including a Virashaiva a Lingayat or a follower of the Brahmo Prarthana or Arya Samaj and to persons who is a Buddhist Jaina or Sikh by religion. It is also applicable to any other person domiciled in the territories of India who is not a Muslim Christian Parsi or Jew by religion. The applicability of the Act is therefore comprehensive and applicable to all persons domiciled in the territory of India who are not Muslims Christians Parsis or Jews by religion. The term "Hindu" has not been defined either under the Act or Indian Succession Act or any other enactment of the Legislature. As far back as in 1903 the Privy Council in Bhagwan Koer v. J.C. Bose & Ors. Calcutta Series 11] observed: "We shall not attempt here to lay down a general definition of what is meant by the term ’Hindu’. to make it accurate and at the same time sufficiently comprehensive as well as distinctive is extremely difficult. The Hindu religion is marvellously catholic and elastic. Its theology is marked by eclecticism and tolerance and almost unlimited freedom of private worship. Its social code is much more stringent but amongst its different castes and sections exhibits wide diversity of practice. No trait is more marked of Hindu society in general than its horror of using the meat of the cow. Yet the Chamaras who profess Hinduism but who eat beef and the flesh of dead animals are however low in the scale included within its pale. It is easier to say who are not Hindus not practically and separation of Hindus from non Hindus is not a matter of so much difficulty. The people know the differences well and can easily tell who are Hindus and who are not The Act is therefore applicable to: "(1) All Hindus including a Virashaiva a Lingayat a Brahmo Prarthana Samajist and an Arya Samajist Budhists Jains Sikhs In this appeal the parties are admittedly tribals the appellant being a Oraon and the respondent a Santhal. In the absence of a notification or order under Article 342 of the Constitution they are deemed to be Hindus. Even if a notification is issued under the Constitution the Act can be applied to Scheduled Tribes as well by a further notification in terms of Sub sectionof Section 2 of the Act. It is not disputed before us that in the Constitution Scheduled Tribes) Order 1950 as amended by Scheduled Castes and Scheduled Tribes OrderActs 63 of 1956 108 of 1976 187 and 15 of 1990 both the tribes to which the parties belong are specified in Part XII. It is conceded even by the appellant that "the parties to the petition are two Tribals who otherwise profess Hinduism but their marriage being out of the purview of Hindu Marriage Act 1955 in light of Section 2(2) of the Act are thus governed only by their Santal Customs and usage". The appellant has however relied upon an alleged custom in the Tribe which mandates monogamy as a rule. It is submitted that as the respondent has solemnised a second marriage during the subsistence of the first marriage with the appellant the second marriage being void the respondent is liable to be prosecuted for the offence punishable under Section 494 of the Indian Penal Code. No custom can create an offence as it essentially deals with the civil rights of the parties and no person can be convicted of any offence except for violation of law in force at the time of commission of the act charged. Custom may be proved for the determination of the civil rights of the parties including their status the establishment of which may be used for the purposes of proving the ingredients of an offence which under Section 3(37) of the General Clauses Act would mean an act or omission punishable by any law by way of fine or imprisonment Article 20 of the Constitution guaranteeing protection in respect of conviction of offence provides that no person shall be convicted of any offence except for violation of law in force at the time of commission of the act charged as an offence. Law under Article 13 clause of the Constitution means the law made by the Legislature including intravires statutory orders and orders made in exercise of powers conferred by the statutory rules. The expression custom and usage" has been defined under Section 3(a) of the Act as: "the expression ’custom’ and ’usage’ and rule which having been continuously and uniformly observed for a long time has obtained the force of law among Hindus in any local area tribe community group or family Provided that the rule is certain and not unreasonable or opposed to public policy and Provided further that in the case of a rule applicable only to a family it has not been discontinued by the For custom to have the colour of a rule or law it is necessary for the party claiming it to plead and thereafter prove that such custom is ancient certain and reasonable Custom being in derogation of the general rule is required to be construed strictly. The party relying upon a custom is obliged to establish it by clear and unambiguous evidence. In Ramalakshmi Ammal v. Sivanatha Perumal Sethuraya held: "It is of the essence of special usage modifying the ordinary law of succession that they should be ancient and invariable and it is further essential that they should be established to be so by clear and unambiguous evidence. It is only by means of such evidence that the courts can be assured of their existence and that they possess the conditions of antiquity and certainty on which alone their legal title to This Court in Mirza Raja Pushpavati Vijayaram Gajapathi Raj & ors. v. Sri Pushavathi Visweswar Gajapathiraj Rajkumar of Vizianagram & Ors. again reiterated the same position of law regarding the establishment of a custom upon which a party intends to rely. The importance of the custom in relation to the applicability of the Act has been acknowledged by the Legislature by incorporating Section 29 saving the validity of a marriage solemnised prior to the commencement of the Act which may otherwise be invalid after passing of the Act Nothing in the Act can affect any right recognised by custom or conferred by any said enactment to obtain the dissolution of a Hindu Marriage whether solemnised before or after the commencement of the Act even without the proof of the conditions precedent for declaring the marriage invalid as incorporated in Sections 10 to 13 of the Act. In this case the appellant filed a complaint in the Court of Chief Metropolitan Magistrate New Delhi stating therein that her marriage was solemnised with the respondent in Delhi according to Hindu rites and customs". Alleging that the respondent has solemnised another marriage with the Accused No.2 the complainant pleaded: "That the accused No.1 has not obtained any divorce thro’ the Court of Law upto this date and hence the action of the accused No.1 is illegal and contravene the provision of law as laid down under Section Nowhere in the complaint the appellant has referred to any alleged custom having the force of law which prohibits the solemnisation of second marriage by the respondent and the consequences thereof. It may be emphasised that mere pleading of a custom stressing for monogamy by itself was not sufficient unless it was further pleaded that second marriage was void by reason of its taking place during the life of such husband or wife. In order to prove the second marriage being void the appellant was under an obligation to show the existence of a custom which made such marriage null ineffectual having no force of law or binding effect incapable of being enforced in law or non est. The fact of second marriage being void is a sine qua non for the applicability of Section 494 IPC. It is settled position of law that for fastening the criminal liability the prosecution or the complainant is obliged to prove the existence of all the ingredients constituting the crime which is normally and usually defined by a statute. The appellant herself appears to be not clear in her stand inasmuch as in her statement in the court recorded on 24th October 1992 she has stated that "I am a Hindu by religion". The complaint was dismissed by the trial court holding "there is no mention of any such custom in the complaint nor there is evidence of such custom. In the absence of pleadings and evidence reference to Book alone is not sufficient". the High Court vide the judgment impugned in this appeal held that in the absence of notification in terms of sub sectionof Section 2 of the Act no case for prosecution for the offence of bigamy was made out against the respondent because the alleged second marriage cannot be termed to be void either under the Act or any alleged custom having the force of law. In view of the fact that parties admittedly belong to the Scheduled Tribes within the meaning of clause of Article 366 of the Constitution as notified by the ConstitutionOrder 1950 as amended by Scheduled Castes and Scheduled Tribes Order Amendment) Acts 656 1076 187 and 190 passed in terms of Article 342 and in the absence of specific pleadings evidence and proof of the alleged custom making the second marriage void no offence under Section 494 of the Indian Penal Code can possibly be made out against the respondent. The Trial Magistrate and the High Court have rightly dismissed the complaint of the appellant Learned Counsel appearing for the appellant however submitted that even if the second marriage was not void for the purposes of attracting the applicability of Section 494 and holding the respondent guilty of bigamy the appellant is entitled to maintenance succession and other benefits on account of her being the legally wedded wife of the respondent. We cannot adjudicate upon such a proclaimed right of the appellant. The appellant is at liberty to get her right established by way of civil proceedings in a competent court of jurisdiction. If any such proceedings are initiated the same would be decided on their merits in accordance with the principles of pleadings and proof not being influenced by any of the observations made by the trial magistrate or the High Court. There is no merit in this appeal which is accordingly dismissed

The Pujari of a Temple is not a ‘Workman’ under the Industrial Disputes Act: RajasthanHigh Court

The Pujari would not be considered as a “Workman” within the purview of Section 2(s) of the Industrial Disputes Act, 1947. The Court further opined that the opinion stated by the Labour Court “cannot be said to be capricious or perverse” was held in the matter of Pushkarlal versus Administrative Officer [D.B. Spl. Appl. Writ No. 171/2020] by Justice Rameshwar Vyas and Justice Sangeet Lodha. The facts related to this case is: appellant was employed as Chowkidar /Pujari on a fixed salary of Rs.2500/- per month. However, his services were brought to an end w.e.f. 31.07.2005 without assigning any reasons. It was contended by the appellant that he has completed 240 days of service (in a calendar year) and therefore, termination of his services without complying with the provisions of Section 25F of Industrial Disputes Act, 1947 was invalid and void. The claim was contested by the respondent by filing a counter-petition, taking the stand that the appellant’s services for the work of Pujari were made available to the respondent by the contractor M/s. R.S.D. Enterprises, Udaipur. The appellant was working under the control of the contractor and the salary was also being paid to him by the contractor. A preliminary objection was raised that the contractor who employed the appellant is a necessary party. That apart, it was contended that the appellant was employed as Pujari in the temple and since the Pujari didn’t fall within the definition of ‘workman’ and the temple also didn’t fall within the definition of ‘industry’, the provisions of the Act of 1947 are not applicable. The Division Bench of Hon’ble Court while examining the definition of a ‘workman’ observed that “It is true that the designation of an employee is not conclusive to bring him within the definition of ‘workman’ set out in Section 2(s) of the Act of 1947 but then, for a determination as to whether an employee falls within the definition of ‘workman’ or not, the test is what is the main work assigned to him. If he does some manual work as ancillary or incidental to the main work assigned to him, cannot have an effect of such employee being covered by the definition of ‘workman’ within the meaning of Section 2(s) of the Act of 1947.”  It was further expounded by Hon’ble Court adverting to the facts of the present case, as discussed above, the appellant was appointed as Pujari and not Watchman- cum-Pujari as claimed and he was assigned duties of performing Sewa puja in Girdhar Gopal Temple. As discussed above, the appellant being provided accommodation within the temple premises and permitted to stay in the premises in the night, in no manner, leads to the conclusion that he was appointed as Chowkidar and was assigned the duties of the said post. In this view of the matter, in our considered opinion, the finding arrived at by the Labour Court that the appellant being employed as Pujari was not covered by the definition of ‘workman’ within the meaning of Section 2(s) of the Act of 1947 cannot be said to be capricious or perverse so as to warrant interference by this Court in the exercise of writ jurisdiction. Further, even if it was assumed that the respondent, employer of the appellant, is not solely engaged in maintaining the temple falls within the definition of ‘industry’ given in Section 2(j) of the Act of 1947, the appellant being not a workman, the provisions of Act of 1947 were not attracted in the matter and the Labour Court had no jurisdiction to adjudicate the dispute referred by the appropriate government. Finally, the appeal is, therefore, dismissed in limine. Click here to read the judgement

on 16 09 2020 at 07:00:35 PM HIGH COURT OF JUDICATURE FOR RAJASTHAN ATJODHPURD.B. Spl. Appl. Writ No. 171 2020Pushkarlal S o Bhanwar Lal Shrimali Aged About 46 Years Badganv Post Dhol Tehsil Gogunda District Udaipur. AppellantVersusAdministrative Officer Maharana Pratap Smarak Udaipur MotiMagri Udaipur RespondentFor Appellant(s) : Mr. Sumit SinghalHON BLE MR. JUSTICE SANGEET LODHA HON BLE MR. JUSTICE RAMESHWAR VYASOrder15 th September 2020Per Hon’ble Mr. Sangeet Lodha J.Reportable1.This intra court appeal is directed against order dated17.12.19 passed by the learned Single Judge of this Court whereby the writ petition preferred by the appellant aggrieved bythe award dated 17.10.19 passed by the Labour Court Udaipur has been dismissed.2.The facts relevant are that vide notification dated 27.12.07issued by the Department of Labour Government of Rajasthan the dispute raised by the appellant was referred for adjudication tothe Labour Court Udaipur in the following terms:“D k izkFkhZ Jfed dh ifjHkk"kk esa vkrk gS \ fn gka] rks D k Jfed Jhiq"dj Jhekyh iq= Jh Hkaojyky Jhekyh fuoklh cMxkao] rglhy xksxqUnk]gky eqdke 42 deZ’khy ekxZ] pkaniksy ckgj] fljksgh okMk] mn iqj }kjkJh lqHkk"k Jhekyh] egklfpo] y kq m|ksx dkexkj wfu u] mn iqj dksfu kstd iz’kklfud vf kdkjh] egkjk.kk izrki Lekjd lfefr] eksrh exjh] LatestLaws.com on 16 09 2020 at 07:00:35 PM ) rks Jfed fdl jkgr dks ikus dk vf kdkjh gS \”3.The appellant filed his statement of claim before the LabourCourt stating that he entered the employment of the respondentherein on 1.4.02 as Chowkidar Pujari on fixed salary Rs.2500 per month. However his services were brought to an end w.e.f.31.7.05 without assigning any reason. Precisely the case set outby the appellant was that he had completed 240 days of service ina calendar year and therefore termination of his services withoutcomplying with the provisions of Section 25F of Industrial DisputesAct 1947is invalid and void.4.The claim was contested by the respondent by filing acounter thereto taking the stand that appellant’s services for thework of Pujari was made available to the respondent by thecontractor M s. R.S.D. Enterprises Udaipur. The appellant wasworking under the control of the contractor and the salary wasalso being paid to him by the contractor. A preliminary objectionwas raised that the contractor who employed the appellant is anecessary party. That apart it was contended that the appellantwas employed as Pujari in the temple and since the Pujari doesnot fall within the definition of ‘workman’ and the temple does notfall within the definition of ‘industry’ the provisions of the Act of1947 are not applicable.5.After due consideration of the evidence on record the LabourCourt arrived at the conclusion that the temple does not fall withinthe definition of ‘industry’ and the appellant being employed asPujari does not fall within the definition of ‘workman’ andconsequently rejected his claim by the impugned award. LatestLaws.com on 16 09 2020 at 07:00:35 PM ) [SAW 171 2020]Labour Court and the learned Single Judge in correct perspective which has resulted in erroneous finding being arrived at.9.We have considered the submissions of the learned counseland perused the material on record.10.Indisputably the appellant entered the employment of therespondent on being appointed vide order dated 1.4.02a bare perusal whereof makes it abundantly clear that theappointment was accorded to the appellant on temporary basis fora period of three months on the fixed salary Rs.2500 per monthon the post of ‘Pujari’ and not on the post of ‘Watchman cum Pujari’ as claimed by the appellant. Moreover it was specificallymentioned that the appellant will perform ‘sewa puja’ in GirdharGopal Temple and shall stay in the temple premises. As perAnnexure 5theduties to be performed by the Pujari have been specified whichalso does not include the duties of Watchman as claimed. Merelybecause the appellant and other pujaris were directed to stay inthe temple premises in the night no inference can be drawn thatthe appellant was made to discharge the duties of Watchman. Thelearned Single Judge has rightly held that the directions to theappellant to stay in the temple premises by way ofaccommodation cannot make the status of the appellant differentfrom that of Pujari.11.In Sai Bhakta Samaj’s caserelied upon by theLabour Court the Delhi High Court categorically held that in orderto be covered under Section 2(s) of the Act of 1947 a workman issupposed to be one who does any manual unskilled skilled technical operational clerical or supervisory work whereas pujaby Pujari is an application of his knowledge of religious hymens LatestLaws.com on 16 09 2020 at 07:00:35 PM ) of the Act of 1947 andaccordingly held that Pujari is not a workman.12. The decision in Sai Bhakta Samaj’s casehas beenfurther followed by the Delhi High Court in Laxmi Narayan Shastrivs. Shri Santan Dharm Sabha Laxmi Narayan Temple Trust: WP(C)No. 3426 11 decided on 20.5.11.13.It is true that the designation of an employee is notconclusive to bring him within the definition of ‘workman’ set outin Section 2(s) of the Act of 1947 but then for determination as towhether an employee falls within the definition of ‘workman’ ornot the test is what is the main work assigned to him. If he doessome manual work as ancillary or incidental to the main workassigned to him cannot have an effect of such employee beingcovered by definition of ‘workman’ within the meaning of Section2(s) of the Act of 1947.14.Adverting to the facts of the present case as discussedabove the appellant was appointed as Pujari and not Watchman cum Pujari as claimed and he was assigned duties of performingsewa puja in Girdhar Gopal Temple. As discussed above theappellant being provided accommodation within the templepremises and permitted to stay in the premises in the night in nomanner leads to conclusion that he was appointed as Chowkidarand was assigned the duties of the said post. In this view of thematter in our considered opinion the finding arrived at by theLabour Court that the appellant being employed as Pujari was notcovered by definition of ‘workman’ within the meaning of Section2(s) of the Act of 1947 cannot be said to be capricious or perverse LatestLaws.com on 16 09 2020 at 07:00:35 PM Powered by TCPDF[SAW 171 2020]so as to warrant interference by this Court in exercise of writjurisdiction. Further even if it is assumed that the respondent employer of the appellant being not solely engaged in themaintaining the temple falls within the definition of ‘industry’ givenin Section 2(j) of the Act of 1947 the appellant being not aworkman the provisions of Act of 1947 are not attracted in thematter and the Labour Court had no jurisdiction to adjudicate thedispute referred by the appropriate government.15.For the aforementioned reasons we are in agreement withthe view taken by the learned Single Judge.16.No case for interference by us in intra court appealjurisdiction is made out.17.The appeal is therefore dismissed in limine.(RAMESHWAR VYAS) J(SANGEET LODHA) JAditya

Expenditure of demurrage charges cannot be allowed in the absence of tax being deducted at source: Bombay High Court

Payments made to a non-resident company by way of demurrage charges cannot be permitted in the absence of tax being deducted at source. A division bench of Justice MS Sanklecha and GS Kulkarni, while adjudicating the matter in The Commissioner of Income Tax v. Dempo & Co. Pvt. Ltd; [INCOME TAX APPEAL NO. 989 OF 2015], dealt with the issue of demurrage charges while paying income tax. The respondent-assessee had claimed expenditure of Rs.1.8 crores being the demurrage claim paid to a non-¬resident shipping company.     The   Assessing   Officer   disallowed   part   of   the   above expenditure for failure to deduct tax at source under Section 195 of the Income Tax Act. In appeal, the respondent-assessee contended that there was no obligation to deduct tax at source as the amount paid to non-resident shipping company which was engaged in operation of ships and therefore governed by Section 172 of the Act.  It was pointed out that Section 172 of the Act provides for levy and collection of taxes   in   respect   of   any   income   of   ship   engaged   in   carriage   of goods/passengers/livestock from a port in India.  Reliance was also placed upon the Circular issued by   CBDT   which   interalia   provides   that   Section   172   is   a   self-contained code for levy and recovery of taxes ship wise and journey wise   in   case   of   ships   owned   or   chartered   by   non-residents. Therefore, the requirement of deducting tax at source would not be applicable   in   such   a   case   thus   the   consequent   disallowance   of expenditure under Section 40(a)(i) of the Act was not warranted. However, the   CIT(A) did   not   accept   the   contention   of   the respondent-assessee and held Section 44B of the Act would apply as it relates to computation of profits and gains and from shipping business.

on 16 09 2015 on 22 03 902.ITXA.989.15.odt IN THE HIGH COURT OF JUDICATURE AT BOMBAYORDINARY ORIGINAL CIVIL JURISDICTIONINCOME TAX APPEAL NO. 989 OF 2015(Original Tax Appeal No. 507 Goa Bench)WITHINCOME TAX APPEAL NO. 991 OF 2015(Original Tax Appeal No. 607 Goa Bench)The Commissioner of Income Tax..AppellantVs.V.S. Dempo and Company Pvt. Ltd...Respondent....Ms. Asha Desai Advocate for Appellant.Mr. Mihir Naniwadekar Advocate for Respondent.....CORAM : M.S. SANKLECHA &G.S. KULKARNI JJ.DATED : 8 SEPTEMBER 2015ORAL ORDERis to the common order dated 11December 2006 passed by the Income Tax Appellate Tribunalallowing the appeals filed by the respondent­assessee.The Assessment Years involved are A.Y. 1999­00 and 2000­01.2.Both these appeals were admitted on 12 October 2007 on thefollowing substantial questions of law:S.S.DESHPANDE 1 13 on 16 09 2015 on 22 03 902.ITXA.989.15.odt(I)Whether in facts and circumstances of the case theITAT has erred in applying the provision of Section 172in holding that section 40(a)(i) is not applicable particularly when section 172 concerned with levy andrecovery of tax in a case of any ship as against section195 r w 40(a)of the IT Act refers to non­residentAssessee as in the present case ofExplanation to section 80HHC is right in law ofexplanation to section 80HHC is right in law of Explanationto section 80HHC is right in law of Explanation to Section80HHC is right in law S.S.DESHPANDE 3 13 on 16 09 2015 on 22 03 902.ITXA.989.15.odtRegarding Question No.1:3.The respondent­assessee had claimed expenditure of Rs.1.8crores being the demurrage claim paid to a non­resident shippingcompany. The Assessing Officer disallowed part of the aboveexpenditure for failure to deduct tax at source under Section 195 ofthe Act.4.In appeal the respondent­assessee contended that there wasno obligation to deduct tax at source as the amount paid to non­resident shipping company which was engaged in operation of shipsand therefore governed by Section 172 of the Act. It was pointedout that Section 172 of the Act provides for levy and collection oftaxes in respect of any income of ship engaged in carriage ofgoods passengers livestock from a port in India. Reliance was alsoplaced upon the Circular No. 723 dated 19 September 1995 issuedby CBDT which interalia provides that Section 172 is a selfcontained code for levy and recovery of taxes ship wise and journeywise in case of ships owned or chartered by non­residents.Therefore the requirement of deducting tax at source would not beS.S.DESHPANDE 4 13 on 16 09 2015 on 22 03 902.ITXA.989.15.odtapplicable in such a case thus the consequent disallowance ofexpenditure under Section 40(a)(i) of the Act was not warranted.However the CIT(A) did not accept the contention of therespondent­assessee and held Section 44B of the Act would apply asit relates to computation of profits and gains and from shippingbusiness. In the above view the appeal of the respondent­assesseewas dismissed.5.On further appeal the Tribunal by the impugned orderallowed respondent s appeal by following its decision in DCIT Vs.Orient(P) Ltd. rendered on 2 December 2004. Theimpugned order holds that Section 40(a)(i) of the Act would applyonly when there is an obligation to deduct tax at source. Reliancewas placed upon the Circular No. 723 issued by CBDT to support it splea that there was no obligation to deduct tax at source in respectof payment made towards demurrage charges in cases whereSection 172 of the Act applies. It was not disputed by the revenuethat in this case Section 172 of the Act applies. The impugned orderspecifically holds that Section 172 of the Act is a charging as well asS.S.DESHPANDE 5 13 on 16 09 2015 on 22 03 902.ITXA.989.15.odta machinery provision in respect of non­resident shippingcompanies. It provides for determination and collection of tax.Thus Chapter XVII of the Act in respect of deducting tax at sourcewould not apply in such cases. Consequently the disallowance ofexpenditure on account of Section 40(a)(i) of the Act was deleted.6.In appeal before us Ms. Desai the learned Counsel for therevenue invites our attention to the decision of this Court in CIT Vs.OrientLtd. 325 ITR 554 by which this Court reversed thedecision of the Tribunal in OrientLtd. rendered on 2December 2004. In the above view she submits that the appeal beallowed.7.On the other hand Mr. Mihir Naniwadekar learned Counselfor the respondent­assessee submits that the decision of this Courtin OrientLtd.may require reconsideration.8.The substantial question interalia which arose forconsideration of this Court in OrientLtd.was asunder:S.S.DESHPANDE 6 13 on 16 09 2015 on 22 03 902.ITXA.989.15.odt“(B)Whether on the facts and in the circumstances ofthe case the assessee was entitled to claim deduction ofthe demurrage charges of Rs.1 08 53 980 ­ paid toforeign company without deducting tax on it under s.40(a)(i) of the IT Act in view of the Circular No. 723 dt.19Th September 1995128 CTR6] issued bythe CBDT ”9.The above question arose for consideration by this Court onthe following facts:(a)M s OrientLtd.had for A.Y. 1997­98declared an income of Rs.2.10 crores. It had paid an amount ofRs.1.08 crores as demurrage charges to a non­resident shippingcompany viz. M s Mitsui & Co. Ltd. However as the assessee hadnot deducted tax at source on the demurrage charges paid theAssessing Officer disallowed the expenditure of demurrage chargesin view of Section 40(a)(i) of the Act.(b)In appeal the CIT(A) held that demurrage charges had beenpaid by assessee. However in the hands of recipient M s Mitsui &Co. Ltd. It was in the nature of profits of a non­resident fromS.S.DESHPANDE 7 13 on 16 09 2015 on 22 03 902.ITXA.989.15.odtoccasional shipping business. Placing reliance upon the CBDTCircular No. 723 and Section 172 of the Act the CIT(A) allowed theappeal.(c)The revenue s appeal to the Tribunal was dismissed.10.This Court held that Section 172 of the Act is applicable onlyin respect of non­resident carrying on shipping business whileassessee i.e. OrientLtd. is admittedly a resident andtherefore Section 172 of the Act cannot be applied. Thus theexpenditure of demurrage charges cannot be allowed in the absenceof tax being deducted at source. The relevant observations of thisCourt is found in paragraph 8 are as under:“8.Sec. 172 of the Act 1961 is carefully considered byus. Chapter XV titles as "Liability in special cases". We haveno concern with sections starting from s. 159 till s. 171from this Chapter XV. Sec. 172 comes under sub­title "H.­Profits of non­residents from occasional shipping business".Title of s. 172 is "Shipping business of non­residents". Forbringing a case under Chapter XV­H of the Act 1961 onehas to establish a case of profits of non­residents fromoccasional shipping business. "Non­resident" is defined u s.2(30) as a person who is not a "resident" and for thepurpose of ss. 92 93 and 168 includes a person who is notS.S.DESHPANDE 8 13 on 16 09 2015 on 22 03 902.ITXA.989.15.odtordinarily resident within the meaning of cl.of s. 6.The respondent assessee is a company incorporated underthe provisions of Indian Companies Act 1956 is fairly anadmitted position. The assessee cannot be said to be non­resident. We have also taken notice of s. 6 i.e. "residence inIndia". In short respondent assessee cannot be said to benon­resident. The present appeal pertains to the respondentassessee. In our view in the facts of the present case therespondent assessee cannot lay fingers on s. 172 since weare not dealing with profits of non­residents. The otheraspect is that such profits of non­residents should be fromoccasional shipping business. It is not the case that therespondent assessee has earned some profit from occasionalshipping and is a non­resident. In our view s. 172 does nothave application in relation to the respondent assessee andin the facts and circumstances of the present case. Thecompany from Japan viz. Mitsui & Co. Ltd. Japan recipient of demurrage amount is not before us. In otherwords we are not examining the tax liability of the foreigncompany i.e. Mitsui & Co. Ltd. Japan. …....... Provisionsof s. 172 are to apply notwithstanding anything containedin the other provisions of the Act. Therefore in such cases the provisions of ss. 194C and 195 relating to TDS are notapplicable. The recovery of tax is to be regulated for voyageundertaken from any port in India by a ship under theprovisions of s. 172. In this view these observations of thelearned Vice President of Tribunal have no concern withthe factual aspect that it is a case of occasional shipping pleaded or raised by assessee. There is no dispute aboutinterpretation of s. 172 or s. 195. Crucial point is as tohow s. 172 applies to the facts of the present case whereinthe respondent assessee is an Indian company incorporated under the provisions of Indian CompaniesAct 1956. In our view the learned Vice President of theTribunal has recorded a perverse observation finding inpara 3 regarding application of ss. 44B and 172 of the Act1961..”S.S.DESHPANDE 9 13 on 16 09 2015 on 22 03 902.ITXA.989.15.odt11.We are unable to agree with the above view of this Court inOrientLtd.of the Act. Although theCourt was concerned with the issue in an appeal concerning aresident company. The introduction of section 172 of the Act by theassessee was to determine whether in view thereof was there anyobligation to deduct tax at source by the payer­assessee. Section172 of the Act has to be examined through the prism of the non­resident shipping company in respect of it s income. It is in theabove view that Section 172 of the Act and Circular No. 723 issuedby the CBDT was relied upon by the respondent­assessee to pointout that as Section 172 of the Act provides a complete code itself forS.S.DESHPANDE 10 13 on 16 09 2015 on 22 03 902.ITXA.989.15.odtlevy recovery of tax ship wise and journey wise. Thus there is nooccasion to deduct tax under Chapter XVII of the Act.12.It is a settled position under the law of precedents that it isnot open to usto take a view contrary to the viewtaken by another Division Bench of this Court. In case we areunable to agree with the view of the earlier Division Bench and itdoes not fall within the exclusionary categories of binding precedentby being contrary to and or in conflict with a decision of the ApexCourt or rendered per­incurrim. In such a case it is best that theissue is resolved at the hands of a Larger Bench of this Court.Certainty of law is an important ingredient of Rule of Law.13.As we do not agree with the view taken by this Court in Orient(Goa)Ltd.and it does not fall with the exclusionsmentioned in Paragraph 12 above we direct the Registry to placepapers and proceedings of the present two appeals before theHon ble The Chief Justice to obtain suitable directions to place thefollowing question of law for the opinion of the Larger Bench of thisCourt as under:­S.S.DESHPANDE 11 13 on 16 09 2015 on 22 03 902.ITXA.989.15.odtWhether while dealing with the allowability of expenditureunder Section 40(a)(i) of the Act the status of a person making theexpenditure has to be a non­resident before the provision to Section172 of the Act can be invoked 14.It is made clear that all the substantial questions of law wouldbe considered after the receipt of the view of the Full Bench of thisCourt.[G.S. KULKARNI J][M.S. SANKLECHA J.]S.S.DESHPANDE 12 13 on 16 09 2015 on 22 03

Merely because the Session’s Court was entitled to take a different view it was not sufficient for him to topple the judgment of the Trial Court: High Court of Bombay at Aurangabad

Appellate Court has the power to review the evidence in appeal against acquittal and even to reappreciate the entire evidence. It can consider both facts as well as law. However, there has to be some substantial and compelling reason for the Appellate Court for holding the view of the Trial Court as wrong. A single-judge bench comprising of Justice S. Patil adjudicating the matter of Baban Ramchandra Godge And Ors v. The State Of Maharastra( CRIMINAL REVISION APPLICATION NO. 28 OF 2011) dealt with the issue of whether the sentence passed by the Session’s court is correct or not. In the present case, a revision petition is filed u/s 397 and 401 of the CrPC by the original accused who were acquitted by the Trial Court but by the impugned judgment and order of conviction in an Appeal against acquittal whereby they have been sentenced to suffer rigorous imprisonment for six months under Section 324 read with Section 34 of the Indian Penal Code, rigorous imprisonment for three months under Section 354 read with Section 34 of the Indian Penal Code and rigorous imprisonment for six months under Section 452 read with Section 34 of the Indian Penal Code and in addition to pay fine of Rs. 200/- on each count. According to the complainant’s FIR, the complainant and his brother went to fetch milk in their motorcycle and the accused accosted them and threatened to withdraw the complaint filed against them. On refusal, they assaulted the brother of the complainant and caused inuries. Further, they ransacked the articles and molested one of the witnesses of the cases The defence totally denied these allegations and stated that these are false allegations. Also, the defendant stated that the complainant’s brother in fact molested a woman from the accused’s family and was therefore implicated in a Crime and the accused are being implicated with an ulterior motive. The Accused vehemently submitted that the prosecution has miserably failed to prove their case.  The court gave sufficient and cogent reasons pointing out to the discrepancies and shortcomings in the prosecution evidence. Merely because another view was possible the Sessions Court ought not to have substituted its view in place of the one expressed by the Trial Court which was well-founded. It is submitted that merely because the Trial Court had erred in some respect and has at times been even perverse was not sufficient for the Sessions Court to reverse the acquittal. The ultimate conclusion drawn by the Trial Court was unassailable and should not have been interfered with while exercising a limited jurisdiction. Also, it was pointed out that Session’s court has blatantly overlooked the contradictions and inconsistencies as well as improbabilities referred to and pointed out by the Trial court. The Complainant submitted that the observations and conclusions of the Trial Court were perverse and arbitrary. The court after hearing into the submissions of both the parties observed that Appellate Court has the power to review the evidence in appeal against acquittal and even to reappreciate the entire evidence. It can consider both facts as well as law. However, there has to be some substantial and compelling reason for the Appellate Court for holding the view of the Trial Court as wrong. The Session’s court did resort to a reappreciation of the evidence which he was entitled to but has either overlooked the discrepancies pointed out by the Trial Court or has not noticed the reasoning resorted to by it. It was confirmed by the Trial court that there was no unlawful assembly and the assault was not carried out in furtherance of any common object. While appreciating the evidence and pointing out the perversity in the reasoning assigned by the Trial Court he correctly observed that Shiladidi (P.W.1) and Rajesh (P.W.2) had described the latter having received an injury to head but their such description being that of laymen, and when Dr. Agrawal (P.W. 4) in his Injury certificate (Exh. 40) has stated that Rajesh (P.W. 2) had sustained couple of injuries on the forehead which is nothing but a part of head as commonly understood, the learned Judge of the Trial Court ought to have borne in mind this fact which he had miserably failed. Therefore to this extent I do not find any perversity or illegality in the conclusion drawn by the Sessions Court. As regards to the Second incident the Sessions Court has clearly overlooked the fact that Komal (P.W. 7) herself has not attributed the act of pulling of her Odhani to any specific individual accused. Whereas, Nayana (P.W. 3) attributes it to accused Baban. Such a discrepancy pointed out by the Trial Court has not at all been considered by the learned Judge of the Sessions Court. It was indeed a material discrepancy pointed out by the Trial Court which ought to have been considered and reappreciated in appeal against acquittal.

CrRevn 28 11.odt IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL REVISION APPLICATION NO. 28 OF 2011 1) Baban s o Ramchandra Godge Age 24 years Occ. Agriculture R o. Gavali Mohalla Jalna Tq. & Dist. Jalna 2) Ganesh Ramchandra Godge Age 34 years Occ. Agriculture R o. Gavali Mohalla Jalna Tq. & Dist. Jalna 1) The State of Maharashtra Shiladidi Rajkumar Kapur Age 50 years Occ. Social Work Household R o. Ganpati Galli Old Jalna Dist. Jalna Pintu @ Satish s o Ramchandra Godge Age 21 years Occ. Agriculture R o. Gavali Mohalla Jalna Tq. & Dist. Jalna … Respondents. Advocate for the Applicants : Mr. Sudarshan J. Salunke APP for the Respondent No. 1 State : Mrs. R.P. Gaur Senior Counsel for Respondent No. 2 : Mr. V.D. Sapkal MANGESH S. PATIL J RESERVED ON DECIDED ON JUDGMENT : This is a Revision under Section 397 read with Section 401 of the Code of Criminal Procedure by the original accused who were acquitted by the Trial Court but by the impugned judgment and order convicted by the CrRevn 28 11.odt learned Sessions Judge in an Appeal against acquittal whereby they have been sentenced to suffer rigorous imprisonment for six months under Section 324 read with Section 34 of the Indian Penal Code rigorous imprisonment for three months under Section 354 read with Section 34 of the Indian Penal Code and rigorous imprisonment for six months under Section 452 read with Section 34 of the Indian Penal Code and in addition to pay fine of Rs. 200 on each count. The allegations of the prosecution initiated by Shiladidiby filing F.I.R.are to the effect that she along with her brother Rajesh P.W. 2) was proceeding on a motorcycle for fetching milk on 26.04.2004 at about 10.30 p.m. The applicantsalong with three more persons accosted their motorcycle. They were carrying sticks spade and axe. By threatening to withdraw the complaint filed by them against these accused persons the latter assaulted Rajeshcausing bleeding injuries. When a hue and cry was raised and some one reported the incident to his sister Komaland wife NayanaKomalrushed to the spot to rescue her brother. However the accused chased her down and reached the house of Rajeshby pulling her Odhani The incident was reported to police within an hour. Rajeshboth were referred for medical aid with reference lettersexamined Rajeshat about 11.10 p.m. and noticed a C.L.W. over forehead on the left side abrasion over right side of the forehead and an abrasion each over the right elbow and right knee. He accordingly issued Injury certificateexamined Shiladidiand noticed that she was having contusion over right hand second metacarpal and right forearm. Accordingly he issued Injury certificate received the F.I.R. and registered the crime. The investigation was carried out by one P.S.I. Madar. A spot panchnama CrRevn 28 11.odt Exh. 44) of the house of Rajesh was conducted in presence of panch Nanduhad in fact molested a woman from the accused’s family and was therefore implicated in a Crime and the accused are being implicated with an ulterior motive The learned Chief Judicial Magistrate acquitted the accused. The judgment and order of acquittal was challenged by the State before the Sessions Court and by the impugned judgment and order the accused have been convicted and sentenced as mentioned herein above. It is pertinent to note that the Sessions Court however concluded that the prosecution had failed to prove that the offence was committed by forming an unlawful assembly and in furtherance of the common object of any such assembly This is how the present Revision The learned advocate for the accused would vehemently submit that the prosecution had miserably failed to bring home the charge. The Trial Court had taken a plausible view. It had given sufficient and cogent reasons pointing out to the discrepancies and shortcomings in the prosecution evidence. Without there being any perversity or arbitrariness the Sessions Court ought to not have interfered in the appeal against acquittal. He would submit that the parameters for exercising the powers to reverse an acquittal have been reiterated by the Supreme Court time and again as succinctly culled down in Mahtab Singh and Anr Vs. State of U.P. A.I.R 2009 Supreme Court 2298. Merely because another view was possible the Sessions Court ought not to have substituted its view in place of the one expressed by the Trial Court which was well founded. The learned advocate would further submit that merely because the Trial Court had erred in some CrRevn 28 11.odt respect and has at times been even perverse was not sufficient for the Sessions Court to reverse the acquittal. The ultimate conclusion drawn by the Trial Court was unassailable and should not have been interfered with while exercising a limited jurisdiction The learned advocate Mr. Salunke for the accused would further submit that the inferences drawn by the Sessions Court in the impugned judgment are based on surmises and conjectures. It has blatantly overlooked the contradictions and inconsistencies as well as improbabilities referred to and pointed out by the Trial court. There was no reason to set aside the acquittal The learned A.P.P. and the learned advocate for the respondent No.2 would support the impugned judgment and order. They submit that the observations and conclusions of the Trial Court were perverse and arbitrary The Sessions Court has pointed out such perversity in appreciation of evidence and has rightly interfered with and reversed the judgment of I have carefully gone through the judgments of the two Courts below and the record and proceeding and considered the rival submissions. Since this Revision arises out of a judgment and order reversing the acquittal it would be appropriate to bear in mind the principles which govern the powers of the Appellate Court in reversing an acquittal. Suffice for the purpose to refer to the decision in the case of Mahtab Singh10 SCC 450 “1. The appellate court may review the evidence in CrRevn 28 11.odt appeals against acquittal under Sections 378 and 386 of the Criminal Procedure Code 1973. Its power of reviewing evidence is wide and the appellate court can reappreciate the entire evidence on record. It can review the trial Court’s conclusion with respect to both facts and The accused is presumed innocent until proven guilty. The accused possessed this presumption when he was before the trial court. The trial court’s acquittal bolsters the presumption that he is innocent Due or proper weight and consideration must be given to the trial court’s decision. This is especially true when a witness’ credibility is at issue. It is not enough for the High Court to take a different view of the evidence. There must also be substantial and compelling reasons for holding that the trial court was wrong.” A careful perusal of these principles would clearly set out that the Appellate Court has the power to review the evidence in appeal against acquittal and even to reappreciate the entire evidence. It can consider both facts as well as law. However there has to be some substantial and compelling reason for the Appellate Court for holding the view of the Trial Court as wrong. Bearing in mind these principles let us scrutinize the matter in hand objectively. The Trial Court has refused to rely upon the testimonies of the prosecution witnesses particularly informant Shiladidi Rajesh P.W.2) Nayana and Komal and Rajeshlodged by Shiladidiis absolutely CrRevn 28 11.odt silent about any assault on her. For the first time in her testimony Shiladidideposed about even assault on her Shiladidi and Rajesh state about accused Ganesh having given a blow of spade on the head of Rajesh P.W.2) and do not state about any other injury. However his Injury certificatementions about he having sustained iii) Though Shiladidi and Rajesh allege about Rajeshhaving been hit on head the injuries mentioned in Injury certificate do not demonstrate any injury on If Shiladidi and Rajesh had gone to the police station simultaneously and were referred for medical examination with letterssimultaneously there was no reason why Rajeshwas examined at around 11.10 p.m. Shiladidiwas examined at 1.15 a.m Though these two persons are alleged to have sustained injuries simultaneously the age of injuries mentioned in the Injury certificatesare quite contradictory in as much as the injuries sustained by Rajeshare stated to have been caused within two hours whereas those caused to Shiladidi P.W.1) were within 24 hours vi) Though the prosecution has examined Nanduonly a panchnama of the spot inside the house of Rajesh P.W. 2) was got proved from him and though he is a panch even on the seizure panchnama of the weapons that has not been duly CrRevn 28 11.odt As far as second episode is concerned the Trial Court has given following reasons to disbelieve prosecution witnesses Nayna and Komalwho happens to be the wife of Rajeshhad heard the occurrence of the first episode but her behaviour of not rushing to the spot is improbable Komaldoes not attribute the act of pulling of her Odhani to any specific accused and she vaguely states about accused persons pulled her Odhani. Nayanaattributes it to accused Baban. In addition to these reasons the Trial Court has also made a passing reference that the prosecution has examined Police Head Constable Mandlik who had merely received the F.I.R.and registered the offence but the investigation was carried out by P.S.I. Madar and who has not been examined as a witness If one examines the reasoning resorted to by the learned Judge of the Sessions Court he did resort to reappreciation of the evidence which he was entitled to but has either overlooked the discrepancies pointed out by the Trial Court or has not noticed the reasoning resorted to by it. Pertinently he in a way confirmed the finding of the Trial Court that there was no unlawful assembly and the assault was not carried out in furtherance of any common object. While appreciating the evidence and pointing out the perversity in the reasoning assigned by the Trial Court he correctly observed that Shiladidiand Rajeshhad described the latter having received an injury to head but their such description being that of laymen and when Dr. Agrawalin his Injury certificatehas stated that Rajesh P.W. 2) had sustained couple of injuries on the forehead which is nothing but a part of head as commonly understood the learned Judge of the Trial Court ought to have borne in mind this fact which he had miserably failed CrRevn 28 11.odt to. Therefore to this extent I do not find any perversity or illegality in the conclusion drawn by the Sessions Court 13. However according to the learned Judge of the Sessions Court the Trial Court had erred in giving unnecessary importance to the omissions of material facts in the F.I.R. by observing that in the process the Trial Court had ignored that the F.I.R. was lodged promptly and it is not supposed to be an encyclopedia. True it is that the F.I.R. was lodged promptly and it is equally trite that an F.I.R. is not expected to be an encyclopedia. However the observation and conclusion of the Trial Court that the F.I.R.(Exh. 31) is absolutely silent about any injury having been sustained by Shiladidicoupled with the fact that the self same Medical Officer Dr. Agrawal has given age of injuries sustained by these two witnesses with a difference of about 22 hours are the facts and circumstances which would clearly demonstrate that the learned Judge of the Trial Court was not wholly incorrect in appreciating these circumstances which create a doubt about the veracity of the injuries sustained by Shiladidido not tally with the number of injuries noticed by Dr. Agrawalwas equally based on plausible appreciation As far as the evidence regarding the second episode is concerned the learned Judge of the Sessions Court has clearly overlooked the fact that Komalherself has not attributed the act of pulling of her Odhani to any specific individual accused. Whereas Nayana attributes it to accused Baban. Such a discrepancy pointed out by the Trial Court has not at all been considered by the learned Judge of the Sessions Court. It was CrRevn 28 11.odt indeed a material discrepancy pointed out by the Trial Court which ought to have been considered and reappreciated in appeal against acquittal So far as failure on the part of the prosecution to prove the seizure of weapons the learned Judge of the Appellate Court seems to have been convinced by the fact that the fact of seizing of weapons to which Nanduwas witness was a mere lapse and an attempt was made by the prosecution to recall him which opportunity was not extended to it by the Trial Court when it rejected refused its request. The fact remains that the seizure of weapons has not been duly established by the prosecution which finding of the Trial Court was clearly unassailable All these aforementioned facts and circumstances would clearly indicate that assuming that another view was possible to be taken the learned Judge of the Sessions Court was not entitled to reverse the judgment of acquittal returned by the Trial Court with the plausible reasoning Since by the impugned judgment and order the accused persons have been convicted and therefore if the reasoning given by the Sessions Court is to be scrutinized objectively by reappreciation of evidence for a limited purpose it is quite conspicuous that in spite of even a specific testimony of Komal about her Odhani having been pulled she has not even whispered about such pulling of Odhani was with some intention to molest her. If the accused persons were chasing her and in the process one of them had pulled her Odhani there has to be something more to establish and attribute an intention on their part to molest her. The learned Judge of the Sessions Court does not seem to have objectively scrutinized her evidence before concluding that such pulling of Odhani constituted molestation and convicting the accused for an offence punishable under Section 354 of the Indian Penal Code The upshot of the discussion is that though the learned Judge of the Sessions Court has rightly decided to review and reappreciate the entire CrRevn 28 11.odt evidence there was no sufficient and cogent reason which would have entitled him to reverse the plausible finding of the Trial Court. Merely because he was entitled to take a different view it was not sufficient for him to topple the judgment of the Trial Court. Besides even such reappreciation of evidence by him is not sustainable as is demonstrated herein above Resultantly the impugned judgment and order is liable to be quashed and the one passed by the Trial Court deserves to be restored Apart from the above state of affairs it needs to be noted before parting that during pendency of this Revision a dispute was raised as to the juvenility of accused No. 3 Pintu @ Satish. An enquiry was directed under Section 7of the Juvenile JusticeAct 2000 and Rule 12 of the Rules framed under that Act. As a result of such direction the learned Chief Judicial Magistrate has conducted the enquiry and has submitted a report to the effect that he was aged 17 years 07 months and 26 days on the date of the incident and consequently was a juvenile in conflict with law. Therefore irrespective of the impugned judgment and order the accused No. 3 Pintu @ Satish cannot be convicted and sentenced. The Revision is allowed The impugned judgment and order of the Sessions Court is quashed and set aside and the one passed by the Trial Court is restored Fine amount deposited if any shall be refunded. (MANGESH S. PATIL J

“Respondent provided the toll free helpline numbers launched by SEBI to facilitate replies to various queries of the general public on matters related to securities market.”: SEBI, Part 2.

On perusal of the query, it was noted that the appellant had sought information regarding the timeline for transfer of shares from Karvy to J M Financial account. It was also found that the same is in the nature of eliciting a clarification or opinion regarding a future event, which cannot be construed as an information available on record. It was 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. Appellate Authority found that the said query cannot be construed as seeking ‘information’ as defined under section 2 (f) of the RTI Act. Consequently, the respondent did not have an obligation to provide such clarification under the RTI Act. In this context, reference is made to the matter of Vineet Pandey vs. CPIO, United India Insurance Company Limited (Judgment dated January 21, 2021), wherein similar observations were made by the Hon’ble CIC. Further, it also appears that the appellant has grievance regarding transfer/payment of money back into his account after filing closure form. In this context, Mr Baiwar noted that the Hon’ble CIC, in plethora of decisions including Shri Vikram Singh v. Delhi Police, North East District, (CIC/SS/A/2011/001615 dated February 17, 2012), Sh. Triveni Prasad Bahuguna v. LIC of India, Lucknow (CIC/DS/A/2012/000906 dated September 06, 2012) and Mr. H.K. Bansal v. CPIO & GM (OP), MTNL (CIC/LS/A/2011/000982/BS/1786 dated January 29, 2013), has held that the Right to Information Act, 2005 is not the proper law for redressal of grievances/disputes. 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 Right to Information Act, 2005. Notwithstanding the above, it was found that the respondent has adequately guided the appellant to refer to the SCORES website for lodging any grievance and also provided helpline service numbers launched by SEBI, to facilitate replies to various queries of the general public on matters relating to securities market. Appellate Authority also found that the application has been adequately addressed by the respondent. Accordingly, Mr Baiwar did not find any deficiency in the response.

Appeal No. 43621 BEFORE THE APPELLATE AUTHORITY Under the Right to Information Act 2005) SECURITIES AND EXCHANGE BOARD OF INDIA Appeal No. 43621 Anang Manubhai Shah CPIO SEBI Mumbai The appellant had filed an application dated June 19 2021 under the Right to Information Act 2005 of RTI Act. The respondent also provided information regarding lodging and tracking the status of complaints online. Further the respondent also provided the toll free helpline numbers launched by SEBI to facilitate replies to various queries of the general public on matters related to securities market. In addition to the same the appellant was also advised to refer to FAQs available on the SEBI website. 4. Ground of appeal The appellant has filed the appeal on the ground that access to the requested information was refused. The appellant in his appeal inter alia submitted that he had sought the timeline for getting money back into his account after filing the closure form. Appeal No. 43621 5. On perusal of the query I note that the appellant had sought information regarding the timeline for transfer of shares from Karvy to J M Financial account. I find that the same is in the nature of eliciting a clarification or opinion regarding a future event which cannot be construed as an information available on record. 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 query cannot be construed as seeking ‘information’ as defined under section 2 of the RTI Act. Consequently the respondent did not have an obligation to provide such clarification under the RTI Act. In this context reference is made to the matter of Vineet Pandey vs. CPIO United India Insurance Company Limited wherein similar observations were made by the Hon’ble CIC. Further it also appears that the appellant has grievance regarding transfer payment of money back into his account after filing closure form. In this context I note that the Hon’ble CIC in plethora of decisions including Shri Vikram Singh v. Delhi Police North East District Sh. Triveni Prasad Bahuguna v. LIC of India Lucknow and Mr. H.K. Bansal v. CPIO & GMMTNLhas held that the RTI Act 2005 is not the proper law for redressal of grievances disputes. 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. 7. Notwithstanding the above I find that the respondent has adequately guided the appellant to refer to the SCORES website for lodging any grievance and also provided helpline service numbers launched by SEBI to facilitate replies to various queries of the general public on matters relating to securities market. I find that the application has been adequately addressed by the respondent. 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 02 2021 ANAND BAIWAR APPELLATE AUTHORITY UNDER THE RTI ACT SECURITIES AND EXCHANGE BOARD OF INDIA

Nature of suit remains unaltered even if the plaint is amended: Madras High Court

A civil revision petition filed under Order VI rule 17 seeking to amend the plaint does not dismiss the petition and the nature remains unaltered. This was upheld by the Hon’ble Mr. Justice A.D Jagadish Chandirawhere he said, “This Court is of the opinion that by amending the plaint, the nature of the suit will not be altered. However, the respondents/defendants have to be given an opportunity to file additional written statement” in Prabavathi V. R. Raghu [CRP(PD)No.3867 of 2016]. The brief facts of the case are, the plaintiff filed a suit to get a permanent injunction against the defendant to prevent him from interfering the plaintiff’s enjoyment and possession of the suit property. The defendants filed a counter suit claiming that the plaintiff had filed a vexatious suit to defeat the right of the defendants. At this stage, the plaintiff filed a petition seeking to amend the plaint stating that during the pendency of the suit, the defendants had trespassed into the property. However, the trial judge dismissed the petition on the ground of lack of evidence to support the trespass. Aggrieved by this, the petitioner filed a civil revision petition. The counsel for the petitioner submitted that the petitioner can submit evidence in support of his claim of trespass and the trial judge had wrongly dismissed the petition and asks the court to set aside the order of the trial court and permit the petitioner to amend the plaint.

CRP.PD.No.38616IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 22.06.2021CORAM :THE HONOURABLE MR.JUSTICE A.D.JAGADISH CHANDIRA CRP(PD)No.38616and CMP No.196716Prabavathi... petitionerVs.1. R.Raghu2. P.Sivakumar... RespondentsPRAYER: Civil Revision Petition filed under Article 227 of the Constitution of India to set aside the fair and decreetal order dated 02.11.2016 in IA.No.1416 in OS.No.515 on the file of the District Munsif Sholinghur.For Petitioner: Mr.A.GowthamanFor Respondents :Mr.G.Poonkundran for R1.No appearance for R2.O R D E R(This case has been heard through video conference)This civil revision petition has been filed seeking to set aside the order and decree dated 02.11.2016 made in IA.No.1416 in OS.No.515 on the file of the District Munsif Sholinghur.1 8 https: www.mhc.tn.gov.in judis CRP.PD.No.386162. The brief facts : The petitioner is the plaintiff in OS.No.515 pending on the file of the District Munsif Sholinghur. The suit has been filed by the petitioner plaintiff seeking to declare the plaintiff s right and title over the plaint schedule properties and to grant permanent injunction against the defendants their men agents and servants restraining them from in any way interfering with plaintiff s possession and enjoyment of the suit property. The respondents defendants had filed counter denying the averments and the respondents defendants had stated that the item Nos.1 and 2 in the suit schedule properties were purchased by the defendants father Rangasamy Naidu vide sale deed dated 05.12.1985 and thereafter his father had during the year 2013 settled it in favour of the respondents defendants and that the petitioner who is aware of all the proceedings had filed vexatious suit to defeat the right of the defendants. At that stage the petitioner plaintiff had filed petition under Order VI Rule 17 seeking to amend the plaint stating that during the pendency of the suit the respondents defendants had trespassed into the property on 08.05.2016 thereby the amendment was sought for seeking the relief of recovery of possession of the first item of the plaint schedule property. 2 8 https: www.mhc.tn.gov.in judis CRP.PD.No.38616The petitioner plaintiff had also filed necessary Court fees for the same and stated that the petition filed under Order VI Rule 17 did not alter the nature of the suit. However by an impugned order dated 02.11.2016 the trial judge finding that no evidence has been let in by the petitioner plaintiff to prove that the respondents defendants had trespassed into the property on 08.05.2016 had dismissed the petition against which the present civil revision has been filed.3. The learned counsel for the petitioner would submit that the petitioner was in possession of the property and since the respondent interfered the petitioner had filed the suit seeking to declare the plaintiff s right and title over the property and for permanent injunction against the defendants. Whereas during the pendency of the suit the respondents defendants trespassed into the property warranting the petitioner to file petition under Order VI Rule 17 to amend the plaint seeking for recovery of possession. Only due to the encroachment by the respondents defendants during the pendency of the suit the petitioner was compelled to file the petition. Whereas the trial judge on a wrong premises stating that no materials had been furnished by the petitioner to 3 8 https: www.mhc.tn.gov.in judis CRP.PD.No.38616prove that the petitioner was in possession earlier and that nothing had been filed to prove that the respondent had trespassed into the property on 08.05.2016 had dismissed the petition. The petition does not alter the nature of the suit and ultimately in the event of the petitioner succeeding the suit the petitioner has to obviously file a petition for recovery of possession. Only in order to avoid multiplicity of proceedings the petitioner plaintiff had filed the present petition. The petitioner will be able to let in evidence in the course of trial whereas the trial judge had erroneously held that the petitioner had not let in any evidence thereby he would seek to set aside the order of the trial Court and permit the petitioner plaintiff to amend the plaint.4. Mr.G.Poonkundran the learned counsel appearing for the first respondent would submit that the suit itself is a vexatious suit to harass the respondents. The plaintiff was never in possession of the property. The respondents family was in possession right from the year 1985 when it was purchased by the father of the first respondent s and thereafter the father of the first respondent had settled it in his favour during the year 2013. Whereas the petitioner had falsely averred as if the 4 8 https: www.mhc.tn.gov.in judis CRP.PD.No.38616respondents have trespassed into the property on 18.05.2016. The trial judge rightly finding that no evidence has been furnished by the petitioner plaintiff to prove that she was in possession earlier and that the respondents had trespassed into the property on 18.05.2016 had rightly dismissed the petition seeking amendment.5. The learned counsel would reiterate that the petition itself is nothing but an abuse of process of law to delay and protract the proceedings. Knowing fully well that the petitioner plaintiff will not succeed in the suit has filed the petition to delay the proceedings. Further after the dismissal of the petition the trial has commenced. 6. In reply the learned counsel for the petitioner would submit that the petitioner had immediately filed the revision and that the amendment of plaint will not alter the nature of the suit.7. Heard the counsels and perused the impugned order and materials on record.5 8 https: www.mhc.tn.gov.in judis CRP.PD.No.386168. The petition seeking to amend the plaint has been filed even before the commencement of trial. The petitioner had paid necessary Court fee. Even if the petitioner had not been in possession earlier when the suit for declaration has been filed the consequential prayer would have to seek for recovery of possession. This Court is of the opinion that by amending the plaint the nature of the suit will not be altered. However the respondents defendants have to be given an opportunity to file additional written statement and the petitioner plaintiff is bound to prove that the respondents defendants trespassed into the property on 08.05.2016 by letting in evidence.9. In view of the above the civil revision petition stands allowed. The order dated 02.11.2016 made in IA.No.1416 in OS.No.515 on the file of the District Munsif Sholinghur stands set aside. The amendment is ordered in IA.No.1416 in OS.No.515. The respondent is entitled to file additional written statement if necessary based on which the trial Court shall proceed in accordance with law after framing additional issues. Since the suit is of the year the trial Court shall give priority to the same and see that the 6 8 https: www.mhc.tn.gov.in judis CRP.PD.No.38616suit is disposed of within a period of nine months from the date of receipt of a copy of this order. No costs. Consequently connected miscellaneous petition is closed.22.06.2021.tshToThe District Munsif Sholinghur.7 8 https: www.mhc.tn.gov.in judis CRP.PD.No.38616A.D. JAGADISH CHANDIRA J. tshCRP(PD)No.38616 andCMP No.19671622.06.2021.8 8

The testimony of the victim was neither trustworthy nor unblemished in view of the Under Section 164 Cr.P.C. statement and her deposition in Court: High court of Sikkim

The testimony of the victim was neither trustworthy nor unblemished in view of the contradictions which appear in her Section 164 Cr.P.C. statement and her deposition in Court. The Evidence and P.W.12 do not support the evidence of P.W.1 thereby indicating that her testimony is a concocted story, and the same issue was held in the judgement passed by a division bench judge Hon’ble MRS. JUSTICE MEENAKSHI MADAN RAI, THE HON’BLE MR. JUSTICE BHASKAR RAJ PRADHAN, JUDGE. In the matter Sanjib Rai and others versus  State of Sikkim [Crl. A. No.13 of 2020  ] dealt with an issue mentioned above. Both Appellants No.1 and 2 (for short, A1 and A2) herein were convicted vide impugned Judgment dated 22-10-2020 in Sessions Trial (POCSO) Case No.05 of 2019, under Section 376 of the Indian Penal Code, 1860 (for short “IPC”) and sentenced to undergo imprisonment for 10 (ten) years, each, with fine of Rs.500/- (Rupees five hundred) only, each, and default clauses of imprisonment, vide impugned Order on Sentence dated 23-10- 2020, for sexually assaulting the victim. Learned Counsel for the Appellants put forth the arguments before this Court that it was the victim who had voluntarily gone to the place of residence of A1 and A2 and also voluntarily spent nights therein. The testimony of the victim was neither trustworthy nor unblemished in view of the contradictions which appear in her Section 164 Cr.P.C. statement and her deposition in Court. The Evidence of P.W.5 and P.W.12 does not support the evidence of P.W.1 thereby indicating that her testimony is a concocted story. The court perused the facts and arguments presented in the case On the anvil of all the discussions that have emanated above, it thus falls to conclude that no proof whatsoever was furnished by the Prosecution to establish that offence of rape was committed by A1 and A2 on the victim, P.W.1. The acts are evidently consensual.

THE HIGH COURT OF SIKKIM : GANGTOK Criminal Appeal Jurisdiction) DATED : 16th December 2021 DIVISION BENCH : THE HON’BLE MRS. JUSTICE MEENAKSHI MADAN RAI JUDGE THE HON’BLE MR. JUSTICE BHASKAR RAJ PRADHAN JUDGE Crl.A. No.120 Appellants Sanjib Rai and Another versus Respondent State of Sikkim Appeal under Section 374(2) of the Code of Criminal Procedure 1973 Appearance Mr. Sunil Baraily Advocate for the Mr. Yadev Sharma Additional Public Prosecutor for the State JUDGMENT Meenakshi Madan Rai J. Both Appellants No.1 and 2 herein were convicted vide impugned Judgment dated 22 10 2020 in Sessions TrialCase No.019 under Section 376 of the Indian Penal Code 1860and sentenced to undergo imprisonment for 10 years each with fine of Rs.500 only each and default clauses of imprisonment vide impugned Order on Sentence dated 23 10 2020 for sexually assaulting the victim. The Prosecution case as it unfolds is that on 13 09 2019 source information was received at the Police Station that the minor girl was missing from her home from 11 09 2019 which had remained unreported. The Investigating OfficerP.W.13 visited her parents to request them to lodge a First Information Crl.A. No.120 2 Sanjib Rai and Another vs. State of Sikkim Reportwas intimated about the situation and P.W.1 handed over to her for counselling during which P.W.1 revealed to P.W.2 that she had been with A1 for two days and had been sexually assaulted by him. On such revelation P.W.2 lodged the FIR Exhibit 4 on 13 09 2019. Investigation revealed that on 11 09 2019 at around 0900 hours the victim after school returned home changed her clothes and went to the residence of A1 as they were already in a relationship. She stayed the night at his residence where he sexually assaulted her multiple times. The next morning on 12 09 2019 A1 locked the victim in his room and left for work. On his return from work he again sexually assaulted her and on the morning of 13 09 2019 he asked her to return home while he went to work. The victim then came out of the room and was traced by the Police personnel and brought to the Police Station. Further investigation revealed that in July 2019 the victim had met A2 and had a relationship with him. A2 also lived in the same place structure with A1 but in a separate room. That in July 2019 he too sexually assaulted the victim several times and in August the same year she came to learn that she was pregnant upon which he gave her medication for termination of the pregnancy. Thereafter due to problems at his work place he returned to his home town and severed all contact with the victim. While attempting to trace out A2 she allegedly met A1 which led to their relationship. During the course of investigation the victim Crl.A. No.120 3 Sanjib Rai and Another vs. State of Sikkim was also medically examined by Dr. Dawa Dolma Bhutia P.W.10. On completion of investigation on finding prima facie materials against both A1 and A2 Charge Sheet was submitted before the Learned Court of the Chief Judicial Magistrate under Section 376 of the IPC read with Section 6 of the Protection of Children from Sexual Offences Act 2012North Sikkim at Mangan. The Learned Trial Court on receiving the File on committal framed Charge against A1 under Section 5(l) of the POCSO Act punishable under Section 6 of the POCSO Act and against A2 under Sections 5(l) and 5(j)(ii) punishable under Section 6 of the POCSO Act. Both A1 and A2 took the plea of “not guilty” to the Charges upon which the trial commenced. The Prosecution examined 14witnesses to establish its case. On closure of Prosecution evidence both the Appellants were examined individually under Section 313 of the Code of Criminal Procedure 1973 and their responses recorded. They had no witness to examine. The Learned Trial Court took up three points for determination Whether the Prosecutrix was a minor at the time incident Whether A1 committed penetrative sexual assault rape on the Prosecutrix at the place with effect from 11 09 2019 to 13 09 2019 Whether A2 committed penetrative sexual assault rape on the Prosecutrix at his place in July 2019 multiple times and in consequence of same she became pregnant Crl.A. No.120 4 Sanjib Rai and Another vs. State of Sikkim and compelled her to terminate it On the first point the Learned Trial Court concluded that Exhibit 3 the victim‟s Birth Certificate issued by the Registrar Births and Deaths North Sikkim and handed over to the Police by her parents and Exhibit 10 Report issued by the School Authority could not be relied on to prove her date of birth on grounds that the contents of the documents were not proved by the Prosecution. While considering points No.2 and 3 it was concluded that in view of the inability of the Prosecution to prove the victim‟s age and consequently her minority the charges framed under Section 5(l) of the POCSO Act against A1 and Section 5(l) and 5(j)(ii) of the POCSO Act against A2 were not applicable. They were acquitted of these charges but it was found that nevertheless both A1 and A2 had committed the offence of rape against the Prosecutrix. On due consideration of the evidence on record the Learned Trial Court found both A1 and A2 guilty of the offence under Section 375 of the IPC punishable under Section 376 of the IPC and convicted and sentenced them as reflected supra. Learned Counsel for the Appellants put forth the arguments before this Court that it was the victim who had voluntarily gone to the place of residence of A1 and A2 and also voluntarily spent nights therein. The testimony of the victim was neither trustworthy nor unblemished in view of the contradictions which appear in her Section 164 Cr.P.C. statement and her deposition in Court. The Evidence of P.W.5 and P.W.12 do not support the evidence of P.W.1 thereby indicating that her testimony is a concocted story. That in her Section 164 Cr.P.C. statement she has made no mention of A2 or of having been Crl.A. No.120 5 Sanjib Rai and Another vs. State of Sikkim sexually assaulted by him but before the Learned Trial Court she had made an effort to falsely implicate him. The evidence of P.W.1 is unbelievable also for the reason that there was only one door for entry into the place of residence of A1 and A2 and she herself has testified that every room in that place was occupied. She could well have raised an alarm to obtain the assistance of the occupants in the event that she was raped but her evidence reveals no such attempts leading to a conclusion that the acts with A1 and A2 were consensual. The I.O. has failed to investigate and identify the person who allegedly came to open the door of the room where she was allegedly confined by A1 raising doubt about her version and the Prosecution case. The Doctor‟s evidence reveals that there were no injuries on the person of the victim nor did she opine that the victim was forcibly sexually assaulted by any of the Appellants. No blood or semen was detected on M.O.I the quilt forwarded for forensic tests. The Prosecution case has thus no legs to stand the impugned Judgment and Order on Sentence be set aside and the Appeal dismissed. Per contra Learned Additional Public Prosecutor submits that the statement given by P.W.1 in her Section 164 Cr.P.C. is duly corroborated by her in her evidence before the Court. However he fairly conceded that there was no evidence whatsoever on record to establish that she had been forcefully compelled or was taken forcibly by any of the Appellants and raped. examined carefully. Learned Counsel for the parties were heard in extenso and the entire evidence on record as well as the documents Crl.A. No.120 6 Sanjib Rai and Another vs. State of Sikkim The questions that arise for determination by this Court are i) Whether the Learned Trial Court has correctly arrived at the finding that the offence under the POCSO Act was not applicable to the Appellants andWhether they were individually guilty of the offence under Section 376 of the IPC of which they were convicted. While addressing the first question it is pertinent to mention at the outset that the Learned Trial Court concluded that there was no proof furnished by the Prosecution that the victim was a minor as the contents of Exhibit 3 her Birth Certificate and Exhibit 10 the report given by P.W.7 went unproved. This finding of the Learned Trial Court was not assailed by the State Respondent and hence has attained finality. There is thus no requirement to further examine this aspect of the Prosecution case. Accordingly the finding of the Learned Trial Court warrants no interference. Now to consider the second question flagged Section 375 of the IPC deals with the offence of rape while Section 376 of the IPC provides for the penalty for rape. The offence committed by the Appellants would fall within the ambit of Section 376(2)(n) of the IPC viz. commits rape repeatedly on the same woman. They would thus be liable to be punished for imprisonment for a term which shall not be less than 10 years but may extend to imprisonment for life which shall mean imprisonment for the remainder of that person‟s natural life and shall also be liable to fine. P.W.2 is an Outreach Worker of the DCPU North Sikkim and admittedly not a Counsellor. Nevertheless the Police required her to appear at the Police Station to counsel the victim. Crl.A. No.120 7 Sanjib Rai and Another vs. State of Sikkim On disclosure by the victim that shehad been subjected to sexual assault P.W.2 lodged Exhibit 4 at the Police Station. It is trite to mention that there were no eye witnesses to the alleged offences. The only evidence that can be relied on is that of the victim consequently it would be essential to examine her evidence in its entirety to assess its veracity and whether it passes the test of being of sterling quality. According to P.W.1 in the month of May 2019 she met A2 at a place in North Sikkim where although he sought her mobile number she did not share it with him. The following day A2 invited her to the same place where she went accompanied by her cousin and friend. Three days later she was again called by A2 to the same place and thereafter taken to his place under compulsion where she went accompanied again by one „didi‟ and cousin. On reaching the place at around 7 p.m. they found A2 had one room and she was taken alone inside the same room. Her cousin and her „didi’ remained in the room of A1. In the room of A2 he forcibly undressed her and committed penetrative sexual assault on her. Following this incident he again took her 3 4 times to his room and repeatedly sexually assaulted her. At that time she was unaware that A2 was a married man. After three days of the sexual assault she did a home pregnancy test and found that she had conceived. She shared the information with A2 who suggested that she take medicines for termination of pregnancy but did not bring the medicines for her. Later she herself purchased it and took it. A2 after commission of the offence fled from the place after which she was unable to contact him. That one day her father being angry on some issue beat her up she left Crl.A. No.120 8 Sanjib Rai and Another vs. State of Sikkim her home and went to look for her sister in the place of A1 as her sister was his girlfriend. The room of A1 is located in the same place as that of A2. A1 come out of his room took her there and made her rest on the plea that it was raining outside. He also made a bed for her and he himself decided to sleep on the floor. During the night he came to her bed undressed her and committed penetrative sexual assault. She stayed for two days in the room of A1 who locked her from outside. On finding the door locked she knocked on it and one „uncle‟ came and unlocked the door for her. She then went to the house of one „didi’ located close to the place of A1 where her brother came and took her in the Police vehicle to the Mangan Police Station. At the Police Station her two sisters and A1 were present. She was taken to the Mangan District Hospital and medically examined by the Doctor. The Police also recorded her statement as did one „Sir‟ in the Court building. She identified Exhibit 1 in three pages as the preliminary questions put to her by the said „Sir‟ and Exhibit 2 as the said statement given to him by her upon which she also affixed her thumb impression. Her cross examination elicited the fact that one Bhim Anup and Vten used to also reside in the same place which had several rooms but only one entrance. She admitted having visited the place of the said three persons. It was her further admission that in all the rooms of the place where A1 and A2 resided there were occupants at the relevant time. That after the alleged incident with A1 she went to the house of her sister and not to the Police Station. The evidence of P.W.1 nowhere indicates that she was forcefully taken to the room of either A1 or A2. Her evidence also Crl.A. No.120 9 Sanjib Rai and Another vs. State of Sikkim reveals that after she met A2 she went to his place accompanied by her cousin and friend repeatedly. Admittedly when she was allegedly being raped in the room by A2 her cousin and sister were in the room of A1. It is surprising that neither did her cousin and sister make an effort to find out why she was with A2 alone in his room for so long and she herself made no attempt to seek their help either during such a traumatic experience or after it. It is not the Prosecution case that after the alleged incident with A1 and A2 P.W.1 even made an effort to report the incident to the Police Station. How the question of compulsion by A2 arises is perplexing as three of them have gone with A2 to accompany him to his house without qualms sans use of force. She went into the room of A2 without demur no shouts for help were heard neither is it her case that she was dragged by A2 to his room. Her evidence therefore fails to inspire the confidence of this Court. Admittedly there is only one entrance to the house with several rooms allocated to different persons and the rooms are occupied at any given time by the residents as appears from the evidence of P.W.1 and the I.O. Anyone would therefore have heard the victim provided she had raised a cry for help which evidently she did not. It is also unbelievable that after being sexually assaulted by A2 and on conducting a Urine Test after three days of the incident she found herself pregnant this defies science and her allegation appears to be too far fetched to be believable. The allegation against A1 also does not indicate that the sexual encounters with him were on account of the force that he had employed. She had stayed in his place for two days which was evidently of her own freewill. According to her when she knocked on the door one Crl.A. No.120 10 Sanjib Rai and Another vs. State of Sikkim uncle came and unlocked the door. The identity of this person is undisclosed by the Prosecution. The use of force by A1 and A2 on the victim have not been proved by any evidence whatsoever. What can be culled out from the evidence on record is that P.W.1 had gone to the rooms of A1 and A2 voluntarily and had consensual sex with them. Her statement under Section 164 Cr.P.C. reveals that in fact she had run away from her house on 11 09 2019 after being hit by her father on the back of her head. She then went to the house of A1 where the alleged rape took place. A2 finds no mention in her Section 164 Cr.P.C. statement and his involvement was revealed only during her evidence in Court which raises doubts about the truth of her deposition. In light of the lack of cogency in her evidence she can in no way be termed as a sterling witness for this Court to rely on her evidence unrestrainedly and without misgivings. The evidence of P.W.3 the victim‟s mother lends no support to the Prosecution case neither does the evidence of P.W.4 the victim‟s father. P.W.5 is the sister of the victim. Contrary to the evidence of P.W.1 P.W.5 has not stated that she had accompanied the victim to the place of either A1 or to that of A2. Importantly she has stated that the Prosecutrix visited A2 in his place out of her own freewill and P.W.5 had no idea about the relations between the victim and A1. Her cross examination extracted the fact that the Prosecutrix used to have a number of boyfriends and most of the time she used to visit the boys called Bhim Anup Vten. Although during investigation one quilt M.O.I was seized from the house of A1 in the presence of P.W.6 and P.W.9 Crl.A. No.120 11 Sanjib Rai and Another vs. State of Sikkim vide Exhibit 6 no body fluids were detected on M.O.I by P.W.14 the Junior Scientific Officer who examined the article. Hence the evidence of these witnesses is of no consequence to the Prosecution case. Dr. Dawa Dolma Bhutia P.W.10 medically examined the victim. She identified Exhibit 12 as the Medical Report prepared by her on examining the victim. Exhibit 12 reveals as follows “ . As per the victim‟s statement she had gone to Mr. Sandeep Subba‟s place on 11 9 19 at night on her own. Before going to his place she was scolded by her father for coming late. On 11 9 19 she stayed at Sandeep‟s place where her clothes were removed forcibly against her will and he had intercourse with her. Next morning i.e. on 12 9 19 he again had intercourse with her and thereafter on 12 9 19 night and today morning i.e. 13 9 19 again he had intercourse with her. After he left for work she left the house next to Miss .. house. There she met her cousin brother and took her to Mangan Police She also gives a H o of being being pregnant in the month of June July after having sexual intercourse with Tika for 1 2 weeks in June July she was given abortifacient drug aborting the pregnancy. She hasn‟t passed urine or taken bath after having intercourse today morning.” It thus emerges that the victim did not tell the Doctor that she was forcibly taken to the house of A1. She has reiterated that she was scolded by her father and had been hit by him on the head upon which she left her house. She appears to have deliberately gone to the house of A1 and had consensual sex with A1 on 11th and 12th September 2019. On the morning of 13 09 2019 she went to the house of one resident instead of informing the Police of her alleged predicament as anyone traumatized by an incident would expectedly do. The fact that the act was consensual can also be culled out from her statement that she was unaware that A2 was a married man. Crl.A. No.120 12 Sanjib Rai and Another vs. State of Sikkim P.W.11 the Station House Officer of the concerned Police Station received Exhibit 4 from P.W.2. On receipt of the FIR he registered a case against both the Appellants under Section 376 of the IPC read with Section 6 of the POCSO Act and entrusted the investigation to P.W.13. He is unaware of the other facts of the case. P.W.12 also shed no light on the fact of sexual assault. She had seen the Prosecutrix and A2 sitting on one stone at the place they had gone together with P.W.12. As it was evening she asked P.W.1 to return home and suggested to A2 that he could call her cousin during the day time only. They all returned home together and later she heard of the pregnancy of the victim as a result of her relation with A2. It is her evidence that most of the time the Prosecutrix used to stay outside her home during the night. The I.O. P.W.13 in his evidence stated that after the victim was brought to the Police Station and her statement recorded she was forwarded to a Shelter Home at Gangtok. That his investigation revealed that the victim had love affairs with A1 and A2 who were friends. It was his admission under cross examination that the rooms at the place of occurrence are covered by plain sheetand there were no concrete walls inside the said house. That there are a number of rooms at the said place and apart from the Appellants other employees of the relevant Company also resided in the same house at the relevant time although he had not mentioned their details in his investigation. P.W.14 the Junior Scientific Officer at RFSL had examined a number of articles forwarded to him including M.O.I Crl.A. No.120 13 Sanjib Rai and Another vs. State of Sikkim but no clinching scientific evidence emerged to establish the complicity of A1 and A2 in the alleged offence. On the anvil of all the discussions that have emanated above it thus falls to conclude that no proof whatsoever was furnished by the Prosecution to establish that offence of rape was committed by A1 and A2 on the victim P.W.1. The acts are evidently consensual. We are therefore inclined to disagree with the findings of the Learned Trial Court for the aforestated reasons. Consequently the conviction and sentence imposed on A1 and A2 vide the impugned Judgment and Order on Sentence of the Learned Trial Court are set aside. The Appellants A1 and A2 are acquitted of the offence that they were charged with individually. Appeal allowed. Appellants be released from custody forthwith unless required to be detained in connection with any other case. Fine if any deposited by the Appellants in terms of the impugned Order on Sentence be reimbursed to them. No order as to costs. 17. Copy of this Judgment be transmitted to the Learned Trial Court for information along with its records and a copy be sent forthwith to the Jail Authorities as also e mailed. ( Meenakshi Madan Rai ) Judge Judge 16 12 2021 16 12 2021 ds Approved for reporting : Yes

The state authorities have deprived four women an opportunity of empowerment by cancelling their authorization to run fair price shops in a flippant manner: Bombay high Court

The authorization of four Bachat Gats to run fair price shops was upheld by the Bombay High Court and the order cancelling these authorizations were revoked through a single judge bench of Hon’ble Justice Ms. Bharati H. Dangre in the case of Stawan Mahila Bachat Gat & Others v. State of Maharashtra & Others (Writ Petition No.12344 OF 2017). The brief facts of the case are that the petition is filed against the impugned order by the District supply officer cancelling their authorization to run fair price shops alleging it is unreasonable and unsustainable by the rules and policies of the government. Bachat Gats are the groups are formed for upliftment of the financial condition of women from lower strata of the society. A vehicle filled with 42 gunny bags of rice stamped with IFC was found and offence of black marketing and unauthorized sale was registered against the owner and the driver of the vehicle. Upon further investigation Mr. Ambadas Parkhe was arrested as the middle salesman in this transaction. The District Supply Officer cancelled the licenses of the petitioner on the grounds that the salesman worked for them and was selling the rice supplied to them for distribution through PDS shops. The petitioners responded to the notice by submitting that they have no connection to the recovered of gunny bags of rice and the fair price shop allotted to every Bachat Gat is run by 7-8 women and the food grains which is received, is duly distributed as per norms and a record to that effect is maintained in a transparent way. Their petitions to higher authorities were declined repeatedly. At the same time all the accused were acquitted in case of unauthorized sale of rice and the petitioners were never arraigned or arrested in the said case. Even though the title of Mr. Parkhe was that of the salesman he was not authorized to sell the goods. He was only authorized to collect the goods, obtain challans etc. only. There is no corroboration between the connection of the petitioners and the rice found which was allegedly being transported for sale in the black market. The Court held that, in the wake of the aforesaid factual position, it cannot be said that the fair price shops run by the petitioners demand a serious action of cancellation of their permit/authorization particularly when the fair price shops authorization is granted to the Mahila Bachat Gats with an object of uplifting of women in the village/society. It is not established that petitioners have themselves committed any offence under the Essential Commodities Act, 1975. The court also commented upon the approach of State Authorities right from the level of the Tahsildar to the highest level of the State Government stating that, “Woman empowerment being the motto of the State, in utter contrast, in this case the State Authorities have undermined the four bachat gats and in a flippant manner have deprived them an opportunity of empowering several women in rural area who had come together and formed a bachat gat who was allotted authorization to run the fair price shop.” The Court quashed the impugned order and restored the license of the petitioners.

on 17 02 2022 on 19 02 1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABADWRIT PETITION NO.12344 OF 20171. Stawan Mahila Bachat Gatthrough their Chairman Saw.Jayashri Ambadas Parkhe Age 55 years Occu Service R o Datta Nagar Tilak Nagar Tal.Shrirampur Dist.Ahmednagar PETITIONERSVERSUS1. The State of Maharashtra Through Minister of Food Civil Supply and Consumer Protection 2. Deputy CommissionerNasik Division Nasik 3. District Supply Officer Ahmednagar 4. TahsildarShrirampur RESPONDENTS Mr.Shaikh M.A.Jahagirdar Advocate for the petitioners.Mr.K.B.Jadhavar AGP for respondent Nos. 1 to 4.DATE : FEBRUARY 8 2022khs Feb.2022 12344 on 17 02 2022 on 19 02 2 JUDGMENT : 1.The petition is filed by the Chairman of four Bachat Gats whowere given authorization to run fair price shops and it is the claim ofthe petitioners that the groups are formed for upliftment of thefinancial condition of women from lower strata of the society. The petitioners are aggrieved by cancellation of theirauthorization at the hands of the District Supply Officer and it is allegedthat the same is done on unsustainable grounds and the policy of theState Government do not contemplate the action of cancellation ofauthorization of the fair price shop in the wake of the allegationslevelled against them.2. Heard the learned Advocate Mr.Shaikh M.A.Jahagirdar for thepetitioners and the learned AGP Mr.K.B.Jadhavar for the State. Rule. Rule made returnable forthwith. Heard by consent of theparties. The four petitioners are the Mahila Bachat Gats who wereconferred authorization by respondent No.3 to run distinct fair priceshops in Taluka Shrirampur Dist.Ahmednagar. Notice was issued to thepetitioners by the District Supply Officer Ahmednagar under thekhs Feb.2022 12344 on 17 02 2022 on 19 02 3 Maharashtra Scheduled Commoditiesand on noticing thatthe food grain was stocked unauthorizedly an offence came to beregistered against Mr.Aslam Shaikh driver of the vehicle and its ownerMr.Sudhakar Adagale. In this offence one Ambadas Parkhe alleged tobe the Salesman of the petitioners Bachat Gats was arraigned as anaccused and arrested. In this background the petitioners were put tonotice that they have violated the provisions of the MaharashtraScheduled CommoditiesRegulation 1975and by the said notice the petitioners were asked to show cause as towhy their license of the fair price shop should not be cancelled. Identical notices came to be issued to all the 4 petitioners. 3.The notices were responded to by the petitioners by submittingthat they failed to understand their connection to the recovery of gunnykhs Feb.2022 12344 on 17 02 2022 on 19 02 4 bags of rice from the tempo and it was clarified that the fair price shopallotted to every Bachat Gat is run by 7 8 women and the food grainswhich is received is duly distributed as per norms and a record to thateffect is maintained in a transparent way. It was reiterated that if therecord in the shops is perused the stock is maintained and registered asper the register which is maintained. 4.The District Supply Officer that is the respondent No.3 passed anorder on 22 05 2013 suspending authorization of the fair price shopsof the petitioners. Being aggrieved by the said order the petitioners approached theDeputy CommissionerNasik Division by filing revisionapplication and the same came to be partly allowed and the suspensionorder was set aside with a direction to respondent No.3 to proceedagainst the petitioners as per the rules on the basis of the report of theTahsildar Shrirampur if they are found guilty. 5.This resulted in passing of the impugned order by the DistrictSupply Officer cancelling the authorization of the petitioners. Onceagain the petitioners filed revision application against the order ofkhs Feb.2022 12344 on 17 02 2022 on 19 02 5 cancellation of authorization and it came to be allowed by the DeputyCommissionerand respondent No.3 was directed to conduct afresh enquiry in the matter after giving notice of the allegations to bemet by the petitioners. The respondent No.3 again passed the sameorder on 18 03 2016 and ordered cancellation of authorization of thefair price shop run by petitioners Bachat Gat.6.The petitioners approached the Deputy CommissionerNasik and the Minister of Food Supply and ConsumerProtection Department i.e. respondent No.1 cannot be sustained. Thepetitioners are entitled for restoration of their authorization to run thefair price shop by setting aside the impugned orders. 13.I cannot refrain myself from commenting upon the approach ofthe State Authorities right from the level of the Tahsildar to the highestlevel of the State Government. It is necessary to take note of theprevailing status of women in this country where every endeavour ismade on all fronts by equipping them with the tools they need to havepower and control of their own lives and when the policy of theGovernment is to encourage their empowerment so that they becomeindependent and develop the ability to make strategic choices in allareas of their lives and would take this country ahead in securinggender equality by their sustainable development. Womanempowerment being the motto of the State in utter contrast in thiscase the State Authorities have undermined the four bachat gats and ina flippant manner have deprived them an opportunity of empoweringseveral women in rural area who had come together and formed abachat gat who was allotted authorization to run the fair price shop. Itkhs Feb.2022 12344 on 17 02 2022 on 19 02 13 is a matter of serious concern about the whole approach against thepetitioner bachat gat who in a perfunctory manner were discouragedand deprived of the authorization granted in their favour on clumsy anda non existent grounds. 14.As a result of the above Rule is made absolute in the aboveterms. It is however necessary to issue a direction to respondent No.3to immediately restore the authorization in favour of the petitioners ina period of 8weeks from the date of communication of theorder to him. ( BHARATI H. DANGRE J.)khs Feb.2022 12344

Compensation payable from the moment land is deprived of possession: Supreme Court

The issue involved the clarity regarding the liability to pay interest and whether the liability commences from the date of acquiring possession of the land or only from the date of award in a land acquisition matter before the Supreme Court division bench consisting of Justice A.M. Khanwilkar and Justice CT Ravikumar in the matters between Gayabhai Digambar Puri (Died) Through LR v. The Executive Engineer and Ors. decided on 3.1.2022. The facts of the case are The appellant claimed that when a person’s land was acquired, compensation should be paid to him immediately after he had been deprived of possession. In this case, the reference court ordered interest to be paid from April 1997 to March 1998, when the possession was taken. at a rate of 9 percent per annum for the first year and then at a rate of 15 percent per annum from April 1998 until the payment date in September 2004. Subsequently, the Bombay High Court overturned this decision of the Reference Court. The judgement text does not mention any arguments or contentions by either the Petitioner or Respondent. The apex court held that in RL Jain v. DDA case, it decided that the matter had been resolved, with its 2004 decision ruling that the person whose land was purchased would be entitled to interest from the day the land was acquired. In this case aforementioned, RL Jain v. DDA and Ex. (2004) 4 SCC 79 it was held that in a situation where the landlord’s dispossession fell before prior notice under section 4 of the Act, it was clear that the landlord could reclaim possession of his land by taking appropriate legal action. Thus, in the present case, the appellant would be entitled to interest from 4 April 1997, the date on which the land was deprived of ownership. According to the normal rule, if a person is deprived of his property due to land acquisition, he must be immediately compensated, and if the same is not paid to him immediately, he will be entitled to interest. compensation amount from the date of taking possession of the land to the date of payment.The appeal was partly allowed.

IN THE CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. OF 2022 Arising from the SLP(C) No.________ of 2022 Diary No. 175620 GAYABAI DIGAMBAR PURITHR. LR APPELLANT(s VERSUS THE EXECUTIVE ENGINEER & ORS. RESPONDENT(s O R D E R Delay condoned. Leave granted. This appeal takes exception to the judgment and order dated 28.02.2019 passed by the High Court of Judicature at Bombay at Aurangabad in First Appeal No 6919. The limited issue involved in this appeal is about the liability to pay interest whether commences from the date of taking possession or only from the date of award. The Court while issuing notice on 13.01.2021 noted thus “Counsel for the petitioner(s) submits that the High Court has glossed over the crucial fact that in the present case urgency clause was invoked. In that event in light of the exposition of this Court in R.L. Jainby LRs vs. D.D.A. & Ors. reported in4 SCC 79 the interest ought to be payable from the date of taking Issue notice on the application for condonation of delay as also on the special leave petition returnable in four weeks. Dasti in addition is permitted. Liberty is granted to serve standing counsel for the State of Maharashtra.” It is discerned from the judgment of the Reference Court dated 22.11.2021 that the interest was ordered to be paid from 04.04.1997 when possession was taken until 03.04.1998 for the first year at the rate of 9 per cent per annum and thereafter at the rate of 15 per cent per annum from 04.04.1998 till the date of payment i.e. 08.09.2004. The relevant part of the operative order of the Reference Court reads thus iv) The respondent No.1 to 3 shall also pay interest to the petitioner on the difference of market value @ Rs.9% per annum from 04.04.1997 to 03.04.1998 for the first year and thereafter Rs. 15% per annum from 04.04.1998 till the date of payment i.e. 08.09.2004under Sec. 34 of the Land Acquisition Act The High Court in the impugned judgment and order has not specifically dealt with this aspect whilst overturning the said direction issued by the Reference It is well settled that the normal rule is that if on account of acquisition of land a person is deprived of possession of his property he should be paid compensation immediately and if the same is not paid to him forthwith he would be entitled to interest on the compensation amount from the date of taking possession of the land till the date of payment thereof as expounded in R.L. Jain by Lrs. Vs D.D.A. & Ors. reported in 4 SCC 79 SECTION IX S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS SPECIAL LEAVE PETITIONDiary No(s). 17566 2020 Arising out of impugned final judgment and order dated 28 02 2019 in FA No. 692 2019 passed by the High Court Of Judicature At Bombay GAYABAI DIGAMBAR PURITHR. LR Petitioner(s VERSUS THE EXECUTIVE ENGINEER & ORS. Respondent(s IA No. 129362 2020 CONDONATION OF DELAY IN FILING IA No. 129363 2020 EXEMPTION FROM FILING C C OF THE IMPUGNED Date : 03 01 2022 These matters were called on for hearing today CORAM : HON BLE MR. JUSTICE A.M. KHANWILKAR HON BLE MR. JUSTICE C.T. RAVIKUMAR Mr. Mrityunjai Singh Adv. Mr. Shankar Chillage Adv. Mr. Sudhansu Palo AOR Mr. Uday B. Dube AOR Mr. Sachin Patil AOR Mr.Rahul Chitnis Adv. Mr. Aaditya a. Pande Adv. Mr. Geo Joseph Adv. Ms. Shwetal Shepal Adv. UPON hearing the counsel the Court made the following O R D E R Delay condoned. Leave granted. The appeal is disposed of in terms of the signed order. Pending applications if any stand disposed of DEEPAK SINGH) COURT MASTER (NSH Signed order is placed on the file

Standard of proof to hold person guilty by criminal court is totally different from enquiry conducted by way of disciplinary proceedings. : Calcutta High Court

“As we have already indicated, in the absence of any provision in the service rules for reinstatement, if an employee is honourably acquitted by a criminal court, no right is conferred on the employee to claim any benefit including reinstatement.” Said Hon’ble Acting Chief Justice Rajesh Bindal and Hon’ble Justice Aniruddha Roy of Calcutta High Court. In the matter of Jagdish Chandra Mondal versus State of West Bengal and Others [ W.P.S.T. 414 of 2013 ] This decision was given under the facts of the writ petition which was filed in response to the order (for short, the impugned order) issued by the West Bengal Administrative Tribunal, Kolkata (for short, the Tribunal) in OA 1423 of 2012 (Jagadish Chandra Mondal vs. The State of West Bengal & Ors.) [the Original Application]. The Original Application was dismissed, and the order of dismissal of the petitioner from service on the basis of a criminal conviction was upheld. The petitioner was a constable with the Howrah District Police Force. He was then charged with gross indiscipline and dereliction of duty. The petitioner was arrested in P.S. Case No. 4 dated January 22, 1987, and Barrackpore, P.S. Case No. 10 W.P.S.T. 414 OF 2013 and 11 dated August 28, 1987, under Sections 429, 468, and 120B of the Indian Penal Code (for short, IPC) for forging railway warrants in the names of both fictitious and genuine persons in his official capacity during 1984, 1985, 1986, and 1987. He was detained until May of 1987. Charge sheets were issued. The petitioner was also involved in Titagarh, P.S. Case No. 297, dated October 27, 1989, under Sections 498A and 306 of the Indian Penal Code because his wife was forced to commit suicide. On October 27, 1989, he was arrested in this criminal case and remained in custody until January 25, 1990. The necessary charge sheet was submitted. He was convicted by the learned Second Additional District and Sessions Judge of Barasat, North 24 Parganas, and was imprisoned from September 24, 1992, to November 23, 1992. On the basis of the said enquiry report, disciplinary proceedings were initiated against the petitioner, and a final order was issued by the disciplinary authority on January 31, 2011, in which the petitioner was dismissed from service with immediate effect in accordance with Regulation 864 of the Police Regulations of Bengal, 1943, and consequential directions were also issued.  The petitioner preferred the departmental appeal because he was dissatisfied with the final order. The appellate authority rejected the appeal and upheld the final order in an order dated September 27, 2012. The said appellate order was challenged in the Original Application that resulted in the impugned order. Ms Bhattacharya, the Learned State Counsel, then stated that the petitioner had not received an honourable acquittal because the criminal appeal from the order of conviction and sentence was still pending. The mere grant of bail to the petitioner in the criminal appeal does not imply an honourable acquittal by the Appellate Court. Following the hearing of the parties’ learned counsel and a review of the materials before this Court, it appears that the petitioner, as the charged employee of the Police Force, was given an adequate opportunity to participate in the inquiry proceeding as well as the disciplinary proceeding conducted by his employer and before the appellate authority. It is also clear that the criminal charges levelled against the petitioner are extremely heinous and grave, and are not of minor importance. Despite being a member of the Police Force, the petitioner lacks the moral turpitude required to be a member of the Police Force. The delinquent employee was found guilty of all charges in the domestic investigation. The disciplinary authority accepted the investigation report, and there is no grievance on behalf of the respondent workman that statutory provisions/principles of natural justice were not followed while conducting the investigation. As previously stated, in the absence of any provision in the service rules for reinstatement, if an employee is honourably acquitted by a criminal court, no right to any benefit, including reinstatement, is conferred on the employee.  Based on our ongoing discussions and the reasons stated, this Court is convinced that the Tribunal, in issuing the impugned order W.P.S.T. 414 OF 2013, acted within the permissible limits of its jurisdiction and correctly considered the applicable law. As a result, the contested order is upheld. 

Jagadish Chandra Mondal vs The State Of West Bengal & Ors on 10 June 2021 Calcutta High Courtpassed by the West Bengal Administrative Tribunal Kolkatain OA 14212as he forged the Railway warrants during 1984 1985 1986 and 1987 in the name of both fictious and genuine persons in his official capacity and wrongly gained money by making false entries in the relevant documents. He remained in custody till May 1987. Charge sheets was issued 3. The petitioner was also involved in Titagarh P.S. Case No. 297 dated October 27 1989 under Section 498A and 306 of IPC as his wife was forced to commit suicide. He was arrested in this criminal case on October 27 1989 and remained in custody till January 25 1990. Necessary charge Sheet was filed. He was convicted by learned Second Additional District and Sessions Judge Barasat North 24 Parganas and was in custody for the period from September 24 1992 till November 23 1992. He was then released on bail on November 24 1992 granted by High Court and the criminal appeal is still pending 4. The enquiry proceeding was initiated by the Police Department. In the enquiry report some of the charges were proved against the petitioner and the finding of the Enquiry Officer was intimated to the petitioner on December 1 2010. On the basis of the said enquiry report a Show Cause Notice was issued on December 11 2010 5. On the basis of the said enquiry report disciplinary proceeding was initiated against the petitioner in which final order was passed by the disciplinary authority on January 31 2011 whereby the petitioner was dismissed from service with immediate effect in terms of Regulation 864 of the Police Regulation of Bengal1943and consequential directions were also passed in the said order 6. Being aggrieved by the final order the petitioner preferred the departmental appeal. By an order dated September 27 2012 the appellate authority rejected the appeal and upheld the said final order W.P.S.T. 414 OF 2013 dated January 31 2011. The said appellate order was challenged in the Original Application in which the impugned order was passed 7. Mr. Swapan Kumar Nandi Learned Advocate appearing for the petitioner submitted that arising out of the criminal case filed against the petitioner and against the conviction thereunder the petitioner preferred appeal before this High Court being Criminal Appeal No. 3192 which was admitted vide order dated November 23 1992 and he was granted bail. However the appeal is still pending. Mr. Nandi then submitted that the appeal is a continuation of the original criminal case sessions case in which the coordinate bench of this Court on a prima facie satisfaction in favour of the petitioner granted him bail. Therefore the employer and its enquiring or disciplinary authority including the appellate authority had no authority to hold him guilty and dismiss him from service. The learned counsel for the petitioner placed reliance on Regulation 864 of the 1943 Regulation and submitted that a Police Officer sentenced by a Court as in the present case for an offense not implying moral turpitude shall ordinarily be dismissed but in trivial cases some lenient form of punishment than dismissal may be awarded or the offender may not be punished 8. In support of his contention the learned counsel for the petitioner had relied upon several decisions vide In re: M.A. Mathai reported at 1979CHN 149 In the matter of: The Divisional Indian Kanoon Jagadish Chandra Mondal vs The State Of West Bengal & Ors on 10 June 2021 Personnel Officer Southern Railway & Anr. vs. T.R. Chellappan reported at 1976 SCC398 In the matter of: Jagtar Singh vs. The State of Punjab & Anr. reported at 1989SLR 109 and In the matter of: Krishna Gopal Sharma vs. State of U.P. reported at 2005ATJ 306 9. Ms. Chaitali Bhattacharya with Mr. Subhendu Roychoudhury advocates appearing for the State submitted that it is an admitted position that the petitioner has suffered sentence in a criminal proceeding and the charges against the petitioner as would be evident W.P.S.T. 414 OF 2013 from such criminal proceedings were not trivial but grave. The petitioner being an employee of the Police Force had been prosecuted against in several criminal cases from time to time as evident from records. It would clearly show that a police personnel being the petitioner had no moral turpitude She then submitted that Regulation 8643 Regulation provides for that in trivial cases dismissal of the concerned charged employee may not happen. However in the present case the charges framed against the petitioner are very much grave serious and not trivial in nature. Thus the petitioner cannot take any aid from Regulation 864 of the 1943 Regulation 10. Ms. Bhattacharya the Learned State Counsel then submitted that the petitioner had not received honourable acquittal as the criminal appeal is still pending from the order of conviction and sentence. Mere grant of bail to the petitioner in the criminal appeal does not mean honourable acquittal of the petitioner by the Appellate Court. Merely was granted during pendency of the appeal. Hence this cannot be a ground for not affirming the order of dismissal passed by the employer against the petitioner from his service. The learned State Counsel relied upon the judgments of the Hon ble Supreme Court in support of her contention namely in the matter of Divisional Controller Karnataka State Road Transport Corporation vs. M.G. Vittal Rao reported at 2012) 1 SCC 442 and in the matter of: Deputy Inspector General of Police & Anr. vs. S. Samuthram reported at1 SCC 598 11. After hearing the learned counsel for the parties and on a perusal of material before this Court it appears that the petitioner being the charged employee of Police Force was granted adequate opportunity to participate in the enquiry proceeding as well as in the disciplinary proceeding conducted by his employer and also before the appellate authority. It is also evident that the nature of criminal charges framed against the petitioner are extremely heinous and grave and not of trivial in nature. The petitioner being a part of Police Force lacks moral W.P.S.T. 414 OF 2013 turpitude which is the basic ingradient to become an employee of a Police Force 12. Regulation 864 of the 1943 Regulation the relevant portion whereof provides for a punishment other than dismissal only when the charged employee suffers sentence in a criminal proceeding which is trivial in nature. In the present case the charges for which the petitioner had suffered sentence by the Criminal Court are grave and heinous and not trivial in nature at all. The said Regulation 864 of the 1943 Regulation will not apply in the present case. In as much as it is true that appeal is the continuation of the parent proceeding. In the present case the criminal appeal preferred by the petitioner is still pending for final adjudication and the coordinate bench in appeal granted bail to the petitioner. Thus it is not a fit case in the facts and circumstances where the order of dismissal from service suffered by the petitioner in view of his conviction and sentence can be set aside or reversed Indian Kanoon Jagadish Chandra Mondal vs The State Of West Bengal & Ors on 10 June 2021 13. The ratio of the judgments relied on behalf of the petitioner are not applicable in the facts and circumstances of the present case. In re: M.A. Mathai the charges against the delinquent employee was inter alia under Prevention of Corruption Act 1975 read with Section 161 of IPC in which the charged employee had preferred a criminal appeal from the order of conviction where the Appellate Court admitted the appeal and the charged employee was allowed to remain on bail and fine imposed was stayed. Such fact was not at all considered by the disciplinary authority and the order of the disciplinary authority was significantly silent about the same. In the matter of Divisional Personnel Officer Southern Railwaythe charged employee was convicted for an offence under Section 420 of the IPC and the Jurisdictional Magistrate however instead of sentencing him ordered him to be released on probation under the provisions of the Probation of Offenders Act. In the matter of: Jagtar Singhthe charges were under the Prevention of Corruption Act read with Section 161 of IPC where the W.P.S.T. 414 OF 2013 conviction and sentence were to suffer rigorous imprisonment for one year and to pay a fine. The charged employee therein preferred criminal appeal in which he was granted bail till disposal of the appeal Subsequently the sentence was also suspended. In the matter of: Krishna Gopal Sharmain the order of dismissal from service the conduct of the charged employee leading to his conviction was not discussed which is mandatory under Article 311(2) of the Constitution of India 14. In the present case the entire fact of conviction pendency of criminal appeal preferred by the petitioner and the bail granted to the petitioner were duly considered by the employer and only then the order of dismissal was passed. In the present case the petitioner from time to time was arrested on the charges under Sections 429 468 and 120B of IPC for forging Railway warrants in the name of diverse persons in his official capacity and wrongly gained money by making false entries in the relevant documents. The nature of offenses are heinous more so the petitioner was a Railway employee and had committed the offenses by taking advantage of his employment. The petitioner was further taken on custody on the charges under Section 498A and 306 of IPC as his wife allegedly was forced to commit suicide. He was convicted by the jurisdictional Criminal Court in all such occasions. It thus appears that the charges for which the petitioner was convicted in the present case were more heinous in nature than the charges for which the delinquent employees had suffered conviction in the facts and circumstances of the judgments relied upon on behalf of the petitioner. Petitioner s appeal is still pending before this Court. Grant of bail to the petitioner in such appeal will not come to his rescue. Considering the aforesaid factors it is apparent that the judgments relied upon by the petitioner would render no assistance to him in the facts and circumstances of the case W.P.S.T. 414 OF 2013 15. In the matter of: Divisional Controller Karnataka State Road Transport Corporationthe Hon ble Supreme Court had observed as under 11. The question of considering reinstatement after decision of acquittal or discharge by a competent criminal court arises only and only if the dismissal from services was based in conviction by the criminal court in view of the provisions of Article 311(2)(b sic Article 311(2) second provisoof the Constitution of India or analogous Indian Kanoon Jagadish Chandra Mondal vs The State Of West Bengal & Ors on 10 June 2021 provisions in the statutory rules applicable in a case. In a case where enquiry has been held independently of the criminal proceedings acquittal in a criminal court is of no help. The law is otherwise. Even if a person stood acquitted by a criminal court domestic enquiry can be held the reason being that the standard of proof required in a domestic enquiry and that in a criminal case are altogether different. In a criminal case standard of proof required is beyond reasonable doubt while in a domestic enquiry it is the preponderance of probabilities that constitutes the test to be applied 31. The instant case requires to be examined in the light of the aforesaid settled legal proposition and keeping in view that judicial review is concerned primarily with the decision making process and not the decision itself. More so it is a settled legal proposition that in a case of misconduct of grave nature like corruption or theft no punishment other than the dismissal may be appropriate 32. The domestic enquiry found the delinquent employee guilty of all the charges The enquiry report was accepted by the disciplinary authority and there is no grievance on behalf of the respondent workman that statutory provisions principles of natural justice have not been observed while conducting the enquiry. The disciplinary authority imposed the punishment of dismissal from service which cannot be held to be disproportionate or non commensurate to the delinquency. The Labour Court after reconsidering the whole case came to the conclusion that the enquiry has been conducted strictly in accordance with law in fair manner and charges have rightly been proved against the delinquent employee. However considering the difference in the standard of proof required in domestic enquiry vis à vis that applicable to a criminal case the Labour Court repelled the argument of the respondent workman that once he stood acquitted he was entitled to all reliefs including reinstatement and back wages. The learned Single Judge as well as the Division Bench had W.P.S.T. 414 OF 2013 simply decided the case taking into consideration the acquittal of the delinquent employee and nothing else 33. In view of the aforesaid settled legal propositions that there is no finding by the High Court that the charges leveled in the domestic enquiry had been the same which were in the criminal trial the witnesses had been the same there were no additional or extra witnesses and without considering the gravity of the charge we are of the view that the award of the Labour Court did not warrant any interference. Be that as it may the learned Single Judge had granted relief to the delinquent employee which was not challenged by the present appellant by filing writ appeal. Therefore the delinquent employee is entitled to the said relief 16. In the matter of: Deputy Inspector General of Police & Anr.the Hon ble Supreme Court had observed as under 24. The meaning of the expression "honourable acquittal" came up for consideration before this Court IN RBI v. Bhopal Singh Panchal. In that case this Indian Kanoon Jagadish Chandra Mondal vs The State Of West Bengal & Ors on 10 June 2021 Court has considered the impact of Regulation 46(4) dealing with honourable acquittal by a criminal court on the disciplinary proceedings. In that context this Court held that the mere acquittal does not entitle an employee to reinstatement in service the acquittal it was held has to be honourable. The expressions "honourable acquittal" "acquittal of blame" "fully exonerated" and unknown to the Code of Criminal Procedure or the Penal Code which are coined by judicial pronouncements It is difficult to define precisely what is meant by the expression "honourably acquitted". When the accused is acquitted after full consideration of prosecution evidence and that the prosecution had miserably failed to prove the charges leveled against the accused it can possibly be said that the accused was honourably 25. In R.P. Kapur v. Union of India it was held even in the case of acquittal departmental proceedings may follow where the acquittal is other than honourable In State of Assam v. Raghava Rajgopalachari this Court quoted with approval the views expressed by Lord Williams J. in Robert Stuart Wauchope v. Emperor which is 8. ... The expression "honourably acquitted" is one which is unknown to courts of justice. Apparently it is a form of order used in courts martial and other extrajudicial tribunals. We said W.P.S.T. 414 OF 2013 in our judgment that we accepted the explanation given by the appellant believed it to be true and considered that it ought to have been accepted by the government authorities and by the Magistrate. Further we decided that the appellant had not misappropriate the monies referred to in the charge. It is thus clear that the effect of our judgment was that the appellant was acquitted as fully and completely as it was possible for him to be acquitted Presumably this is equivalent to what government authorities term"honourably acquitted". 26. As we have already indicated in the absence of any provision in the service rules for reinstatement if an employee is honourably acquitted by a criminal court no right is conferred on the employee to claim any benefit including reinstatement Reason is that the standard of proof required for holding a person guilty by a criminal court and the enquiry conducted by way of disciplinary proceeding is entirely different. In a criminal case the onus of establishing the guilt of the accused is on the prosecution and if it fails to establish the guilt beyond reasonable doubt the accused is assumed to be innocent. It is settled law that the strict burden of proof required to establish guilt in a criminal court is not required in a disciplinary proceedings and preponderance of probabilities is sufficient. There may be cases where a person is acquitted for technical reasons or the prosecution giving up other witnesses since few of the other witnesses turned hostile etc. In the case on hand the prosecution did not take steps to examine many of the crucial witnesses on the ground that the complainant and his turned hostile. The court therefore acquitted the accused giving the benefit of doubt. We are not prepared to say that in the instant case the Indian Kanoon Jagadish Chandra Mondal vs The State Of West Bengal & Ors on 10 June 2021 respondent was honourably acquitted by the criminal court and even if it is so he is not entitled to claim reinstatement since the Tamil Nadu Service Rules do not 28. In view of the abovementioned circumstances we are of the view that the High Court was not justified in setting aside the punishment imposed in the departmental proceedings as against the respondent in its limited jurisdiction under Article 226 of the Constitution of India 17. In view of our fore going discussions and the reasons stated this Court is of the firm view that the Tribunal while passing the impugned order W.P.S.T. 414 OF 2013 had acted within the permissible limit of its jurisdiction and had correctly considered the law prevailing on the field Therefore the impugned order is not interfered with 18. The present writ petition being W.P.S.T. 4113 stands dismissed 19. There shall however be no order as to costs Rajesh Bindal) Chief Justice(Aniruddha Roy) Judge Kolkata 10.06.2021 Indian Kanoon

A dispute relating to interpretation and terms of a contract cannot be a subject matter of writ proceedings: High Court of J&K and Ladakh

If the transaction between the parties is a contract then it is in the realm of private law. The same is governed by the provisions of Contract Act and also by provisions of Sale of Goods Act. A dispute relating to interpretation and terms of such a contract cannot be a subject matter of writ proceedings as held 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 M/S Venoos Furniture Vs Sicop And Others [OWP No.792/2016]. The brief facts of the case are that the petitioner is a registered small scale industrial unit. Supply orders in favour of petitioner were issued by respondent No.1. The petitioner was asked to provide and Furniture set for administrative/lecture hall block at Faculty of Fisheries Rangil for approximate costs of Rs.52,57,151/ and also at SKUAST main campus, Shalimar, for an approximate cost of Rs.83,00,255/. The petitioner completed the work allotted to it and the payment in respect of the said work was also released by the respondent No.1 after receiving written authorization from respondent No.2. It is the case of the petitioner that because the respondents failed to provide the space for dumping of material prepared by the petitioner, as such, it had to dump the same in its shops and that whole of this material got damaged in the devastating floods whereafter he served a legal notice upon respondent No.1 asking it to release the payment which it has received from respondent No.2 but of no avail. This according to the petitioner compelled it to file the instant writ petition. It was contended by the respondents that the petitioner has approached the Court after more than five years, which casts doubt upon the genuineness of its claim. A preliminary objection to the maintainability of the writ petition on the ground that the dispute between the parties is in the realm of contract and, as such, the same cannot be adjudicated in the writ proceedings, was also raised. After hearing learned counsels for both the sides, the Hon’ble High Court relied on the principle laid down by the Hon’ble Supreme court in the case of State of U.P and Ors Vs Bridge & Roof Co (India) Ltd and concluded by stating that “It is clear that the petitioner by approaching this Court by way of writ petition has not chosen the appropriate remedy. The issues involved in the petition arise out of contract between the parties and the same can be determined only in a civil suit after full dressed trial and not in the writ proceedings. Thus, the writ petition is held to be not maintainable. The same is, accordingly, dismissed with liberty to the petitioner to avail appropriate remedy of civil suit, if so advised.”

IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT SRINAGAR Reserved on:20.09.2021 Pronounced on:24.09.2021 OWP No.792 2016 M S VENOOS FURNITURE ... PETITIONER(S) Through: Mr. B. A. Bashir Sr. Adv. with Ms. Falak Bashir Advocate. SICOP AND OTHERS …RESPONDENT(S) Through: Mr. S. A. Naik Advocate. Mr. Shakir Haqani Advocate. CORAM: HON’BLE MR. JUSTICE SANJAY DHAR JUDGE JUDGMENT Petitioner has filed the instant writ petition seeking a Mandamus against the respondents to release the payment of Rs.83 00 180 in his favour for providing and fixing of wooden frames and shutters for doors windows for lab office Block B wing at SKUAST main campus. The case of the petitioner is that it is a registered small scale industrial unit. Vide communications bearing Nos.SICOP GMP K 11 12 356 57 & SICOP GMP K 11 12 358 59 dated 11.05.2012 supply orders in favour of petitioner were issued by respondent No.1. The petitioner was asked to provide and fix deodar wood frames and shutters for doors windows and conference table set for administrative lecture hall 2 OWP No.792 2016 block at Faculty of Fisheries Rangil for approximate costs of Rs.52 57 151 as also to provide the wooden frames and shutters for doors windows for lab office Block B wing at SKUAST main campus Shalimar for an approximate cost of Rs.83 00 255 . The petitioner completed the work allotted to it under supply order No.SICOP GMP K 11 12 356 57 dated 11.05.2012 and the payment in respect of the said work was also released by the respondent No.1 after receiving written authorization from respondent No.2. It is further averred in the petition that the petitioner also completed its work as regards second supply order i.e. SICOP GMP K 11 12 358 59 dated 11.05.2012 and made repeated requests to the respondents to provide requisite space for dumping the material but all these requests fell on deaf ears and the requisite space was not provided to the petitioner. In this regard petitioner has relied upon communication No.SICOP GMP K 12 2137 38 dated 29.12.2012 and communication No.SICOP GMP K 12 13 2257 60 dated 19.01.2013 of respondent No.1. It is the case of the petitioner that because the respondents failed to provide the space for dumping of material prepared by the petitioner as such it had to dump the same in its shops situated at Dadikadal Srinagar. It is further averred in the petition that whole of this material got damaged in the devastating floods of September 2014 whereafter he served a legal notice upon respondent No.1 asking it to release the payment which it has received from respondent No.2 but of no avail. This according to the petitioner compelled it to file the instant writ petition. 3 OWP No.792 2016 The writ petition has been contested by respondent Nos.1 and 2. Respondent No.1 has admitted the issuance of two purchase orders in favour of the petitioner but it has claimed that the petitioner failed to execute the works relating to second purchase order as a result of which a huge payment had to be released by respondent No.1 in favour of M S Green Line Pvt. Ltd. who executed the work viz. providing and fixing installation of UPVC windows system for lab office block B wing at main campus SKUAST Shalimar. It is contended that the petitioner has approached the Court after more than five years which casts doubt upon the genuineness of its claim. A preliminary objection to the maintainability of the writ petition on the ground that the dispute between the parties is in the realm of contract and as such the same cannot be adjudicated in the writ proceedings has been raised. The respondent No.1 has admitted that the petitioner had informed it about readiness of the material and had requested for providing of dumping space for the material. It has claimed that in this regard no response was received from respondent No.2 to whom the material was to be supplied. It is however contended by respondent No.1 that because no work has at all been executed at site by the petitioner as such it was not entitled to any payment from the respondents. The respondent No.1 has denied the averments of the writ petition pertaining to damage to the material in floods. Respondent No.2 has also contested the writ petition by filing a separate reply. In its reply the respondent No.2 has submitted that purchase order relating to work for providing and fixing of deodar wood 4 OWP No.792 2016 window door system to lab cum office blocwas later on changed and it was replaced by UPVC window system as such there was no question of lifting the material from petitioner firm. The respondent No.2 has denied the assertion that the material was kept ready by the petitioner and that it had failed to provide the dumping space to the petitioner. Respondent No.2 has while denying the assertion that the material got damaged during floods claimed that it had written a communication to the SICOP for cancellation of the order which is subject matter of this petition to be substituted by UPVC door window system and the same was accepted by respondent No.1. Besides the above pleadings the respondent No.3 the then General Manager of SICOP has filed an affidavit in which he has admitted that letters were addressed to respondent No.2 for providing space to dump the material but it did not pay any heed to these communications. He has further submitted that he personally visited the workshop and godown of the petitioner and found that the material was ready as per the specifications. I have heard learned counsel for the parties and perused the material on record. Certain facts which emerge from the pleadings of the parties which are required to be noticed are that the petitioner was awarded two purchase orders by respondent No.1. The first purchase order amounting to Rs.52 57 151 was executed by the petitioner for which it received payment from respondent No.1. The dispute only relates to the second purchase order amounting to Rs.83 00 180. According to the petitioner he kept the 5 OWP No.792 2016 material ready and informed respondent No.1 SICOP to provide dumping space but it did not receive any response either from respondent No.1 or from respondent No.2. The respondent No.1 has also admitted that it had received the said communications from the petitioner and in turn they informed respondent No.2 to provide the requisite space. It is the stand of respondent No.2 that it had cancelled aforesaid purchase order and instead it had issued a modified purchase order which was duly accepted by respondent No.1 and the supplies were made by some other supplier. Thus according to respondent No.2 there was no question of lifting the material prepared by the petitioner. 10) The question whether respondents were justified in modifying the purchase order without informing the petitioner and if not what are its consequences is a matter in the realm of law of contract. Another question which falls for determination is as to whether petitioner actually suffered damage to the material prepared by it during the floods of September 2014 particularly when there is no admission on the part of respondents in this regard. The petitioner has relied upon a certificate issued by Police Station Shaheed Gunj Srinagar to support his contention that the material in fact was damaged in floods but can such a certificate be relied upon is a billion dollar question. The same can be answered only by leading evidence. Even the said certificate contains a caveat that the concerned departments organizations only at a later stage can properly assess a detailed account of loss. 6 OWP No.792 2016 11) There is yet another aspect of the matter which requires to be taken note of. The communications whereby respondent No.2 was asked by respondent No.1 to provide space for dumping of the material are dated 29.12.2012 and 19.01.2013. The floods took place in September 2014. What happened in the interregnum i.e. from January 2013 to September 2014 is not forthcoming from the material on record. It seems that the petitioner has acquiesced in the inaction of respondent No.2 in providing space for dumping of the material as it did not approach any court of law to agitate its rights until May 2016. Apart from this whether from January 2013 to September 2014 when the floods wreaked havoc in Kashmir Valley the material that is stated to have been prepared by the petitioner and was lying in its shops was intact is a question of fact which requires to be determined after leading evidence. 12) From the foregoing analysis of the facts emerging in this case it is clear that the transaction between the parties is a contract in the realm of private law. The same is governed by the provisions of Contract Act and also by provisions of Sale of Goods Act. A dispute relating to interpretation and terms of such a contract cannot be a subject matter of writ proceedings. I am supported in my aforesaid view by the judgment of the Supreme Court in the case of State of U.P and Ors. V. Bridge & Roof Co Ltd.6 SCC 22. The following observations of the Supreme Court in the aforesaid case are relevant to the context and the same are reproduced as under: “16.In our opinion the very remedy adopted by the respondent is misconceived. It is not entitled to any relief 7 OWP No.792 2016 in these proceedings i.e in the writ petition filed by it. The High court appears to be right in not pronouncing upon any of the several contentions raised in the writ petition by both the parties and in merely reiteration the effect of the order of the Deputy commissioner made under the proviso to section 8 Dwas not a prayer which could be granted by the High court under Article 226. Indeed the High Court has not granted the said In view of aforesaid position of law it is clear that the petitioner by approaching this Court by way of writ petition has not chosen the appropriate remedy. The issues involved in the petition arise out of contract between the parties and the same can be determined only in a civil suit after full dressed trial and not in the writ proceedings. Thus the writ petition is held to be not maintainable. The same is accordingly dismissed with liberty to the petitioner to avail appropriate remedy of civil suit if so advised. “Bhat Altaf PS” Judge Whether the order is speaking: Yes No Whether the order is reportable: Yes No

Directions given to the university to grant affiliation to the petitioner colleges: Supreme Court of India

The averments made on affidavit by the petitioners, are not controverted by university therefore, court directed them to grant affiliation to the petitioner colleges for the academic year 2020-21.This honorable judgement was passed by the Supreme Court of India in the case of VIIT Pharmacy College and Anr. Vs. Dr. A.P.J. Abdul Kalam Technical University and Anr. [WRIT PETITION (C) NO.390 OF 2021] by The Hon’ble Mr. Justice Rohinton Fali Nariman. The petitioners seeking a direction to the Dr. A.P.J. Abdul Kalam Technical University to grant affiliation for B. Pharma course to the petitioner colleges for the academic year 2020-21 with further direction to University to organize special examinations for B. Pharma students for academic year. It is pertinent to note that the Pharmacy Council of India granted its approval to the VIIT Pharmacy College vide order for conduct of first year B. Pharma course for the academic year 2020-21 with intake capacity of 100 students. Insofar as the RV Institute of Pharmacy is concerned, a similar approval was also granted; however, with the intake capacity of 60 students. The State of Uttar Pradesh came up with the policy for restricting the number of pharmacy colleges to only two per district. The said policy came to be challenged before the High Court of Allahabad in bunch of petitions being filed by Zee College of Pharmacy with companion matters. The petitioner institutions were permitted to participate in the counselling being conducted for admission to Bachelors of Pharmacy course for the academic year 2020-21. All the above three petitions were allowed by the High Court vide order dated 9th November 2020. University vide impugned order, rejected the application of S.D. College of Sciences for grant of affiliation. In the meantime, the State Government, after considering the recommendations made by the Affiliation Committee, has granted conditional affiliation for admission in B. Pharma course, in compliance of the order of the High Court passed in Writ Petition. Since the respondent No.1-University refused to grant affiliation to the petitioners and has refused to permit their students to appear for 4the first year B. Pharma examination, the petitioners have approached this Court.

IN THE CIVIL ORIGINAL JURISDICTION WRIT PETITIONNO.390 OF 2021 VIIT PHARMACY COLLEGE AND ANOTHER DR. A.P.J. ABDUL KALAM TECHNICAL UNIVERSITY AND ANOTHER ...RESPONDENT(S O R D E R B.R. GAVAI J The petitioners have approached this Court seeking a direction to the respondent No.1 Dr. A.P.J. Abdul Kalam Technical University hereinafter referred to as the ‘University’) to grant affiliation for B Pharma course to the petitioner colleges for the academic year 2020 21 with further direction to respondent No.1 University to organize special examinations for B. Pharma students for academic year 2020 21 in view of the notification dated 19th March 2021 The facts in brief giving rise to the petition are as under: On 28th January 2020 the respondent No.1 University invited applications for grant of affiliation for the year 2020 21. In response thereto the petitioners submitted applications in the month of February 2020 seeking affiliation for B. Pharma course for the year 2020 21. It is pertinent to note that the Pharmacy Council of India granted its approval to the petitioner No.1 VIIT Pharmacy College vide order dated 10th April 2020 for conduct of first year B. Pharma course for the academic year 2020 21 with intake capacity of 100 admissions students. Insofar as the petitioner No.2 RV Institute of Pharmacy is concerned a similar approval was also granted however with the intake capacity of 60 admissions students The same was subject to submission of consent of affiliation of Examining Authority and NOC of the State Government In the meantime the respondent No.2 State of Uttar Pradesh came up with the policy dated 15th May 2020 for restricting the number of pharmacy colleges to only two per district. The said policy came to be challenged before the High Court of Allahabad in bunch of petitions being Misc. Single No. 12536 of 2020 filed by Zee College of Pharmacy with companion matters. The Allahabad High Court vide judgment and order dated 2nd November 2020 relying on the judgment of this Court in the case of Pharmacy Council of India v. Dr. S.K Toshiwal Educational Trusts Vidarbha Institute of Pharmacy and Others Etc.1 set aside the policy dated 15th May 2020 only insofar as the petitioners who had approached the High Court. The petitioner institutions therein were permitted to participate in the counselling being conducted for admission to Bachelors of Pharmacy course for the academic year 2020 21 The petitioner No.1 relying on the order of the High Court dated 2nd November 2020 also filed writ petition being Misc. Single No 195120 before the Allahabad High Court. The said petition was also allowed and the policy dated 15th May 2020 was set aside with respect to the petitioner therein and the respondents were directed to take a decision on the application of the petitioner for affiliation in accordance with law. A similar petition being Misc. Single No. 195020 came to be filed by petitioner No.2 which too was allowed on like terms. Likewise one S.D. College of Sciences had also filed a writ petition being Misc. Single No. 19568 of 2020 which was similarly allowed. All the above three petitions were allowed by the High Court vide order dated 9th November 2020 However the respondent No.1 University vide impugned order dated 7th December 2020 rejected the application of S.D. College of Sciences for grant of affiliation. The present petitioners along with one 1 2020 SCC OnLine SC 296 another institution thereafter filed Writ PetitionNo. 14620 before this Court in the month of December 2020. This Court vide order dated 12th January 2021 stayed the operation of the order dated 7th December 2020 passed by respondent No.1 University and tagged the said petition along with Writ PetitionNo. 14320 filed by Rakshpal Bahadur Pharmacy Institute It is the contention of the petitioners that in March 2021 though the students of the petitioner colleges were invited to the examination centre they were not permitted to participate in the exam at the last moment. It is also the contention of the petitioners that in view of the order dated 5th March 2021 passed by this Court in I.A. No.332721 in Writ Petition No. 1433 of 2020 students of one Zee College of Pharmacy were permitted to participate in the examination In the meantime vide order dated 19th March 2021 the State Government after considering the recommendations made by the Affiliation Committee has granted conditional affiliation for admission in B. Pharma course in compliance of the order of the High Court passed in Writ PetitionNo. 125320. Since the respondent No.1 University refused to grant affiliation to the petitioners and has refused to permit their students to appear for the first year B. Pharma examination the petitioners have approached This Court in the case of Dr. S.K. Toshiwal Educational Trusts Vidarbha Institute of Pharmacyhas held as under: “87. In view of the above and for the reasons stated above it is held that in the field of Pharmacy Education and more particularly so far as the recognition of degrees and diplomas of Pharmacy Education is concerned the Pharmacy Act 1948 shall prevail. The norms and regulations set by the PCI and other specified authorities under the Pharmacy Act would have to be followed by the concerned institutions imparting education for degrees and diplomas in Pharmacy including the norms and regulations with respect to increase and or decrease in intake capacity of the students and the decisions of the PCI shall only be followed by the institutions imparting degrees and diplomas in Pharmacy. The questions are answered accordingly.” Indisputably in the present case the PCI has granted approval to both the petitioners vide order dated 10th April 2020 with intake capacity of 100 and 60 admissions students respectively. Not only that the petitions filed by the petitioners challenging the policy decision of the State Government dated 15th May 2020 have been allowed by the High Court vide judgment and order dated 9 th November 2020. Indisputably the State Government also vide notification dated 19th March 2021 has granted conditional affiliation after considering the recommendations made by the Affiliation Committee. In the peculiar facts and circumstances of the case and particularly taking into consideration that the averments made on affidavit by the petitioners are not controverted by the respondent No.1 University we find that the petition deserves to be allowed 11. The respondent No.1 University is therefore directed to grant affiliation to the petitioner colleges for the academic year 2020 21 and also permit the students of the petitioner colleges to participate in the special examinations to be organized by the respondent No.1 University for the academic year 2020 21 in view of the notification dated 19th March 2021 12. The petition is allowed in the aforesaid terms [HRISHIKESH ROY NEW DELHI APRIL 15 2021

Validity of caste certificate considered afresh in favour of the appellant: Supreme Court of India.

Setting aside the impugned judgment and order passed by the High Court Hon’ble M. R. Shah, J in the case of Rushikesh Bharat Garud vs. The State of Maharashtra & Ors. – [Civil Appeal No. 7422 of 2021], remanded the matter to the Scheduled Tribe Certificate Scrutiny Committee, Nashik (for short, ‘Scrutiny Committee’) to consider the validity of the caste certificate issued in favour of the appellant afresh along with the cases of his father and his cousins and held that the Scrutiny Committee has to pass fresh order/s in accordance with law and on its own merits and on the basis of the material available on record and/or that may be produced and pass a speaking order at the earliest. The case arises out of a judgment passed by the High Court of Judicature at Bombay, by which the High Court had dismissed a writ petition preferred by the appellants herein in which the appellant herein had challenged the order passed by the Scrutiny Committee, invalidating the caste certificate issued to the appellant, the original writ petitioner has preferred the present appeal. From the impugned judgment and order passed by the High Court, it appeared that before the High Court that the appellant heavily relied upon the validity certificates issued to his father well as to his cousins. The aforesaid was also the case of the appellant herein before the Scrutiny Committee. However, the Scrutiny Committee while not accepting the above submission observed that when the appellant’s father’s caste claim was considered, contradictory entries were not placed before the Scrutiny Committee. Neither were the original validity certificates relied upon by the appellant produced nor the genealogy. The Scrutiny Committee made identical observations regarding other validity certificates to the effect that the adverse entries were not placed on record. However, the fact remains that at the relevant time those caste certificates were not cancelled by the Scrutiny Committee. It is the case on behalf of the appellant that the cases of the father of the appellant and his cousins have been re-opened and show cause notices have been issued to show cause why their caste certificates be not cancelled. Therefore, the validity of the caste certificates in favour of the father of the appellant and in favour of his cousins is at large before the Security Committee. Therefore, it will be appropriate if the cases of all, namely, father of the appellant, cousins of the appellant and the appellant herein be considered together, to avoid any conflicting orders. Supreme court after perusing the facts and arguments presented, held that – “In view of the above and without expressing anything on the validity of the caste certificate issued in favour of the appellant, we set aside the impugned judgment and order passed by the High Court and remand the matter to the Scrutiny Committee to consider the validity of the caste certificate issued in favour of the appellant afresh along with the cases of his father and his cousins. The Scrutiny Committee has to pass fresh order/s in accordance with law and on its own merits and on the basis of the material available on record and/or that may be produced and pass a speaking order at the earliest, preferably within a period of three months from today. At the cost of repetition, it is observed that this Court has not gone into the merits of the case at all and has not observed anything on the validity of the caste certificate issued in favour of the appellant. The present appeal is accordingly allowed to the aforesaid extent.”

IN THE CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 7442 OF 2021 Rushikesh Bharat Garud The State of Maharashtra and others JUDGMENT M.R. SHAH J Feeling aggrieved and dissatisfied with the impugned judgment and order dated 29.06.2021 passed by the High Court of Judicature at Bombay in Writ Petition No. 115321 by which the High Court has dismissed the said writ petition preferred by the appellant herein in which the appellant herein challenged the order passed by Scheduled Tribe Certificate Scrutiny Committee Nashikinvalidating the caste certificate issued to the appellant the original writ petitioner has preferred the present appeal 2. We have heard Mr. Uday B. Dube learned Advocate appearing for the appellant and Mr. Sachin Patil learned Advocate appearing for the State of Maharashtra and the Scrutiny Committee From the impugned judgment and order passed by the High Court it appears that before the High Court the appellant heavily relied upon the validity certificates issued to his father Bharat Nagu Garud dated 14.01.2005 as well as to his cousins Nilima Rohidas Garud dated 9.9.2005 Pravin Rohidas Garud dated 9.9.2005 Priyanka Rohidas Garud dated 20.09.2005 Rohidas Nago Garud dated 25.05.2011 and Ramdas Nagu Garud dated 07.12.2012. The aforesaid was also the case of the appellant herein before the Scrutiny Committee. However the Scrutiny Committee while not accepting the above submission observed that when the appellant’s father’s caste claim was considered 35 contradictory entries were not placed before the Scrutiny Committee Neither were the original validity certificates relied upon by the appellant produced nor the genealogy. The Scrutiny Committee made identical observations regarding other validity certificates to the effect that the adverse entries were not placed on record. However the fact remains that at the relevant time those caste certificates were not cancelled by the Scrutiny Committee Be that as it may. Now it is the case on behalf of the appellant that the cases of the father of the appellant and his cousins have been re opened and show cause notices have been issued to show cause why their caste certificates be not cancelled. Therefore the validity of the caste certificates in favour of the father of the appellant and in favour of his cousins is at large before the Security Committee. Therefore it will be appropriate if the cases of all namely father of the appellant cousins of the appellant and the appellant herein be considered together to avoid any conflicting orders In view of the above and without expressing anything on the validity of the caste certificate issued in favour of the appellant we set aside the impugned judgment and order passed by the High Court and remand the matter to the Scrutiny Committee to consider the validity of the caste certificate issued in favour of the appellant afresh along with the cases of his father and his cousins namely Bharat Nagu Garud Nilima Rohidas Garud Pravin Rohidas Garud Priyanka Rohidas Garud Rohidas Nago Garud and Ramdas Nagu Garud. The Scrutiny Committee to pass fresh order s in accordance with law and on its own merits and on the basis of the material available on record and or that may be produced and pass a speaking order at the earliest preferably within a period of three months from today At the cost of repetition it is observed that this Court has not gone into the merits of the case at all and has not observed anything on the validity of the caste certificate issued in favour of the appellant The present appeal is accordingly allowed to the aforesaid extent However in the facts and circumstances of the case there shall be no order as to costs NEW DELHI DECEMBER 10 2021 B.V. NAGARATHNA]

The FIR in question could not be lodged against those persons involved in causing restraint to the public servants who were discharging their official duties, not a valid ground: The High Court of Jammu & Kashmir and Ladakh

The facts of the case are sought abashment of FIR under Sections 353, 332, 147 & 506 RPC on the ground that the same is an abuse of process of law and that the FIR has been lodged with an ulterior motive for wreaking vengeance upon the petitioners. In the Hon’ble High Court of Jammu & Kashmir and Ladakh led through the single bench by Justice Puneet Gupta in the matters of Saraf Singh Nag & Ors. v. State of J&K[CRMC/68//2019]. It was submitted that the FIR in question is not maintainable as Section 128 of the Municipal Act was not adhered to by the concerned agencies before taking the action against them. The time statutorily required to be granted to the ‘rehareewalas’ was not granted to remove the ‘reharees’. It is further submitted that in any case the offence under Sections 332 and 353 RPC can be invoked in case the public servant is deterred from discharging his public duty and it is not made out that such duty was being assigned by the concerned at the time of alleged occurrence. The learned counsel for the petitioners has indeed reiterated the averments contained in the petition during the course of arguments. Mr Jamrodh Singh learned GA appearing on behalf of the respondent has argued that the FIR is the result of illegal interference caused by the petitioners to the government officials while they were lawfully discharging their duties. The petitioners did not heed to remove the reharees which were being managed by the petitioners illegally and instead they resisted their removal from the place. The FIR cannot be quashed as it cannot be said that the lodging of the FIR is in any way abuse of the process of law. In 2021 SCC Online SC 315 titled ‘Neeharika Infrastructure Pvt. Ltd. Vs State of Maharashtra and others’ decided on 13.04.2021, the Hon’ble Apex Court has laid down the principles of law-keeping in view the earlier judgments with regard to the situations where the inherent powers of the court should be exercised by the High Court in the petitions filed under Section 482 Cr.P.C. The argument raised by the learned counsel for the petitioners is only to the extent that as the provisions of Section 128 of the Municipal Act were not followed by the authorities which pertain to the issuance of notice prior to taking of action against the persons concerned, the FIR in question is indeed abuse of process of law. The High Court of Jammu and Kashmir concluded “The petitioners had a license in their favour and therefore were not required to be removed from their respective places of business is the argument which can be raised by the petitioners during trial in case the challan is to be finally produced against the petitioners after investigation. The court directed “In the facts and circumstances of the case, the Court finds no reason to exercise its inherent powers to quash the FIR as pleaded in the present petition” The petition was dismissed accordingly.

Supplementary Cause List 2 Sr. No. 95 HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT JAMMU Pronounced on: 16.11.2021 CRMC No. 68 2019 CrlM No. 226 2019Saraf Singh Nag and others ..…Petitioners(s) Through : Mr. G.S.Thakur Advocate. Respondent(s) State of J&K Through : Mr. Jamrodh Singh GA. CORAM: HON’BLE MR. JUSTICE PUNEET GUPTA JUDGE The petitioners seek quashment of FIR No. 16 2019 registered with Police JUDGMENT Station Reasi under Sections 353 332 147 & 506 RPC on the ground that the same is abuse of process of law and that the FIR has been lodged with an ulterior motive for wrecking vengeance upon the petitioners. It is submitted that the FIR in question is not maintainable as Section 128 of the Municipal Act was not adhered to by the concerned agencies before taking the action against them. The time statutorily required to be granted to the ‘rehareewalas’ was not granted to remove the ‘reharees. It is further submitted that in any case the offence under Sections 332 and 353 RPC 2 CRMC No. 68 2019 can be invoked in case the public servant is deterred from discharging his public duty and it is not made out that such duty was being assigned by the concerned at the time of alleged occurrence. The learned counsel for the petitioners has indeed reiterated the averments contained in the petition during the course of arguments. 3. Mr. Jamrodh Singh learned GA appearing on behalf of the respondent has argued that the FIR is the result of illegal interference caused by the petitioners to the government officials while they were lawfully discharging their duties. The petitioners did not heed to remove the reharees which were being managed by the petitioners illegally and instead they resisted their removal from the place. The FIR cannot be quashed as it cannot be said that the lodging of the FIR is in any way abuse of process of law. The court in exercise of its inherent jurisdiction will not lightly quash the FIR unless the same appears to be abuse of process of law. The court can interfere when the averments contained in the FIR on the face of it do not constitute any offence or apparently appear to be absurd or not complying with the statutory requirement if any. In 2021 SCC Online SC 315 titled ‘Neeharika Infrastructure Pvt. Ltd. Vs State of Maharashtra and others’ decided on 13.04.2021 the Hon’ble Apex Court has laid down the principles of law keeping in view the earlier judgments with regard to the situations where the inherent powers of the court should be exercised by the High Court in the petitions filed under Section 482 Cr.P.C. 3 CRMC No. 68 2019 The argument raised by the learned counsel for the petitioners is only to the extent that as the provisions of Section 128 of the Municipal Act were not followed by the authorities which pertain to issuance of notice prior to taking of action against the persons concerned the FIR in question is indeed abuse of process of law. The allegations as mentioned above to unlawful interference caused by the petitioners while anti encroachment drive was being undertaken by the authorities including the police personnel and Tehsildar Reasi. It is alleged in the FIR No. 16 2019 registered with Police Station Reasi that the petitioners misbehaved used vulgar language and caused obstruction in the implementation of the order of the District Magistrate Reasi while anti encroachment drive was initiated against the owners of illegal rehariwala. Therefore it cannot be argued on behalf of the petitioners that the FIR in question could not be lodged against those persons involved in causing restraint to the public servants who were discharging their official duties. The petitioners had license in their favour and therefore were not required to be removed from their respective places of business is the argument which can be raised by the petitioners during trial in case the challan is to be finally produced against the petitioners after investigation. The other argument raised on behalf of the petitioners that the authorities are not stated to be discharging their official duties and therefore the FIR under Section 353 RPC is not maintainable against the petitioners is without any force. The perusal of the FIR does make out that the authorities were engaged in anti encroachment drive on the directions of 4 CRMC No. 68 2019 the District Magistrate on a day of occurrence and were restrained from discharging their official duties by the persons mentioned in the FIR therefore it cannot be said that the FIR can be quashed on the ground pleaded by the counsel for the petitioners. In the facts and circumstances of the case the Court finds no reason to exercise its inherent powers to quash the FIR as pleaded in the present The petition is without merit and is accordingly dismissed. petition. Pawan Chopra Judge Whether the order is speaking Yes No Whether the order is reportable Yes No PAWAN CHOPRA2021.11.17 10:39I attest to the accuracy andintegrity of this document

Candidate cannot blame authority for administrative delay if selection process not over: High court of Delhi

When a seniority list has been created that is in contravention of the established principles laid down by law, such a list cannot be used for the purpose of promoting a candidate by the official authorities.  This was decided in the case of Yash Rattan & Ors vs. Union Of Indian And Ors [W.P.(C) 3576/2021] by the Hon’ble Justice Rajiv Sahai Endlaw and Hon’ble. Justice Amit Bansal in the High court of Delhi. The present writ petition impugns the order passed by Central Administrative Tribunal (CAT) wherein the applicants before the CAT were allowed and the seniority list, which was the subject matter of challenge before the CAT, was set aside. The present petition has been filed by the petitioners, who were the respondents before the CAT. The petitioner of this case were inspectors in the Delhi Commissionerate recruited in the year 2011 and at their request, they were transferred to the Delhi Zone in 2014. On account of the increase in number of vacancies, the private respondents took a transfer to Delhi Commissionerate from their parent cadre and were placed at the bottom of the seniority list. This seniority list was prepared in terms of the ratio of the Hon’ble Supreme Court in Union of India & Ors. Vs. N.R. Parmar and Ors. (2012) 13 SCC 340. This seniority list itself is the subject matter of the writ petition. The counsel on behalf of the petitioners has strenuously argued that the impugned order of the CAT is erroneous as it fails to consider that, while preparing seniority list, the recruitment year of the candidates is relevant and not the year in which they join the cadre. The seniority list impugned before CAT was prepared strictly in terms of OM dated 4th March, 2014 which was based on N.R. Parmar judgment. Relevant provisions of the OM dated 4th March, 2014 relied on behalf of the petitioners are set out below: “d) Recruitment Year would be the year of initiating the recruitment process against a vacancy year; The learned counsel for the private respondents submits that the petitioners have wrongly stated that the private respondents are transferees. It was contended that the N.R. Parmar judgment was not applicable because the said judgment dealt with seniority between direct recruits and promotees, whereas the controversy in the present case relates to seniority between two different categories of direct recruits, inasmuch as the private respondents are also direct recruits. The court observed that in service jurisprudence, seniority cannot be claimed from the date when the incumbent is yet to be borne in the cadre and therefore, norms on assessment of inter se seniority, suggested in N.R. Parmar) case were disapproved. It was also stated by the court “Persons aspiring to be appointed to a vacant post do not have any vested right. Only upon completion of the selection process, a candidate becomes a selected candidate and therefore, the finding in above case that the selected candidate cannot be blamed for administrative delay, was not correct.”

IN THE HIGH COURT OF DELHI AT NEW DELHI Judgment Reserved on : 18th March 2021 Judgment Delivered on : 9th April 2021 W.P.(C) 3576 2021 YASH RATTAN & ORS Petitioners Through: Ms. Maninder Acharya Senior Advocate with Mr. Ayush Anand Mr. Shubhendu Anand Mr. Mrinal Elker Mr. Viplav Acharya & Mr. Shikhar Kishore Advocates. UNION OF INDIAN AND ORS. Respondents Through: Mr. Gaurang Kanth CGSC with Mr. Amit Dogra G.P. Ms. Biji Rajesh and Mr. Shreesh Chadha Advocates for UOI. Mr. Harpreet Singh with Mr. Arunesh Sharma & Ms. Suhani Mathur Advocates for R 4 R 31. HON BLE MR. JUSTICE RAJIV SAHAI ENDLAW HON BLE MR. JUSTICE AMIT BANSAL AMIT BANSAL J. C.M. No.10817 2021Allowed subject to all just exceptions and as per extant Rules. The application stands disposed of. W.P.(C) 3576 2021 & C.M. No.10818 2021The present writ petition impugns the order dated 13th October 2020 passed by Central Administrative Tribunalin OA No.2955 2019. By W.P.(C) 3576 2021 the said impugned order OA filed by respondents no.4 to 31 herein was allowed and the seniority list dated 15th March 2018 which was the subject matter of challenge before the CAT was set aside. The present petition has been filed by the petitioners who were the respondents before the CAT. The brief facts giving rise to the present petition are set out The petitioners herein were appointed as Inspectors in the Delhi Commissionerate of the respondents in the year 2016 under the direct recruit quota. The private respondentswere also direct recruits recruited in the year 2011 in various zones outside Delhi. At their request they were transferred to the Delhi Zone in the year 2014. On 31.07.2014 there was a substantial re structuring in the department resulting in steep increase in the number of posts of Inspectors in Delhi Zone. On account of the increase in number of vacancies the private respondents took a transfer to Delhi Commissionerate from their parent cadre and were placed at the bottom of the seniority list. The petitioners who were appointed on direct recruitment basis against the vacancies for the year of 2014 joined cadre only in the year 2016. On 15th March 2018 the respondents came out with a seniority list of Inspectors in which the respondents herein were placed below the petitioners. The seniority list was prepared on the basis of OM No. 20011 1 2012 Estt.(D) dated 4th March 2014 which in turn had been prepared in terms of the ratio of the Hon’ble Supreme court in Union of India & Ors. Vs. N.R. Parmar & W.P.(C) 3576 2021 Ors. 13 SCC 340. The private respondents made various representations against the said seniority list. The representations not having been considered favourably the private respondents filed OA No.1251 2019 challenging the seniority list of Inspectors as on 31st March 2015 issued on 15th March 2018. On 5th August 2019 the official respondents amended the RRs with regard to promotion of Inspectors to the post of Superintendents. On 16th September 2019 the private respondents withdrew OA No.1251 2019 with liberty to file fresh OA. On 30th September 2019 fresh OA No.2955 2019 was filed by the private respondents challenging the seniority list dated 15th March 2018 from which the present petition arises. The main ground of challenge in the said OA was that the petitioners who had joined the department after the joining of the private respondents cannot be placed above them in the seniority list. Reliance was placed on the decision of the Hon’ble Supreme Court in K. Meghachandra Singh &Ors. Vs. Ningam Siro & Ors. 5 SCC 689 in which the earlier judgment of N.R. Parmar was overruled. The said OA was contested by both the official respondents as well as the petitioners herein by filing counter affidavits. The said OA 2955 2019 was allowed by the Tribunal vide the impugned order and the seniority list dated 15th March 2018 to the extent it placed petitioners who were appointed and joined Delhi Commissionerate subsequent to the date of the transfer of the private respondents was set aside. It was held by the CAT that the petitioners herein who were appointed in the year 2016 cannot be placed above the private respondents who were appointed in the year 2011 and came on transfer to Delhi Zone in W.P.(C) 3576 2021 the year 2014 the judgment of the Hon’ble Supreme Court in N.R. Parmar would apply only in the context of fixation of inter se seniority between the promotees on one hand and direct recruits on the other hand on transfer to Delhi Zone the private respondents would be placed in the seniority after directly recruited Inspectors of the year 2014 on the principle that whoever comes on transfer has to take the last place in the seniority in the zone to which he comes on transfer since the petitioners as well as the private respondents were direct recruits the judgment in N.R. Parmarwould have no impact on them there was no basis or justification to place the petitioners who were appointed in the year 2016 above the private respondents in the Delhi zone andthe judgment of the Hon’ble Supreme Court in N.R. Parmar has been overruled by the Supreme Court judgment in the case of K. Meghachandra Singhpromotees of the vacancies of 2014 were appointed on 1st April 2014 cadre re structuring took place in July 2014 which resulted W.P.(C) 3576 2021 in creation of additional vacancies out of which 459 vacancies were available for direct recruit quota and 229 for promotion quota at that point of time 185 applications for inter Commissionerate transfer were pending from different zones to Delhi Zone it was decided that 200 out of 459 vacancies of direct recruits should be filled up through transfer and remaining 259 vacancies were to be filled up through direct recruitment quota the process for recruitment of 259 Inspectors on direct recruitment basis started on 2nd September 2014 on 7th December 2014 240 more vacancies were made available to be filled through direct recruitment quota and 120 through promotion quota the petitioners qualified the SSC CGL) Examination 2014 against the vacancies for 2014 and were appointed as Inspectors on direct recruitment basis in the Delhi zone in 2016 on 15th March 2018 the respondents finalized the seniority list of Inspectors upto 31st March 2015 in which the name of the private respondents was below the petitioners. 10. The learned Senior Counsel on behalf of the petitioners has strenuously argued that the impugned order of the CAT is erroneous as it fails to consider that while preparing seniority list the recruitment year of the candidates is relevant and not the year in which they join the cadre. The seniority list impugned before CAT was prepared strictly in terms of OM dated 4th March 2014 which was based on N.R. Parmar judgmentRecruitment Year would be the year of initiating the recruitment process against a vacancy year W.P.(C) 3576 2021 Initiation of recruitment process against a vacancy year would be the date of sending of requisition for filling up of vacancies to the recruiting agency in the case of direct recruits in the case of promotees the date on which a proposal UPSC Chairman DPC for convening of DPC to fill up the vacancies through promotion would be the relevant date.” respects in all It was further submitted that on the date the said seniority list was prepared N.R. Parmar judgment of the Supreme Court held the field and therefore the seniority list was correctly prepared on the basis of the said judgment. The said judgment was overruled by a three Judge Bench of the Hon’ble Supreme court in K. Meghachandra Singh judgment supra) which was delivered on 13th November 2019 however the said overruling was prospective and therefore seniority already decided in terms of N.R. Parmarwould be protected. Reliance is also placed on the transfer order dated 20th April 2013 in respect of the private respondents wherein it is specifically noted that transferee officers will be placed below all officers appointed regularly to the post grade in terms of para 3.5 of the DoP&T’s OM dated 3.7.1986. The said Clause 3.5 of the OM dated 3.7.1986 is set out below: “3.5 In cases in which transfers are not strictly in public interest the transferred officers will be placed below all officers appointed regularly to the grade on the date of It was further contended by the Learned Senior Counsel for the petitioners that if the directions of the CAT are implemented it would also disturb the inter se seniority between the direct recruits and the promotees. In the impugned seniority list direct recruits and the promotees for the W.P.(C) 3576 2021 vacancies have been interspersed and the promotees have not challenged the same. Therefore in terms of the impugned order of the CAT even the said interspersing between the promotees and the direct recruits would go and the petitioners would become junior to the promotees. 13. The official respondents represented by Mr. Gaurang Kanth Advocate have supported the case of the petitioners. Mr. Kanth has placed reliance on para 3.3 of the OM dated 3.7.1986 and defends the OM dated 4th March 2014 in terms of which the official respondents have correctly drawn the seniority list. 14. Per contra Mr. Harpreet Singh learned counsel for the private respondents submits that the petitioners have wrongly stated that the private respondents are transferees. In reality the said transferees are also direct recruits of the year 2011 and therefore have a right to be interspersed with the promotees of 2015. He further submits that the private respondents were placed at the bottom of the promotees and the direct recruits of 2014. Prior to the cadre re structuring the number of vacancies available for Inspectors in direct recruitment quota was only 12. Only after cadre re structuring in October 2014 the vacancies became 561. So cadre re structuring benefitted petitioners also inasmuch as posts for direct recruits increased. Requisitions to fill in direct recruitment vacancy were sent to SSC only after they had joined Delhi Zone. It was contended that the N.R. Parmar judgment was not applicable because the said judgment dealt with seniority between direct recruits and promotees whereas the controversy in the present case relates to seniority between two different categories of direct recruits inasmuch as the private respondents are also direct recruits W.P.(C) 3576 2021 and this fact has been noted in para 6 of the impugned order. He further submitted that when the private respondents joined the cadre petitioners were not even borne in the cadre. He submits that para 3.3 of the OM dated 3.7.1986 is not relevant as same applies only when an employee is appointed by transfer in accordance with provisions of RRs providing for such transfer in the event of non availability of suitable candidate by direct recruitment or promotion which is not the case here. He further states that the seniority position was not settled when the K. Meghachandra Singh judgment was delivered as the private respondents had filed objections against the seniority list of 15th March 2018 and further had challenged the same before the CAT before the K. Meghachandra Singh judgmentwas delivered by the Hon’ble Supreme Court. Therefore it is wrong to state that the seniority position was settled. In rejoinder it has been submitted on behalf of the petitioners thatprivate respondents may be direct recruits but not for the purposes of Delhi Commissionerate promotees and direct recruits sink and sail together and therefore cannot be separated in the seniority list the petitioners who were borne elsewhere have to come after the promotees and the direct recruits and cannot be sandwiched between them the judgment in K. Meghachandra Singhprotected the inter se seniority based on N.R. Parmar(v) when the petitioners applied for transfer there were no posts available under the Delhi Commissionerate and CAT did not examine the aspect of promotees being benefitted at the expense of the W.P.(C) 3576 2021 16. We have examined the rival contentions. It is a matter of fact that the seniority position in the present case was not finally settled when the judgment in the case of K. Meghachandra Singhwas delivered by the Hon’ble Supreme Court on 13th November 2019. The impugned seniority list was issued on 15th March 2018 and immediately thereafter various representations were filed on behalf of the private respondents against the said seniority list. When no response was received on the said representations the private respondents filed the OA before the CAT challenging the said seniority list from which the present petition arises. In fact OA was also filed before the judgment in K. Meghachandra Singh judgmentwas delivered. Therefore it is incorrect on the part of the petitioners to say that the seniority position was settled and therefore the same has to be protected in terms of the judgment in K. Meghachandra Singh judgment had to be applied. The following paragraphs from the judgment in K. Meghachandra Singhmay be referred to: “37. When we carefully read N.R.Parmar it appears to us that the referred OMswere not property construed in the judgment. Contrary to the eventual finding the said two OMs had made it clear that seniority of the direct recruits be declared only from the date of appointment and not from the date of But surprisingly the judgment while referring to the illustration given in the OM in fact overlooks the effect of the said illustration. According to us the illustration extracted in N.R. Parmar itself makes it clear that the vacancies which initiation of recruitment process. W.P.(C) 3576 2021 were intended for direct recruitment in a particular year 1986) which were filled in the next year could be taken into consideration only in the subsequent year’s seniority list but not in the seniority list of 1986. In fact this was indicated in the two OMs dated 7 2 1986 and 3 7 1986 and that is why the Government issued the subsequent OM on 3 3 2008 by way of clarification of the two earlier 38. At this stage we must also emphasise that the Court in N.R. Parmar need not have observed that the selected candidate cannot be blamed for administrative delay and the gap between the initiation of process and appointment. Such observation is fallacious inasmuch as none can be identified as being a selected candidate on the date when the process of recruitment had commenced. On that day a body of persons aspiring to be appointed to the vacancy intended for direct recruits was not in existence. The persons who might respond to an advertisement cannot have any service related rights not to talk of right to have their seniority counted from the date of the advertisement. In other words only on completion of the process the applicant morphs into a selected candidate and therefore unnecessary observation was made in N.R. Parmar to the effect that the selected candidate cannot be blamed for the administrative delay. In the same context we may usefully refer to the ratio in Shankarsan Dash v. Union of India where it was held that even upon empanelment an appointee does not acquire any right. 39. The judgment in N.R. Parmar relating to the Central Government employees cannot in our opinion automatically apply to the Manipur State Police Officers governed by the MPS Rules 1965. We also feel that N.R. Parmar had incorrectly distinguished the long standing seniority determination principles propounded in inter alia Jagdish Ch. Patnaik Suraj Parkash Gupta v. State of J&K and Pawan Pratap Singh v. Reevan Singh. These three judgments and several others with like enunciation W.P.(C) 3576 2021 that under service on the law for determination of seniority makes it jurisprudence abundantly clear seniority cannot be claimed from a date when the incumbent is yet to be borne in the cadre. In our considered opinion the law on the issue is correctly declared in Jagdish Ch. Patnaik and consequently we disapprove the norms on assessment of inter se seniority suggested in N.R. Parmar. Accordingly the decision in N.R. Parmar is overruled. However it is made clear that this decision will not affect the inter se seniority already based on N.R. Parmar and the same is protected. This decision will apply prospectively except where seniority is to be fixed under the relevant rules from the date of vacancy the date of advertisement.” 17. From a reading of the above passages the dicta of the Hon’ble Supreme Court that emerges can be summarized as below: OMs dated 07.02.1986 and 03.07.1986 were not properly construed in the N.R. Parmarjudgment. The said OMs made it clear that seniority of direct recruits had to be fixed from the date of appointment and not from the date of initiation of recruitment process Persons aspiring to be appointed to a vacant post do not have any vested right. Only upon completion of the selection process a candidate becomes a selected candidate and therefore the finding in N.R. Parmarthat the selected candidate cannot be blamed for administrative delay was not correct iii) N.R. Parmar has incorrectly distinguished longstanding seniority determination principles propounded in the following cases: W.P.(C) 3576 2021 a) Jagdish Ch. Patnaik Vs. State of Orissa 4 SCC 456 b) Suraj Prakash Gupta Vs. State of J&K 7 SCC 561 and c) Pawan Pratap Singh Vs. Reevan Singh 3 SCC 267 In service jurisprudence seniority cannot be claimed from the date when the incumbent is yet to be borne in the cadre and therefore norms on assessment of inter se seniority suggested in N.R. Parmar supra) case were disapproved Decision in N.R. Parmar case is overruled however the decision will not affect the inter se seniority already based on N.R. Parmar case and the same is protected. Decision will apply 18. Therefore in our view CAT has correctly applied the dicta in K. Meghachandra Singhcase in the present case and has proceeded to quash the seniority list to the extent it placed the petitioners above the private respondents. The fact that the CAT decision would impact the inter se seniority between the promotees and direct recruits is not the subject matter of the present petition and therefore need not be examined. It is also an admitted position that in the present case requisitions for the appointment of the petitioners were sent to SSC the recruiting authority on 11th February 2015 after the private respondents had already joined the Delhi Commissionerate. Therefore even in terms of OM dated 4th March 2014 the petitioners cannot be placed above the private respondents. W.P.(C) 3576 2021 APRIL 09 2021 19. Therefore we see no merit in the present petition. AMIT BANSAL J. RAJIV SAHAI ENDLAW J. W.P.(C) 3576 2021

Brutal attack on a defenceless man, will not amount for leniency- Orissa High Court

With regard to the submission that none of the weapons seized by the Police was examined by any expert, it is to be stated that the same has hardly any consequential effect on prosecution case. This is not a case of circumstantial evidence. These were held by the High Court of Orissa through the learned bench of Justice B.P. Routray in the case Dara Singh @ Rabindra Kumar Pal v. State of Orissa (CRLA/556/2007) The crux of the case is the deceased was demanded ‘Chanda’ (subscription) by the accused-Chema Ho and Dipu Behera along with some others in the the garment shop of the deceased. The deceased refused to pay. This resulted loud altercation of words and shouting. All of sudden, the Appellant emerged from Durga-Mandap side of the weekly market raising an axe (M.O.I) and approached towards the deceased. Seeing the appellant deceased started running out of panic. The Appellant chased him to a distance and dealt a blow by the axe on his back side. As the deceased fell down, the Appellant dealt further blows on him. Other accused persons also dealt blows. They dragged the deceased back to his shop, torched his body pouring kerosene, looted the shop and fled away. The informant-Mukunda Naik (P.W.1) is a Grama Rakhi. He was purchasing rice from another shop in the same weekly market during that time. While giving blows on the deceased, the Appellant could see the informant and shouted at him raising the axe towards him. The informant also ran away in panic. He went to Thakurmunda Police Station. On the way, he heard from others that the Appellant and others blazed the deceased and his temporary garment shop. He lodged the FIR then OIC of Thakurmunda P.S rushed to the spot with his team. Reaching at the spot, he found the deceased was lying half burnt in his shop. The Appellant was convicted under Section 302, I.P.C. based on the evidence of the eye-witnesses and other material evidence. The Appellant submitted that the burn injuries seen on the dead body having not been explained by the prosecution, the same has a severe impact on the credibility of prosecution version. As stated earlier most of the prosecution witnesses have turned hostile. Neither P.W.1 nor P.W.16 nor any other witness saw the 2nd part of the assault because they ran away from the spot out of panic. Out of 8 injuries sustained by the deceased, only two are burn injuries. It is not the case that other six injuries are simple in nature without having any bearing on the cause of death. As per the prosecution case, P.W.1 has stated that he heard about the burning of the deceased and his shop while he was coming to the Police Station. Of course, this is not proved by material evidence. The FIR does mention about the burning. Therefore, learned counsel for the Appellant is not correct in his submission that the burn injuries are not explained by the prosecution. However, the same could not be proved on record with material evidence. However, it does not result in anything adverse so as to doubt the prosecution case. In particular, it does not create any doubt on the involvement of the Appellant in the assault of the deceased. The learned bench of Justice B.P. Routray held that “the Appellant has already undergone more than 21 years inside the jail custody and considering his long custody, the punishment may be modified to such period undergone. There is no merit in the said submission. Keeping in view the nature of assault, the brutality associated therewith and the circumstances of the crime where no prior enmity existed, and the victim was unarmed and defenceless, there is no case made out for any leniency as far as the sentence is concerned. As such, taking note of the prosecution case and considering the evidence adduced in its entirety, we do not find any extenuating circumstances in favor of the Appellant. The sentence awarded to the appellant is hereby affirmed.”

IN THE HIGH COURT OF ORISSA AT CUTTACK CRIMINAL APPEAL No.556 of 2007 From the judgment dated 29th October 2007 passed by Shri S.N. Sahoo learned Sessions Judge Mayurbhanj Baripada in S.T. Case No.900) Appellant Dara Singh @ Rabindra Kumar Pal versus State of Orissa Advocate(s) appeared in this case: For Appellant Mr. C.R. Sahu Advocate For Respondent Mrs. Saswata Pattanaik Additional Government Advocate CORAM: THE CHIEF JUSTICE JUSTICE B.P. ROUTRAY 10th January 2022 B.P. Routray J. 1. A total of 38 accused persons including the present Appellant were prosecuted in S.T. Case No.91 2000 for offences under Sections 396 435 212 of the Indian Penal Code and approached towards the deceased. Seeing the appellant deceased started running out of panic. The Appellant chased him to a distance and dealt a blow by the axe on his back side. Suddenly a feel of terror spread in the weekly market and the crowd present there started running helter skelter in panic. As the deceased fell down the Appellant dealt further blows on him. Other accused persons also dealt blows. They dragged the deceased back to his shop torched his body pouring kerosene looted the shop and fled away. 4. The informant Mukunda Naik is a Grama Rakhi. He was purchasing rice from another shop in the same weekly market during that time. While giving blows on the deceased the Appellant could see the informant and shouted at him raising the axe towards him. The informant also ran away in panic. He went to Thakurmunda Police Station. On the way he heard from others that the Appellant and others blazed the deceased and his temporary garment shop. He lodged the FIR under Ext.1. P.W.33 the then OIC of Thakurmunda P.S. immediately registered the FIR and rushed to the spot with his team. CRLA No.5507 Reaching at the spot he found the deceased was lying half burnt in his shop. He immediately arranged a mini Truck driven by P.W.9 and sent the deceased in semi conscious state along with P.W.4 and P.W.14 the brother of the deceased. The deceased was taken to Sub Divisional Hospital Karanjia where he died around 9.00 p.m. in the same night. 5. P.W.33 visited the spot and found blood stains lying at a distance of 35 ft. from the shop. He requisitioned the scientific team to examine the crime scene. P.W.33 also seized some half burnt readymade dresses the bicycle of the deceased lying near the spot. As the deceased died on the same night the IIC Karanjia held inquest over the dead body of the deceased on the request of P.W.33. P.W.33 continued investigation till 28th August 1999 and then handed over the charge of investigation to the Circle Inspector Karanjia P.W.30). Said P.W.30 continued investigation till 29th September 1999 when State Crime Branch took charge of the investigation. P.W.32 the Inspector of Crime Branch took the charge of the investigation on 29th September 1999 and submitted the charge sheet on 26th December 1999 for the offences stated above. The Appellant was absconding till then. He was arrested subsequently and taken to custody in the present case on 1st February 2000. 6. The prosecution examined 33 witnesses in total in order to prove their case and exhibited 16 documents. The prosecution also marked 5 material objects including the axe as M.O.I. As stated earlier the Appellant was convicted under Section 302 I.P.C. based on the evidence of the eye witnesses and other material evidence. CRLA No.5507 7. P.W.20 the doctor attached to S.D. Hospital Karanjia conducted post mortem examination over the dead body of the deceased on 27th August 1999 at 2.10 p.m. and found 8 external injuries on the person of the deceased. Injury No. I II & IV were incised wounds present over posterior part of the right elbow over left elbow and on the right side of the chest wall. Injury Nos.III & V were two lacerated wounds present over the occipital region of the scalp and left chest wall respectively. Injury No.VI is a stab wound present at 8th inter costal space on left side. Remaining two were burn injuries present over the anterior aspect of legs and posterior aspect of the upper limb. There were corresponding internal injuries of linear fracture of the occipital bone with extra dural haematoma and fracture of 2nd 3rd and 4th left side ribs. In the opinion of P.W.20 the cause of death is due to multiple injuries and burn leading to haemorrhage and shock as they were sufficient in ordinary course of nature to cause the death. No challenge is raised by the Appellant towards homicidal nature of death of the deceased which is sufficiently proved as per the evidence of P.W.20 from the contents of the inquest report and the circumstances narrated by other witnesses. It is thus accepted as such that the deceased died a homicidal death. 8. P.W.1 the informant and P.W.16 are the eye witnesses to the occurrence. Both of them are found consistent in their statements on major aspects. Both these witnesses have stated that the Appellant dealt blows on the deceased. The emergence of the Appellant at the spot of occurrence then running of the deceased the dealing of first blow while chasing the deceased etc all have been stated consistently by CRLA No.5507 these two witnesses. P.Ws.1 & 16 both have stated that they ran away out of panic seeing the assault on the deceased by the Appellant. From the narration of prosecution case the assault story can be divided into two parts i.e. the Appellant dealt the first blow on the deceased from his back while chasing him and subsequent blows after the deceased fell down. In the 2nd part of the assault the deceased was dragged back to his temporary shop and was set ablaze with kerosene. Both these witnesses have not said anything about the 2nd part of the assault as they have not seen that. 9. There is some discrepancy in the evidence of P.Ws.1 & 16. P.W.1 has said that the Appellant dealt blows by means of axe and as per P.W.16 the Appellant dealt blows by means of a Bhala. Taking advantage of this it is submitted on behalf of the Appellant that the weapon of offence having not examined by forensic expert or by the autopsy doctor reasonable doubt appears in the involvement of the Appellant in the cause of assault. Further M.O.I being recovered from the house of one of the co accused namely Prafulla Mahanta on 16th September 1999 i.e. after 19 days of the occurrence prosecution has failed to establish any connection of M.O. I either to the alleged injuries or with the Appellant. 10. It is true that M.O. I was seized from the house of another co accused Prafulla Mahanta on 16th September 1999 along with one arrow and bowby the Police in absence of said Prafulla Mahanta. It is also true that the prosecution has not taken any step for examination of those weapons including M.O.I by any expert. But this will not take away of the effect of direct evidence of P.Ws.1 and 16 of CRLA No.5507 witnessing the assault coupled with the nature of injuries noticed on the dead body of the deceased. The place of occurrence which is a weekly market of the village was admittedly a crowded place where many people were present. But to the misfortune of prosecution most of the witnesses turned hostile and did not support prosecution case. The involvement of many persons including the Appellant was alleged in the occurrence which is also apparent from the evidence of P.Ws.1 & 16. So keeping in view the large gathering of people in the market the discrepancy pointed out in the statement of P.Ws.1 & 16 about use of axe or Bhala as the weapon of offence by the Appellant during the course of assault is found immaterial. When the lacerated and incised wounds spotted on the dead body were in the opinion of P.W.20 could be possible by an axe and the evidence of both the direct eye witnesses are consistent in all other aspects the discrepancy with regard to use of axe or Bhala by the Appellant is a minor one and does not affect the credibility of those witnesses because such discrepancies are normal to appear in the version of true witnesses. 11. With regard to the submission that none of the weapons seized by the Police was examined by any expert it is to be stated that the same has hardly any consequential effect on prosecution case. This is not a case of circumstantial evidence. It is a case where direct eye witnesses are there who have seen the assault. The evidence of P.Ws.1 & 16 are consistent with regard to the Appellant as the assailant. Their evidences are also supported by the post occurrence witnesses viz. P.Ws.4 9 12 14 and other official witnesses. When the Appellant and all other accused persons absconded and many of them remained as such for quite a long time no blame can be attributed to the prosecution for the CRLA No.5507 delayed recovery or seizure of the weapons. Of course it cannot be expected for those weapons under M.O. I II & III to contain any blood stain after 19 days because the chance of their washing off either by natural process or by any individual impact cannot be ruled out. Since the present one is a case where the direct eye witnesses have seen the Appellant in causing the assault the non examination of those weapons by the expert is inconsequential particularly keeping in view the nature of injuries and the nature of weapons. 12. It is also submitted on behalf of the Appellant that the burn injuries seen on the dead body having not been explained by the prosecution the same has a severe impact on the credibility of prosecution version. As stated earlier most of the prosecution witnesses have turned hostile. Neither P.W.1 nor P.W.16 nor any other witness saw the 2nd part of the assault because they ran away from the spot out of panic. Out of 8 injuries sustained by the deceased only two are burn injuries. It is not the case that other six injuries are simple in nature without having any bearing on the cause of death. As per the prosecution case P.W.1 has stated that he heard about the burning of the deceased and his shop while he was coming to the Police Station. Of course this is not proved by material evidence. The FIR does mention about the burning. Therefore learned counsel for the Appellant is not correct in his submission that the burn injuries are not explained by the prosecution. However the same could not be proved on record with material evidence. However it does not result in anything adverse so as to doubt the prosecution case. In particular it does not create any doubt on the involvement of the Appellant in the assault of the deceased. CRLA No.5507 13. It is next submitted that there was a delay of three days in sending the FIR to the Court. Secondly it is submitted that the motive of the crime is not established. As stated earlier these lacunae are inconsequential in a case of direct evidence which hinges on the credible testimonies of eye witnesses. Once their evidence is shown by the prosecution to be consistent trustworthy and without material discrepancies such minor irregularity with regard to the delay in sending the FIR to the court hardly dilutes the credibility of the prosecution version. The Appellant is not correct in his submission regarding absence of a motive. It has been stated by P.Ws.1 & 16 that they saw the accused persons quarrelling with the deceased prior to his death. Further the prosecution case is that they were extorting ‘subscription’ money from the deceased and he had declined to oblige them. 14. The further submission of the Appellant is that P.W.16 is a related witness and P.W.1 being a Policeman cannot be relied upon. The said contention has been elaborately dealt with and rejected by the learned trial court. We do not see any infirmity in the approach of the learned trial court. Concurring with the conclusions of the trial court on this aspect we reject those submissions of the Appellant. Accordingly the conviction as awarded by the trial court is affirmed. 15. It is further submitted that in the meantime the Appellant has already undergone more than 21 years inside the jail custody and considering his long custody the punishment may be modified to such period undergone. There is no merit in the said submission. Keeping in view the nature of assault the brutality associated therewith and the CRLA No.5507 circumstances of the crime where no prior enmity existed and the victim was unarmed and defenceless there is no case made out for any leniency as far as the sentence is concerned. 16. As such taking note of the prosecution case and considering the evidence adduced in its entirety we do not find any extenuating circumstances in favor of the Appellant. The sentence awarded to the appellant is hereby affirmed. 17. In the result the appeal is dismissed. 18. 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.514 dated 7th January 2022. Judge Chief Justice B.K. Barik PA CRLA No.5507

Substantial data relating to Covid-19 resources must not be tampered with: Karnataka High Court

It is necessary to ensure material documents relating to Covid-19 data and stock of medicines, oxygen cylinders, and Remdesivir available are not tampered with. Therefore, the record concerning the supply of oxygen to Chamarajanagar district maintained by the Office of Deputy Commissioner was ordered to be seized immediately by the Chief Secretary so as to remain under his custody until further instructions are given. A division bench consisting of Chief Justice Abhay Oka and Justice Aravind Kumar while adjudicating the matter in Re Karnataka High Court Case [W.P.No.6435/2020] dealt with the shortage of oxygen supply to Covid-19 patients in Chamarajanagar district. The Government District Hospital in Chamarajanagar District ran out of oxygen supply due to which 24 Covid -19 patients died within a span of 24 hours. The city of Mysuru failed to supply oxygen to the district hospital on time. The case papers of the patients who died in this incident were taken into custody and the Chief Secretary appointed by the State Government was asked to probe into this matter to determine if something suspicious was noticed. Further, in the city of Bengaluru, it was contended that 10 major hospitals ran out of oxygen supply. In the opinion of the Court, the incident apart from being devastating, also questioned the health care system of the country and its credibility. The High Court demanded that the State Government must immediately set out the projected requirement of oxygen of the State for at least a week. It is very crucial to uphold the right to life of citizens provided under Article 21 of the Constitution of India. With respect to the aforementioned facts, the High Court held that the Chief Secretary must seize all documents relating to the particular case, including the availability of Covid-19 resources and case details about those patients who died due to oxygen supply shortage. Further, the State Government must come up with effective guidelines to control the distribution of oxygen among various hospitals in Karnataka.

1 CJ & AKJ: Through Video Conferencing) W.P.No.6435 2020 and connected matters Today the learned Advocate General makes a statement that the State Government has decided to appoint a Commission under the Commissions of Inquiry Act 1952 for inquiring into the incident in Chamarajanagar District of the death 24 COVID patients allegedly due to lack of oxygen supply. He states that the said action has been taken in view of the observations of this Court in the earlier order. We may note here that paragraph no. 7 of the order dated 4th May 2021 records that the Court proposes to hear the learned Advocate General of the said issue. The State Government has already made a choice of a retired Judge of this Court as the Commissioner by issuing an order. Propriety demanded that the State Government ought to have placed before the Court its proposal to appoint the Commission before actually passing an order appointing the Commission. 2 2. We direct the Secretary of the Karnataka State Legal Services Authority to supply a copy of the report filed by the Chairman of the District Legal Services Authority at Chamarajanagar to the learned Advocate General. Considering what is stated in the report it is necessary to ensure that the material documents are not tampered with. Hence we direct the Chief Secretary of the State to immediately take into his custody the entire record of the concerned hospital at Chamarajanagar regarding supply of oxygen the said hospital till and inclusive of the date of the incident as well as the relevant record the Office of the Deputy Commissioner at Chamarajanagar regarding the supply of the oxygen to the District. The case papers of the patients who have died should be also taken into custody. We also direct the Chief Secretary to record concerning the supply of oxygen Chamrajnagar District maintained by the Office of the Deputy Commissioner at Mysuru till and inclusive of the date of the incident at Chamarajanagar. We make it clear that though the record will remain under the custody of the Chief Secretary the 3 officer who has been appointed by the State Government to inquire into the incident will be given access to the said record. Firstly we are dealing with the issue of adequate supply of oxygen to the State of Karnataka. By the order dated 29th April 2021 we had directed the Government of India to immediately take a decision of enhancing the cap of 802 Metric Tonnesper day imposed by the Government of India as far as the State of Karnataka is concerned. The said order records that the estimate of the requirement of oxygen in the State of Karnataka as of 30th April 2021 was of 1 471 MT per day. After noting this factual aspect in paragraph 18 of the order a direction was issued to the Central Government to take a decision on the issue of increasing the cap on the quantity of oxygen. The decision was directed to be taken till Monday 3rd May 2021. But only a marginal increase has been granted by the Government of India by increasing the cap from 802 MT to 865 MT per day with effect from 1st May 2021. Yesterday we passed a detailed order again directing the Central Government to consider the request of the State Government to increase the cap on the supply of oxygen. 4 This Court while passing orders on 29th April 2021 and 4th May 2021 has reminded both the Government of India and the State Government the obligation of both Governments to ensure that proper medical treatment is provided to all those who are infected with COVID 19 in view of the right to health being an integral part of the fundamental rights guaranteed under Article 21 of the Constitution of India. The order dated 4th May 2021 also takes a note of two shocking incidents reported by the media. One was of the death of 24 patients in a Government hospital in Chamarajanagar District within a span of 24 hours and the death of 8 to 9 patients in Kalburgi District. The allegation is that the said patients died as there was no supply of oxygen to the concerned hospitals. It is also noted in our last order that a contention was raised that 10 major hospitals in the city of Bengaluru have exhausted their oxygen supply. It must be mentioned that the city of Bengaluru is recording more than 20 000 new positive cases every day for last few days. The city has highest number of daily positive cases in the entire country. 5 In our order dated 29th April 2021 we have recorded the estimation made by the State Government of the requirement of oxygen in the State. As per the said estimation made on 29th April 2021 as on 30th April 2021 the requirement of oxygen of the State was of 1 471 MT per day as against the cap imposed by the Government of India of 802 MT per day. It is therefore necessary to make a reference to the figures of the total active cases and daily positive cases reported in the State of Karnataka officially published by the State Government. Total Active cases Daily New Cases 28.04.2021 3 49 496 29.04.2021 3 82 690 30.04.2021 4 05 068 01.05.2021 4 21 436 02.05.2021 4 44 734 03.05.2021 4 64 363 35 024 48 296 40 990 37 733 44 438 44 631 Thus as of 28th April 2021 the active cases in the State were 3 49 496 and by 3rd May 2021 the said figure had taken a huge 6 jump to 4 64 363 cases. Even daily new cases have substantially Now we come to the requirement of the medical oxygen of the State which is placed on record. The requirement estimated on 29th April 2021 is already referred above. A letter was addressed by the Additional Chief Secretary to the State Government Health and Family Welfare Department on 30th April 2021 to the Commerce Secretary Department of Industrial Policy and Promotion Ministry of Commerce and Industries Government of India. The relevant portion of the said letter reads "As per GOI norms oxygen demand for the State of Karnataka is projected assuming that 17% of the total active cases will require oxygenated beds and 3% will require ICU Beds. cases are increasing. The State is also seeing increase Based on this norm requirement is likely to go up to 1 792 MT by 5th May in the case the Active Covid Cases reach 3.95 lakh. As per the same norms considering the minimum requirement the State would be at least 1162 MT on 5th May. As on yesterday we are having 349496 active and 35 000 daily Covid 19 cases but the surge is going on and everyday active in positivity rate and hence number of active cases is destined to grow." 7 Thus the projection of requirement of oxygen of 1 792 MT per day as of 5th May 2021 was made on the footing that COVID active cases may reach 3.95 lakhs whereas on 3rd May 2021 the figure of total active cases had actually reached 4 64 323. Further statement made is that the minimum requirement of the State as on 5th May 2021 would be 1 162 MT. As against this the cap on the supply of oxygen to the State of Karnataka till 30th April 2021 was 802 MT per day which was marginally increased to 865 MT per day from 1st May 2021. Today in the afternoon the learned Additional Solicitor General of India states that now it will be increased by further quantity of 100 MT per day. Thus the cap put by the Central Government for the State of Karnataka will be 965 MT per day. We again repeat that based on the estimate of 3.95 lakh active cases as on 5th May 2021 the State s projected requirement was of 1 792 MT per day. But as on 3rd May 2021 the total active cases have gone above 4 60 000. 8 In today s written submissions the State Government has given the figures of the quota utilized by the State Government. The main difficulty expressed by the learned Advocate General is that out of the quota of 865 MT per day as on 1st May 2021 30 MT was to be taken from a steel plant in Vishakhapatnam a total of 80 MT from two plants in Odisha and 20 MT from a plant in Kerala. It is pointed out by the learned Advocate General that for procuring the quota from far away places like Vishakhapatnam and Odisha airplanes are required to be sent carrying four tankers to the respective places. It takes about 48 hours to fill the tankers and it may take a minimum of 48 hours to reach the requisite destination in the State of Karnataka. That is the reason the State could not utilize the quota allotted at Vishakhapatnam and Odisha. In any case the written submissions show that on 3rd May 2021 the State utilized 772.71 MT of oxygen and the rest of the quota could not be utilized as it was difficult to procure the same from far away places like Vishakhapatnam and Odisha. 9 It is not a case made out by the Government of India that the projected requirement stated by the Government of Karnataka in its letter dated 30th April 2021 is on the higher side. As the correctness of the estimation made by the State Government in the said letter is not disputed by the Government of India prima facie the Government of India was under an obligation to act upon the request of the State Government to increase the quota. As noted earlier the estimation is of a minimum 1 162 MT per day as of 5th May 2021 and maximum of 1 792 MT per day as of 5th May 2021 based on the number of active COVID cases being 3 95 000. As the active cases as on that day were more than 4 60 000 there is a strong justification for the demand of oxygen of 1 792 MT per day as of 5th May 2021. 10. Now we come to the order of the Apex Court dated 30th April 2021. There is a detailed discussion on oxygen allocation and availability from paragraph 24 onwards. In Clauses(vii) viii) and of paragraph 24 certain figures have been incorporated. In Clauseof paragraph 24 it is mentioned that as on 28th April 2021 the need of oxygen to the State of 10 Karnataka was 770 MT. We may specifically record here that in paragraph 69 the Apex Court has made it very clear that the figures mentioned in the order were based on the submission of Union of India. In fact in paragraph 69 the Apex Court has clarified that the data and submissions reproduced are not its endorsement or acceptance. The operative part is in paragraph 69. As regards specific allocation to States the order of the Apex Court is only in respect of Delhi. However what is material is clauseof paragraph 69 which reads thus: J CONCLUSION 69. The present order has primarily considered the submissions of the UOI. These submissions have been reproduced here as a matter of public record and to contextualize the clarifications that are being sought by our Court in order to serve its dialogic role. We reiterate for abundant caution that the data and submissions reproduced above are not its endorsement or acceptance. In terms of the above discussion we hereby pass the following directions: i) The UOI shall ensure in terms of the assurance of the Solicitor General that the deficit in the supply of oxygen to the GNCTD is rectified within 2 days from the date of the hearing that is on or before the midnight of 3 May 2021 11 ii) The Central Government shall in collaboration with the States prepare a buffer stock of oxygen for emergency purposes and decentralize the location of the emergency stocks. The emergency stocks shall be created within the next four days and is to be replenished on a day to the existing day basis allocation of oxygen supply to the States " in addition Emphasis supplied) 11. The direction of the Apex Court is that a buffer stock of oxygen shall be created by the Central Government collaboration with the States for the emergency purposes and decentralize the location of emergency stocks. This buffer stock was to be created within 4 days from 30th April 2021. Thus in addition to the requirement of the States the direction of the Apex Court was to create a buffer stock which could be used in case of emergency. As on today the Government of India has not offered any explanation why this buffer stock has not been created in the State of Karnataka. The reason is that the allocation of the oxygen falls short of the minimum requirement of the State of Karnataka and therefore the available stock cannot be used for creating a buffer. Thus the purport of the order of the 12 Apex Court is that every State must get adequate oxygen supply as per its requirements and in addition thereto a buffer stock has to be created for taking care of the emergency. 12. As noted in yesterday s order there are some districts in the State which do not have bottling plants and therefore cylinders filled with oxygen are required to be transported from adjacent districts. If buffer stocks as directed by the Apex Court would have been created the incident which occurred in Chamarajanagar could have been avoided. Prima facie from the material placed on record it appears that Chamarajanagar depended only on filled oxygen cylinders sent by Mysuru District. 13. Thus the scenario which emerges is that notwithstanding the facts and figures on record not only that the buffer stock has not been created for the State of Karnataka but the bare minimum requirement of oxygen is not provided. We may note here that Bengaluru City is reporting highest number of positive cases in the country for last several days. 13 14. Now coming back to the requirement of the State of Karnataka even if the bare minimum requirement as projected by the State Government as on 5th May 2021 is considered it is of 1 162 MT per day. As we have observed earlier it has to be ideally much more than 1 792 MT per day as on that day. In the circumstances we have no option but to issue a mandatory direction to the Government of India to immediately re consider the representation made by the State Government on 30th April 2021. We direct the State Government to immediately submit additional representation to the Government of India setting out the projected requirement of oxygen of the State for at least 1 week. The representations shall be considered by the Government of India within a maximum of 4 days from today. As an interim measure we direct the Government of India to increase the cap on supply of oxygen to the State of Karnataka with immediate effect up to 1 200 MT per day. Depending upon the decision taken by the Government of India on representation dated 30th April 2021 and further representation which may be made by the State of Karnataka the Court will 14 consider of passing further orders in the next week as far as the quota of oxygen is considered. We make it clear that the standing counsel for the Government of India who is present through video conference will have to immediately communicate this order to the Government of India. The reason being that there are number of reported incidents in the State of Karnataka of death of Covid 19 patients due to non availability of oxygen. For upholding the rights of citizens under Article 21 of the Constitution of India this is the minimum requirement of the State which the Government of India will have to comply with. 16. As regards the quota of Remdesivir drug in yesterday s order we have already referred to the requirement of the State of 44 500 vials per day and as per the existing quota the State is getting only 15 857 vials per day. However the learned Additional Solicitor General assures the Court that a decision of the Government of India is expected within two days on the issue of increase in the quota of Remdesivir drug to the State. Considering the gravity of the situation and the fact that today s supply of the said drug is nearly 1 3rd of the State s requirement 15 the Government of India shall take a positive decision as assured within 2 days. 17. Considering the gravity of situation the State of Karnataka we expect the Central Government to consider of allowing the State Government to use the entire quantity of the oxygen manufactured in the State itself as getting oxygen from far away places from other States takes four to five days. It is however for the Central Government to consider the said aspect considering the grave situation in the State of Karnataka. Some of the members of the Bar were at pains to point out that as far as the State of Maharashtra is concerned going by the distribution of oxygen made by Central Government as of 30th April 2021 the State Government was permitted to use the entire production of oxygen made within the State. Our attention was invited in this behalf to pages 26 and 27 which is a part of Annexure R2 of the State Government s submissions dated 5th May 2021. 18. The learned Additional Solicitor General pointed out that the State can use Pressure Swing Absorption units for manufacturing oxygen. The learned Advocate General states that 16 he will seek necessary instructions in this behalf and make a statement on 6th May 2021. As regards a rational method for distribution of availability of oxygen quota in the State he states that the State Government will come out with the guidelines tomorrow. 19. A memo has been placed on record based on press release by the Hon ble Prime Minister s Office regarding permission to set up 591 oxygen plants in district government hospitals. When this group of matters is heard in the next week the State Government will make a statement on this aspect. As rightly pointed out by learned counsel appearing for the petitioner in W.P.No.8619 2020 this will be a very crucial step towards preparedness to face further waves of COVID 19. Therefore the State Government will respond in the next week whenever these petitions are listed. It is pointed out across the Bar that considering the fact that there are large number of COVID cases reported in many districts it is necessary to provide COVID related Helplines to the citizens on par with the facility available in the City of Bengaluru. 17 We direct the State Government the said suggestion. The availability of the helpline in each District shall be given a wide publicity. 21. As regards the issue of food security to the sections of the society which have become vulnerable due to partial lockdown declared by the State Government our attention is invited by the learned counsel appearing for the parties to the various orders passed by this Court starting from 30th April 2020 to 16th July 2020. The benefits under the said orders shall be extended to this class of the society. The learned Advocate General assured the Court that State Government will look into the issue and will come out with an appropriate decision before the court at the earliest. 22. As the number of COVID cases in the districts are on the rise the State Government will have to come out with the existing and projected requirement of each District of number of beds of different categories and the present availability of beds. A suggestion is made across the Bar is that as far as the assessment of requirement of beds is concerned the same may 18 be left to the District Authorities constituted under the Disaster of Management Act 2005. 23. Now we come to the issue of the incident that occurred at Chamarajanagar District. In the first part of the order passed today we have recorded our strong displeasure about the manner in which the State Government has acted when it comes to appointment of a Commission under the Commissions of Inquiry Act 1952. 24. There is a report submitted by the Karnataka State Legal Services Authority which contains proceedings of the meeting of the State Level Monitoring Committee constituted by the Karnataka State Legal Services Authority which is headed by Hon ble Justice Shri A.N. Venugopala Gowda a former Judge of this Court of which even Hon ble Justice Shri K.N. Keshavanarayana a former Judge is a member. It will be appropriate if this committee inquires into the incident at Chamarajanagar. We have already passed an order about taking over the custody of the relevant records. We direct the Chief Secretary who is having the custody of the 19 record to allow the Committee headed by Hon ble Justice Shri A.N. Venugopala Gowda to look into the record. On a formal request made by the Member Secretary of the Karnataka State Legal Services Authority the Chief Secretary will permit the Committee headed by Hon ble Justice Shri. A.N. Venugopala Gowda to peruse the entire records. We request the Committee headed by the Hon ble retired Judge to submit a report to this Court preferably by 11th May 2021. Needless to add that the officers of the State Government will render necessary co operation to the said Committee as the ultimate object of the said Committee will be to make a fact finding inquiry so that the report of the inquiry can be very useful for the State Government to ensure that such unfortunate incidents do not occur in the State hereinafter. 25. A copy of the notification dated 5th May 2021 issued by the State Government appointing the Commission of Inquiry is taken on record. A copy of the order dated 5th May 2021 regarding seizure of the records as per the directions issued in the morning is also placed on record by the learned Advocate General. We 20 make it clear that the records shall be in the custody of the Chief Secretary of the State. 26. For further hearing the petitions shall be listed on 6th May 2021 at 10.30 a.m. vgh DR Sd CHIEF JUSTICE Sd

The Court does not find any mitigating circumstances to consider the prayer for bail to the petitioner however the trial must be concluded as per the time frame indicated in the report: High Court of Patna

The petitioner was arrested under Section 8 Narcotic Drugs and Psychotropic Substances Act, 1985, “Prohibition of certain operations relating to narcotic drug or psychotropic substance”, Section 2, “definitions elaborated under IPC”, Section 20, “Punishment for contravention in relation to cannabis plant and cannabis”, Section 25, “Punishment for allowing premises, etc to be used for commission of an offence”, and Section 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985, “Punishment for allowing premises, etc., to be used for commission of an offence.” The petition is in connection with NDPS Case [No. 18 of 2019] arising out of CIS [No. 47 of 2019] appertaining to NCB Case F No. [NCB/PZU/V/13] of 2019 dated 25.05.2019. This is a second attempt for bail which was earlier rejected by judgment and order dated 08.06.2020 passed in [Cr. Misc. No. 14276 of 2020]. In the High Court of Judicature at Patna, this judgement was given by Honorable Mr Justice Ahsanuddin Amanullah on the 15th of September  2021 in the case of Sharma Yadav Union of India through Intelligence Officer, Patna Zonal Unit, Narcotics Control Bureau, [Criminal Miscellaneous No. 28836 of 2021] Mr Umesh Chandra Verma represented as the advocate for the petitioner, and Mr Radhika Raman, represented the union of India as the additional Public Prosecutor, the proceedings of the court were held via video conference. The case arises from the fact wherein, the petitioner along with 12 others was accused of possessing a total of 240 kgs. ganja in 45 packets they were recovered from two vehicles in which the petitioners were travelling it was recovered and seized by the authorities. The counsel representing the petitioner held that earlier bail was rejected because the Union of India held that If the petitioner was released that may hamper the trial process after many accused gets bailed where they tend to not corporate in the trial and he might keep lingering and because of the this the accused was held in custody for a long period of time. The counsel submitted that despite this being the reason for the rejection of bail, the same trial had neither been concluded nor there was substantive progress. Therefore, it would not be acceptable to hold the petitioner under custody when the trial process is currently stagnant. The counsel representing the Union of India held that the trial process is ongoing and out of the five prosecution witnesses, three had already been examined. Furthermore, the counsel assured the court that the remaining two witnesses would also depose in such a case as and when the Court would fix the date for the same. The Court ordered a report with regard to the status of the case and enquired about the time period by which the trial could be concluded. The learned District and Sessions Judge, West Champaran, Bettiah submitted a report dated 23.08.2021. The report stated that the Court would focus on concluding the trial within six months as the court had started the function from the lockdown period due to covid-19. The process will not take too long. The counsel for the Union of India held that all the prosecution witnesses have been examined and there would be a recording of the statement of the accused under Section 313 of the Code of Criminal Procedure, 1973. The Honourable Court concluded that “The fact that all the witnesses from the prosecution side have been examined, the Court does not find any mitigating circumstances to consider the prayer for bail to the petitioner.  Accordingly, the petition stands dismissed. However, in view of the stage of the trial, as noted above, the Court below is directed to conclude the trial expeditiously, subject to co-operation by the petitioner. The Court would only observe that in view of the report of the Court below, the trial must be concluded as per the time frame indicated in the report of the learned District and Sessions Judge, West Champaran, Bettiah dated 23.08.2021.” Click here to read the Judgment Judgment reviewed by – A. Beryl Sugirtham 

IN THE HIGH COURT OF JUDICATURE AT PATNA CRIMINAL MISCELLANEOUS No. 288321 Arising Out of PS. Case No. 13 Year 2019 Thana GOVERNMENT OFFICIAL COMP District West Champaran Sharma Yadav aged about 32 Years Male Son of Sri Chandrika Yadav Resident of Village Daleya PS Kuchai Kote District Gopalganj Union of India through Intelligence Officer Patna Zonal Unit Narcotics Control Bureau 67 Kautilya Nagar PO BV College Patna ... Petitioner s ... Opposite Party s For the Petitioner s For the UOI Mr. Umesh Chandra Verma Advocate Mr. Radhika Raman APP CORAM: HONOURABLE MR. JUSTICE AHSANUDDIN AMANULLAH ORAL JUDGMENT Date : 15 09 2021 The matter has been heard via video conferencing 2. Heard Mr. Umesh Chandra Verma learned counsel for the petitioner and Mr. Radhika Raman learned counsel for the Union of India 3. The petitioner is in custody in connection with NDPS Case No. 119 arising out of CIS No. 419 appertaining to NCB Case F No. NCB PZU V 119 dated 25.05.2019 instituted under Sections 8 2 20 25 and 29 of the Narcotic Drugs and Psychotropic Substances Act 1985 4. This is the second attempt for bail by the petitioner as earlier such prayer was rejected by judgment and order dated 08.06.2020 passed in Cr. Misc. No. 142720 Patna High Court CR. MISC. No.288321 dt.15 09 2021 5. The allegation against the petitioner and 12 others is that from the two vehicles on which they were travelling and were seized by the authorities a total of 240 kgs. ganja in 45 packets was recovered 6. Learned counsel for the petitioner submitted that the matter has been considered on merits earlier. However it was submitted that the Court had taken note of the stand of learned counsel for the Union of India that if the petitioner was released it may hamper the trial as persons after getting bail do not cooperate in the trial which keeps lingering and in the meantime the accused keep indulging in such activity. It was submitted that despite such stand and the prayer for bail having been rejected the trial has neither been concluded nor there is any substantive progress 7. Learned counsel for the Union of India submitted that out of five prosecution witnesses three have already been examined. Further he assured that the remaining two witnesses would also depose in this case as and when the Court fixes the date for the same 8. In view of the aforesaid stand of learned counsel for the parties on 18.08.2021 the Court had called for a report from Patna High Court CR. MISC. No.288321 dt.15 09 2021 the Court below with regard to the status of the case and the likely time by which trial could be concluded 9. Pursuant thereto the learned District and Sessions Judge West Champaran Bettiah has submitted a report dated 23.08.2021 in which it has been stated that the Court would try its best to conclude the trial within six months as the Court has started functioning on hybrid mode on experimental basis 10. Learned counsel for the Union of India submitted that all prosecution witnesses have been examined and today the statement of the accused under Section 313 of the Code of Criminal Procedure 1973 is also scheduled to be recorded 11. Having regard to the fact that all the witnesses from the prosecution side have been examined the Court does not find any mitigating circumstances to consider the prayer for bail to the 12. Accordingly the petition stands dismissed. 13. However in view of the stage of the trial as noted above the Court below is directed to conclude the trial expeditiously subject to co operation by the petitioner. The Court would only observe that in view of the report of the Court below the trial must be concluded as per the time frame indicated in the Patna High Court CR. MISC. No.288321 dt.15 09 2021 report of the learned District and Sessions Judge West Champaran Bettiah dated 23.08.2021 (Ahsanuddin Amanullah J

If security deposit already been forfeited, it will not be refunded: Patna High Court

As all questions of fact and law are left open, and the appropriate authority will consider and decide all issues of fact and law in a timely and positive manner and the security deposit since already been forfeited, it will not be refunded to the petitioner until a decision is reached  is upheld by the High Court of Patna through the learned bench led by HONOURABLE THE CHIEF JUSTICE and HONOURABLE MR. JUSTICE SANJEEV PRAKASH SHARMA in the case of Hari Mohan Bishwas a Proprietorship firm Vs. Bihar State Educational Infrastructure Development Corporation Ltd. (Civil Writ Jurisdiction Case No.10050 of 2021). Brief facts of the case are that the petitioner has requested the court to issue appropriate writs, orders, and declarations in the nature of writs of Mandamus, holding and declaring that the Respondents’ action of rescinding the petitioner’s contract via notice memo letter dated 12.02.2021 without giving the petitioner an opportunity to be heard is in violation of Articles 14, 16, and 19(I)(g) of the Constitution of India, and be pleased to quash and set aside the rescinding order and to issue a writ of prohibition in favour of the petitioner, barring the Respondents from taking any coercive action against the petitioner corporation without first going through the legal procedure and conforming to natural justice principles. Further, while this petition is pending admission, hearing, and/or final disposition, Hon’ble Court be pleased to stay the execution, operation, and implementation of the rescinding notice issued by the Respondent via memo letter dated 12.02.2021 and may be pleased to direct the Respondent from taking any coercive action against the petitioner from rescinding/terminating the petitioner’s contract without following the due process of law or the principles of natural justice. The challenged order/communication dated 05.03.2021 was clearly passed/issued prior to the time indicated in the authority’s notice to show cause sent to the petitioner, as evidenced by the paper book. However, the notice was only received on February 27, 2021, as evidenced by the mail receipt. Whether the petitioner had sufficient time to respond or not, we are of the considered opinion that it would be in the interests of justice to ask the authority to issue a new order after giving the petitioner an opportunity to place on record material in support of his defence and after hearing all parties involved. Dispose of the petition at hand, the contested order/communication of March 5, 2021 is quashed and set aside, and the petitioner must appear before the relevant authority on January 12, 2022, at which time he must provide all evidence in support of his defence. All questions of fact and law are left open, and the appropriate authority will consider and decide all issues of fact and law in a timely and positive manner. Since the security deposit has already been forfeited, it will not be refunded to the petitioner until a decision is reached and interlocutory applications, if any, are also dismissed.

IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.100521 Hari Mohan Bishwas a Proprietorship firm through its Proprietor Hari Mohan Bishwas aged about 45 yrs.Son Son of Sri Sagam Lal Bishwas Resident of Village Bharra Post office Kalsar P.S. Dandkhora Anchal Hasanganj Distt Katihar 854337 Petitioner Bihar State Educational Infrastructure Development Corporation Ltd. A Govt. of Bihar Undertakingoffice at Shiksha Bhawan Bihar Rastrabhasa Prishad Campus Acharya Shivpujan Sahay Path Saidpur Patna 800004 through its Managing Director Sri Sanjay Kumar Singh The Managing Director B.S.E.I.D.C. at Patna The Chief Engineer B.S.E.I.D.C. at Patna The Executive Engineer B.S.E.I.D.C. Purnia the Junior Engineer B.S.E.I.D.C. Purnia 6. Manoj Kumar Pandey the then Executive Engineer B.S.E.I.D.C. Purnia 7. Mukesh Kumar the then Junior engineer B.S.E.I.D.C. Purnia Respondents For the Petitioner For the Respondents CORAM: HONOURABLE THE CHIEF JUSTICE and HONOURABLE MR. JUSTICE SANJEEV PRAKASH SHARMA Mr. Chiranjiva Ranjan Adv Mr. Girijish Kumar Adv Per: HONOURABLE THE CHIEF JUSTICE Date : 03 01 2022 The petitioner has prayed for the following reliefs “(i) To issue an appropriate writ(s) order(s) in the nature of writ of Mandamus holding and declaring that the action of the Respondents for rescinding the Contractof the petitioner vide notice memo letter no. BSIEDC TECH 135 2019 1005 dated 12.02.2021without giving any opportunity of hearing to the petitioner is in violation of Articles 14 16 and 19(I)(g) of the Patna High Court CWJC No.100521 dt.03 01 2022 Constitution of India and be pleased to quash and set aside the rescinding order as well as forfeiture of performance security issue vide letter no Vol I 1498 05.03.2021To issue a writ of prohibition in favour of the petitioner prohibiting the Respondents from taking any coercive action against the petitioner company without following the due process of law and without adhering to the principles of natural justice iii) Pending admission hearing and or final disposal of this petition this Hon’ble Court be pleased to stay the execution operation and implementation of the rescinding notice issue vide memo letter no BSIEDB TECH 135 2019 1005 dated 12.02.2021 issued by the Respondent no. 3 iv) Pending admission hearing and or final disposal of this petition this Hon’ble Court may be pleased to direct the respondent from taking any coercive action against the petitioner from rescinding terminating the contract of the petitioner without following the due process of law or without following the principles of v) Such other and further relief as this Hon’ble Court may deem just fit and expedient be granted in favour of From the paper book it is quite apparent that the impugned order communication dated 05.03.2021 was passed issued prior to the time stipulated in the notice to show Patna High Court CWJC No.100521 dt.03 01 2022 cause issued by the authority to the petitioner. Annexure 4 is the notice to show cause dated 12th February 2021 asking the petitioner to show cause as to why proceedings under Clause 3 of the contract be not initiated. However as is evident from the postal receiptthe said notice was received only on 27th of February 2021. Whether petitioner was having sufficient time to respond thereto or not without going into this issue we are of the considered view that the interest of justice would lie asking the authority to pass a fresh order after affording opportunity to the petitioner to place on record material in support of his defence and pass a fresh order after hearing all concerned As such we dispose of present petition on the following mutual agreeable terms a) Impugned order communication dated 5th of March 2021 is quashed and set aside b) Petitioner shall appear before the appropriate authority on 12th of January 2022 on which date petitioner shall place on record entire material in support of his defence c) Petitioner shall fully co operate and not take any unnecessary adjournment Patna High Court CWJC No.100521 dt.03 01 2022 d) Appropriate authority will consider and decide all questions of fact and law expeditiously and positively within a period of four weeks thereafter e) All questions of fact of law are left open and f) Liberty reserved to the petitioner to seek appropriate remedy before the appropriate forum a need if so arise Since the amount of security deposit already stand forfeited till such time a decision is taken the same shall not be refunded to the petitioner. Interlocutory application(s) if any also stand disposed Sanjay Karol CJ) ( Sanjeev Prakash Sharma J

Promotion to be kept under sealed cover if disciplinary proceedings initiate after departmental recommendations: Delhi High Court

In the sphere of departmental proceedings, if any disciplinary proceedings initiates after the recommendations for promotion has been received then such recommendation should be kept under sealed cover until the proceedings are discharged. The quorum of Rajiv Sahai Endlaw J. and Amit Bansal J. were faced with interdepartmental proceedings lis wherein the junior of the petitioner had been promoted whilst the recommendation for promotion of the petitioner was under sealed cover in Dinesh Singh V Dr. Ajay Bhusan Pandey [W.P.(C) 2852/2021]. Application no.OA No.3604/2015 was filed by the petitioner, an Officer of the Indian Revenue Service (Income Tax), of 1994 Batch, then working as Additional Commissioner of Income Tax, seeking promotion to the grade of Commissioner of Income Tax, with effect from 16th September, 2015, being the date when his immediate junior was promoted. CAT, in the order dated 12th May, 2016, found/observed/held that the petitioner fulfilled all the eligibility conditions for promotion and the Annual Performance Appraisal Reports of the petitioner for relevant years and also met the prescribed benchmark; and that the petitioner was neither facing any criminal case/disciplinary proceedings nor was under suspension. The petitioner had however not been promoted because the respondents had obtained the first stage advice of Central Vigilance Commission for initiation of major penalty proceedings against the petitioner and therefore the case of the petitioner for promotion had been put on hold. On account of no such pending charges there was no ground for withholding promotion of the petitioner. Accordingly, the OA was allowed and the respondents directed to promote the petitioner from the date on which his immediate junior had been promoted It was the contention of the counsel for the petitioner that the aforesaid order of CAT attained finality with the dismissal on 28th May, 2018 of W.P.(C) No.10543/2017 preferred by the has erred in closing the contempt case and not directing the implementation of its order dated 12th May, 2016 and in not punishing the respondents for contempt thereof. The court turned its attention to Union of India Vs. Rajiv Ranjan W.P.(C) No.4152/2012 wherein, referring to the OM dated 14th September, wherein it was held that a government servant, who is recommended for promotion by the Departmental Promotion Committee but in whose case if any disciplinary charges arise after the recommendations of the DPC are received but before he is actually promoted, will be considered as if his case had been placed in a sealed cover by the DPC. The bench was of the opinion that though the relief ultimately granted in a lis relates back to the date of initiation of the lis. But Courts, in certain situations, have also taken subsequent events since the institution of the lis, into consideration and molded the relief sought. It was further held that if notwithstanding disciplinary proceedings or prosecution having been initiated against a public servant, the public servant is still granted promotion owing to the technicality of having been wrongly denied the same earlier, it will not augur well for the morale of the employees who are public servants and will send a message to the public including public servants, that an employee of doubtful integrity is being rewarded The judgment rendered by the Court read that “It cannot also be lost sight of, that the respondents, against whom contempt case was initiated and was being pursued, are bound by Clause 7 of OM dated 14th September, 1992 and could not have acted in violation thereof, by, in compliance of order dated 12th May, 2016 of CAT granting promotion to the petitioner, when since the order of CAT, much water had flown and to which eyes could not have been shut.”

W.P.(C) 2852 2021 Mr. Amit Sinha Advs. Date of decision: 26th April 2021. IN THE HIGH COURT OF DELHI AT NEW DELHI DINESH SINGH ..... Petitioner Through: Mr. R.V. Sinha Mr. A.S. Singh and DR. AJAY BHUSHAN PANDEY & ORS. HON BLE MR. JUSTICE RAJIV SAHAI ENDLAW HON BLE MR. JUSTICE AMIT BANSAL VIA VIDEO CONFERENCING] RAJIV SAHAI ENDLAW J. CM Nos.8594 2021 8595 2021 & 8596 2021 ..... Respondents Through: Mr. Ravi Prakash and Mohammad Allowed subject to just exceptions and as per extant rules. Shahan Ulla Advs. The applications are disposed of. W.P.(C) No.2852 2021 & CM No.8597 2021 Principal Bench New Delhi of closing the contempt case being C.P. W.P.(C) 2852 2021 No.422 2016 filed by the petitioner averring non compliance by the respondents of the order dated 12th May 2016 in OA No.3604 2015 filed by the petitioner. 4. We have heard the counsel for the petitioner. OA No.3604 2015 was filed by the petitioner an Officer of the Indian Revenue Serviceof 1994 Batch then working as Additional Commissioner of Income Tax seeking promotion to the grade of Commissioner of Income Tax with effect from 16th September 2015 being the date when his immediate junior was promoted. CAT in the order dated 12th May 2016 found observed heldthat the petitioner fulfilled all the eligibility conditions for promotion and the Annual Performance Appraisal Reports of the petitioner for relevant years also met the prescribed benchmark and that the petitioner was neither facing any criminal case disciplinary proceedings nor was under suspension that the petitioner had however not been promoted because the respondents had obtained the first stage advice of Central Vigilance Commission for initiation of major penalty proceedings against the petitioner and therefore the case of the petitioner for promotion had been put on hold that only when the government servant was under suspension or had been issued a charge sheet and disciplinary proceedings were pending against him or was under prosecution for a criminal charge was the finding of the Departmental Promotion Committee required to be kept in sealed cover to be opened after the culmination of the said proceedings and the promotion even if the recommendation of the DPC was for promotion had to be kept in abeyance till then that the petitioner at the time of holding of the DPC did not fall in either of the said categories and the Principal Director W.P.(C) 2852 2021 General of Income Tax had also not withheld the vigilance clearance of the petitioner as his case did not fall in either of the said three categories that only when the recommendations of the DPC were submitted to the Appointment Committee of the Cabinet for approval did the ACC desire to know the latest status of the complaint pending against the petitioner and in response whereto it was informed that the first stage advice for initiating major penalty proceeding against the petitioner had been sought and that in these circumstances there was no ground for withholding promotion of the petitioner. Accordingly the OA was allowed and the respondents directed to promote the petitioner from the date on which his immediate junior had been promoted. The contention of the counsel for the petitioner before us is that the aforesaid order of CAT attained finality with the dismissal on 28th May 2018 of W.P.(C) No.10543 2017 preferred by the respondents thereagainst and CAT in the impugned order dated 25th January 2021 has erred in closing the contempt case and not directing implementation of its order dated 12th May 2016 and in not punishing the respondents for contempt thereof. CAT in the impugned order has closed the contempt case reasoning i) that it is true that the petitioner did not face any disciplinary or criminal proceeding by the time the DPC met for promotion taking note thereof vide order dated 12th May 2016 OA No.3604 2015 preferred by the petitioner was allowed and direction issued for promotion of the petitioner that during the pendency of W.P.(C) No.10543 2017 no steps were taken for implementation of the order and in fact the contempt case closed however on dismissal of the writ petition the contempt case was revived W.P.(C) 2852 2021 however since then a charge memo dated 6th February 2017 had been issued to the petitioner and the OA No.2772 2017 preferred by the petitioner impugning the same was dismissed on 22nd August 2019 and W.P.(C) No.13259 2019 preferred by the petitioner thereagainst was pending that the issue pertaining to status of an officer whose case was recommended for promotion but who was issued a charge memo or who faced criminal case or who was placed under suspension before the order of actual promotion could be issued had been dealt with by the Courts as well as Department of Personnel and Trainingand the view taken in this behalf was that the recommendations of the DPC shall be treated as those in the sealed cover and the concerned officer can be promoted only when he comes out clean in the proceedings that came to be initiated against him that the case of the petitioner fell in the said category though his name was recommended by the DPC in the year 2015 two First Information Reports FIRs) were registered and a charge memo was issued against the petitioner before the actual order of promotion could be issued and that in these circumstances it could not be said that there was any deliberate act of contempt on the part of the respondents inasmuch as there existed a legal impediment to the implementation of the directions issued in OA No.3604 2015. The only contention of the counsel for the petitioner is that since neither on the date when the DPC was held nor on the date when OA No.3604 2015 was allowed and the respondents directed to promote the petitioner was the petitioner under suspension or under prosecution or any disciplinary proceeding had been initiated against him the subsequent FIRs registered against the petitioner and the charge memo issued to the W.P.(C) 2852 2021 petitioner could not come in the way of the promotion of the petitioner. Reference without citing is made to Union of India Vs. Anil Kumar Sarkar 4 SCC 161 Union of India Vs. Sangram Keshari Nayak 2007) 6 SCC 704 Rajesh Kumar Vs. Union of India 146DLT 588 Harsh Kumar Sharma Vs. State of Punjab 4 SCC 366 and to T. Sudhakar Prasad Vs. Govt. of A.P.1 SCC 516. 10. We have drawn the attention of the counsel for the petitioner to our recent judgment dated 6th April 2021 in W.P.(C) No.4152 2012 titled Union of India Vs. Rajiv Ranjan wherein referring to the OM dated 14th September 1992 issued pursuant to Union of India Vs. K.V. Jankiraman 1991) 4 SCC 109 and Clause 7 whereof is as under: is recommended “7. A government servant who promotion by the Departmental Promotion Committee but in whose case any of the circumstances mentioned in para 2 above arise after the recommendations of the DPC are received but before he is actually promoted will be considered as if his case had been placed in a sealed cover by the DPC. He shall not be promoted until he is completely exonerated of the charges against him and the provisions contained in this OM will be applicable in his case also.” and further referring to the General Principles forming part of the Guidelines for promotion of IPS Officers to various Grades enclosed to the letter dated 15th January 1999 of Ministry of Home Affairs and Clauses 21 and 21.1 whereof are as under: W.P.(C) 2852 2021 “21. SEALED COVER BEFORE PROMOTION 21.1 In the case of an officer recommended for promotion by the Screening Committee circumstances mentioned in Para 11 above arise before actual promotion cover procedure would have subsequent Committee shall assess the suitability of such officers along with other eligible candidates and place their assessment in sealed cover. The sealed cover covers will be opened on disciplinary case criminal prosecution exonerated he would be procedure outlined in Para 18 above and the question of grant of arrears would also be decided accordingly. If any penalty is imposed upon him as a result of disciplinary proceedings or if he is found guilty in the criminal prosecution against him sealed cover shall not be acted upon as outlined in Para 18.2. above." findings of in case We held as under: 28. We are unable to agree. The purport and intent of Clause 7 of OM dated 14th September 1992 and of Clauses 21 and 21.1 W.P.(C) 2852 2021 of the General Principles forming part of the Guidelines enclosed to the letter dated 15th January 1999 is that the government servant against whom disciplinary proceedings have been initiated after he has been recommended for promotion but before he is actually promoted should not be promoted. The same in our view is also in consonance with public policy. It will send a wrong message to the members of the public and to the employees and officers of the government if the employee officer against whom disciplinary proceedings are pending is promoted during the pendency thereof owing to the technicality of having been wrongfully denied promotion prior to commencement of proceedings. The respondent is a member of highly disciplined force like police and which is always in the public eye and to promote the respondent while disciplinary proceedings are pending against him would be injurious to the discipline in the force and be perceived as morally wrong. Of course if the respondent is exonerated his promotion will date back to the date when due. We thus asked the counsel for the petitioner whether not what CAT in the impugned order has held while closing the contempt case is in consonance with our view aforesaid. 11. The counsel for the petitioner states that he has not perused Rajiv Ranjan supra but is relying upon the judgments aforesaid of the Supreme Court and of the Division Bench of this Court. 12. Before referring to the judgments cited by the counsel for the petitioner we may refer to Union of India Vs. R.S. Sharma4 SCC 394. The said appeal was preferred against the order of CAT allowing the OA filed by the respondent therein and quashing the sealed cover procedure followed and directing the petitioner therein to give effect to the recommendation of the DPC. Supreme Court finding that the respondent by the time the matter came for consideration before the Supreme Court had W.P.(C) 2852 2021 not been promoted and that after the order of CAT formal sanction had been accorded for prosecution of the respondent therein held that Paragraph 7 of the OM dated 12th January 1988 which is similar to Clause 7 of the OM dated 14th September 1992 would apply and the recommendations made by DPC have to remain in the sealed cover until the respondent therein was completely exonerated of the charges against him. The contention on behalf of the respondent therein that the situation envisaged in Paragraph 7 would not have arisen if the sealed cover procedure followed by the DPC and which was quashed by CAT had not been followed or if the respondent had been promoted immediately after the order of CAT and that the faults delays of the petitioners could not be permitted to prejudice the respondent was rejected and it was held that the petitioners had acted in terms of Paragraph 7 and no fault could be found with their action. Accordingly the order of CAT was set aside. In Sangram Keshari Nayak supra cited by the counsel for the petitioner on the date when the DPC considered the respondent therein neither was the respondent under suspension nor were any prosecution or disciplinary proceedings pending against him. Finding so CAT and the High Court held that the DPC ought not to have followed the sealed cover procedure and directed the recommendation of the DPC to be given effect to. Though the Supreme Court in the judgment notices that charge sheet had been issued against the respondent therein on 24th September 1999 but proceeded to hold that there was no bar to the promotion of the respondent till the date his immediate junior was promoted on 27th August 1999 and dismissed the appeal of Union of India. R.S. Sharma supra was distinguished reasoning that in that case there were serious allegations of W.P.(C) 2852 2021 financial misdemeanour against the employee and Paragraph 7 of the OM dated 12th January 1988 was attracted. There is however no discussion in the judgment why the said Clause 7 was not applicable in the subject case. 14. Anil Kumar Sarkar supra also cited by the counsel for the petitioner was also a case where on the date of consideration by the DPC the employee was neither under suspension nor was any prosecution or disciplinary proceedings pending against him still the sealed cover procedure was followed by the DPC and which was quashed. Union of India as the employer before the Supreme Court relied on Clause 7 of the OM dated 14th September 1992 to contend that since after the order of CAT charge sheet had been filed the employee was not entitled to promotion R.S. Sharma supra was relied upon. Supreme Court however upheld the order of the High Court merely observing that R.S. Sharma supra was of no help to the Union of India. In Harsh Kumar Sharma supra also relied upon by the counsel for the petitioner however again it was held that Clause 7 of the OM dated 14th September 1992 clarifies that even after recommendation of the DPC but before the appointment promotion of the officer if the officer is suspended or disciplinary proceedings or prosecution has commenced against him his case under Clause 7 of the OM dated 14th September 1992 is to be deemed to be kept in sealed cover. 16. The other judgments cited by the counsel for the petitioner do not concern the aforesaid aspect and were cited in response to our query whether not the scope of interference with an order of CAT closing the contempt case should be in an extremely narrow compass considering that even under the Contempt of Courts Act 1971 the remedy against refusal by W.P.(C) 2852 2021 the High Court to entertain a contempt case is by way of a petition under Article 136 of the Constitution of India only and not by way of appeal. However in the facts of the present case it is not deemed appropriate by us to consider this aspect further and accordingly the need to refer to the other judgments cited also is not felt. 17. What thus emerges is that though Supreme Court in R.S. Sharma supra and in Harsh Kumar Sharma supra unequivocally held that even if the DPC wrongfully follows the sealed cover procedure and which is quashed and direction issued for giving effect to the recommendation of the DPC but still if before the actual promotion the circumstances in which sealed cover procedure is prescribed to be followed come into existence promotion is not be granted and is to await the outcome of the disciplinary proceedings or the prosecution but still in Sangram Keshari Nayak supra and Anil Kumar Sarkar supra notwithstanding existence of facts making Clause 7 of the OM dated 14th September 1992 applicable the order of CAT and or the High Court directing promotion to be granted was not interfered with. However while doing so neither in Sangram Keshari Nayak supra nor in Anil Kumar Sarkar supra was Clause 7 of OM dated 14th September 1992 held to be bad or was it laid down in what circumstances it would apply. To that extent one can say that there is dichotomy in the view of the Supreme Court in R.S. Sharma supra and Harsh Kumar Sharma supra on the one hand and in Sangram Keshari Nayak and Anil Kumar Sarkar supra on the other hand. All that we may say in this context is that while R.S. Sharma supra is a judgment by three Hon’ble Judges all the other three judgments are of Benches of two Hon ble Judges and that while R.S. Sharma and Harsh Kumar Sharma supra can be W.P.(C) 2852 2021 considered as precedent the same cannot be said of Sangram Keshari Nayak and Anil Kumar Sarkar supra to the extent of applicability of Clause 7 of the OM dated 14th September 1992. 18. We may in this context also notice that even before the Division Bench of this Court in the writ petition preferred by the respondents against the order dated 12th May 2016 of CAT it was the contention of the respondents that since after the order dated 12th May 2016 of CAT charge memo had been issued against the petitioner and disciplinary proceedings commenced the petitioner in accordance with Clause 7 of OM dated 14th September 1992 was not entitled to be promoted. The Division Bench of this Court in judgment dated 28th May 2018 though noted the said contention of the respondents herein but again did not pronounce or deal with the same and refused to interfere with the order of CAT. It was in the aforesaid state of law that we in Rajiv Ranjan supra held that though the relief ultimately granted in a lis relates back to the date of initiation of the lis and on which basis this Court exercising power of judicial review could not find any error in the order of CAT in that case but Courts in certain situations have also taken subsequent events since the institution of the lis into consideration and moulded the relief sought. It was further held that if notwithstanding disciplinary proceedings or prosecution having been initiated against a public servant the public servant is still granted promotion owing to the technicality of having been wrongly denied the same earlier it will not augur well for the morale of the employees who are public servants and will send a message to the public including public servants that an employee of doubtful integrity is being rewarded. A reference in this regard may be also made to State of Madhya W.P.(C) 2852 2021 Pradesh Vs. Syed Naseem Zahir 1993 Supp SCC 225 where events subsequent to the meeting of the DPC were taken into account while determining whether it was in the interest of justice to promote the respondent therein. In said case though on the date of DPC there was no requirement for DPC to follow the sealed cover procedure but the DPC had nevertheless followed the same. However finding that the government servant had come under a cloud after the DPC met but before formal order of promotion could be issued it was held that in such a situation it would be permissible not to give effect to the recommendation of the DPC pending inquiry. Mention may also be made of a dicta of a coordinate bench of this Bench in C.P. Gupta Vs. Union of India MANU DE 9131 2006 where also relying on Clause 7 of the OM dated 14th September 1992 promotion was kept in abeyance till the conclusion of the disciplinary proceedings initiated after the DPC but before the actual order of promotion. We would be failing in our duty if do not record that Syed Naseem Zahir and C.P. Gupta supra were cited before the Division Bench of this Court during the hearing of W.P.(C) No.10543 2017 preferred against the order dated 12th May 2016 of CAT allowing OA No.3604 2015 of the petitioner but were distinguished in the judgment dated 28th May 2018 reasoning that in both the said cases there were grave allegations of financial irregularity against the public servant. We may respectfully state that applicability of Clause 7 of the OM dated 14th September 1992 does not depend upon the nature of the disciplinary proceedings and is applicable whenever disciplinary proceedings have been initiated though after the date of the DPC recommending promotion but before the actual order of promotion. We may also add that the judgment dated 28th May 2018 was only concerned W.P.(C) 2852 2021 with the correctness of the order dated 12th May 2016 of CAT allowing OA No.3604 2015 and in which order no error could be found. On the contrary now we are concerned with the implementation of the order dated 12th May 2016 and at which stage the said Clause 7 of the OM dated 14th September 1992 is of relevance. Thus the question of the issue being res judicata does not arise. Even otherwise the issue involved is a pure question of law to which principles of res judicata do not apply. There can be no estoppel against law. 20. Mention may also be made of J. C. Thind Vs. Union of India MANU DE 0270 2015 where a Coordinate Bench of this Court followed Syed Naseem Zahir supra and held Anil Kumar Sarkar supra to be turning on its own fact and not applicable as a precedent. With reference to K.V. Jankiraman supra it was held that Courts are not to act mechanically and cannot ignore glaring facts and that if a government servant comes under a cloud after the DPC had met but before formal order of promotion could be issued it would be permissible not to give effect to the recommendation of the DPC pending inquiry. Rajiv Ranjan supra. 21. We thus see no reason to take a view different from that taken in 22. Of course if the petitioner in the present case had been promoted when his promotion according to CAT was due or even immediately after the order dated 12th May 2016 of CAT Clause 7 of OM dated 14th September 1992 would not have come in his way. However the fact of the matter is that for whatsoever may have been the reasons he was not so promoted and owing whereto Clause 7 of OM dated 14th September 1992 has now come into play. We as a Court would loathe to direct promotion W.P.(C) 2852 2021 of a public servant against whom prosecution and disciplinary proceedings are pending. It cannot also be lost sight of that the respondents against whom contempt case was initiated and was being pursued are bound by Clause 7 of OM dated 14th September 1992 and could not have acted in violation thereof by in compliance of order dated 12th May 2016 of CAT granting promotion to the petitioner when since the order of CAT much water had flown and to which eyes could not have been shut. 24. The view taken by CAT in the impugned order is thus a reasonable and lawful view which does not qualify as perverse for this Court to interfere therewith in exercise of power of judicial review. 25. Though during the hearing no mention thereof was made but we may mention that application respondents for review of judgment dated 28th May 2018 of dismissal of W.P.(C) No.10543 2017 being Review Petition No.34 2019 is also pending consideration. 26. Dismissed. RAJIV SAHAI ENDLAW J. APRIL 26 2021 AMIT BANSAL J. W.P.(C) 2852 2021

Suits instituted or defended on behalf of a Government Body; public interest should not be permitted to be defeated on a mere technicality: Delhi High Court

The issue is whether leniency can be given to corporate bodies in suits instituted or defended by them. This was decided in the case of SH Khalifa Chain Sukh v. Delhi Development Authority, decided on 6th December 2021 by Hon’ble Ms. Justice Prathiba M Singh. The brief facts of this case are that a permanent injunction was filed by the Plaintiff against the Delhi Development Authority (DDA) seeking a restraint order in respect of demolition of shops. The case of the Plaintiff is that he is the owner of 12 shops bearing Pvt. Nos. 1 to 12, situated over Plot No. 3A/112, Mpl. No. 11957, W.E.A, Karol Bagh, New Delhi. The case initially was rejected by the Trial Court on 21st October, 2018. However, the Plaintiff had appealed the order and in the appeal the matter was stated to have been remanded for fresh adjudication dated 17th December, 2018. On 18th December, 2018, the Plaintiff appeared before the Trial Court and summons were sent to the DDA. The summons were served upon the DDA, however, since none appeared for DDA, on 9th September, 2019, ex-parte evidence was recorded and the suit was decreed ex-parte on 16th December, 2019. Upon the said order being served upon DDA, an application was filed by DDA under Order IX Rule 13 CPC along with Section 5 of the Limitation Act, in which the impugned order has been passed allowing the application of the DDA and ex-parte decree has been set aside. The counsel for plaintiff submits that no sufficient cause has been shown by DDA as to why it did not enter appearance in the suit once summons was served. He submits that DDA cannot be shown any leniency, by virtue of being a government authority. Reliance is placed upon ML Mahajan v. DDA & Anr., 1992 RLR 242 to argue that the Government cannot have a better privilege than any other party before a Court of law. Counsel for respondents/defendant, submits that the DDA does not recognise the Plaintiff as the owner of this suit property. He contended that the land is actually Government land and eviction proceedings under Section 4 of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971, were initiated against the occupants of all the 12 shops and a detailed order being F. No. D/7(4) Basti Reghar/96/214 dated 30th July, 2018 was passed by the Estate Officer. The Court observed that it cannot be stated that the Plaintiff was not aware of these eviction proceedings. Clearly, the eviction proceedings were not brought to the notice of the Court when the ex parte judgment/decree was passed. The Estate Officer having already taken cognizance and having passed an eviction decree qua these very shops, DDA is entitled to be heard on merits in the suit which has been filed by the Plaintiff qua the suit property. The Plaintiff cannot seek to steal a march over the DDA, especially when the allegation is that the land is public land. The Court also has a duty to safeguard public land. Lastly, Court does not find any error in the order passed by the Trial Court. However, in view of the delay by DDA in approaching the Court under Order IX Rule 13 CPC, the costs granted are enhanced. Click here to view the Judgement Reviewed by Revanth The brief facts of this case are that a permanent injunction was filed by the Plaintiff against the Delhi Development Authority (DDA) seeking a restraint order in respect of demolition of shops. The case of the Plaintiff is that he is the owner of 12 shops bearing Pvt. Nos. 1 to 12, situated over Plot No. 3A/112, Mpl. No. 11957, W.E.A, Karol Bagh, New Delhi. The case initially was rejected by the Trial Court on 21st October, 2018. However, the Plaintiff had appealed the order and in the appeal the matter was stated to have been remanded for fresh adjudication dated 17th December, 2018. On 18th December, 2018, the Plaintiff appeared before the Trial Court and summons were sent to the DDA. The summons were served upon the DDA, however, since none appeared for DDA, on 9th September, 2019, ex-parte evidence was recorded and the suit was decreed ex-parte on 16th December, 2019. Upon the said order being served upon DDA, an application was filed by DDA under Order IX Rule 13 CPC along with Section 5 of the Limitation Act, in which the impugned order has been passed allowing the application of the DDA and ex-parte decree has been set aside. The counsel for plaintiff submits that no sufficient cause has been shown by DDA as to why it did not enter appearance in the suit once summons was served. He submits that DDA cannot be shown any leniency, by virtue of being a government authority. Reliance is placed upon ML Mahajan v. DDA & Anr., 1992 RLR 242 to argue that the Government cannot have a better privilege than any other party before a Court of law. Counsel for respondents/defendant, submits that the DDA does not recognise the Plaintiff as the owner of this suit property. He contended that the land is actually Government land and eviction proceedings under Section 4 of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971, were initiated against the occupants of all the 12 shops and a detailed order being F. No. D/7(4) Basti Reghar/96/214 dated 30th July, 2018 was passed by the Estate Officer. The Court observed that it cannot be stated that the Plaintiff was not aware of these eviction proceedings. Clearly, the eviction proceedings were not brought to the notice of the Court when the ex parte judgment/decree was passed. The Estate Officer having already taken cognizance and having passed an eviction decree qua these very shops, DDA is entitled to be heard on merits in the suit which has been filed by the Plaintiff qua the suit property. The Plaintiff cannot seek to steal a march over the DDA, especially when the allegation is that the land is public land. The Court also has a duty to safeguard public land. Lastly, Court does not find any error in the order passed by the Trial Court. However, in view of the delay by DDA in approaching the Court under Order IX Rule 13 CPC, the costs granted are enhanced. Click here to view the Judgement Reviewed by Revanth The counsel for plaintiff submits that no sufficient cause has been shown by DDA as to why it did not enter appearance in the suit once summons was served. He submits that DDA cannot be shown any leniency, by virtue of being a government authority. Reliance is placed upon ML Mahajan v. DDA & Anr., 1992 RLR 242 to argue that the Government cannot have a better privilege than any other party before a Court of law. Counsel for respondents/defendant, submits that the DDA does not recognise the Plaintiff as the owner of this suit property. He contended that the land is actually Government land and eviction proceedings under Section 4 of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971, were initiated against the occupants of all the 12 shops and a detailed order being F. No. D/7(4) Basti Reghar/96/214 dated 30th July, 2018 was passed by the Estate Officer. The Court observed that it cannot be stated that the Plaintiff was not aware of these eviction proceedings. Clearly, the eviction proceedings were not brought to the notice of the Court when the ex parte judgment/decree was passed. The Estate Officer having already taken cognizance and having passed an eviction decree qua these very shops, DDA is entitled to be heard on merits in the suit which has been filed by the Plaintiff qua the suit property. The Plaintiff cannot seek to steal a march over the DDA, especially when the allegation is that the land is public land. The Court also has a duty to safeguard public land. Lastly, Court does not find any error in the order passed by the Trial Court. However, in view of the delay by DDA in approaching the Court under Order IX Rule 13 CPC, the costs granted are enhanced. Click here to view the Judgement Reviewed by Revanth Counsel for respondents/defendant, submits that the DDA does not recognise the Plaintiff as the owner of this suit property. He contended that the land is actually Government land and eviction proceedings under Section 4 of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971, were initiated against the occupants of all the 12 shops and a detailed order being F. No. D/7(4) Basti Reghar/96/214 dated 30th July, 2018 was passed by the Estate Officer. The Court observed that it cannot be stated that the Plaintiff was not aware of these eviction proceedings. Clearly, the eviction proceedings were not brought to the notice of the Court when the ex parte judgment/decree was passed. The Estate Officer having already taken cognizance and having passed an eviction decree qua these very shops, DDA is entitled to be heard on merits in the suit which has been filed by the Plaintiff qua the suit property. The Plaintiff cannot seek to steal a march over the DDA, especially when the allegation is that the land is public land. The Court also has a duty to safeguard public land. Lastly, Court does not find any error in the order passed by the Trial Court. However, in view of the delay by DDA in approaching the Court under Order IX Rule 13 CPC, the costs granted are enhanced. Click here to view the Judgement Reviewed by Revanth The Court observed that it cannot be stated that the Plaintiff was not aware of these eviction proceedings. Clearly, the eviction proceedings were not brought to the notice of the Court when the ex parte judgment/decree was passed. The Estate Officer having already taken cognizance and having passed an eviction decree qua these very shops, DDA is entitled to be heard on merits in the suit which has been filed by the Plaintiff qua the suit property. The Plaintiff cannot seek to steal a march over the DDA, especially when the allegation is that the land is public land. The Court also has a duty to safeguard public land. Lastly, Court does not find any error in the order passed by the Trial Court. However, in view of the delay by DDA in approaching the Court under Order IX Rule 13 CPC, the costs granted are enhanced.

IN THE HIGH COURT OF DELHI AT NEW DELHI Date of Decision: 6th December 2021 C.R.P. 89 2021 & CM APPL. 43521 2021 SH KHALIFA CHAIN SUKH ..... Petitioner Through: Mr. Ram Kishan Saini and Ms. Neelam Saini Advs.Through: Mr. Aschim Vachher Advocate. ..... Respondent DELHI DEVELOPMENT AUTHORITY JUSTICE PRATHIBA M. SINGH Prathiba M. Singh J.1. This hearing has been done in physical Court. Hybrid mode is permitted in cases where permission is being sought from the Court. The present petition challenges the impugned order dated 1st October 2021 by which the applications of the Respondent Delhi Development Authority under Order IX Rule 13 CPC and under Section 5 of the Limitation Act 1963 for condonation of delay have been allowed by the Trial Court in CS No.152 20 titled Sh. Khalifa Chain Sukh v. DDA thereby setting aside the ex parte judgment decree of the Trial Court dated 16th November 2019 and restoring the suit. The brief facts are that a suit for permanent injunction was filed by the Petitioner Plaintiff against the DDA seeking a restraint order in respect of demolition of shops. The case of the Plaintiff is that he is the owner of 12 shops bearing Pvt. Nos. 1 to 12 situated over Plot No. 3A 112 Mpl. No. 11957 W.E.A Karol Bagh New Delhi 110005 hereinafter “suit property”). The reliefs sought in the plaint are as under: C.R.P. 89 2021 “It is therefore most respectfully prayed that a decree for permanent inject may kindly be passed in favour of the plaintiff and against the defendant including its agent servants and officials etc. retraining them from demolishing the shops in question situated over plot of land bearing No. 3A 112 Municipal No.11957 Sat Nagar Karol Bagh New Delhi or otherwise possession in respect of the shows in question as shown ‘in site plant attached.” The said suit was initially rejected by the Trial Court on 21st October 2018. The said order was appealed by the Plaintiff and in the appeal the matter was stated to have been remanded for fresh adjudication vide order dated 17th December 2018. On 18th December 2018 the Plaintiff appeared before the Trial Court and summons were sent to the DDA. The summons were served upon the DDA however since none appeared for DDA on 9th September 2019 ex parte evidence was recorded and the suit was decreed ex parte on 16th December 2019. Upon the said order being served upon DDA an application was filed by DDA under Order IX Rule 13 CPC along with Section 5 of the Limitation Act in which the impugned order has been passed allowing the application of the DDA and ex parte decree has been set aside. Ld. counsel appearing for the Plaintiff submits that no sufficient cause has been shown by DDA as to why it did not enter appearance in the suit once summons was served. He submits that DDA cannot be shown any leniency by virtue of being a Government authority. Reliance is placed upon ML Mahajan v. DDA & Anr. 1992 RLR 242 to argue that the Government cannot have a better privilege than any other party before a Court of law. C.R.P. 89 2021 On behalf of the DDA Mr. Vachher ld. Counsel submits that the DDA does not recognise the Plaintiff as the owner of this suit property. He submits that the land is actually Government land and eviction proceedings under Section 4 of the Public Premises Act 1971 were initiated against the occupants of all the 12 shops and a detailed order being F. No.D 7(4)Basti Reghar 96 214 dated 30th July 2018 was passed by the Estate Officer. Pursuant to the said order it is stated that four shops have already been demolished in respect of one shop the proceedings are going on before the Estate Officer and for seven shops the occupants have challenged the Estate Officer’s order in appeal and there is a stay granted therein. He submits that the Plaintiff has no locus standi and cannot claim ownership in Government land. A copy of the said order has been emailed to the Court Master. Heard ld. counsels for the parties. A perusal of the impugned order dated 1st October 2021 shows that the Trial Court has gone into the question as to whether sufficient cause is established or not. The Court has noticed that there was an error in DDA’s office wherein the summons was not duly recorded into the S&S I register of DDA which led to a situation wherein the ex parte decree came to be passed. The Trial Court also considers the fact that eviction proceedings have already been initiated by DDA and also takes into account the pandemic situation for which the Supreme Court had also passed orders extending the limitation period in proceedings ongoing during the pandemic period in In Re: Cognizance of LimitationNo.3 2020 dated 8th March 2021]. Since valuable rights were being compromised due to the ex parte decree the Trial Court has allowed the application with costs of Rs.7 000 . The reasoning of the Trial Court is C.R.P. 89 2021 set out below: From the abovesaid judgment it becomes clear that ‘Sufficient cause’ would mean thatthe party had not acted in a negligent manner and there has been no want of bona fide the defendant so acting bona fidely could not appear in court due to the facts and circumstances beyond his controlhe had been acting diligently in pursuing the legal remedy available to him. Whether a party had succeeded in disclosing ‘sufficient cause’ depends on facts and circumstances of each case and no straitjacket formula of universal application can be adopted. Now coming to the facts of the present case and applying the principles as extracted in paragraph 10 to the present case it appears that it is an undisputed fact and a matter of record that the defendant was duly served in the underlying case. However due to some internal miscommunication the factum of the said suit was never reflected in the relevant register of the department owing to which the case file was never assigned to the counsel and the defence was never raised. It is further averred that there is a connected suit also pending in the present court which is duly contested by the defendant department which shows that the non appearance was not due to some negligence or callousness attributable to the defendant but the same was due to miscommunication and a bona fide mistake which was not detected till 07.01.2020 when the certified copy of the decree was received by the counsel for the defendant. Upon due consideration of all the facts and circumstances and the cases referred by the parties this court is of the opinion that though the summons were duly served upon the defendant the absence of the particulars of the present case in the concerned register of the department is a sufficient cause which prevented the defendant from appearing on the date fixed for hearing to raise its defence and is covered in the latter part of Order 9 Rule 13. As the DDA could not entrust C.R.P. 89 2021 the case to the empanelled counsel owing to the fact that the factum of the ongoing case was never reflected in the Register of the Department defence could never be raised by the defendant on any of the dates in the ongoing suit and consequently the suit was decreed exparte. This court is of the further opinion that the department couldn’t defend the case due to an innocuous error probably due to oversight by the officials staff which however became the reason of the nonappearance of the Defendant. In view of the observations made in the present paragraph the Court is of the view that there was sufficient cause which prevented the defendant from appearing and contesting the suit. 12. Coming to the second application filed for the defendant for the condonation of delay a reference may be made to the judgments filed by the parties. The essence of the abovesaid precedents as briefly may be stated out is that the length of the limitation is of no consequence if the same is justified by showing the sufficient cause and that the provision of law is same for everyone but a liberal approach may be taken while dealing with a government department taking into account the internal procedural delays red tapism etc. Applying these principles in the case at hand it appears that 4 the delay in filing the application within the stipulated time as per the mandate of Article 123 of The Limitation Act can be condoned if the cogent reasons are shown by the government department which prima facie doesn’t show the want of bona fide on it s part. A detailed scrutiny of condonation of delay shows that the applicant has given the account of each and every date when owing to the internal procedural for entrustment of a case file the officers departments. Further it is needless to say that court has to take into account the rampant covid 19 pandemic which brought the country on a standstill. Reference may also be made to the order of Hon‘ble the application C.R.P. 89 2021 Supreme Court in Re: Cognizance for extension of limitation in suo moto writ petitionerNo. 3 2020 dated 08.03.2021 whereby the limitation period under the law was extended. Accordingly the court is of the opinion that it appears from the contents of the application that the delay period in filing the present application from the date of alleged knowledge i.e. 07.01.2020 to the filing of the application i.e. 17 08 20 is well explained by the applicant and the delay in filing the present application is condonable taking a measured view of the facts and circumstances of the case. 13. In view of the aforegoing lengthy discussion the present applications U o 9 Rule 13 CPC and Sec. 5 of the Limitation Act are allowed and disposed off accordingly. However since a valuable right of the plaintiff in the form of ex parte decree is frustrated the defendant is hereby liable to pay a cost of Rs.7000 to the plaintiff before the next date of hearing.” The case of the Plaintiff is that he has ownership rights in the suit property i.e. over all 12 shops. The plaint and other relevant pleadings are not placed on record and neither is the evidence placed on record. The ex parte judgment which has been placed on record shows that the only claim is on the basis of construction. A perusal of the order passed by the Estate Officer dated 30th July 2018 shows that there is a long history of proceedings wherein various occupants have been claiming rights in the land. The said order records that the property bearing No. 3 A 112 Basti Reghar Khasra No.2592 WEA Karol Bagh New Delhi 110005 is a public premises. It records that even previously vide order dated 24th January 1997 the Estate Officer had assessed damages against some occupants who had even paid damages. Again notices were sent to some further occupants and even a public notice was issued. Finally eviction order was passed. This C.R.P. 89 2021 sequence of events is recorded in the order dated 30th July 2018 as below: “1. Dy. Director has proposed for the removal of the encroachment in the shape of 10 12 shops existing adjacent of the vacant plot which is DDA land. Due to this encroachment the planning of this plot is badly suffered. This encroachment falls in Khasra No.2592 WEA Karol Bagh 2. The Public Premises in question is Property bearing No.3 A 112 Basti Reghar Khasra No.2592 WEA Karol Bagh New Delhi 110005 measuring 13 sq yds. 4. Earlier the aforesaid Premises was in unauthorized occupation of Sh. Manoj Kumar and Sh. Puneet Kumar both Sons of Late Sh. Lekh Raj and vide Assessment Orders dated 24th January 1997 the then Estate Officer had assessed the damages in favour of said Sh. Manoj Kumar and Sh. Puneet Kumar who upto some time had paid the damages also. 5. However during the public hearing of 1st October 2012 the Noticee Smt. Babita Sharma alongwith one Smt. Suman Sharma appeared before the then Estate Officer and requested that the damages be assessed in their favour as they had purchased the superstructure existing on the aforesaid Public Premises. 7. On 13th March 2014 Smt. Babita Sharma and Smt. Suman Kumari both filed affidavits to the effect that they have been in unauthorized occupation of the aforesaid Public Premises and have been using the same for commercial purposes. Further they requested that damages be assessed in their favour that they were willing to pay the same. 10. Pursuant to the service of the aforesaid Notice the unauthorized Occupants had appeared before the then Estate Officer on 23rd March 2015 11th May 2015 and 25th April 2016 and deposited Rs.4 80 000 and had sought some time to deposit the damages but despite repeated opportunities the unauthorized Occupants did C.R.P. 89 2021 not clear the dues. 12. Since despite the service of subject Notice the Noticee had not appeared therefore call letters Notices were again sent to her. 18. In her aforesaid objections Noticeee had not at all challenged the ownership of the DDA over the aforesaid Public Premises. Rather she has herself stated that she is in unauthorized occupation of the Public Premises and that she has been assessed to damages for the unauthorized use of the aforesaid Public Premises. However the period from which the damages had been assessed in her favour has wrong been stated. It has further been admitted by her that the aforesaid Premises is being used by her for commercial purposes and that in the year 2014 DDA had taken an affidavit from her to the effect that she would vacate the said Premises if there is any scheme from the Planning department 19. In view of her aforesaid admissions it is clear that the property in occupation of Noticee is Public Premises under the control and management of the DDA Noticeee is the unauthorized occupant in the aforesaid Premises although she had been assessed to damages however she has not paid the same. 20. Since the land in question urgently required by Dy. Director and despite opportunities the Noticee has not paid and cleared the entire outstanding amount of damages therefore I Y.S. Butola Estate Officer II D D.D.A. in exercise of my powers under Section 5 of the Public Premises Act 1971 do hereby direct that the aforesaid Public Premises bearing No.3 A 112 Basti Regar Khasra No.2592 WEA Karol Bagh New Delhi 110005 measuring 13 sq. yds. be immediately evicted and the vacant physical possession thereof be handed over to the D.D.A.” Therefore DDA having already started eviction proceedings and an C.R.P. 89 2021 eviction order having been passed on 30th July 2018 by the Estate Officer it cannot be stated that the Plaintiff was not aware of these eviction proceedings. Clearly the eviction proceedings were not brought to the notice of the Court when the ex parte judgment decree was passed. In so far as the proposition being canvassed by the Plaintiff that Government agencies cannot be treated differently in respect of whether sufficient cause was made out or not there is no doubt that this position is well established. However what is concerning in this case is the fact that the land is claimed to be public land by the DDA. Even when a query is put to the Plaintiff today ld. counsel submits that even by adverse possession the Plaintiff becomes the owner. 11. Under these circumstances the Estate Officer having already taken cognizance and having passed an eviction decree qua these very shops DDA is entitled to be heard on merits in the suit which has been filed by the Plaintiff qua the suit property. The Plaintiff cannot seek to steal a march over the DDA especially when the allegation is that the land is public land. 12. While there is no doubt that Government Departments have to be conscious and have to react with alacrity in any suit or proceedings the Court also has a duty to safeguard public land. The Punjab and Haryana High Court in Lekh Ram v. Gram Panchaayt Uletain a case for declaration of ownership filed by a private party against the gram panchayat set aside an ex parte order since public land was possibly involved and the Court found it preferable to err in favour of a public body. This in fact followed the Supreme Court’s decision in United Bank of India v. Sh Naresh Kumar & Ors. 1996SCC 660 where it was held that where suits are instituted or defended on behalf of a C.R.P. 89 2021 public corporation public interest should not be permitted to be defeated on a mere technicality. 13. Under these circumstances this Court does not find any error in the order passed by the Trial Court. However in view of the delay by DDA in approaching the Court under Order IX Rule 13 CPC the costs granted are enhanced from Rs.7 000 to Rs.25 000 and the same shall be paid to the Plaintiff within a period of four weeks from today. 14. Apart from this modification the impugned order is upheld. None of the issues on merits have been considered by the Court. The same shall be adjudicated upon in accordance with law by the Trial Court. It is made clear that DDA is expected to defend the suit promptly and not seek unnecessary adjournments before the Trial Court. 16. With these observations the present petition along with all pending applications is disposed of. PRATHIBA M. SINGH DECEMBER 6 2021 C.R.P. 89 2021

Sri Gopal Jalan & Company vs Calcutta Stock Exchange Association Ltd.

When a share is forfeited and re- issued it is not allotment in the sense of appropriation of share out of the authorised and unappropriated capital so as to bring the shares into existence. [Case Brief] Sri Gopal Jalan & Company vs Calcutta Stock Exchange Association Ltd. Case name: Sri Gopal Jalan & Company V/s Calcutta Stock Exchange Association Ltd. Case number: 1964 AIR 250, 1964 SCR (3) 698 Court: The Hon’ble Supreme Court of India Bench: Hon’ble Justice Sarkar Hon’ble Justice Hidayatullah Hon’ble Justice Shah Decided on: 09 May 1963 Relevant Act/Sections: Section 75 of the Companies Act, 2013   The appellant who has been accepted as a shareholder in the respondent Company for the purposes of the present proceedings, complained that the Company had not filed the return required by that section, and therefore, moved the High Court at Calcutta under section 614 of the Act for an order requiring it to do so.The shares with which this case is concerned have been forfeited by the Company under its articles. A reference to some of these articles is necessary before we proceed further. Article 21 of the Articles of Association of the Company authorised its Committee to expel or suspend a member in certain events.The High Court of Calcutta held that the words, ‘allotment of shares’ have been used in section 75 of the Companies Act, 2013 indicate the creation of shares by appropriation out 699 of the unappropriated share capital to a particular person. When a share is forfeited and reissued it is not allotted in the sense of appropriation of share out of the authorised and unappropriated capital so as to bring the shares into existence. A re-issue of a forfeited share is not an allotment of share within the meaning of s. 75 (1) of Companies Act, 2013 but a sale and that being so, no question of filing any return in respect of such re-issue arises. The appellant who has been accepted as a shareholder in the respondent Company for the purposes of the present proceedings, complained that the Company had not filed the return required by that section, and therefore, moved the High Court at Calcutta under section 614 of the Act for an order requiring it to do so.The shares with which this case is concerned have been forfeited by the Company under its articles. A reference to some of these articles is necessary before we proceed further. Article 21 of the Articles of Association of the Company authorised its Committee to expel or suspend a member in certain events.The High Court of Calcutta held that the words, ‘allotment of shares’ have been used in section 75 of the Companies Act, 2013 indicate the creation of shares by appropriation out 699 of the unappropriated share capital to a particular person. When a share is forfeited and reissued it is not allotted in the sense of appropriation of share out of the authorised and unappropriated capital so as to bring the shares into existence. A re-issue of a forfeited share is not an allotment of share within the meaning of s. 75 (1) of Companies Act, 2013 but a sale and that being so, no question of filing any return in respect of such re-issue arises. ISSUE BEFORE THE COURT: What is the meaning to be ascribed to the word “allotment” occurring in S. 75 (1) of the Companies Act, 2013? RATIO OF THE COURT The Court observed that forfeiture of shares is the power of transferring them from the original shareholders to the company and the company can then transfer the shares subject to the same rights and liabilities as if they had not been forfeited.The view well accepted in Company Courts has been that issue of the forfeited shares was not allotment of them but only a sale. The forfeiture itself would be invalid as involving an illegal reduction of capital. If the reissue of a forfeited share is only its sale, then it is not an allotment and no question of filing any return in respect of such reissue arises.It held that when a share is forfeited and re- issued it is not allotment in the sense of appropriation of share out of the authorised and unappropriated capital so as to bring the shares into existence. In the present case both sides proceeded on the basis that the articles of the company dealing with forfeiture of shares which we have earlier set out are valid articles. In other words, it has not been disputed that the Company may validly forfeit shares in terms of those articles.It further clarified that Sub-s. (5) of s. 75 of Companies Act, 2013. provides that no return need be filed in respect of allotment of shares forfeited for non-payment of calls. The word “allotment” in s. 75 (1) should be understood as including the issue of shares forfeited for other reasons, for there is no reason to make any distinction between shares forfeited for non-payment of calls and those forfeited for other reasons in the present context.The court came to the conclusion that apart from sub. Section (5) of section 75 of the Companies Act,2013. all other provisions of the Act clearly contemplated by allotment the creation of shares out of the authorised and unappropriated capital of the Company and not reissue of shares already created by allotment in the manner aforesaid but subsequently forfeited. There would be no justification for altering the meaning of that word “, allotment” occurring in S. 75 (1) of the Companies Act, 2013. DECISION HELD BY COURT: The appeal was dismissed by the Hon’ble Supreme Court of India.  

SRI GOPAL JALAN & COMPANY Vs CALCUTTA STOCK EXCHANGEASSOCIATION LTD DATE OF JUDGMENT SARKAR A.K SARKAR A.K HIDAYATULLAH M SHAH J.C 1964 AIR 250 1964 SCR 698 CITATOR INFO E 1970 SC1750 s. 75 The respondent company did not file any return of the re issued forfeited shares under s. 75of the Act and therefore the appellant shareholdar moved ’the High Court for an order requiring it to do so Held that the words allotment of shares" have been used in 75 to indicate the creation of shares by appropriation of the unappropriated share capital to a particular person When a share is forteited and re issued it is not allotment in the sense of appropriation of share out of the authorised and unappropriated capital so as to bring the shares into existence. A re issue of a forfeited share is not an allotment of share within the meaning of s. 75but a sale and that being so no question of filing any return in respect of such re issue arises In re Florence Land and Public Works Company L. R 29 Ch. D. 421 Mosely v. Koffyfontain Mines Limited 1 1. L. R. Cal. 235 Naresh Chandra Sanyal v. Ramani Kanta Ray 68 L. J. Ch. 11 discussed In re V. G. M. Holdings Limited1 Ch. D. 235 Held further that sub s.of s. 75 has been enacted as ex abundanti cautela that is to say to prevent any argument being raised that a return has to be filed of the re issued shares forfited for nonpayment of calls CIVIL APPELLATE JURISDICTION :Civil Appeal No. 5161 Appeal by special leave from the judgment and order dated August 18 1959 of the Calcutta High Court in Appeal from Original Order No. 1057 S. K. Kapur S. Murthi P. M. Kukhi and .K. K. Jain for H. N. Sanyal Solicitor General of India and B. P Maheshuari for the respondent 1963. May 9. The judgment of the Court was delivered by SARKAR. J. The question in this appeal is what is the meaning to be ascribed to the word " allotment" occurring in S. 75of the Companies Act 1956 That section requires a company to file a return of the allotment of its shares with the Registrar within a month of the making of the allotment. The appellant who has been accepted as a shareholder in the respondent Company for the purposes of the present proceedings complained that the Company had not filed the return required by that section and therefore moved the if High Court at Calcutta under s.614 of the Act for an order requiring it to do so The shares with which this case is concerned bad been forfeited by the Company under its articles. A reference to some of these articles is necessary before we proceed further. Article 21 of the Articles of Association of the Company authorised its Committee to expel or suspend a member in certain events. The present is not a case involving an exercise of power under this articte. Articles 22 24 and 27 are in these terms Article 22: "Any member who has been declared a defaulter by reason of his failure to fulfil any engagement between himself and any other member or members and who fails to fulfil such engagement within six months from the date upon which he has been so declared defaulter shall at the expiration of such period of six calendar months automatically cease to be a member Article 24: "’Upon any member ceasing to be a member under the provisions of article 22 hereof and upon any resolution being passed by the Committee expelling any member under the provisions of Article 21 here of or upon any member being adjudicated insolvent the share held by such member shall ipso facto be forfeited."’ Article 27:"Any share so forfeited shall be deemed to be the property of the Association 701 and the Committee shall sell re allot and otherwise dispose of the same in such manner to the best advantage for the satisfaction of all debts which may then be due and owing either to the Association or any of its members arising out of’ transactions or dealings in stocks and shares The appellant’s contention is that the Company from time to time forfeited various shares under these articles and it appeared from its balance sheet that seventy of such forfeited shares had been reissued at a nominal face value of Rs. 1 000 but no return of such re issue of the forfeited shares had been filed by the Company. The Company in its affidavit in answer to the petition admitted these facts. It was also said that these forfeited shares had been issued for much larger sums but nothing turns on that in this case Now s. 75 so far as material for our purposes is as follows S. 75. Whenever a Company having a share capital makes any allotment of its shares. the company shall within one month thereafter’ file with the Registrar a return of the allotments stating the number and nominal amount of the shares comprised in the allotment the names addresses and occupation of the allottees and the amount if any paid or due and payable on each share x x x x x Nothing in this section shall apply to the issue and allotment by a company of shares 702 which under the provisions of its articles were forfeited for non payment of calls The appellant contends that a return should have been filed of the re issued forfeited shares under this section. The contention of the Company is that the re issue of forfeited shares does not amount to allotment of shares and therefore it was not required to file any return in respect of such re issued shares under the section. This contention was accepted by the learned Judge of the high Court before whom the appellant’s petition was first moved and also by the learned judges of the Division Bench of that Court on appeal from the decision of the learned trial judge We agree with the learned Judges of the High Court that a re issue of a forfeited share is not an allotment of share within s. 75(1). The word "alloment" has not been defined in the Companies Act either in our country or in England But we think that the meaning of that word is well understood and no decision has been brought to our notice to indicate that any doubt has ever been entertained as to it As Chitty J. put it in In re Florence Land and Public Works Company (p.426). "What is termed ’allotment’ is generally neither more nor less than the acceptance by the company of the offer to take shares. To take the common case the offer is to take a certain number of shares or such a less number of shares as may be allotted. That offer is accepted by the allotment either of the total number men tioned in the offer or a less number to be taken by the person who made the offer. This constitutes a binding contract to take that number according to the offer and acceptance. To my mind there is no magic whatever in the term ’allotment’ as used in these circumstances. It is said that the allotment is an appropriation of a specific number of shares. It 1) L.R. 29. C h. D. 421 is an. appropriation not of specific shares but of a certain number of shares The process described by Chitty J.’ is very familiar in Company law. Under the Act a company having share capital is required to state in its memorandum the amount of that capital and the division thereof into shares of a fixed amount: see s. 13(4). This is what is called the authorised capital of the company. Then the Company proceeds to issue the shares depending on the condition of the market. That only means inviting applications for these shares. When the applications are received it accepts them and this is what is generally called allotment. No doubt there may be an allotment of shares without an application but no instance exists where that word is used to describe a transaction whereby one becomes a share holder otherwise than by appropriation to him of a share out of the previously unappropriated share capital So Farwell L. J. said in Mosely v. Koffyfontain Mines Limited "it seems to 1)I.L.R. Ch. 73. 84 2)1 Ch. D. 235 Me that the word "purchase’ cannot with propriety be applied to the legal transaction under which a person’ by the machinery of application and allotment becomes a share holder in the company. He does not purchase anything when he does that. Mr. Wynn Parry endeavored heroically to establish the proposition that a share before issue was an existing article of property that it was an existing bundle of rights which a shareholder could properly be said to be purchasing when he acquired it by subscription in the usual way. I am unable to accept that view. A share is a chose in action. A chose in action implies the existence of some person entitled to the rights in action as distinct from rights in possession and until the share is issued no such person exists. Putting it in a nutshell the difference between the issue of a share to a subscriber and the purchase of a share from an existing share holder is the difference between creation and the transfer of a chose in It is beyond doubt from the authorities to which we have earlier referred and there are many more which could be cited to show the same position that in Company law ’allotment’ means the appropriation out of the previously unappropriated capital of a company of a certain number of shares to a person. Till such allotment the shares do not exist as such. It is on allotment in this sense that the shares come into existence. Learned counsel for the appellant has not been able to cite any case where the word allotment’ has been used to describe a transaction with regard to an existing share that is a share previously brought into existence by appropriation to a person out of the authorished capital. In every case the words ’allotment of shares’ have been used to indicate the creation of shares by appropriation out of the unappropriated share capital to a particular person. We find no reason why the word allotment’ in s. 75 should have a different sense. It is said that sub s.of s. 75 furnishes such a reason. We deal with that argument later. Our attention has not been drawn to any other provision in our Companies Act which would support the contention that the Act includes within the word "allotment’ a transaction with a share after it has been first created by appropriation out of the authorised share capital to a particular individual. As the learned Judges of the High Court pointed out s. 75 occurs in Part III of the Act which deals with "’Prospectus And Allotment And Other Matters Relating To Issue Of Shares Or Debentures". Sections 69 to 75 are classed under the sub heading ’Allotment’ and the only kind of allotment that is dealt with in these sections is the appropriation of shares to individuals out of the unappropriated share capital of the company. In these circumstances it would be impossible to give to the word ’allotment’ in s. 75a different Now it is quite clear that when a share is forfeited and re issued it is not allotment in the sense of appropriation of share out of the authorisbed and unappropriated capital so as to bring the shares into existence. In the present case both sides proceeded on the basis that the articles of the company dealing with forfeiture of shares which we have earlier set out are valid articles. In other words it has not been disputed that the Company may validly forfeit shares in terms of those articles. We accept that basis and proceed on the assumption that it is correct. In the High Court at Calcutta there was a difference of opinion as to the validity of these articles but the later view is that the articles are valid. The reason for the view has thus been put in the latest case in the Calcutta High Court namely the Calcutta Stock Exchange Association Limited v S. N. Nundy. and Company(1). Harries C. J. dealing with the very articles with which we are concerned observed at p 264 "’In the present case the Articles relating to forfeiture do not in my view offend against the 1)1 I.L.R. Cal. 235 provisions of the Companies Act as they do not contemplate a reduction of capital or a purchase of shares or a trafficking in shares Now obviously A if upon forfeiture the shares had ceased to exist qua shares and become merged in the unissued capital of the Company then there would have been a reduction of the capital and such a forfeiture would have been invalid. The reason why it was held that the forfeiture was valid was that on such forfeiture all that happened was that the right of the particular shareholder disappeared but the share considered as a unit of issued capital continued to exist and was kept in suspense until another shareholder was found for it: see Naresh Chandra Sanyal v. Ramani Kanta Bay[1945]2 I.L.R. Cal. 105 2)68 L.J. CH 11 a forfeiture of shares is that the power of transferring them passes from the original shareholders to the company and the company can then transfer the shares subject to the same rights and liabilities as if they had not been forfeited". To the same effect are the observations of Bacon V. C. in Ramwell’s Caseof s. 75. That does create a difficulty. It provides that no return need be filed in respect of allotment of shares forfeited for nonpayment of calls. It gives rise to an argument that the Art contemplates an "allotment" of shares forfeited for non payment of calls for otherwise it would not be necessary to provide that returns in respect of such allotment need not be filed. It is said that being so the word "allotment" in s. 75 should be understood as including the issue of shares forfeited for other reasons for there is no reason to make any distinction between shares forfeited for nonpayment of calls and those forfeited for other reasons in the present context. This argument is no doubt legitimate But having given it our best consideration we have come to the conclusion that it should be rejected. We think that sub s. owes its origin to a confusion of ideas. Apart from it all other provisions of the Act clearly contemplate by allotment the creation of shares out of the authorised and unappropriated capital of the Company and not reissue of shares already created by allotment in the manner aforesaid but subsequently forfeited. There would be no justification for altering the meaning of that word in any other part of the Act because of 1)50 L J. Ch.of s. 75 The Companies Act in force before the Act of 1956 was the Act of 1913. Section 104of that Act corresponded to s. 75of s. 75 of the present Act. Therefore upto 1936 there was no reason to contend that the word ’allotment" in s. 104could at all include the re issue of a forfeited share. The 1936 amendment added sub s. of s. 75 of the present Act. We do not think that it could be legitimately contended that by the amend ment of 1936 the meaning of the word " allotment"’ in s 104 was altered. That being so the word ""allotment in s. 75must be understood without reference of sub s 5) in the same way as that word in s. 104had to be understood without reference to sub.s.(4) of that section It is safer to read sub s.of s. 75 as having been enacted ex abundanti cautela that is to say to prevent any argument being raised that a return has to be filed of the re issued shares forfeited for non payment of calls. We also agree with the view expressed in the High Court that the reason why only forfeiture for non payment of calls was mentioned in s. 104of the Act of 1913 and s. 75of the present Act is that there has always been a great deal of doubt as will appear from the difference of opinion in the Calcutta High Court to which we have earlier referred as to whether there can be any forfeiture of shares except for nonpayment of calls which latter case had been expressly provided for by the statute. The other cases of forfeiture had apparently not been mentioned because if they had been it could have been legitimately argued that the legislature considered such forfeiture valid and the legislature did not want to give support to that argument We think for these reasons that the appeal fails and we dismiss it with costs

The jurisdiction to interfere in the second appeal is only where there is an error in law or procedure and not merely an error on a question of fact: The Supreme Court of India

Mere findings of fact cannot interfere within the exercise of second appellate jurisdiction given the three limbs of jurisdiction available under Section 41 of the Punjab Courts Act. Findings of fact that are unreasonable, or which are rendered by overlooking the record, therefore, per se do not appear to fall within the scope of second appellate review by the High Court. The aforesaid has been established by the Supreme Court of India while adjudicating the case of Avtar Singh & Ors. v. Bimla Devi & Ors. [SLP (C) NO. 35655 OF 2016] which was decided upon by a single judge bench comprising Justice S. Ravindra Bhat on 29th September 2021. The facts of the case are as follows. The case was regarding a property that belonged to a Hindu Undivided family and its occupation by the plaintiffs. The suit alleged that Defendant Nos. 2 to 4 broke the lintel portion of the roof illegally and with the intention to take forcible possession of the plaintiffs’ house constructed on the first floor. It was also alleged that they had secretly constructed a staircase in the portion marked ‘AEFG’ for the forcible occupation of the first floor of the building. The trial court and the first appellate court after considering the evidence on record – including the report of a local commissioner who, pursuant to the orders made during the trial, visited the site – dismissed the suit. Bimla Devi (the first plaintiff) preferred a second appeal. The High Court, framed a substantial question of law, as required by Section 100 of the Code of Civil Procedure (CPC) which was later answered in favor of the plaintiffs thus resulting in the decree of the suit. The High Court’s judgment was impugned before this Court. One of the main arguments of the appellants/defendants was that the impugned judgment is erroneous because it upsets concurrent findings of fact. It was emphasized that even though a substantial question of law was framed for consideration in the second appeal, the exercise of jurisdiction and interference in the findings of the two lower courts, was unwarranted The court perused the facts and arguments presented. It relied on several judgments including Pankajakshi v. Chandrika, (2016) 6 SCC 157; Randhir Kaur v. Prithvi Pal Singh, (2019) 17 SCC 71 and Dhanpat v. Sheo Ram, (2020) 16 SCC 209. It was hence of the opinion that “the High Court’s findings – which are based entirely on the reappreciation of the record – and consequent interference with the concurrent findings of the lower courts, cannot be upheld. In view of the foregoing reasons, the impugned judgment has to be set aside. The appeal is accordingly allowed, without orders on cost.”

IN THE CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. OF 2021 NO. 35655 OF 2016) AVTAR SINGH & ORS. BIMLA DEVI & ORS. ...RESPONDENT(S) S. RAVINDRA BHAT J. Special leave granted. Counsel for parties were heard with their consent for final disposal of the appeal which questions a judgment and order of the Punjab and Haryana High Court1. The relevant facts are that the property marked ABCD in the site plan produced along with the suit) located at GT Road Shahabad Markanda was purchased in the name of the first defendant allegedly in lieu of claim of properties left in Pakistan. It was stated that the joint family properties belonged to a Hindu undivided family consisting of second plaintiffhis father and the first defendantto Rajpal’s wife Bimla Devi for a total consideration of ₹ 2500 in 1961. This sum was allegedly received by Girdhari Lal who agreed to execute the sale deed as 1Dated 24.8.2016 in RSA 932 2010assessed the portion marked OJHC as a separate unitin the name of Bimla Devi. Since the staircase to access the roof was only in the said residential portion and there was no access to the roof from any other side as such the roof too was in their exclusive possession. The suit alleged that on 05.03.2000 Defendant Nos. 2 to 4 broke the lintel portion of the roof illegally and with intention to take forcible possession of the plaintiffs’ house constructed on the first floor. It was also alleged that they had secretly constructed a staircase in the portion marked AEFG for forcible occupation of the first floor of the Girdhari Lal in his written statement denied that the plaintiffs had any cause of action and claimed that they lacked locus standi to file and maintain the suit. The written statement alleged that the property which was acquired in his name in the year 1961 did not belong to any Hindu joint family as alleged by the plaintiffs as he had spent his own funds. He denied entering into an agreement to sell the property to Rajpal and claimed that he had neither received any sale consideration nor handed over possession to Rajpal. Girdhari Lal sold the shop marked AGFE to the second defendant by a registered sale deed dated 06.08.1999 together with first floor of the shop. It was alleged that Avtar Singh was in exclusive possession of the property ever since. The allegations in the written statement of Girdhari Lal were endorsed by Defendant Nos. 2 to 4 in a joint written statement. They reiterated that Avtar Singh purchased the shop in dispute from Girdhari Lal along with chaubara situated on the roof for a valuable consideration of ₹ 3 lakhs by a sale deed dated 06.08.1999 and possession was delivered to him. Avtar Singh was in possession of the shop for over 30 years prior to the purchase as a tenant and doing business of spare parts of electrical goods and submersible pumps. It was urged that the defendants are in peaceful possession of the shop roof as well as chaubara constructed thereon. The trial court and the first appellate court after considering the evidence on record including the report of a local commissioner who pursuant to the orders made during the trial visited the site dismissed the suit. Bimla Devi preferred a second appeal. The High Court framed a substantial question of law as required by Section 100 of the Code of Civil Procedurewhich reads as “Whether the findings of the Courts below in regard to claim of the appellants qua their possession of the chobaras on the first floor of the three shops and mandatory injunction to close the holes in the lintel of the shop in occupation of Avtar Singh are the result of ignoring material evidence and misreading of evidence rendering it perverse”. The High Court answered the substantial question in favour of the plaintiffs Bimla Devi and Rajpal and consequently allowed the second appeal thus resulting in decree of the suit. The High Court’s judgment is impugned before this Court. 7. Mr. K.K. Mohan learned counsel appearing for the appellants defendants argued that the impugned judgment is in clear error of law because it upsets concurrent findings of fact based upon a complete misappreciation of the circumstances bearing from the record. Mr. Mohan underlines that the substantial question of law framed by the High Court cannot be termed as falling within the framework of Section 100 CPC. He complained that the High Court assumed perversity on the part of the reasoning of the trial court and the district court and ignored relevant and material evidence in the form of documents as well as the oral It was argued by the appellant that Avtar Singh is the father of the other two defendantsthey purchased the shop in question measuring 43.33 square yards along with the disputed chaubara for ₹ 3 lakhs by a registered sale deed in 1999 from Girdhari Lal who died during the pendency of the suit. This fact was appreciated by the trial court which gave credence to the registered document rather than the allegations in the suit that a prior agreement to sell which was an unregistered document was executed favouring Bimla Devi and Rajpal and on which they based their claim. It was urged that the entire story of the respondents plaintiffs was that Rajpal Singh was brother of Girdhari Lal and he purchased the northern half portion of the building received by the latter in lieu of his claim. This was a false and concocted story disbelieved quite rightly by the trial court. In fact they argued that this was not supported by evidence of any kind. The court noticed that there was due execution of the sale deed dated 06.08.1999during the course of the trial. This document unequivocally stated that the chaubara was part and parcel of the property purchased by Avtar Singh. In the absence of a challenge to that sale deed that Rajpal and Bimla Devi had purchased the property through an agreementmerely 18 days after the execution of Ex.D 1 was not believed. That claim was never taken in the plaint filed by the respondent Bimla Devi but saw the light of the day only during the trial. Consequently the so called agreement Ex.P 3) was disbelieved and discredited by both the trial court and the first appellate court. This aspect was completely brushed aside by the High Court which proceeded questions of law. to discuss the pure findings of fact even though it purported to frame substantial It was urged that once the plaintiffs admitted to the due execution of Ex.D 1 the evidence appreciated by the High Court and its observations that it was agreed by the parties that ownership of the suit property was pending adjudication in separate proceedings was a superfluity and untenable. Mr. Mohan also submitted that the plaintiffs had admitted to Avtar Singh’s tenancy prior to the execution of Ex.D 1. It was highlighted that the lower courts gave importance to the fact that the registered document could not be brushed aside and its contents had to be taken at face value. It was submitted that in view of all these factors the interference by the High Court with concurrent findings of fact was unwarranted. 11. Mr. Tarunvir Singh Khehar learned counsel appearing respondents plaintiffs supported the judgment in appeal. He submitted that the suit averments clearly mentioned that after the agreement to sell was entered into in 1978 the plaintiffs were given possession with the property. It was underlined that the plaintiffs reconstructed portions of the property and clearly mentioned that on the first floor of the three shops there were two portions. It was importantly argued that the dimensions of the chaubara were different from what was alleged by the 12. Learned counsel appearing for the respondents plaintiffs also drew the attention of this court to the report of the Local Commissioner which had been challenged. He submitted that the Commissioner was asked to inspect the site and report to the trial court about the precise dimensions of the various premises. It was stated that Avtar Singh’s possession in the capacity as owner of the shop was not a matter of dispute and what was in issue was only regarding the possession of the chaubara. Learned counsel submitted that the dimensions alleged in the plaint and the dimensions of the chaubara found on the first floor were in accord with each other. It was also submitted that the allegations in the suit that holes had been drilled on the lintels in order to make separate staircase from within the shop premiseswas borne out because the Local Commissioner found such holes. Analysis and Conclusions 13. One of the main arguments of the appellants defendants is that the impugned judgment is erroneous because it upsets concurrent findings of fact. It is emphasized that even though a substantial question of law was framed for consideration in the second appeal the exercise of jurisdiction and interference in the findings of the two lower courts was unwarranted. 14. The Local Commissioner s report corroborated the respondents plaintiffs case that a staircase did not exist or rather that it was in the stage of construction and was not completed. The report also bore out the plaintiffs’ allegation that holes had been made in the lintel of the roof. Furthermore the dimensions of the chaubara as found by the Local Commissioner differed from what was stated by Avtar Singh. 15. From an overall discussion of the evidence it is apparent that undeniably Avtar Singh s possession and perhaps even ownership of the ground floor shop could not be denied. The findings of the lower courts therefore based upon the registered documents cannot be faulted. However both these courts ignored the other evidence in the form of the Local Commissioner s report with regard to the issue of possession of the chaubara. The Local Commissioner was neither cross examined nor was his report objected to. 16. In these circumstances the question that arises is whether the High Court justly interfered with what are unquestionably concurrent findings of fact. This court in its five judge bench ruling in Pankajakshi v. Chandrika2 held that the provisions of Section 41 of the Punjab Courts Act 1918 continued to be in force and not Section 100 CPC. The Court observed that: 26 SCC 157. “27. …. Section 41 of the Punjab Courts Act is of 1918 vintage. Obviously therefore it is not a law made by the Legislature of a State after the Constitution of India has come into force. It is a law made by a Provincial Legislature under Section 80A of the Government of India Act 1915 which law was continued being a law in force in British India immediately before the commencement of the Government of India Act 1935 by Section 292 thereof. In turn after the Constitution of India came into force and by Article 395 repealed the Government of India Act 1935 the Punjab Courts Act was continued being a law in force in the territory of India immediately before the commencement of the Constitution of India by virtue of Article 372(1) of the Constitution of India. This being the case Article 254 of the Constitution of India would have no application to such a law for the simple reason that it is not a law made by the Legislature of a State but is an existing law continued by virtue of Article 372 of the Constitution of India. If at all it is Article 372(1) alone that would apply to such law which is to continue in force until altered or repealed or amended by a competent Legislature or other competent authority. We have already found that since Section 97(1) of the Code of Civil Procedure Act 1976 has no application to Section 41 of the Punjab Courts Act it would necessarily continue as a law in force.” As a result the previous smaller bench ruling in Kulwant Kaur v Gurdial Singh Mann3 which held that Section 41 is inconsistent with Section 100 CPC after its amendment in 1976 and that the latter prevails was expressly overruled. 17. The decision in Pankajakshicame up for discussion in two subsequent judgments of this Court. In Dhanpat v. Sheo Ram4 citing the ruling in the earlier decision Randhir Kaur v. Prithvi Pal Singh5 it was held as follows: “13. It may be noticed that in view of Constitution Bench judgment of this Court in Pankajakshi v. Chandrika6 SCC 157 :3 SCC105] substantial question of law may not be required to be framed in Punjab and Haryana but still the finding of fact recorded cannot be interfered with even in terms of Section 41 of the Punjab Courts Act 1918. The said question was examined by in Randhir Kaur v. Prithvi Pal Singh17 SCC 71 :3 SCC372] wherein the scope for interference in the second appeal under Section 41 of the Punjab Courts Act applicable in the States of Punjab and Haryana was delineated and held as under :17 SCC 71 :3 SCC372] SCC p. 80 paras 15 16) this Court 34 SCC 262. 416 SCC 209. 517 SCC 71. “15. A perusal of the aforesaid judgments would show that the jurisdiction in second appeal is not to interfere with the findings of fact on the ground that findings are erroneous however gross or inexcusable the error may seem to be. The findings of fact will also include the findings on the basis of documentary evidence. The jurisdiction to interfere in the second appeal is only where there is an error in law or procedure and not merely an error on a question of fact. 16. In view of the above we find that the High Courtcould not interfere with the findings of fact recorded after appreciation of evidence merely because the High Court thought that another view would be a better view. The learned first appellate court has considered the absence of clause in the first power of attorney to purchase land on behalf of the plaintiff the fact that the plaintiff has not appeared as witness.” 18. It is thus evident therefore that mere findings of fact cannot be interfered with in exercise of second appellate jurisdiction given the three limbs of jurisdiction available under Section 41 of the Punjab Courts Act. Findings of fact which are unreasonable or which are rendered by overlooking the record therefore per se do not appear to fall within the scope of second appellate review by the High Court. In these circumstances the High Court s findings which are based entirely on the reappreciation of the record and consequent interference with the concurrent findings of the lower courts cannot be upheld. 19. In view of the foregoing reasons the impugned judgment has to be set aside. The appeal is accordingly allowed without orders on cost. [S. RAVINDRA BHAT] New Delhi September 29 2021.

The government has the absolute right to retire officials prematurely on sufficient grounds: High Court Of New Delhi

The Petition was filed by the petitioner challenging the dismissal order dated 21st 3. Learned counsel for the Petitioner states that the Petitioner was enrolled in CRPF on 11 July 2021 and seeking his reinstatement in service, and the same issue was held in the judgement passed by a division bench judge HON’BLE MR. JUSTICE MANMOHAN HON’BLE MR. JUSTICE NAVIN CHAWLA, in the matter CT/GD MAHAKAR V. UNION OF INDIA & ORS. dealt with an issue mentioned above. The petitioner will also seek directions to the Respondents to change the Petitioner’s punishment to ‘discharge’ instead of ‘dismissal’ from service and/or allow the Petitioner to take voluntary retirement or grant compulsory retirement in the starting stage itself, Learned counsel for the Petitioner states that the Petitioner was enrolled in CRPF on 11 July 2021. He states that the Petitioner requested, for grant of casual leave from 07th September 2019 to 20th.  September 2019 to undergo treatment for his deteriorating health condition. The petitioner was granted casual leave for the said period. Petitioner was still critically ill and he had duly informed the unit authorities regarding his health condition and also furnished his medical documents as proof of his unstable health condition, however, the authorities failed to appreciate the same and instead directed him to report back to the unit immediately. It was found that the perusal of the paper book reveals that two departmental enquiries were conducted against the Petitioner simultaneously. While one was for producing a fake educational certificate, the other was on account of overstay of leave, even after knowing that the Petitioner was found guilty in both the departmental enquiries, yet the punishment of dismissal was imposed on the ground that the Petitioner had produced a fake educational certificate. In the present writ petition, the Petitioner had challenged the departmental enquiry which was initiated on the ground of over-stay and desertion, It was also pertinent to mention that no medical certificate has even been enclosed along with the present writ petition. The court perused the facts and argument’s presented, it thought that- “In fact, this Court is of the view that the petitioner had overstayed leave/deserted his post for nearly one and a half year to avoid giving any response to the allegation of submitting fake educational qualification. The omission to deal with the allegation of submission of fake educational qualification in the present case is not an innocent one, but a part of the ‘strategy’ that had been adopted by the petitioner right from the time the disciplinary proceedings had commenced. Consequently, the request of counsel for the petitioner for withdrawal of the present writ petition is declined and the writ petition along with pending application being bereft of merit, is dismissed”.

IN THE HIGH COURT OF DELHI AT NEW DELHI W.P.(C) 12551 2021 & C.M.No.39521 2021 CT GD MAHAKAR SINGH ..... Petitioner Through Mr.Ajit Kakkar with Ms.Ria Gandhi UNION OF INDIA & ORS. Respondents Through Mr.Vikrant N.Goyal Advocate. Date of Decision: 10th November 2021. HON BLE MR. JUSTICE MANMOHAN HON BLE MR. JUSTICE NAVIN CHAWLA JUDGMENT MANMOHAN J12551 2021 for grant of casual leave from 07th September 2019 to 20th September 2019 to undergo treatment for his deteriorating health condition. The petitioner was granted casual leave for the said period. However as the Petitioner’s health conditions did not improve he requested for extension of leave. He points out that since the petitioner was critically ill he had duly informed the unit authorities regarding his health condition and also furnished his medical documents as proof of his unstable health condition however the authorities failed to appreciate the same and instead directed him to report back to the unit immediately. A perusal of the paper book reveals that two departmental enquiries were conducted against the Petitioner simultaneously. While one was for producing a fake educational certificate the other was on account of over stay of leave desertion. Though the Petitioner was found guilty in both the departmental enquiries yet the punishment of dismissal was imposed on the ground that the Petitioner had produced a fake educational certificate. The relevant portion of the office order dated 21st July 2021 is reproduced hereinbelow: the DE I have carefully gone 07. Therefore proceedings and found that the enquiry has been conducted as per the rules and laid down procedure. There is no procedural conducting of Departmental Enquiry. Reasonable opportunities were extended to the delinquent to defend himself effectively at every stage of enquiry to meet the principle of natural justice. On going through the Departmental Enquiry proceedings and findings the Enquiry Officer has drawn enquiry report in the light of exhibits and statement of prosecution witnesses in which he brought out that the delinquent i.e. No. 913154002 CT GD Mahakar Singh of E 5 Bn CRPF was enlisted in CRPF during the year 1991 by producing fake high School mark sheet certificate No. 067854 dated W.P.12551 2021 the above school certificate pertains 19 06 1988 issued by the Secretary Board of High School and Intermediate Education was verified from the above institution by Group Centre CRPF Avadi vide their letter No.V.I 08 2018 SRC 1 18 dated 17107 2018 which is a grave offence and not tolerable thus the charge framed in Article l stands fully proved. Further No. 913154002 CT GD Mahakar Singh of E 5 Bn enlisted in CRPF fraudulently by producing fake Roll No.108465) dated education certificate No.067854 19 06 1988 showing Date of Birth as 24 06 1971 issued by the Secretary Board of High School and Intermediate Education Uttar Pradesh)vide their letter No. �ेoकाoमाoिशoपo अिभलेख 2755 dated to Mr. KaliyanDatt Sharma S o Shri Jankee Prasad Sharma showing the Date of Birth as 01 06 1972 Marks 129 600 Fail). Thus the charge framed in Article II stands fully proved by E.O. After taking into the consideration of the above facts as well as statement of prosecution witnesses as explained above Enquiry Officer has fully proved the charge of Article I & II framed against him vide memorandum No.P.VIII 1 2021 05 EC II dated 22 01 2021 beyond any iota of doubt. 08. Keeping in view of the above facts and after examination of all the pros and cons of the case I have come to the conclusion that charges framed against No.913154002 CT GD Mahakar Singh of E 5 Bn CRPF vide article of charges I and II vide memorandum No. P.VIII 1 2021 05 EC II dated 22 01 2021 have been proved fully beyond any iota of doubt and found guilty of misconduct in his capacity as member of the Force and the charged official deserve for stringent punishment for his misconduct. In the exercising powers vested upon me under Section 11(1) of CRPF Act 1949 read with table below Rule 27 of CRPF Rules 1955 I hereby impose the penalty of "DISMISSAL FROM SERVICE" upon the said Force No. 913154002 CT GD Mahakar Singh of E 5 Bn CRPF wef 21 07 2021.” W.P.12551 2021 6. In the present writ petition the Petitioner has challenged the departmental enquiry which was initiated on the ground of over stay and desertion. The Petitioner has nowhere disputed the charge of producing a fake educational certificate which is the sole ground for his dismissal from service. It is also pertinent to mention that no medical certificate has even been enclosed along with the present writ petition. At this stage learned counsel for petitioner wishes to withdraw the present writ petition on the ground that a mistake had been committed by the drafting counsel. However this Court finds that the present writ petition is supported by the affidavit of the petitioner who after reading the petition should have disclosed true and correct facts to his counsel. In fact this Court is of the view that the petitioner had overstayed leave deserted his post for nearly one and a half year to avoid giving any response to the allegation of submitting fake educational qualification. The omission to deal with allegation of submission of fake educational qualification in the present case is not an innocent one but a part of the ‘strategy’ that had been adopted by the petitioner right from the time the disciplinary proceedings had commenced. Consequently the request of counsel for the petitioner for withdrawal of the present writ petition is declined and the writ petition along with pending application being bereft of merit is dismissed. MANMOHAN J NAVIN CHAWLA J NOVEMBER 10 2021 W.P.12551 2021

Standard of proof under disciplinary proceedings need not be ‘beyond reasonable doubt’ mark as in criminal suits: Calcutta High Court

The present appeal before the Calcutta High Court surrounded writs and disciplinary proceedings wherein it was held by the single-judge quorum of Arindam Mukherjee J. that since the disciplinary proceedings have trappings of a civil court procedure; hence the standard of proof need not be beyond reasonable doubt. This was observed in the matter of Murari Sarkar v Union of India [W.P.A. 21237 OF 2010]. The writ petitioner, Murari Sarkar has in this writ petition challenged the final order dated 27th June, 2009 passed by the Executive Director & the Appellate Authority in an appeal preferred by the writ petitioner under the provisions of the Bank of Baroda Officer Employees’ (Discipline & Appeal) Regulations 1976 (hereinafter referred to as the said regulation). The appeal was filed challenging the order of the Disciplinary Authority dated 31st March, 2009. The writ petitioner while working as Junior Manager GR-I at Bank of Baroda (hereinafter referred to as the said bank ) and posted at its Burrabazar Branch was served with a suspension order on 27th March, 2008 in contemplation of a disciplinary proceeding under the provisions of the said regulation. The suspension was with immediate effect. The Inquiry Officer submitted his report on 29th January, 2009 holding that the four allegations of the charges have been proved against the writ petitioner On 31st March, 2009 the Disciplinary Authority issued an order of dismissal from service against the petitioner, the operative part whereof is as under. It was argued on behalf of the petitioner that neither the statement of allegations nor the articles of charges clearly specify as to the amount allegedly misappropriated by the petitioner. No complaint was there from any account holder about defalcation. In such circumstances the very basis of the formation of charges are vague. The petitioner also alleged to have been victimized. The preliminary enquiry, according to the writ petitioner was conducted in a routine manner with the only intent to show compliance of natural justice. The court in routine of its findings observed that the petitioner understood the charges and replied to the same on 17th September, 2008. It is only at a belated stage i.e., before this Court the petitioner has alleged about the vagueness of charges. On a close scrutiny of the documents up to the petitioner’s reply dated 17th September, 2008 the petitioner’s allegation as to the vagueness of charges cannot be accepted. Further, the minutes of the enquiry proceedings clearly showed that the same was signed by the Inquiry Authority, Presenting Officer, Defence Representative and the petitioner. The petitioner was, therefore, given reasonable opportunity of hearing as also every opportunity to represent his case before the Inquiry Officer which is in compliance with the principles of natural justice. On perusal of the impugned order, the bench noted that the Appellate Authority modified the order of the Disciplinary Authority by holding “removal from bank’s service which shall not ordinarily be the disqualification for future employment”. The Appellate Authority also held that the period of suspension shall be treated as a period not spent on duty. The Appellate Authority, therefore, cannot be said to have not applied his independent mind while performing quasi-judicial function. The proof in disciplinary proceedings has the trappings of proof in a civil matter and is not required to be proved beyond reasonable doubt like in a criminal case.

IN THE HIGH COURT AT CALCUTTA CONSTITUTIONAL WRIT JURISDICTION APPELLATE SIDE Present : THE HON’BLE JUSTICE ARINDAM MUKHERJEE. W.P.A. 21237 OF 2010 SRI MURARI SARKAR UNION OF INDIA & ORS. For the petitioner Mr. Durgadas Purokayastha For the Respondents Mr. M. V. Viswanathan Mr. Jiban Hari Mallick Mr. Sagar Chowdhury .... Advocates Mr. S.N. Bera Ms. Tanwi De Advocates 05.09.2018 18.09.2018 28.09.2018 18.11.2019 and 24.02.2021. 16th April 2021 Heard on Judgment on Arindam Mukherjee J.: The writ petitioner Murari Sarkar has in this writ petition challenged the final order dated 27th June 2009 passed by the Executive Director & the Appellate Authority in an appeal preferred by the writ petitioner under the provisions of the Bank of Baroda Officer W.P.A. 21237 OF 2010 Employees’ Regulations 1976 Murari Sarkar the writ petitioner while working as Junior Manager GR I at Bank of Baroda and posted at its Burrabazar Branch was served with a suspension order on 27th March 2008 in contemplation of a disciplinary proceeding under the provisions of the said regulation. The suspension was with immediate effect. Thereafter on 5th May 2008 the Deputy General Manager in Charge of the Zone of the Bank of Baroda issued a show cause letter containing four allegations to be replied within seven days from date of receipt thereof. This letter was replied by the writ petitioner denying all four allegations. The Disciplinary Authority however was not satisfied with the reply of the writ petitioner and as such a disciplinary proceeding was initiated against Mr. Sarkar by issuance of Memorandum on 25th August 2008 accompanied by a Statement of Allegations and Articles of Charge. Four allegations and five articles of charges were framed against the writ petitioner in the letter dated 25th August 2008. The writ petitioner replied to the same by his letter dated 17th September 2008. W.P.A. 21237 OF 2010 c) Mr. Prabhat Kumar Chatterjee Senior Manager ARM Branch of the said bank was appointed as the Inquiry Officer. The Inquiry Officer had set up a preliminary enquiry at 11 a.m. on 27th September 2008 for appearance and hearing of the petitioner. At the preliminary hearing the writ petitioner denied all the allegations levelled against him and rejected the articles of charges framed which resulted in a full fledged departmental enquiry proceedings. d) On behalf of the bank Sri T.K. Biswas was appointed as the Presenting Officer to represent the petitioner at the departmental enquiry. e) In course of the inquiry six witnesses Surajit Roy Somnath Sen Narendra Nath Dave Subrata Chatterjee Amit Das and Rabindra Nath Chatterjee were examined on behalf of the bank and cross examined by DR on behalf of the writ petitioner. The witnesses were all employees of the bank who had worked or were working with the writ petitioner till his suspension in different branches of the said bank. The writ petitioner also got himself examined and filed his written submission. W.P.A. 21237 OF 2010 f) The Inquiry Officer submitted his report on 29th January 2009 holding that the four allegations of the charges have been proved against the writ petitioner. g) On 31st March 2009 the Disciplinary Authority issued an order of dismissal from service against the petitioner the operative part whereof is as under In exercise of powers conferred upon me by sub Regulation 5(3) read with Regulations 4 and 7 of Bank of Baroda Officer Employees’ Regulations 1976 hereby order as follows: “MR. MURARI SARKAR IS HEREBY DISMISSED FROM SERVICE OF THE BANK WHICH SHALL ORDINARILY BE A DISQUALIFICATION FOR FUTURE EMPLOYMENT WITH EFFECT FROM THE DATE OF RECEIPT OF THIS ORDER.” FURTHER THE SUSPENSION PERIOD OF MR. MURARI SARKAR TO BE TREATED AS PERIOD NOT SPENT ON DUTY AND HE WILL NOT BE ELIGIBLE FOR ANY BENEFITS DUE DURING THE SUSPENSION PERIOD. The said order was partially modified by the Appellate Authority on 27th June 2009 the operative part whereof is as follows: DECISION ON APPEAL W.P.A. 21237 OF 2010 Accordingly in exercise of powers conferred upon me under Regulation 17 of Bank of Baroda Officer Employees’ Discipline & Appeal) Regulation 1976 the penalty of “Dismissal from Bank’s service which shall ordinarily be a disqualification for future employment” imposed by Disciplinary Authority on Mr. Murari Sarkar is hereby modified to. “Removal from Bank’s service which shall not ordinarily be disqualification for future Further there is no change in the treatment of period of suspension and it shall be treated as period not spent on duty. The order will be effective from the date of order of the Disciplinary Authority i.e. 31.03.2009. Submission of the Writ Petitioner i) The petitioner has alleged that neither the statement of allegations nor the articles of charges clearly specify as to the amount allegedly misappropriated by the petitioner. No complaint is there from any account holder about defalcation. In such circumstances the very basis of the formation of charges are vague. The petitioner alleges to have been victimized. The preliminary enquiry according to the writ petitioner was conducted in a routine manner with the only intent to show compliance of natural justice. The letter proposing to hold disciplinary proceedings and the articles of charge according to W.P.A. 21237 OF 2010 the petitioner has been framed mechanically arbitrarily illegally and without authority. ii) The petitioner has also contended that as per rule 5(1) the Managing Director of the Bank is the sole authority to decide to institute any disciplinary proceedings and imposition of penalty against an officer employee of the Bank. In absence of any such authority direction passed by the Managing Director of the Bank empowering the General Manager or Deputy General Manager by general or special order to institute a disciplinary proceedings in accordance with the rule 5 of the said regulation the actions of the Deputy General Manager in respect of issuing show cause to initiate disciplinary action by the letter dated 5th May 2008 and actions of the General Manager in issuing the memorandum of charge sheet vide order dated 25th August 2008 are illegal arbitrary without jurisdiction and authority under law. iii) The petitioner further says that the allegations as against the petitioner are that of irregularities and not of illegality. The transactions complained of were not mala fide or done with mal intention. The transactions were done with the approval of the account holder who had become friendly with the petitioner. The petitioner also alleges that the letter of admission relied upon by the bank as against the petitioner is tainted with fraud committed by the Branch Manager who induced the petitioner to sign such letter. The petitioner says to be not bound by such W.P.A. 21237 OF 2010 admission. To support his contention the petitioner refers to a Single Bench judgement and order of this Court dated 27th July 2005 passed in W.P. No. 15110of 2004 Samarendra Nath Roy v. Chairman Eastern & N.P. Railway Cooperative Bank Ltd. & Ors. iv) The disciplinary proceedings according to the petitioner began with the issuance of charge sheet and ended with the imposition of penalty by the Disciplinary Authority. At every stage the Disciplinary Authority was to ensure compliance of natural justice which was violated in the petitioner’s case right from the beginning when the petitioner was denied the opportunity to appoint D.R. at the preliminary enquiry which was fixed hurriedly to cause in convenience to the petitioner. The departmental enquiry was also conducted in a hurried manner denying the petitioner proper opportunity to represent his case. The preliminary enquiry according to the petitioner should not have been proceeded with before finalisation of the list of prosecution witnesses. The list of witnesses from the bank’s side ought to have been forwarded with the memo of charges. No report as to the findings of the preliminary enquiry was provided to the petitioner. v) The Inquiry Officer by allowing the P.O. to examine witness and getting documents marked as Exhibit through them without there being a list of witnesses had exceeded his jurisdiction as also violated the principles of natural justice. W.P.A. 21237 OF 2010 vi) The Disciplinary Authority according the petitioner mechanically accepted the finding of the Inquiry Officer which was based on wrong premise without independent application of mind. The Disciplinary Authority therefor has acted wrongfully arbitrarily and illegally. The order of the Disciplinary Authority was liable to be and should have been set aside. The Appellate Authority according to the petitioner committed the same error by simply concurring with the findings of the Disciplinary Authority without himself applying his independent judicial mind. The order of the Appellate Authority is therefor also liable to be and should be quashed and or set aside. In this context the petitioner has relied upon two judgements reported respectively in A. L. Kalra v. Project and Equipment Corporation of India Ltd. and Ranjit Thakur v. Union of India and OthersSubmission of the Respondents a) The respondents refute the petitioner’s allegation that the particulars of transactions and amount were not mentioned in the statement and charge sheet dated 25th August 2008. The respondents say that the petitioner in his reply to the aforesaid memo dated 17th September 2008 did not deny any of the allegations or charge but on the contrary admitted to have not followed the bank’s rules in operating the CBS transactions. This in effect according to the respondents amount to admission of the W.P.A. 21237 OF 2010 allegations. The respondents therefore say that it is too late in the day for the petitioner to allege that the statement of allegation and the articles of charges are devoid of particular. According to the respondents in actuality the memo dated 25th August 2008 clearly and specifically delineated the allegation. b) The respondents also denied the petitioner’s allegation that neither the Deputy General Manager nor the General Manager was authorised to institute the disciplinary proceedings and impose penalty as against the petitioner being an officer employee of the said Bank without prior approval of the Managing Director of the Bank under the provisions of Rule 5(1) of the said regulations. The respondents say that issuance of the memo dated 25th August 2008 by the Deputy General Manager in charge of the zone is permissible as under the scope of regulations 5(1) and 5(3) of the said regulations and thus the penalty imposed is not void and or nullity or mala fide which is liable to be set aside. c) The respondents contend that the petitioner’s allegations with regard to the show cause notice dated 5th May 2008 gets completely wiped off from the petitioner’s reply thereto dated 7th July 2008. The admission in writing made by the petitioner on 29th March 2008 despite being alleged to be obtained by fraud at a subsequent stage remains firmly anchored in view of the reply dated 7th July 2008 wherein the petitioner says “That at the instance of the account holders respectively related with the said W.P.A. 21237 OF 2010 accounts the transaction banking transaction made and done with the consent approval and desire of the account holder not for my personal benefit...” That the transactions were made by the petitioner instead of being denied is rather admitted. The petitioner only intends to justify his conduct with regard to such transactions admitted done by a petitioner. d) The respondents further submit that the petitioner even in his appeal admitted his fault and merely prayed for changing the punishment of dismissal to any other sort of demotion but did not challenge the enquiry proceedings or the findings of the Disciplinary Authority as sought to be done in the writ petition. The respondent contends that such deliberate omissions on multiple opportunities available to the petitioner to refute the allegations as to the mala fide intentions on the part of the respondents and or violation of principles of natural justice as sought to be done only in the writ petition disentitles the petitioner to challenge the order passed in the disciplinary proceedings on such ground. There was no mala fide intention on the part of the respondents or violation of principles of natural justice. The respondents further contend that the allegation of violation of principles of natural justice that the petitioner was denied an opportunity of representation at the hearing are not only baseless W.P.A. 21237 OF 2010 and incorrect but also without any iota of truth. A proper inquiry was conducted following the procedure as laid down in the said regulations. It is also an admitted position that the disciplinary authority had appointed the Inquiry Officer who allowed the petitioner to finalise the selection of his Defence Representative D.R.) in terms of Regulation 8(2) of the said regulations. Even when the petitioner did not select his D.R. nor communicated his name to the Inquiry Officer before the commencement of the preliminary hearing a further opportunity was given when the petitioner appointed a D.R. These facts are also apparent from the writ petition according to the respondents. The respondents further contend that there is no substance in the petitioner’s allegations as to non examination of witnesses and improper procedure of enquiry proceedings. The said regulations were followed and principle of natural justice was complied with. The petitioner was furnished with a list of witnesses the documents intended to be relied upon by the said bank. The petitioner was allowed to cross examine each of the bank’s witness. Neither was the petitioner deprived of an opportunity to cross examine the witnesses nor did the Inquiry Officer examine and record anything outside the documents or beyond what was deposed. Moreover both the DR and the petitioner were present at all stages of the said proceedings but did not raise any objection to the procedure being followed at the enquiry stage. The Inquiry Officer as also the D.R. were allowed W.P.A. 21237 OF 2010 to submit their respective written arguments at the end of the hearing. Equal opportunity was therefor given to the petitioner of being heard adhering to the principles of natural justice. The respondents also contend that the petitioner has not been able to show as to how the Disciplinary Authority and or the Appellate Authority did not apply their mind independently and or had any mala fide intentions to impose penalty upon the petitioner at any stage of the proceedings. The penalty imposed was based on multiple unexplained admissions of the petitioner at various stages of disciplinary proceedings. The petitioner had in fact admitted misappropriation of funds which amounts to breach of trust as against the petitioner and loss of faith on an officer in public employment. The petitioner according to the respondents though has made hue and cry as to fraud but have miserably failed to either make out a case of fraud based on particulars or otherwise. The conduct of the petitioner according to the respondents on the other had buried the allegation of fraud. Thus the penalty imposed is not void and or nullity or mala fide or liable to be set aside. Before adverting to the case at hand I think it will be beneficial to consider the scope of judicial review in matters of Departmental Enquiry. A plethora of judgments have now settled the ambit and scope of Judicial Review in departmental enquiry proceedings taking into account the Forty Second Amendment of the Constitution. W.P.A. 21237 OF 2010 i) In Khem Chand vs. Union of India reported in AIR 1958 SC 300 being one of the earliest decisions wherein judicial review in respect of a departmental enquiry fell for scrutiny of the Hon’ble supreme Court two questions squarely consideration viz. what is meant by the expression “reasonable opportunity of showing cause against the action proposed” and at what stage the notice against the proposed punishment was to be served on the delinquent employee. The Hon’ble Supreme Court answered as “(a) An opportunity to deny his guilt and establish his innocence which he can only do if he is told what the charges levelled against him are and the allegations on which such charges are based b) an opportunity to defend himself by cross examining the witnesses produced against him and by examining himself or any other witnesses in support of his defence and finally c) an opportunity to make his representation as to why the proposed punishment should not be inflicted on him which he can only do if the competent authority after the inquiry is over and after applying his mind to the gravity or otherwise of the charges proved against the government servant tentatively inflict one of three punishments and communicates the same to the government servant ….”. In A. N. D’Silva Vs. Union of India reported in AIR 1962 SC 1130 it was “.....held that the question of imposing punishment can only arise after inquiry is made and the report of the enquiry officer is received. It is for the punishing authority to propose the punishment and not for the inquiring authority to do so. The latter W.P.A. 21237 OF 2010 has when so required to appraise the evidence to record its conclusion and if it thinks proper to suggest the appropriate punishment. But neither the conclusion on the evidence nor the punishment which inquiring authority may regard as appropriate is binding upon the punishing authority...”. In Union of India Vs. H.C. Goel reported in AIR 1964 SC 364 it was held that the employee “....must have a clear notice of the charge which he is called upon to meet before the departmental inquiry commences and after he gets a notice and is given the opportunity to offer his explanation the inquiry must be conducted according to the rules and consistently with the requirements of natural justice. At the end of the inquiry the enquiry officer appreciates the evidence records his conclusions and submits his report to the Government concerned. That is the first stage of the inquiry. After the report is received by the Government the Government is entitled to consider the report and the evidence laid against the delinquent public servant. The Government may agree with the report or may differ either wholly or partially from the conclusions recorded in the report. If the report makes a finding in favour of the public servant and the Government agrees with the said finding nothing more remains to be done and the public servant who may have been suspended is entitled to be reinstated with consequential reliefs. If the report makes findings in favour of the public servant and the Government disagrees with the said W.P.A. 21237 OF 2010 findings and holds that the charges framed against the public servant are prima facie proved the Government should decide provisionally what punishment should be imposed on the public servant and proceed to issue a second notice against him in that behalf. If the enquiry officer makes findings some of which are in favour of the public servant and some against him the Government is entitled to consider the whole matter and if it holds that some or all the charges framed against the public servant are in its opinion prima facie established against him then also the Government has to decide provisionally what punishment should be imposed on the public servant and give him notice accordingly.....”. The Hon’ble Supreme Court thereafter discussed the object of the inquiry and role of the Inquiry Officer in greater details to find out whether the Government is acting mala fide. It was also held that in exercising jurisdiction under Article 226 the High Court cannot consider the question about the sufficiency or adequacy of evidence in support of a particular conclusion but can and must enquire whether there is any evidence at all in support of the impugned conclusion. In Central Bank of India Vs. Om Prakash Gupta reported in 1969SCC 775 it was held that on the basis of the delinquents’ own admissions the only reasonable conclusion any responsible person would have come to is that the delinquent is unworthy of holding any responsible post any minor irregularities in the W.P.A. 21237 OF 2010 matter of conducting the enquiry cannot vitiate a finding which is so obviously correct. It was further held reasonable opportunity means “.....(i) opportunity to the concerned officer to deny his guilt and establish his innocence which means he must be told what the charges against him are and the allegations on which such charges are based he must be given reasonable opportunity to cross examine the witnesses produced against him and examine himself or other witnesses on his behalf and he must be given opportunity to show cause that the proposed punishment would not be proper punishment to inflict which means that the tentative determination of the competent authority to inflict one of the three punishments must be communicated to him”. In the judgment reported in 2006SCC 713) Narinder Mohan Arya vs. United Insurance Co. Ltd & Ors. also in 2009SCC 570 Roop Singh Negi vs. PNB it was well settled that in a suit filed by a delinquent employee in a Civil Court as also a Writ Court in the event the findings arrived at in the departmental proceedings are questioned before it it should keep in mind the following: the Inquiry Officer is not permitted to collect any material from outside sources during the conduct of the enquiry. See State of Assam v. Mahendra Kumar Das1 SCC 709 : AIR 1970 SC 1255]) In a domestic enquiry fairness in the procedure is a part of the principles of natural justice. See Khem Chandand Om Prakash GuptaW.P.A. 21237 OF 2010 3) Exercise of discretionary power involves two elements—(i) objective and subjective and existence of the exercise of an objective element is a condition precedent for exercise of the subjective element. See K.L. Tripathi v. State Bank of India1 SCC 43 : 1984 SCC 62 : AIR 1984 SC 273]) It is not possible to lay down any rigid rules of the principles of natural justice which depend on the facts and circumstances of each case but the concept of fair play in action is the basis. 3 SCC 454 : 1986 SCC 662 : AIR 1986 SC 995]) The Inquiry officer is not permitted to travel beyond the charges and any punishment imposed on the basis of a finding which was not the subject matter of the charges is wholly illegal. Export Inspection Council of India v. Kalyan Kumar Mitra2 Cal LJ 344]) Suspicion or presumption cannot take the place of proof even in a domestic enquiry. The writ court is entitled to interfere with the findings of the fact of any tribunal or authority in certain circumstances. 1 SCR 735: AIR 1969 SC 983] Kuldeep Singh v. Commr. of Police2 SCC 10 : 1999 SCC 429] ) vi) Union of India v. P. Gunasekaran 2 SCC 610 :1 SCC554 : 2014 SCC OnLine SC 917 at page 617 W.P.A. 21237 OF 2010 “In one of the earliest decisions in State of A.P. v. S. Sree Rama Raomany of the above principles have been discussed and it has been concluded thus: 7. … The High Court is not constituted in a proceeding under Article 226 of the Constitution as a Court of appeal over the decision of the authorities holding a departmental enquiry against a public servant: it is concerned to determine whether the enquiry is held by an authority competent in that behalf and according to the procedure prescribed in that behalf and whether the rules of natural justice are not violated. Where there is some evidence which the authority entrusted with the duty to hold the enquiry has accepted and which evidence may reasonably support the conclusion that the delinquent officer is guilty of the charge it is not the function of the High Court in a petition for a writ under Article 226 to review the evidence and to arrive at an independent finding on the evidence. The High Court may undoubtedly interfere where the departmental authorities have held the proceedings against the delinquent in a manner inconsistent with the rules of natural justice or in violation of the statutory rules prescribing the mode of enquiry or where the authorities have disabled themselves from reaching a fair decision by some considerations extraneous to the evidence and the merits of the case or by allowing themselves to be influenced by irrelevant considerations or where the conclusion on the very face of it is so wholly arbitrary and capricious that no reasonable person could ever have arrived at W.P.A. 21237 OF 2010 that conclusion or on similar grounds. But the departmental authorities are if the enquiry is otherwise properly held the sole judges of facts and if there be some legal evidence on which their findings can be based the adequacy or reliability of that evidence is not a matter which can be permitted to be canvassed before the High Court in a proceeding for a writ under Article 226 of the Also in Para 13 as reported in Union of India v. P. Gunasekaran Supra) this Court held that while re appreciating evidence the High Court cannot act as an Appellate Authority in the disciplinary proceedings. The Court held the parameters as to when the High Court shall not interfere in the disciplinary proceedings: “13. Under Article 226 227 of the Constitution of India the High Court shall not: re appreciate the evidence interfere with the conclusions in the enquiry in case the same has been conducted in accordance with law go into the adequacy of the evidence iv) go into the reliability of the evidence interfere if there be some legal evidence on which findings can be based. correct the error of fact however grave it may appear to be go into the proportionality of punishment unless it shocks its conscience.” In one of the recent judgment reported in the case of The State of Bihar & Ors. vs. Phulpari Kumari 2020 2 SCC 130 the aforesaid principle of judicial review has been summarized. The Supreme Court has observed that sufficiency of evidence is not within the realm of judicial review and interference of court should be limited W.P.A. 21237 OF 2010 only to no evidence cases as the departmental inquiry does not follow strict rules of evidence as that in criminal trials. The other judgement of recent times reported in 2020 SCC Online SC 954 Director General of Police Railway Protection Force & Ors. vs. Rajendra Kumar Dubey the scope of judicial review has also been summarized. viii) In the light of the above judgement it can be concluded that judicial review is not an appeal from a decision but a review of the manner in which the decision is made. The Court in its power of judicial review does not act as Appellate Authority to re appreciate the evidence and to arrive at its own independent findings on the evidence. The Court may interfere where the authority held the proceedings against the delinquent officer in a manner inconsistent with the rules of natural justice or in violation of statutory rules prescribing the mode of inquiry or where the conclusion or finding reached by the disciplinary authority is based on no evidence. If the conclusion or finding be such as no reasonable person would have ever reached the Court may interfere with the conclusion or the finding and mould the relief so as to make it appropriate to the facts of each case. The disciplinary authority is the sole judge of facts where appeal is presented. The appellate authority has co extensive power to re appreciate the evidence or the nature of punishment. These principles have been also summoned in the Five Bench judgement of the Hon’ble Supreme Court reported in 1993(4)SCC 727 which has been consistently followed in the subsequent judgements. Findings: After going through the materials on record and considering the respective contention in the touchstone of the various judgements laying down the ratio and tests of judicial review in departmental proceedings I notice the following: i) On 27th March 2008 the General Manager being a Competent Authority under regulation 3(f) of the said regulation issued a suspension order and communicated the same to the petitioner. The petitioner admittedly received the same. ii) By a letter dated 5th May 2008 the Deputy General Manager In charge of the Zone being the authorized officer under the said regulations issued a show cause notice to the petitioner clearly indicating therein the facts leading to the charges of wilful violation of the extant guidelines of the said bank that the acts of the petitioner were with mala fide intention the petitioner had committed fraud as well as breach of trust. On a plain reading of the said letter the allegations against the petitioner can be clearly understood and the points on which the petitioner was to show cause can also be specifically deciphered. The petitioner admittedly received this letter and has replied to the same by his letter dated 7th July 2008. It W.P.A. 21237 OF 2010 also appears from the reply that there was no difficulty in the petitioner in appreciating the charges levelled against him. In is only in the writ petition the petitioner has taken the point. This contention of the petitioner raised at the belated stage even if considered is unacceptable in view of the petitioner’s conduct as apparent from his reply. iii) The General Manager as the Disciplinary Authority issued a memo dated 25th August 2008 informing the petitioner that a Disciplinary Proceedings under regulation 6 of the said regulation will be held against the petitioner. The Articles of Charges and the Statement of Allegation were annexed to the said memo. The petitioner’s statement of defence was also invited. The Articles of Charges and the Statement of Allegations on a plain reading clearly demonstrate the charges levelled against the petitioner and the supporting statement for such charges was also provided. I find that the said officer in terms of the schedule of the said regulation is competent to issue such notice. The petitioner’s objection about the competence of the said officer is ruled out. iv) The petitioner admittedly received the memorandum dated 25th August 2008 with its annexures being the Articles of Charges and Statement of Allegations. The petitioner understood the charges and replied to the same on 17th September 2008. It is only at a belated stage i.e. before this Court the petitioner has alleged about the vagueness of W.P.A. 21237 OF 2010 charges. On a close scrutiny of the documents up to the petitioner’s reply dated 17th September 2008 the petitioner’s allegation as to the vagueness of charges cannot be accepted. v) Although the memorandum dated 25th August 2008 does not say that the petitioner’s reply dated 7th July 2008 has been considered while issuing such memorandum but the fact of issuance of such memorandum clearly demonstrate that the disciplinary authority was not satisfied with the reply of the petitioner. Non mentioning of the petitioner’s reply in the said memo at the highest can be an irregularity and not an illegality to invalidate the disciplinary proceedings. The petitioner is also not deprived of a reasonable opportunity of hearing for such omission which can be urged or construed as violation of principles of natural justice. This is more so in view of the subsequent steps taken in the departmental proceedings. In the said memorandum the Disciplinary Authority has also appointed an Inquiry Officer and a Presenting officer in terms of the said regulation. The Disciplinary Authority therefore did not retain with itself the enquiry required for going into the articles of charges and statement of allegations and had informed the petitioner about the Inquiry Officer and the Presenting Officer. The Disciplinary Authority was well within its power and authority conferred under the regulation to appoint such Inquiry Officer and the Presenting Officer. W.P.A. 21237 OF 2010 vi) The Inquiry Officer fixed a date of preliminary hearing of the case on 27th September 2008 which was duly communicated to the petitioner. The petitioner accepted the same and attended the preliminary hearing on 27th September 2008. vii) The minutes of preliminary enquiry as appears from the record was duly signed by the petitioner and was also received by him. The petitioner thereafter by a letter dated 30th September 2008 appointed Tridibesh Prasad Nanda as the Defence Representative to defend the petitioner. In the enquiry proceedings 7 witnesses were examined by the Presenting Officer who were duly cross examined. The petitioner was given ample opportunity to look into the documents sought to be relied upon by the bank in the enquiry proceedings. The minutes of the enquiry proceedings clearly show that the same is signed by the Inquiry Authority Presenting Officer Defence Representative and the petitioner. The petitioner was therefore given reasonable opportunity of hearing as also every opportunity to represent his case before the Inquiry Officer which is in compliance with the principles of natural justice. viii) The statement of the Presenting Officer submitted on 16th December 2008 was duly made over to the petitioner. The petitioner had filed his written argument through the Defence Representative which is also on record. After considering such written submission the Inquiry Officer prepared and W.P.A. 21237 OF 2010 submitted his report before the Disciplinary Authority on 29th January 2009. The enquiry report was admittedly made over to the petitioner inviting his response thereto. There is as such compliance of the principles of natural justice even at this stage. The enquiry report does not provide for any specific punishment for which it can be said that the Inquiry Officer exceeded his jurisdiction. ix) The petitioner by a letter dated 12th February 2009 which is also on record requested the Disciplinary Authority for sympathetic treatment and benevolent consideration. In the letter the petitioner has virtually admitted allegations levelled against him and has expressed his repentance for the same. The petitioner also promised to rectify himself and prayed for a lenient view being taken against him. x) The Disciplinary Authority after considering the enquiry report and the materials on record agreed with the observations of the Inquiry Officer contained in the enquiry report and found that 3 out of the 4 allegations contending the statement of allegations were conclusively proved against the petitioner. The Disciplinary Authority also held that though the fourth allegation has not been proved yet on the basis of proven allegations all the 5 articles of charges were established as against the petitioner. The Disciplinary Authority therefore concluded that the charges being serious W.P.A. 21237 OF 2010 in nature and that the petitioner’s actions being derogatory prejudicial and detrimental to the interest of the said Bank. The Disciplinary Authority in terms of regulation 5 read with regulations 4 and 7 of the said regulations therefore imposed a major penalty as against the petitioner. Since the Disciplinary Authority has accepted the report of the Inquiry Officer the question of the Disciplinary Authority inviting petitioner’s views prior to declaring the punishment also does not arise in view of the ratio laid down by the Hon’ble Supreme Court in Narinder Mohan Arya and Roop Singh NegiThe petitioner preferred an appeal on 6th May 2009. The Appellate Authority as will appear from the order dated 27th June 2009 considered the allegations the charges the findings of the Disciplinary Authority the grounds of the appeal and after discussing the matter passed his judgment. In fact the Appellate Authority modified the order of the Disciplinary Authority by holding “removal from bank’s service which shall not ordinarily be the disqualification for future employment”. The Appellate Authority also held that the period of suspension shall be treated as a period not spent on duty. The Appellate Authority therefore cannot be said to have not applied his independent mind while performing quasi judicial function. The proof in a disciplinary proceedings has the trappings of proof in a civil matter and is W.P.A. 21237 OF 2010 not required to be proved beyond reasonable doubt like in a Criminal Case as held in Phulkumari and Rajendra Kumar Dubeyxii) It is evident from the enquiry proceedings that the Inquiry Officer did not collect any evidence from outside of the materials submitted in the enquiry proceedings. The enquiry report on this ground cannot be said to be perverse. The petitioner was rendered an opportunity to cross examine which the petitioner has availed through the Defence Representative. There is as such compliance of the principles of natural justice in this context. The Disciplinary Authority by applying his independent mind has concurred with the findings of the enquiry authority. The Appellate Authority has also independently scrutinised the materials taken into consideration by the Disciplinary Authority and thereafter has passed his order. After there being a concurrent finding by the Disciplinary Authority as also the Appellate Authority as to the charges as against the petitioner being proved there is also no scope for interference by this Court in exercise of its authority under the Article 226 of the Constitution of India to re appreciate the evidence and come to a finding which may be different from that of the Disciplinary Authority of the Appellate Authority. The High Court in exercise of its jurisdiction under Article 226 of the Constitution cannot consider the question of sufficiency or adequacy of evidence in W.P.A. 21237 OF 2010 support of a particular conclusion. That is a matter which is within the competence of the authority which deals with the question as held in Roop Singh Negi cited by the petitioner. The High Court has to ask in terms of the said judgment whether there is any evidence at all in support of the impugned conclusion which on being asked is found to be present. The charges are found to be proved as against the petitioner without even relying upon the petitioner’s admission in the letter dated 29th March 2008. Although the scope of going into the allegation of fraud as made out against the said letter of admission in writ jurisdiction is very limited yet the petitioner has not been able to aver and even prima facie satisfy as to fraudulent nature of the said letter dated 29th March 2008. That apart and in any event on going through the minutes of the enquiry proceedings I do not find to come to a different conclusion from that what has been held by the Appellate Authority. The acts of the petitioner which has been admitted by the petitioner before the Disciplinary as also the Appellate Authority are sufficient enough for the said two authorities to hold that the petitioner is guilty of misconduct yet the bank has independently without relying upon the admission has proved the case. It is also clear from the order of the Appellate Authority that the said authority does not repose any confidence in the petition in allowing the petitioner to continue with the bank as an W.P.A. 21237 OF 2010 officer of the said Bank. I also find no material or provision of law to differ from such findings. xiii) The judgements in A.L. Kalra cited by the petitioner has been diluted in 1995 SCC 749 1997 3) SCC 387 Secretary To Government & Ors vs. A.C.J. Britto and 2012SCC 242 Vijay Singh vs. State of Uttar Pradesh & Ors] and as such the same cannot be applied to the facts of this case. The findings of the Appellate Authority as a consequence thereof cannot also be interfered in judicial review. Similarly the Single Bench Judgement in Samarendra Nath Roy also has no application in the facts of this case. I have also considered issue of disproportionate punishment though not specifically raised by the petitioner in view of one of the judgements cited by the petitioner being Ranjit Thakur 1995 SCC 749 ii) 1998SCC 84 iii) 2013 10) SCC 106 iv) 2014 SCC 315v) 2015 SCC 272 vi) 2017SCC 528vii) 2019(15) SCC 786 viii) 2019(16) SCC 69ix) 2020 SCC Online SC 954

Pandemic, Natural Calamities and circumstances implicating Law and Order and matters relating to the safety of the accused and witnesses :High court of Sikkim

Petitioner seek a direction to the respondent to recall of witness power to be invoked to meet the ends of justice for strong and valid reasons with cautions and circumspection, and the same issue was held in the judgement passed by a single bench judge HON’BLE MRS. JUSTICE MEENAKSHI MADAN RAI, JUDGE. In the matter, The Karmapa Charitable Trust and Others v/s State of Sikkim and Others [ WP(C) No.44 of 2021] dealt with an issue mentioned above. In this case, the learned counsel for the petitioner submits that’s the Learned Trial Court in Title Suit No.01 of 2017 vide its Order dated 21-07-2021, allowed 4 (four) witnesses of Defendant No.3, Respondent No.3 herein, to be examined through video Conferencing (for short, “VC”). Assailing the Order in WP(C) No.44 of 2021, Learned Counsel for the Petitioners advanced the argument that the only ground raised by the Learned Senior Counsel for the Respondent No.3 for examination of the 4 (four) witnesses by VC was the prevalence of the Covid-19 Pandemic and that it would not be possible for the witnesses, who are aged between 60 and 82 years, to travel to Gangtok in the said circumstances. In WP(C) No.45 of 2021, the Petitioners assail the Order of the Learned District Judge dated 11-11-2021 in Title Suit No.01 of 2017 vide which the Learned Trial Court rejected an application filed by the Petitioners, under Section 151 of the Code of Civil Procedure, 1908, seeking to examine 15 (fifteen), local witnesses of the Defendant No.3, before the examination of his 4 (four) witnesses through VC. A second prayer related to rectification of the address of the witness of Defendant No.3, Respondent No.3 herein. The court perused the facts and arguments presented, it was the opinion that if any exigency or circumstances so require the law provides that the Court shall exercise its discretion, otherwise it shall be for the party concerned to decide which witness he seeks to examine first and cannot be based on the dictates of the opposing party or for their convenience. regard also I have to agree with the finding of the Learned Trial Court and hence the impugned Order dated 11-11-2021 warrants no interference.

THE HIGH COURT OF SIKKIM : GANGTOK Civil Extraordinary Jurisdiction) DATED : 3rd December 2021 SINGLE BENCH : THE HON’BLE MRS. JUSTICE MEENAKSHI MADAN RAI JUDGE WP(C) No.421 The Karmapa Charitable Trust and Others versus Petitioners Petitioners State of Sikkim of Sikkim and Others WP(C) No.421 The Karmapa Charitable Trust and Others versus State of Sikkim of Sikkim and Others Petitions under Articles 226 and 227 of the Constitution of India Appearance Mr. B. Sharma Senior Advocate with Mr. S. P. Mukherjee Mr. S. K. Pandey Mr. Norden Tshering Bhutia and Ms. Rachana Shilal Advocates for the Petitioners. Mr. Yadev Sharma Government Advocate for the Respondents No.1 and 2. Mr. Anmole Prasad and Mr. N. Rai Senior Advocates with Ms. Yangchen D. Gyatso Mr. Sagar Chettri and Ms. Anita Pariyar Advocates for the Respondent No.3. O R D E R Meenakshi Madan Rai J. WP(C) No.44 of 2021 and WP(C) No.45 of 2021 are being disposed of by this common Order. WP(C) No.421 The Learned Trial Court in Title Suit No.01 of 2017 vide its Order dated 21 07 2021 allowed 4witnesses of the Defendant No.3 Respondent No.3 herein to be examined through WP(C) Nos.421 and 421 2 The Karmapa Charitable Trust and Others vs. The State of Sikkim and Others Video ConferencingNo.44 of 2021 Learned Counsel for the Petitioners advanced the argument that the only ground raised by the Learned Senior Counsel for the Respondent No.3 for examination of the 4 witnesses by VC was the prevalence of the Covid 19 Pandemic and that it would not be possible for the witnesses who are aged between 60 and 82 years to travel to Gangtok in the said circumstances. Attention of this Court was drawn to the provision of Rule 2 Clause of the VC Rules 2020 which provides for exceptional circumstances in which VC is to be held which includes Pandemic Natural Calamities and circumstances implicating Law and Order and matters relating to the safety of the accused and witnesses. That no exceptional circumstance has been made out by the Respondent No.3 as required by the provision and it is now an accepted position that the Covid 19 Pandemic has substantially gone down in the country and travelling anywhere in the country is not a risk factor. That apart one of the witnesses has left Himachal Pradesh where he was living and travelled to the Tibetan Settlement in Bylakuppe Mysore Karnataka where the number of Covid 19 cases was at the highest till recently. If such a circumstance did not restrain the witness from traveling there is no reason for him or the other witnesses not to come to Sikkim for the purpose of adducing evidence. Walking this Court through the Order of the Hon’ble Supreme Court dated 06 04 2020 in Suo Motu WritNo.020it was contended that the Hon’ble Supreme Court specified inter alia that in no case shall evidence be recorded by VC without the “mutual WP(C) Nos.421 and 421 3 The Karmapa Charitable Trust and Others vs. The State of Sikkim and Others consent” of both the parties. That the “Rules for Video Conferencing for Court 2020” notified by the High Court of Sikkim on 12 05 2021 duly published in the Sikkim Government Gazette No.102 dated 15 05 2020at Rule 6 Clause 6.2 specifies that any proposal to move a request for video conferencing should be preceded by a discussion with the other party or parties to the proceeding except where it is not possible or inappropriate. That no such discussions took place between the parties. That apart summons are to be issued to the witness who is to be examined through VC which has not been done nor are the Petitioners aware of it. The provisions of Rules 7 8 12 and Clauses 8.5 10.2 12.4 of the VC Rules 2020 were also relied upon while urging that it was essential to have the witnesses physically present for their cross examination. It was further contended that the witnesses speak only in the Tibetan language and the translation process is time consuming as it is difficult for the Advocates and the Learned Commissioner to understand the answers of the witnesses. That this difficulty to a large extent can be mitigated by the physical presence of the witnesses and would also safeguard against prompting by any interested person. Besides technical glitches cannot be ruled out. That 6 witnesses who were all senior citizens were physically present for their evidence in April 2021 when the second wave of Covid 19 Pandemic was at its peak and the Learned Commissioner had effectively recorded their evidence duly complying with all Covid 19 protocols and this should have been duly considered by the Learned Trial Court. That as the Learned Trial Court allowed the cross examination of the 4 witnesses of the Respondent WP(C) Nos.421 and 421 4 The Karmapa Charitable Trust and Others vs. The State of Sikkim and Others No.3 without the consent of the parties contrary to the orders of the Hon’ble Supreme Court and the Rules framed by this Court the impugned Order deserves to be set aside and the physical presence of the witnesses ordered for their cross examination. Repudiating the submissions of Learned Counsel for the Petitioners Learned Senior Counsel for the Respondent No.3 canvassed the contentions that the Respondent No.3 before the Learned Trial Court while seeking to examine his witnesses via VC had in accordance with the prescribed Rules and for propriety consulted the Counsel on record for the Plaintiffs Nos.421 and 421 5 The Karmapa Charitable Trust and Others vs. The State of Sikkim and Others mainly employed for hearing arguments whether at the trial stage or at the appellate stage. Pursuant thereto the VC Rules 2020 have been framed by this High Court on 12 05 2020 and are applicable to the present matter. That apart the Supreme Court vide its Order dated 26 10 2020 in IA No.48252 of 2020 in Suo Motu Writ No.05 of 2020 has while substituting sub para vii) of Paragraph 6 of Order dated 06 04 2020 supra held that the VC in every High Court and within the jurisdiction of every High Court shall be conducted according to the rules framed for that purpose by that High Court. Consequently the VC Rules 2020 now govern Video Conferencing in all Courts within the jurisdiction of this High Court. That no applicable Rules have been bypassed by the Respondent No.3 and consequent upon the refusal of the Learned Counsel for the Petitioners for VC the Defendant No.3 invoked the provisions of Rule 6 Clause 6.2 of the VC Rules 2020. Hence the Order of the Learned Trial Court brooks no interference. WP(C) No.421 In WP(C) No.45 of 2021 the Petitioners assail the Order of the Learned District Judge dated 11 11 2021 in Title Suit No.01 of 2017 vide which the Learned Trial Court rejected an application filed by the Petitioners under Section 151 of the Code of Civil Procedure 1908 seeking to examine 15 local witnesses of the Defendant No.3 before the examination of his 4 four) witnesses through VC. A second prayer related to rectification of the address of the witness of Defendant No.3 Respondent No.3 herein. After hearing the Learned Counsel for the parties the Learned Trial Court while allowing the second prayer supra for the WP(C) Nos.421 and 421 6 The Karmapa Charitable Trust and Others vs. The State of Sikkim and Others first prayer observed that ordinarily it is for the concerned party to decide the order of production and examination of his witnesses. That it is only in special circumstances that warrant the interference of the Court that the Court would exercise its discretion to direct the examination of the witnesses in a particular order and thereby rejected the prayer of the Petitioners. Before this Court it is urged by Learned Counsel for the Petitioner that should the said 15 witnesses be examined before the 4 witnesses are cross examined it would assist in expediting the trial. Resisting this argument Learned Senior Counsel for the Respondent No.3 relied on the ratio in Md. Sanjoy and Md. Mahtab vs. The State of West Bengal1 and Cagetan Rosaria Alveres vs. Hakul2 and put forth the contention that Section 135 of the Indian Evidence Act 1872 lays down the law on the subject which entitles a party to present its witnesses for examination according to its discretion. That the Court ought to be slow to interfere with this discretion of the party. Hence this prayer of the Petitioner requires no consideration. Having heard the Learned Counsel for the parties at length I have also perused the Orders dated 06 04 2020 and 26 10 2020 of the Hon’ble Supreme Court in Suo Motu Writ No.020 as also the Rules for Video Conferencing for Courts 2020 published in the Sikkim Government Gazette dated 15 05 2020 enforced from 03 06 2020 vide Notification No.87 HCS of the same date and the impugned Orders dated 21 07 2021 and 11 11 2021. 1 1999 SCC OnLine Cal 371 :1 Cal LT 230 2 1957 0 Supreme28 : 1957 0 RLW(RJ) 126 WP(C) Nos.421 and 421 7 The Karmapa Charitable Trust and Others vs. The State of Sikkim and Others Taking up the prayers made in WP(C) No.44 of 2021 from the submissions put forth before this Court and also on careful perusal of the Petitions filed before the Learned Trial Court by the Defendant No.3 in Title Suit No.01 of 2017 it is apparent that a discussion had indeed emanated between the Counsel for the Defendant No.3 and the Counsel for the Petitioners. This is fortified by the averments made in the Petition filed by the Defendant No.3 on 22 04 2021 before the Learned Trial Court which is reproduced hereinbelow “17. That in accordance with the prescribed rules the Defendant No.3 had in all propriety consulted the counsel for the plaintiffs through his own counsel. However the plaintiffs have insistence upon a direct personal cross examination of the witnesses aforesaid putting not only the witness into peril but themselves as well. The petitioner respectfully submits that it is neither feasible nor fair to the said witnesses to be subjected to such a hazardous method of examination during the current pandemic.” In response the Petitioners filed their reply dated 30 06 2021 the relevant portion of which is as follows “18. That in reply to paragraph 17 it is submitted that in view of the submission made in paragraphs 8 & 15 above the plaintiffs would not consent for examination of witness through video conferencing.” Pursuant to this refusal the Defendant No.3 has correctly taken refuge of the provision of Clause 6.3 of Rule 6 of the VC Rules 2020 and the Court has correctly exercised its jurisdiction in considering the matter and passing the impugned Order. While examining the correctness of the Order of the Learned Trial Court it is necessary to notice that the Supreme Court in Suo Motu Writ No.05 of 2020 dated 06 04 2020 ordered as follows WP(C) Nos.421 and 421 8 The Karmapa Charitable Trust and Others vs. The State of Sikkim and Others “6. vii. Until appropriate rules are framed by the High Courts video conferencing shall be mainly employed for hearing arguments whether at the trial stage or at the appellate stage. In no case shall evidence be recorded without the mutual consent of both the parties by video conferencing. If it is necessary to record evidence in a Court room the presiding officer shall ensure maintained between any two individuals in the Court. that appropriate distance Vide its Order dated 26 10 2020 the Supreme Court was pleased to substitute sub para of Paragraph 6 of the Order dated 06 04 2020 as follows “We propose to substitute sub para of Paragraph 6 with the following The Video Conferencing in every High Court and within the jurisdiction of every High Court shall be conducted according to the Rules for that purpose framed by that High Court. The Rules will govern Video conferencing in the High Court and in the district courts and shall cover appellate proceedings as well as trials. Thus on the anvil of the Order extracted supra we need not be concerned any further with the Orders of the Hon’ble Supreme Court on Video Conferencing considering that in the interregnum VC Rules 2020 were notified by this High Court in compliance of the direction in the Orders supra. This Court is aware that Notification bearing No.55 Judl. HCS and Circular bearing No.20 Confdl. HCS both dated 28 10 2021 were issued whereby physical hearing in this Court and in the Subordinate Courts of Sikkim respectively resumed w.e.f. 15 11 2021 but at the same time it is relevant to that Covid 19 Pandemic is still prevalent although WP(C) Nos.421 and 421 9 The Karmapa Charitable Trust and Others vs. The State of Sikkim and Others undoubtedly the cases have abated considerably. This Court is also seized of the news that a new variant of the virus has emerged and precautions are being taken worldwide against it including in our country. The Learned Trial Courts and this High Court from April 2020 up to 14 11 2021 were consistently conducting matters through VC minor glitches may not have allowed seamless proceedings yet we have successfully traversed through a variety of matters placed before us and dispensed justice. The Learned Trial Courts have also examined nth number of witnesses through VC. In the circumstances enunciated above it would be regressive to speculate that the witnesses of the Respondent No.3 cannot be examined by VC and that their physical appearance is imperative to ensure fairness and resolve any issues that may arise during the recording of evidence. The language barrier and difficulties in translation will persist even if the witnesses physically appear because the Tibetan language is unknown and unfamiliar to the Counsel for the parties this was indeed the specific reason why the Translators were required and have been appointed it is no one’s case that they have failed to execute the task that they have been entrusted with or that they have impeded justice in any manner. Coming to the question of technical glitches the Hon’ble Supreme Court in State of Maharashtra vs. Dr. Praful B. Desai3 relied on by Learned Counsel for the Respondent No.3 has dealt in detail with VC and examining of witness by VC. Although it was pronounced years before the Covid 19 Pandemic struck and relates to a criminal matter undoubtedly the principles thereof will 3 4 SCC 602 WP(C) Nos.421 and 421 10 The Karmapa Charitable Trust and Others vs. The State of Sikkim and Others also apply with equal vigour to a civil dispute. It is thus beneficial to extract the following paragraphs “19. At this stage we must deal with a submission made by Mr Sundaram. It was submitted that video conferencing could not be allowed as the rights of an accused under Article 21 of the Constitution of India cannot be subjected to a reality”. Such an argument displays ignorance of the concept of virtual reality and also of video conferencing. Virtual reality is a state where one is made to feel hear or imagine what does not really exist. In virtual reality one can be made to feel cold when one is sitting in a hot room one can be made to hear the sound of the ocean when one is sitting in the mountains one can be made to imagine that he is taking part in a Grand Prix race whilst one is relaxing on one s sofa etc. Video conferencing has nothing to do with virtual reality. Advances in science and technology have now so to say shrunk the world. They now enable one to see and hear events taking place far away as they are actually taking place. To take an example today one does not need to go to South Africa to watch World Cup matches. One can watch the game live as it is going on on one s TV. If a person is sitting in the stadium and watching the match the match is being played in his sight presence and he she is in the presence of the players. When a person is sitting in his drawing room and watching the match on TV it cannot be said that he is in the presence of the players but at the same time in a broad sense it can be said that the match is being played in his presence. Both the person sitting in the stadium and the person in the drawing room are watching what is actually happening as it is happening. This is not virtual reality it is actual reality. One is actually seeing and hearing what is happening. Video conferencing is an advancement in science and technology which permits one to see hear and talk with someone far away with the same facility and ease as if he is present before you i.e. in your presence. In fact he she is present before you on a screen. Except for touching one can see hear and observe as if the party is in the same room. In video conferencing both parties are in the presence of each other. The submissions of the respondents counsel are akin to an argument that a person seeing through binoculars or telescope is not actually seeing what is happening. It is akin to submitting that a person seen through binoculars or telescope in the “presence” of the person observing. Thus it is clear that so long as the accused and or his pleader are present when evidence is recorded by video conferencing that evidence is being recorded in the “presence” of the accused and would thus fully meet the requirements of Section 273 of the Criminal Procedure Code. Recording of such evidence would be as per “procedure established by law”. is not WP(C) Nos.421 and 421 11 The Karmapa Charitable Trust and Others vs. The State of Sikkim and Others 20. Recording conferencing also satisfies the object of providing in Section 273 that evidence be recorded in the presence of the accused. The accused and his pleader can see the witness as clearly as if the witness was actually sitting before them. In fact the accused may be able to see the witness better than he may have been able to if he was sitting in the dock in a crowded courtroom. They can observe his or her demeanour. In fact the facility to playback would enable better observation of demeanour. They can hear and rehear the deposition of the witness. The accused would be able to instruct his pleader immediately and thus cross examination of the witness is as effective if not better. The facility of playback would give an added advantage whilst cross examining the witness. The witness can be confronted with documents or other material or statement in the same manner as if he she was in court. All these objects would be fully met when evidence is recorded by video conferencing. Thus no prejudice of whatsoever nature is caused to the accused. Of course as set out hereinafter evidence by video conferencing has to be on some conditions.” In light of the above detailed discussions in my considered opinion nothing erroneous emanates in the assailed Order dated 21 07 2021 of the Learned Trial Court which is accordingly upheld. So far as WP(C) No.45 of 2021 is concerned Sections 135 and 138 of the Evidence Act provide as follows 135. Order of production and examination of witnesses.—The order in which witnesses are produced and examined shall be regulated by the law and practice for the time being relating to civil and criminal procedure respectively and in the absence of any such law by the discretion of the Court. 138. Order of examinations.—Witnesses shall be first examined in chief then cross examined then re examined. … Undoubtedly if any exigency or circumstances so require the law provides that the Court shall exercise its discretion otherwise it shall be for the party concerned to decide which witness he seeks to examine first and cannot be based on the dictates of the opposing party or for their convenience. In this WP(C) Nos.421 and 421 12 The Karmapa Charitable Trust and Others vs. The State of Sikkim and Others regard also I have to agree with the finding of the Learned Trial Court and hence the impugned Order dated 11 11 2021 warrants no interference. Parties shall comply with the directions in the impugned Orders dated 21 07 2021 and 11 11 2021. Resultant WP(C) No.44 of 2021 and WP(C) No.45 of 2021 stand dismissed and disposed of accordingly. Pending application(s) if any stand also disposed of. Judge 03 12 2021 Approved for reporting : Yes

Condition in which prima-facie case of passing off can be made out- Delhi High Court

Intellectual property rights are rights which are been given to persons to protect their own set of ideas, creations, and intellect. Thus, it is the most important facet in the life of the creators which gives credit and authenticity for the same. IPR secures an individual’s right in their sector of development and creation, without infringing the other’s people’s right. Specifically, a trademark signifies the mark which one uses in its business transactions or trade. Infringement of is one of the most common offences which takes place of day-to-day activity. Such an example was decided by the Delhi High Court in the case of Jagmohan Ratra v. Ampa Cycles Pvt. Limited [I.A. Nos. 12625/2020 (u/O 39 R 1 & 2 CPC) & 1394/2021 (u/O 39 R 4 CPC)]. The facts of the case initiates when the plaintiff had filed to restrain the defendants its proprietors, directors, etc. from manufacturing, marketing, offering for sale, selling, advertising or any kind of impugned goods and services marks AMPA and or any other mark which is deceptively similar to the Plaintiff’s trademark AMPA and logo so as to result in an act of passing off its goods and services as those of the plaintiff. In this case, the plaintiff argued that the mark was invented by Sh.Jagmohan Ratra, the plaintiff, and was adopted by the partnership company in 1991 for bicycles and tricycles. Ampa Bikes Private Limited was incorporated on March 30, 1992, with the plaintiff and the then partnership firm M/s Four Diamonds as shareholders. The company filed a trademark claim in Class 12 for the word mark AMPA on June 21, 1995, with Ampa Bikes as the user since April 1, 1992. The trademark application, however, was abandoned in 2002. A Deed of Dissolution dated 01.08.2003 was used to dissolve the partnership company M/s Four Diamonds. It is also claimed in this document that the plaintiff filed a trademark application in March 2019 seeking registration of a unique logo consisting of the plaintiff’s trademark AMPA in black and the letter “A” in red written in a unique and distinctive manner. The application is still being processed. The complainant has claimed that the consumer dates back to 2011. According to the plaintiff, for the past nine years, the plaintiff has been the sole entity producing and selling cycles and other goods under the mark AMPA, and as a result of extensive use, distribution, promotion, and other activities, the plaintiff has established considerable goodwill and prestige among the buying public and members of the trade. It had been contended by the plaintiff has been using the trademark in question since 1991, first as a partnership company called M/s Four Diamonds, and then as the sole proprietor of the proprietorship concern. It is also alleged that under the Deed of Dissolution between the plaintiff and Sh.Hari Dutt Sharma dated 01.08.2003, the plaintiff obtained rights to use the trademark AMPA, which was used by both the plaintiff and Ampa Bikes Private Limited. The company Ampa Bikes Private Limited was deregistered from the Companies Register in 2013. The plaintiff has been using the trademark AMPA solely since 2011. It is further contended by defendant no. 1 that they had also filed trademark registration applications for the impugned mark in Class 12 and the same have been advertised in the Trademarks Journal by the Trademarks Registry. These applications were filed on 17.09.2020 and 15.11.2018. All the above applications have been filed by defendant No.1 on a “proposed to be used basis”. Defendant No. 1 also contended that his written statement had been filed. The trademark “AMPA” was invented and formulated/designed by Sh.Hari Dutt Sharma himself, according to the written statement. Two divisions were created within Ampa Bikes Private Limited. The first division was solely responsible for the production of children’s and adult bicycles under the brand name “AMPA,” while the second division was responsible for the production of plastic tricycles and other plastic toys. Following that, conflicts emerged between the parties, which were resolved by mutual agreement between the parties, namely Sh.Hari Dutt Sharma and the complainant in this case. Thus, based on the above facts the judge had resorted to the case of of Cadila Health Care Ltd. vs. Cadila Pharmaceuticals Ltd., 2001 (5) SCC 73. That was a case in which the appellant had filed a suit seeking injunction against the respondent from using the trade mark ‘Falcitab’ as it was claimed that the same would be passed off as the appellant’s drug ‘Falcigo’ for treatment of the same disease. The court was of the view that the “What is striking is that defendant No. 1 has itself applied for registration of the trademark AMPA in 2018 and again in 2020 on “proposed to be basis”. To now claim that this was done based on an erroneous advice and that there is prior user prima facie appears to be an afterthought. At this stage, without leading evidence, this plea of the defendants cannot be accepted. That apart, there is no explanation as to who was using the said trademark AMPA from 2013 to 2018 in the interregnum i.e. after the alleged Assignment Deed dated 03.01.2013 in favour of Sh. Ajay Kumar Bawa till defendant No. 1 was incorporated in 2018.”

IN THE HIGH COURT OF DELHI AT NEW DELHI Judgment Reserved on: 22.02.2021 Judgment Pronounced on: 17.03.2021 CS569 2020 Through Ms.Diva Arora and Ms.Devyani Nath AMPA CYCLES PVT. LTD Through Ms.Kaadambari Adv. for D 1 Mr.Farman Ali Adv. for Mr.Hari Dutt Mr.Hari Dutt Sharm in person HON BLE MR. JUSTICE JAYANT NATH JAYANT NATH J I.A. Nos. 12625 2020& 1394 2021569 2020 marks AMPA and or any other mark which is deceptively similar to the Plaintiff’s trademark AMPA and logo so as to result in an act of passing off its goods and services as those of the plaintiff On 23.12.2020 this court had passed an interim order stating that defendant No.1 its proprietors servants directors agents etc. are restrained from using the mark AMPA and the logo or any other mark which is deceptively similar to the plaintiff’s mark AMPA with logo to passing off its goods as that of the plaintiff. Defendant No.2 was restrained from using the domain name www.ampacycles.com till the next date of hearing I.A. 1394 2021 is filed by defendant No.1 seeking vacation of the said order dated 23.12.2020 As per the accompanying suit the plaintiff Sh.Jagmohan Ratra is the sole proprietor of the firm concern M s Four Diamonds engaged in manufacturing and selling of bicycles tricycles prams baby rider bicycles etc. under several brands one of which is AMPA. The plaintiff’s proprietorship concern M s. Four Diamonds was initially established as a partnership firm in 1983 having two partners namely the plaintiff Sh.Jagmohan Ratra and one Sh.Hari Dutt Sharma CS569 2020 The plaintiff’s trademark AMPA and the Sh.Jagmohan Ratra the plaintiff and was adopted by the partnership firm in the year 1991 in respect of bicycles and tricycles. On 30.03.1992 Ampa Bikes Private Limited was incorporated having the plaintiff and the then partnership firm M s Four Diamonds as shareholders in the said company. A trademark application in Class 12 for the word mark AMPA was filed on 21.06.1995 by the company with the user claimed from 01.04.1992 in the name of Ampa Bikes However the said trademark application was abandoned in 2002 The partnership firm M s Four Diamonds was dissolved vide a Deed of Dissolution dated 01.08.2003. The other partner namely Sh. Hari Dutt Sharma exited the partnership and the plaintiff continued the business under the trading name and style M s Four Diamonds as his sole proprietorship concern. As a part of the settlement dues the plaintiff transferred his shares in the company Ampa Bikes Private Limited to Sh. Hari Dutt Sharma. It is the case of the plaintiff that it was specifically agreed that the plaintiff would continue to use the trademark AMPA and all the assets and goodwill would be transferred to the plaintiff. It is pleaded that as per the Deed of Dissolution AMPA trademark could be used by two entities namely the plaintiff could use the trademark for cycles upto 14 and the Company Ampa Bikes Private Limited was allowed to use the said trademark for all the cycle models of more than 14 inches. In 2013 the Company Ampa Bikes Private Limited was struck off from the Register of CS569 2020 Companies and hence ceased to exist. However the plaintiff continued to use the trademark AMPA in respect of the cycles It is the case of the plaintiff that he has continued to use the trademark AMPA uninterruptedly and continuously since its adoption in 1991 in respect of his products i.e. initially through the partnership firm M s Four Diamonds and through the Plaintiff’s sole proprietorship concern M s Four It is also the case of the plaintiff that in March 2019 he filed a trademark application seeking registration of a unique logo consisting of the plaintiff’s trademark AMPA in black colour and letter ‘A’ in red colour written in a unique and distinctive manner. The application is pending registration. The plaintiff has stated the user from 2011. It is stated that in any case for the last nine years the plaintiff is the sole entity who is manufacturing and selling cycles and other products under the mark AMPA and hence the plaintiff has acquired tremendous goodwill and reputation amongst the purchasing public and members of trade because of extensive use sales marketing etc Regarding defendant No.1 it is stated that the said defendant No.1 M s Ampa Cycles Private Limited is a company established in 2018 and in around November 2020 the plaintiff became aware that defendant No.1 has commenced manufacturing and marketing cycles and related products under an identical CS569 2020 mark AMPA and logo Defendant No.1 has filed an opposition against the plaintiff’s trademark application for the device mark 12. The plaintiff has filed his counter statement to the notice of opposition on It is also stated that one of the Directors of defendant No.1 Company namely Mr.Ajay Kumar had been a buyer through his concern M s Bawa Cycle Store of the plaintiff and M s Ampa Bikes Private Limited in which the plaintiff was a director. Due to the said commercial relationship defendant No.1 was fully aware of the prior use of the trademark AMPA by the plaintiff is stated that defendant No.1 has also filed trademark registration applications for the impugned mark in Class 12 and the same have been advertised in the Trademarks Journal by the Trademarks Registry. These applications were filed on 17.09.2020 and 15.11.2018. All applications have been filed by defendant No.1 on a “proposed to be used basis” It is the case of the plaintiff that defendant No.1 has adopted a deceptively similar logo which is nothing but a copy of the plaintiff’s prior adopted device mark logo thereby making defendant No.1’s adoption mala fide and dishonest CS569 2020 It is stated that it is evident that defendant No.1 has adopted the impugned mark AMPA and the logo mark with a view to ride upon the well established goodwill and reputation of the plaintiff garnered over a course of almost three decades. The relevant trademarks of the plaintiff and defendant No.1 as depicted in the plaint are as follows: 12. Hence the present suit for injunction to restrain defendant No.1 its directors officers etc from manufacturing selling offering for advertising etc the goods bearing the impugned mark AMPA or or any other mark which is identical or deceptively similar to the CS569 2020 plaintiff’s trademark AMPA and logo so as to result in an act of passing off its goods and services as that of the plaintiff 13. Defendant No.1 has filed its written statement. In the written statement it trademark word mark “AMPA” was formulated designed by Sh.Hari Dutt Sharma himself. Ampa Bikes Private Limited was segregated into two divisions. The first division dealt with manufacturing of kid cycles and adult bikes only by the brand name ‘AMPA’ and the second division dealt with manufacturing of plastic tricycles and other plastic toys. It is stated that subsequently disputes arose between the parties which were settled by a mutual agreement between the parties namely Sh.Hari Dutt Sharma and the plaintiff herein. The settlement was recorded in the Dissolution Deed dated 01.08.2003 in terms of which Sh.Hari Dutt Sharma exited the partnership firm M s Four Diamonds which was dissolved and left to be run under the sole proprietorship of the plaintiff. The said Sh.Hari Dutt Sharma however separated his business activities from the plaintiff and continued his separate business under the trademark AMPA. It is the case of the defendant No.1 that under the Deed of Dissolution dated 01.08.2003 plaintiff was only allowed to use the trademark AMPA for manufacturing cycle models upto 14 inches only i.e. kids cycles while Sh.Hari Dutt Sharma was the owner of the trademark AMPA and he was using the same for manufacturing cycles apart from 14 inches cycles for three years. It is claimed that Sh.Hari Dutt CS569 2020 Sharma continued to use the trademark AMPA. However in 2013 Sh.Hari Dutt Sharma and his wife decided to form a new company under the name of “Concept Bikes”. Ampa Bikes Private Limited through its authorised signatories namely Sh.Hari Dutt Sharma Ms.Nishtha Sharma and Sh.Ajay Kumar Bawa entered into an agreement for assignment of use of the trademark AMPA for a consideration of Rs.1 00 000 . Parties enter into a Deed of Assignment on 03.01.2013. It was mutually decided that Sh.Ajay Kumar Bawa will have all the rights to manufacture and sell under the name of the trademark and word mark AMPA. Subsequently in 2013 the Company Ampa Bikes Private Limited was struck off from the Register of the companies as there was no business or function in the said company. In 2018 Sh.Ajay Kumar Bawa along with Sh.Anmol Bawa decided to manufacture cycles tricycles bikes under the brand name AMPA as being the existing and bona fide user of the brand name AMPA and dealing in the cycle business since many decades. On 05.06.2018 defendant No.1 Company was incorporated by both Sh.Ajay Kumar Bawa and Sh.Anmol Bawa as the directors of defendant No.1 company Mr.Pranav Sharma son of S Hari Dutt Sharma was also one of the directors of defendant No.1 Company 14. As the products of defendant No.1 were doing well defendant No.1 sought to register the trade name AMPA with the Trademark Registry in 2018 The trademark applications were filed on 15.11.2018 and 17.09.2020. The applications though filed with the user details as “proposed to be used” it is stated that there is sufficient data to show an exclusive use of the trademark by defendant No.1. It is stated that the applications for proposed to be used basis CS569 2020 were made on an imprecise instruction given by the erstwhile consultant of defendant No.1 and is therefore not reflective of the fact that the trademark was in fact extensively being used by defendant No.1 company per se It is the case of defendant No.1 that the plaintiff with a dishonest and mala fide intention and to extort monies has filed a false and frivolous trademark application for the trademark and word mark AMPA claiming its user since 01.04.2011 which is inconsistent and self contradictory. Even otherwise the plaintiff was not entitled to use the said trademark for adult bikes as under the Deed of Dissolution dated 01.08.2003 the plaintiff was only allowed to manufacture and sell cycle models upto 14 inches only. The defendant has filed opposition application against the application of the plaintiff before the Trademark Registry. Further it is stated that the invoices filed by the plaintiff appear to be forged and sham as the plaintiff was not allowed to use the trademark in question for cycles tricycles above 14 inches I have heard learned counsel for the parties Learned counsel for the plaintiff has strongly urged that the plaintiff has been using the trademark in question since 1991 initially as a partnership firm M s Four Diamonds and thereafter as the sole proprietor of proprietorship concern. It is also claimed under the Deed of Dissolution dated 01.08.2003 between the plaintiff and Sh.Hari Dutt Sharma the plaintiff got rights to use the trademark AMPA which was being used by both the plaintiff and Ampa Bikes Private Limited. The Company Ampa Bikes Private Limited was struck off in 2013 from the Register of Companies. Since 2011 the plaintiff has been exclusively using the trademark AMPA. Defendant No.1 on the other CS569 2020 hand was incorporated only in 2018 and it has filed for registration of the said mark in 2020 on a “proposed to be used basis”. Hence it is stressed that the plaintiff has rights and goodwill in the said trademark AMPA having been using the same since 2011 Learned counsel for defendant No. 1 has stressed that the trademark was assigned to Sh.Hari Dutt Sharma who was under the Dissolution Deed entitled to use the trademark AMPA. Regarding filing of the registration applications for the trademark AMPA on a “proposed to be used basis” it has been stressed that this was done on a wrong advice rendered by their advisor. It is stressed that the plaintiff was using the trademark AMPA only for cycles below 14 inches It is the admitted case of the parties that the partnership firm M s Four Diamonds between the partners namely the plaintiff and Sh.Hari Dutt Sharma was using the trademark AMPA The admitted facts are that the trademark in question “AMPA” was coined by the partnership firm M s Four Diamonds one of its partners in the year 1991 In 1992 Ampa Bikes Pvt. Ltd. was incorporated. Ampa Bikes Pvt. Ltd. filed a trademark application for the mark AMPA on 21.06.1995. However the said trade mark application was abandoned in 2002 21. By the Deed of Dissolution dated 01.08.2003 the firm M s.Four Diamonds was dissolved. The said firm became the sole proprietorship concern of the plaintiff. The other partner namely Sh. Hari Dutt Sharma existed from the partnership firm and took charge of the company Ampa Bikes Pvt. Ltd. It is also stated that the plaintiff was entitled to use the mark AMPA in relation to cycles below 14 while Ampa Bikes Pvt. Ltd. was allowed to use the mark CS569 2020 AMPA for models of more than 14 . In 2013 the company Ampa Bikes Pvt Ltd. was struck off from the Register of Companies and ceased to exist The controversial facts now arise at this stage as it is claimed that Ampa Bikes Pvt. Ltd. through its authorised signatory Sh. Hari Dutt Sharma assigned the trademark AMPA for a consideration of Rs. 1 lakh and executed an Assignment Deed on 03.01.2013. It was agreed that Sh.Ajay Kumar Bawa would have all rights to manufacture and sell products under the trademark AMPA. It is stated that thereafter the company Ampa Bikes Pvt. Ltd. was struck off from the records of Registrar of Companies. In 2018 Sh. Ajay Kumar Bawa along with Sh.Anmol Kumar Bawa decided to manufacture cycles bicycles bikes under the brand name AMPA. On 05.06.2018 defendant No. 1 Company was incorporated and claims to be using the said trade mark based on the Assignment Deed in favour of Sh.Ajay Kumar Bawa dated 03.01.2013 allegedly executed by Sh. Hari Dutt Sharma for and on behalf of Ampa Bikes Pvt. Ltd The plaintiff has denied the Deed of Assignment dated 03.01.2013 allegedly claimed to have been executed by Sh. Hari Dutt Sharma in favour of Sh. Ajay Kumar Bawa. It is stated that this is a fraudulent document created as an afterthought to justify use of the trademark AMPA by defendant No. 1 24. Apart from the above I also cannot help noticing the applications for registration of the trademark AMPA have been filed by defendant No.1 which itself was incorporated in 2018. One application was filed by defendant No.1 Ampa Cycles Private Limited on 17.09.2020 for the trademark AMPA on a “proposed to be used basis” under Class 12. The application for the device mark being the capital ‘A’ in red colour was also filed by defendant No.1 on CS569 2020 17.09.2020 on a proposed to be used basis. Another application was filed on 15.11.2018 for the device mark AMPA which is also on a proposed to be used basis. Hence defendant No.1 has filed three applications namely one in 2018 and two in 2020 all for registration of the trademark AMPA device mark but on a “proposed to be used basis” 25. What is striking is that defendant No. 1 has itself applied for registration of the trademark AMPA in 2018 and again in 2020 on “proposed to be basis” To now claim that this was done based on an erroneous advice and that there is prior user prima facie appears to be an afterthought. At this stage without leading evidence this plea of the defendants cannot be accepted. That apart there is no explanation as to who was using the said trademark AMPA from 2013 to 2018 in the interregnum i.e. after the alleged Assignment Deed dated 03.01.2013 in favour of Sh. Ajay Kumar Bawa till defendant No. 1 was incorporated in 2018 In contrast the plaintiff has placed on record invoices showing user of the trademark AMPA since 2011. The application for registration of the trademark filed of the plaintiff also claims user since 2011 In my opinion the plaintiff has made out a prima facie case 28. Reference in this context may be had to the judgment of the Supreme Court in the case of Cadila Health Care Ltd. vs. Cadila Pharmaceuticals Ltd. 2001SCC 73. That was a case in which the appellant had filed a suit seeking injunction against the respondent from using the trade mark ‘Falcitab’ as it was claimed that the same would be passed off as the appellant’s drug ‘Falcigo’ for treatment of the same disease. The Supreme Court held as follows: CS569 2020 “10. Under Section 28 of the Trade and Merchandise Marks Act on the registration of a trade mark in Part A or B of the register a registered proprietor gets an exclusive right to use the trade mark in relation to the goods in respect of which the trade mark is registered and to obtain relief in respect of infringement of the trade mark in the manner provided by the Act. In the case of an unregistered trade mark Section 27(1) provides that no person shall be entitled to institute any proceeding to prevent or to recover damages for the infringement of an unregistered trade mark. Sub sectionof Section 27 provides that the Act shall not be deemed to affect rights of action against any person for passing off goods as the goods of another person or the remedies in respect thereof. In other words in the case of unregistered trade marks a passing off action is maintainable. The passing off action depends upon the principle that nobody has a right to represent his goods as the goods of somebody. In other words a man is not to sell his goods or services under the pretence that they are those of another person. As per Lord Diplock in Erven Warnink BV v. J. Townend & Sons2 All ER 927] the modern tort of passing off has five elements i.e.made by a trader in the course of trade which is calculated to injure the business or goodwill of another traderandwhich causes actual damage to a business or goodwill of the trader by whom the action is brought orwill probably do so.” Hence the court concluded that a passing off action depends upon the principle that nobody has a right to represent his goods as goods of somebody else. The court noted five elements of passing off namely misrepresentations to prospective customers 569 2020 made by a trader which are calculated to injure the business and goodwill of another trader andwhich causes actual damage to the business or goodwill of the trader by whom the action is Prima facie it is clear that defendant No.1 is illegally using the trade mark AMPA and trying to pass off its goods as that of the plaintiff. Prima facie a case of passing off is clearly made out 30. Accordingly I allow I.A. No. 12625 2020 and confirm the interim order passed by this court on 23.12.2020. I.A. No. 1394 2021 filed by defendant No.1 MARCH 17 2021 JAYANT NATH J CS569 2020 Page 1

Court should avoid the nitty gritties in a matrimonial matter: Supreme Court

The SC expressed its displeasure towards the Trial Court and High Court due the delay in time of trial in the case of T.S.K. Ashwin Kumar versus Tubati Srivally & Ors [Contempt Petition (Civil) No. 444 of 2020]. The bench consisting of CJI S.A. Bobde, J. A.S. Bopanna and J. Ramasubramanian heard a contempt petition filed by the petitioner arising out of an order passed by the SC dated 16.07.2019, directing the Trial court to conclude the trial of the case within a period of two months. The case arises out of a criminal complaint filed by the respondent-wife for offences under Section 498A read with Section 120B and Sections 420 and 365 of the IPC. This was filed against the petitioner-husband, his parents and close relatives. The husband being on bail time, approached the HC of Telangana, pleading for the relaxation of his bail conditions which was allowed. Challenging this order, the wife filed an SLP to the SC, which was disposed of. The SC further ordered the Trial court to conclude the trial within 2 months. 15 months having passed, the SC stated that “Apart from the party/parties responsible for protracting the proceedings, it is unfortunate that the State, the Trial Court as well as the High Court have also omitted to take note of the time-frame fixed by this Court”. The court relied on the circumstances of the case and stated that “The   grievance   of   the   petitioner in   the   Contempt Petition   is   that   after   having   consented   to   cooperate   in   the conclusion   of   the   trial   within   a   period   of   two   months, the   1st respondent wife   has   been   dragging   on   the   matter   under   some pretext or the other.  However, the 1st respondent has filed a statement   of   objections   claiming   that   she   is   not   in   any   way responsible for the delay”. The court expressed that “We do not wish to go into the nitty gritties, since it is a matrimonial   matter.   But   we   cannot   desist   from   recording   our displeasure at the manner in which the proceedings before the Trial Court have dragged on for the past 15 months, after this Court passed an order on 16.07.2019 with the consent of the parties, for the conclusion of the trial within a period of 2 months”.  The court also held that any attempt to overreach the order of this Court passed by consent should be discouraged and deprecated and further ordered the Trial court to dispose of the matter within a period of two months.

2. We have heard Mr. Marlapalle learned senior counsel the first petitioner in the SLP) is the husband of the 1st respondent in both these proceedings. They got married at b) After the marriage the couple went to the United States of America and they came back to India in November 2015 c) On 20.12.2015 the 1st respondent­wife filed a criminal herein as well as his parents and other close relatives for charge­sheet was also filed on 20.12.2017. However the proceedings against persons shown as Accused Nos.4 to 6 not the immediate family members of the 1st petitioner­ husband but distant relatives or the country without prior permission of the Court so that he could travel to USA. But the said petition was Therefore the 1st petitioner approached the High Court bail conditions and allowed the 1st petitioner to go to USA after furnishing bank guarantee in a sum of Rs. 3 00 000 ­ Three Lakhs Only) for his appearance as and when called g) Challenging the order of the High Court granting relaxation of the bail conditions the 1st respondent­wife filed j) Blaming the 1st respondent­wife for adopting dilatory period stipulated by this Court the husband has come up with the Contempt petition. On 28.07.2020 notice was It appears that in the meantime the State through the Assistant Public Prosecutor filed a petition before the Trial Criminal Petition No.896 of 2020 under Section 482 CrP.C While entertaining the said petition the High Court for the State of Telangana at Hyderabad granted interim stay of further proceedings in the criminal case. Though the High Court posted the criminal petition for final hearing on 06.03.2020 it could not be taken up for hearing. As a result m) Therefore aggrieved by the stay of trial granted by the High Court in Criminal Petition No.896 of 2020 at the instance of the 1st respondent­wife the husband and his The grievance of the petitioner­husband in the Contempt Petition is that after having consented to cooperate in the conclusion of the trial within a period of two months the 1st respondent­wife has been dragging on the matter under some pretext or the other. However the 1st respondent­wife has filed a statement of objections claiming that she is not in any way 5. We do not wish to go into the nitty gritties since it is a matrimonial matter. But we cannot desist from recording our Court have dragged on for the past 15 months after this Court After hearing learned counsel for the parties AJCJ­cum­XXV Metropolitan Magistrate Cyberabad Kukatpally which was transferred and now pending before the Court of VIII Metropolitan Magistrate Cyberabad Kukatpally shall be concluded 2 expeditiously and in any case not later than two months from the date the appearance of the parties before the in Charge Court since the Court of VIII Metropolitan Magistrate Cyberabad Kukatapply is 2. The parties are directed to appear before the In charge Court Cyberabad kukatapply on 22.07.2019. 3. This direction is given in view of the peculiar other courts shall stand disposed of without any or criminal against each other or their respective 6. The passport application of respondent No 2 husband may be considered by the passport The special leave petition is disposed of Apart from the party parties responsible for protracting the proceedings it is unfortunate that the State the Trial Court as well persons. This application was filed on the ground that a But the Trial Court dismissed the Application filed by the Prosecutor on 23.01.2020 on the ground that the supplementary charges against A­4 to A­6 have been quashed the reason for seeking recall was not convincing. The Trial Court also recorded that therefore the petition filed by the prosecution was only an As against the well­considered order of the Trial Court the 1strespondent­wife moved a petition before the High Court under not have granted such a stay on 07.02.2020 in the teeth of the long after the filing of the supplementary charge­sheet. She was conclusion of such extensive cross­examination the prosecution 10. Similarly the 1st respondent’s mother was examined as PW­2 Her chief examination took place on 22.10.2019 and her cross­ examination took place on 09.12.2019. There was no re­ 3 and the brother of the 1st respondent was examined as PW­4 These two witnesses were also examined during the very same It appears that after the recording of evidence of all for questioning under Section 313 Cr.P.C on 17.01.2020. On 12. Therefore it is surprising that the prosecution filed an they should have spoken about all the facts even in the first instance. After having prevented the 1st petitioner­husband from travelling to USA by inviting an order on consent before this Court neither the parties nor the prosecution should give any room for 13. Our attention was drawn to the certified copies of the deposition of PW­1 PW­2 and PW­4 where the Trial Court has recorded the demeanour of these witnesses. We do not wish to of this Court passed by consent should be discouraged and Contempt Petition in our considered view can be closed without 15. Accordingly the Special Leave Petition and the Contempt

The ‘Bail’ provision, especially anticipatory bail, is based on the legal principle of “presumption of innocence”: High Court of Allahabad

The security required by a court for the release of a prisoner who must appear at a future time.” The objective of arrest is to deliver justice by presenting the accused before the Court. However, if the same objective can be achieved without making any arrest then there is no need to violate his liberty. The case was held by the High court of Allahabad through the learned bench by a single bench: Hon’ble Krishan Pahal, J.In the matter of Gaurav @ Gaura Versus State of U.P.[ CRIMINAL MISC. BAIL APPLICATION No. – 13747] of 2021 death with an issue mentioned above. In the compliance affidavit, it has been stated that there are 49 criminal cases registered against the applicant. As per the DCRB report, out of 49 cases 48 cases have been registered at P.S. Khatauli, District Muzaffar Nagar and one case i.e., Case Crime No. 420 of 2011 under Section 60 Excise Act r/w Section 272, 273 I.P.C. was registered at P.S. Mansoorpur, District Muzaffar Nagar. It is further stated in paragraph No. 7 of the said affidavit that due to typographical error Police Station of Case Crime No. 420 of 2011 has been typed as Mansoorpur in place of Khatauli. The report provided by DCRB has been annexed as Annexure No. 2 to the compliance affidavit. Learned counsel for the applicant has submitted that the applicant has been falsely implicated in the present case. The applicant has been arrested by the police and from his possession, 102.66-gram Alprazolam is said to have been recovered. He has further submitted that nothing has been recovered from the possession of the applicant and the alleged recovery is false and fabricated. It is further submitted that there is no chemical analysis report to prove that the recovered contraband is actually the Alprazolam powder or something else. Learned counsel for the applicant submits that at the time of arrest, mandatory provisions of Section 50 of the NDPS Act have not been complied with. Lastly, it is also been submitted by learned counsel for the applicant that he has been implicated in several criminal cases by the police for the reason that the father of the applicant has made several complaints against the police officials of District Muzaffar Nagar. The court perused the facts and arguments presented in the case this considering the facts of the case and keeping in mind, the ratio of the Apex Court’s judgment in the case of Union of India vs. Shiv Shankar Keshari (supra), the larger mandate of Article 21 of the constitution of India, the nature of accusations, the nature of evidence in support thereof, the severity of punishment which conviction will entail, the character of the accused-applicant, circumstances which are peculiar to the accused, reasonable possibility of securing the presence of the accused at the trial, reasonable apprehension of the witnesses being tampered with, the larger interest of the public/ state and other circumstances, but without expressing any opinion on the merits, I am of the view that it is a fit case for grant of bail.

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

If any assurance or promise is to be made by the State Government, it shall be in writing through the Secretary of the concerned Department for the reason that the State is an institution: Manipur High Court

The doctrine of promissory estoppels mandates that the Government cannot escape its liability when a citizen has altered his position relying upon the representation or assurance made by public officials. as upheld by the High Court of Manipur through the learned bench led by Justice Kh. Nobin Singh in the case of H. Nilamani Ngangkha Lampak Sports Complex Development Committee, v. The State of Manipur (WP(C) No. 623 of 2020). The brief facts of the case are that when the members of the committee and the well-wishers of the Sports Complex raised objection to the construction of the three helipads, the Hon’ble MLA of Moirang Assembly Constituency, Shri P. Sharatchandra who is the Government Chief whip and Advisor to Chief Minister, Manipur (Economics Affairs & Human Resource Development) appealed to them for allowing the State Government to construct the helipads at the Sports Complex, for which he assured that the Sports Complex would be repaired/ developed on priority basis. It has further been alleged that the then Hon’ble Minister, Shri Th. Shyamkumar, Forest and MAHUD, the Hon’ble MLA, Shri S. Shusindro assured the committee members and well-wisher of the Sports Complex that the State Government would improve/ develop the said Sports Complex by filling earth i.e. 3 ft. high above the helipad’s level with construction of drain in and around the Sports Complex and pucca fencing on its eastern and northern side and thereafter, three helipads were constructed at the Sports Complex. But they failed to honour their assurances and promises. By the instant writ petition, the petitioner committee has prayed for issuing a writ of mandamus or any other appropriate writ to direct the respondents to develop/ improve H. Nilamani Ngangkha Lampak Sports Complex Ground by filing earth i.e., 3 ft. above the helipads level with construction of drain in and around the Sports Complex and pucca fencing on its eastern and northern side as assured by the State Government. After the perusal of the facts and arguments, the Hon’ble Court held, “Even though no writ lies in the matter, the fact remains that it is the State Government which had constructed the said three helipads at the Sports Complex causing damages thereon. In other words, since it is the duty and responsibility of the Governments including the State Government to provide requisite infrastructure for the development of sports in the country, even assuming that no promise was made by the State Government as alleged, it is its moral responsibility to repair the damage caused by the construction of the three helipads in the interest of public leaving aside the legal technicalities. In view of the above and for the reasons stated hereinabove, the instant writ petition stands disposed of with the direction that the State respondent may sympathetically consider the claim of the petitioner committee, irrespective of whether the promise was made by the State Government or not, so that the Sports Complex can be brought back towards its original position, in the sense that the Sports Complex can be used by the people of that area for the sports purpose.”

IN THE HIGH COURT OF MANIPUR AT IMPHAL WP(C) No. 6220 H. Nilamani Ngangkha Lampak Sports Complex Development Committee Moirang a registered Society being Regd. No. 60 of 2009 represented by its Vice President Moirangthem Ibocha Singh aged about 65 years S o M. Iboton Singh of Moirang Ngangkhalawai Awang Leikai P.O. & P.S. Moirang District Bishnupur Manipur 795133. Versus … Petitioner 1. The State of Manipur through the Chief Secretary Government of Manipur Babupara Old Secretariat Building P.O. & P.S. Imphal Imphal West District Manipur 795001. 2. Manipur Police Housing Corporation a Government of Manipur undertaking through its Managing Director near 2nd Manipur Riles Complex A.T. Line P.O. & P.S. Imphal Imphal West District Manipur 795001. … Respondents B E F O R E HON’BLE MR. JUSTICE KH. NOBIN SINGH For the petitioner ∷ Shri N. Ibotombi Sr. Advocate For the respondents ∷ Shri N. Umakanta Advocate Shri Niranjan Sanasam GA Date of Hearing ∷ 29 10 2021 Date of Judgment & Order ∷ 30 11 2021 JUDGMENT AND ORDER Heard Shri N. Ibotombi learned Senior Advocate appearing for the petitioner Shri N. Umakanta learned Advocate appearing for the respondent No.2 and Shri Niranjan Sanasam learned Government Advocate appearing for the respondent No.1. WP(C) No. 6220 Contd… 2] By the instant writ petition the petitioner committee has prayed for issuing a writ of mandamus or any other appropriate writ to direct the respondents to develop improve H. Nilamani Ngangkha Lampak Sports Complex Ground by filing earth i.e. 3 ft. above the helipads level with construction of drain in and around the Sports Complex and pucca fencing on its eastern and northern side as assured by the State Government. The petitioner committee is a society registered under the provisions of the Manipur Societies Registration Act 1989 and it was founded in the year 2006 which has been maintaining the Sports Complex developed with the land purchased with the funds donated by the family members of late veteran freedom fighter Shri H. Nilamani Singh and Shri Moirangthem Ibocha Singh. The Sports Complex is the only play ground in the greater Moirang area and is a suitable ground for various games viz. Football Hockey Volleyball etc. including athletic 400 meter track and field. Prior to the arrival of the Hon ble President of India in connection with the Sangai Festival 2017 the respondents without giving any information notice to the petitioner committee tried to construct three helipads at war footing at the said Sports Complex. Being affronted at the damage caused by that the committee members and well wisher of the surrounding villagers requested the authority not to construct the helipads at the Sports Complex but to repair and use the existing helipad which was constructed a few years ago and located a kilometer away from the WP(C) No. 6220 Contd… present site. 3.3] As the construction of helipads at the Sports Complex could not be done due to the objection raised by the committee members and well wisher of the Sports Complex the Hon ble MLA of Moirang Assembly Constituency Shri P. Sharatchandra who is the Government Chief whip and Advisor to the Chief Minister Manipurappealed to them for allowing the State Government to construct the helipads at the Sports Complex for which he assured that the Sports Complex would be repaired developed on priority basis. Moreover the then Hon ble Minister Shri Th. Shyamkumar Forest and MAHUD the Hon ble MLA Shri S. Shusindro assured the committee members and well wisher of the Sports Complex that the State Government would improve develop the said Sports Complex by filling earth i.e. 3 ft. high above the helipad’s level with construction of drain in and around the Sports Complex and pucca fencing on its eastern and the northern side and thereafter three helipads were constructed at the Sports Complex. In fact the petitioner committee expressed their heartfelt gratitude to the Hon ble Minister Forest & MAHUD for the assurance given by him for the improvement of the Sports Complex. 3.4] But nothing was done thereafter towards the development of the Sports Complex and accordingly the petitioner committee submitted a representation dated 21 11 2017 to the Hon ble Chief Minister Manipur requesting him to do the needful which was received by the Hon’ble Minister Forest and MAHUD on his behalf. Thereafter the respondents WP(C) No. 6220 Contd… made a measurement for the improvement of the Sports Complex by preparing estimates but the same was not approved till date. The petitioner committee by way of a representation dated 13 12 2017 requested the Hon ble Chief Minister. Manipur to develop it as agreed followed by another representation dated 23 12 2017 submitted to him. 3.5] As the needful was not done by the State Government in spite of the assurance given by the Hon’ble Minister the petitioner committee through its Vice President filed an application dated 12 11 2019 to the Deputy Commissioner Bishnupur and the respondent No.2 under Section 6(1) of the RTI Act 2005 for furnishing the following information: i) Copy of the decision taken by the competent authority for constructing the three numbers of helipads which were constructed with link roads crossing over the ground along with copy of minutes of file noting of the decision. ii) Who was the person that proposed for the selection of place site for the said helipads to be constructed at the said complex iii) Whether the said land sports complex is public land If yes please provide the copy of relevant land records. If not please give the relevant rules laws permitting to the authority concern for executing a construction works at the premise of private land without requisition or prior information to the land owner. iv) Copies of the work order sketches engineering drawing detailed abstract of cost sanction orders M.B. sources of the fund and detailed head of the account of the said construction of helipads. v) Copies of the APRs Vouchers and relevant documents for paying the bills of the said works along with the statement of WP(C) No. 6220 Contd… expenditure and statement of account of the bank account deposited the said required amount of fund for constructing the said helipads. vi) Name of designation of the officials who were involved in the construction of the said helipads. vii) Was there any repairing and developing the said playground and its relevant roads which is impacted by the construction of helipads If yes please give the copies of documents including sanction order work order etc. indicating the said repairing and development. If not please disclose as when the said works will be done. 3.6] The Deputy Commissioner Bishnupur vide its letter dated 14 11 2019 forwarded the said RTI application to the Special SecretaryGovernment of Manipur for providing information sought for by the petitioner committee. The office of the respondent No.2 vide a letter dated 11 12 2019 requested the Inspector General of PoliceManipur to advise whether the information sought for should be provided or not. However no information was provided by the authorities as contented by the petitioner committee. As first appeal filed before CommissionerGovernment of Manipur was also not disposed of the petitioner committee filed a second appeal before the Manipur Information Commission on 05 03 2020. Thereafter the Home Department vide its letter dated 24 09 2020 furnished information only in respect of query No. 2 3 and 6. The SPIO of the respondent No.2 vide a letter dated 07 08 2020 also informed the petitioner committee that the construction of the three helipads at the Sports Complex was a project of the Home Department Government of Manipur and the respondent No.2 WP(C) No. 6220 Contd… was only the work agency. Being aggrieved by the inaction on the part of the respondents the petitioner committee filed the instant writ petition on the inter alia grounds that as the State Government assured the petitioner committee for the improvement of the Sports Complex and even the estimates had been prepared for that purpose the State Government was duty bound to fulfill their promise. The assurance given by the authority was a promise by conduct and hence the doctrine of promissory estoppel would bind them. it is well settled that the true principle of promissory estoppel is that where one party has by his word or conduct made to the other a clear and unequivocal promise or representation which is intended to create legal relations or effect a legal relationship to arise in the future knowing or intending that it would be acted upon by the other party to whom the promise or representation is made and it is in fact so acted upon by the other party the promise or representation would be binding on the party making it and he would not be entitled to go back upon it if it would be inequitable to allow him to do so having regard to the dealings which have taken place between the parties. 4] An affidavit has been filed on behalf of the respondent No.2 stating that the petitioner committee being a society ought to have filed the writ petition through an authorized person and since it had been filed by the Vice President his authority must be proved before going into the merit of the case. No direction can be issued against it as the development of any sports infrastructure in a State is totally within the WP(C) No. 6220 Contd… domain of the Sports Authority of the State Government. The allegation by the petitioner committee regarding assurance given by the State Government is subject to strict proof thereof and cannot be looked into by this Court. Regarding the relief sought for the petitioner committee may at best agitate before the appropriate forum and not before this Court. it is true that the respondent No.2 constructed the helipads at the Sports Complex but the role of the Respondent No.2 being an implementing agency was to execute orders and instructions given by the State authorities. In this regard the construction of the helipads as done by the respondent No.2 was on the instruction of the Home Department Government of Manipur during the Sangai Festival 2017 for which his Honour Shri Ram Nath Kovind the President of India who is under Z+ Security cover consented to be the Chief Guest at the last moment and the construction work had to be taken up on a war footing and in an urgent manner. If the petitioner committee had any grievances with the construction of the helipads the same might be ventilated before the concerned authority. The Respondent No.2 furnished the information which was within its domain authority. For the rest of the queries made by the petitioner committee the respondent No.2 informed it to seek information from the concerned authority i.e the State Home Department as envisaged under the RTI Act 2005. The statement of the petitioner committee that the State Government had assured for improving the sports complex is a matter to be proved by it. The premise on which the petitioner committee founded its claim is the assurance alleged to have WP(C) No. 6220 Contd… been made by the State Government which cannot be the basis for filing the writ petition. The remedy of the petitioner committee if at all it is entitled to by it lies elsewhere and not before this Court which is a Court of record and not a Court to adjudicate issues based on conjectures and accordingly the writ petition is misconceived and without any foundation. No counter was filed on behalf of the respondent No.1 and therefore the averments made in the writ petition will be deemed to have been admitted by it in terms of various decisions rendered by the Hon’ble Supreme Court in this regard. 5] In its rejoinder it has been stated by the petitioner committee that as Shri Shobha Hemamcha the President and Shri Y. Babu Singh Vice President I of the petitioner committee were physically weak due to old age and could not discharge their duties effectively a meeting of the petitioner committee was held on 12 01 2018 wherein it was resolved to allow the Vice President 2 Shri N. Ibocha Singh to discharge the duties of the president of the petitioner committee for which an order dated 12 01 2018 was issued. As assured by the State Government including the then Hon ble Minister Forest and MAHUD Government of Manipur the Hon ble MLA Shri S. Shusindro and Hon ble MLA of Moirang Assembly Constituency Shri P. Saratchandra for improvement and development of the Sports Complex the petitioner committee allowed them to construct three helipads at the Sports Complex. 6] From the pleadings as aforesaid it is not in dispute that the WP(C) No. 6220 Contd… petitioner committee is a society registered under the provision of the Act 1989 and as the president was weak due to old age the vice president was authorized to file the instant writ petition. From perusal of the jamabandis placed on record it is seen that the lands which appear to be agricultural land are either in the name of the Secretary President of the petitioner committee or in the name of Shri H. Nilamani Singh as the Secretary President of the petitioner committee as the pattadar. But it is not clear as to whether the petitioner committee is the owner of the said lands or not because it is nowhere stated in the petition about its being the owner except stating that it maintains the Sports Complex. Whether the petitioner committee is the owner of the said lands or not the fact remains that it is in possession of the said lands maintaining the Sports Complex in public interest wherein three helipads had been construct by the respondent No.2 as per the direction of the State Government. 7] The allegation of the petitioner committee in short is that when the members of the committee and the well wishers of the Sports Complex raised objection to the construction of the three helipads the Hon ble MLA of Moirang Assembly Constituency Shri P. Sharatchandra who is the Government Chief whip and Advisor to Chief Minister Manipur Economics Affairs & Human Resource Development) appealed to them for allowing the State Government to construct the helipads at the Sports Complex for which he assured that the Sports Complex would be repaired developed on priority basis. It has further been alleged that the then Hon ble Minister Shri Th. Shyamkumar Forest and MAHUD the WP(C) No. 6220 Contd… Hon ble MLA Shri S. Shusindro assured the committee members and well wisher of the Sports Complex that the State Government would improve develop the said Sports Complex by filling earth i.e. 3 ft. high above the helipad’s level with construction of drain in and around the Sports Complex and pucca fencing on its eastern and northern side and thereafter three helipads were constructed at the Sports Complex. But they failed to honour their assurances and promises. 8] The doctrine of promissory estoppels mandates that the Government cannot escape its liability when a citizen has altered his position relying upon the representation or assurance made by public officials. The short question that arises for consideration by this Court is as to whether the State Government had ever made any promise for the development of the Sports Complex as alleged by the petitioner committee. As regards the facts of the present case the said three helipads were undoubtedly constructed by the State Government through its construction agency the respondent No.2 herein. However there is no any material on record to show that the State Government or for that matter the respondent No.2 had ever given any assurance or made any promise that if they were permitted to construct the said three helipads they would repair develop the Sports Complex. It may be noted that if any assurance or promise is to be made by the State Government it shall be in writing through the Secretary of the concerned Department for the reason that the State is an institution. Neither the then Hon ble Minister Forest and MAHUD) Shri Th. Shyamkumar who was not the Minister in WP(C) No. 6220 Contd… charge of Home Department nor the Hon ble MLA Shri S. Shusindro nor the Hon ble MLA Shri P. Sharatchandra could represent the State Government in the sense that they could make no assurance or promise on behalf of the State Government. Moreover although the allegation had been made against them none of them was made a party in the writ petition. The only document in respect of the assurance alleged to have been given by them which is on record is the letter appeal dated 20 11 2017 issued by the Hon’ble MLA Shri P. Saratchandra representing Moirang Constituency. As has been observed hereinabove he cannot give any assurance on behalf of the State Government and it may have been done by him in his individual capacity as the Hon’ble MLA for which he being a representative of the people is morally responsible. But nothing can be done by this Court against him in this regard as he is not a party in the writ petition. In other words he cannot be condemned unheard. Moreover it is nowhere stated in his letter appeal that repairing development of the Sports Complex would be done by the State Government. All that he has stated is that the Sport Complex would be developed repaired with the Government assistance on priority basis. In view of the aforesaid facts and circumstances this Court is of the view that no writ of mandamus can be issued to the State Government directing it for the development of the Sports Complex. 10] Even though no writ lies in the matter the fact remains that it is the State Government which had constructed the said three helipads at the Sports Complex causing damages thereon. In other words since it is WP(C) No. 6220 Contd… the duty and responsibility of the Governments including the State Government to provide requisite infrastructure for the development of sports in the country even assuming that no promise was made by the State Government as alleged it is its moral responsibility to repair the damage caused by the construction of the three helipads in the interest of public leaving aside the legal technicalities. 11] In view of the above and for the reasons stated hereinabove the instant writ petition stands disposed of with the direction that the State respondent may sympathetically consider the claim of the petitioner committee irrespective of whether the promise was made by the State Government or not so that the Sports Complex can be brought back towards its original position in the sense that the Sports Complex can be used by the people of that area for the sports purpose. FR NFR WP(C) No. 6220 Contd…

An AD INTERIM EX PARTE impounding order passed against the noticees for violation of SEBI regulation –  THE  SECURITIES AND EXCHANGE BOARD OF INDIA

An AD INTERIM EX PARTE impounding order passed against the noticees for violation of SEBI regulation –  THE  SECURITIES AND EXCHANGE BOARD OF INDIA A preliminary examination was conducted by SEBI into trading activities of certain entities and found violations in provisions of Securities and Exchange Board of India Act, 1992 and various regulations frames under SEBI regulations,2003 the investigation was done on the fact that  high correlation of the trades of the aforesaid entities was observed with the  recommendations furnished in the show Stock 20-20 aired on news channel CNBC Awaaz and in light of these findings proceedings was conducted under ANANTA BARUA (WHOLE TIME MEMBER) an interim ex parte order was issued by SEBI against the noticee and the replies of the noticees were heard and a “Confirmatory Order” was passed In the confirmatory order a detailed investigation was undertaken in the matter by SEBI. The detailed investigation covered all the stock recommendations made on all televised shows hosted/co-hosted by Noticee on the channel on the Intraday trades day and further investigation was conducted to check whether there was any violations in PFUTP Regulations, 2003 and SEBI Act, 1992 by noticee   the conclusion of the investigation forming part of various allegations was issued to noticee through show cause notice and it was observed that noticee has made wrongful gains off Rs. 4,51,88,459.07/-and Rs. 1,63,28,675.02/-, respectively, as a result of the impugned trades and the officer, find it necessary to take urgent steps for impounding the remaining proceeds of wrongful gains made by the Noticees through impugned trades, by way of an ex parte ad interim measure, under Sections 11(1), 11(4) and 11B (1) of the SEBI Act, 1992 and direction relating to the order was attached with the order issued to noticee.

Ad Interim Ex Parte Impounding Order in the matter of trading activities of Hemant Ghai & Ors. WTM AB IVD ID3 20 2021 22 SECURITIES AND EXCHANGE BOARD OF INDIA AD INTERIM EX PARTE IMPOUNDING ORDER Under Sections 11111111Band 11 Bof the Securities and Exchange Board of India Act 1992 In respect of: 1. 2. 3. Name of the Entity Mr. Hemant Ghai Ms. Jaya Hemant Ghai Ms. Shyam Mohini Ghai The aforesaid entities are hereinafter individually referred to by their respective names noticee numbers and collectively as “the Noticees”. In the matter of Trading Activities of Family Members of Hemant Ghai 1. Securities and Exchange Board of Indiaconducted a preliminary examination into the trading pattern of certain entities for the period between January 1 2019 to May 31 2020 to look into possible violations of provisions of the Securities and Exchange Board of India Act 1992and various regulations framed thereunder including SEBI Regulations 2003 hereinafter referred to as “PFUTP Regulations 2003”) based on the fact that high correlation of trades of the aforesaid entities was observed with Ad Interim Ex Parte Impounding Order in the matter of trading activities of Hemant Ghai & Ors. recommendations furnished in the show Stock 20 20 aired on news channel CNBC Awaaz. In light of the aforesaid findings of the examination an interim ex parte order dated January 13 2021was passed by SEBI against the Noticees by which inter alia bank accounts of the Noticees were impounded for Rs. 2 95 18 690 was passed by SEBI confirming the directions issued vide the Interim Order. 3. As noted in the Confirmatory Order a detailed investigation was undertaken in the matter by SEBI. The detailed investigation covered all the stock recommendations made on all televised shows hosted co hosted by Mr. Hemant Ghai and the BTST and Intraday trades undertaken to trade ahead of such recommendations for a period of 3 years preceding the date of the Interim Order. SEBI conducted the aforesaid detailed investigation to ascertain whether there was any violation of the provisions of the PFUTP Regulations 2003 and SEBI Act 1992 by Mr. Hemant Ghai Ms. Jaya Hemant Ghai and Ms. Shyam Mohini Ghai during the period from January 1 2018 to January 13 2021. 4. Upon conclusion of the investigation in the matter the relevant extract of the findings of investigation forming part of the allegations against each of the Noticees shall be contained in the show cause notice which is being separately issued to the Noticees herein. 5. The findings of the investigation has also brought out enhanced quantum of wrongful gains as under: Entity trading in Total Unlawful gainsdisgorgement of profit jointly and Ad Interim Ex Parte Impounding Order in the matter of trading activities of Hemant Ghai & Ors. shows hosted co hosted by Hemant Ghai on CNBC s provided on shows hosted co hosted Hemant Ghai on CNBC Awaaz Jaya Hemant Shyam Mohini Hemant Ghai 4 51 88 459.07 Jaya Hemant Ghai and Hemant Ghai Hemant Ghai 1 63 28 675.02 Shyam Mohini Ghai Jaya Hemant Ghai and Hemant Ghai 6. From the above it is observed that Ms. Jaya Hemant Ghai and Ms. Shyam Mohini Ghai have made wrongful gains of Rs. 4 51 88 459.07 and Rs. 1 63 28 675.02 respectively as a result of the impugned trades. While a sum of Rs. 2 95 18 690 has already been impounded vide Interim Order dated January 13 2021. However detailed investigation reveals that total wrongful gains made by the Noticees was Rs. 6 15 17 134 is not impounded immediately it may ultimately pose a hindrance in the effective implementation of direction of disgorgement and or imposition of monetary penalty if any to be issued on disposal of the SCN which is being separately issued to the Noticees. Therefore I note that it is necessary for SEBI to take urgent steps for impounding the remaining proceeds of wrongful gains made by the Noticees through impugned trades by way of an ex parte ad interim measure under Sections 11(1) 11(4) and 11Bof the SEBI Act 1992 the details of which are as hereunder: Ad Interim Ex Parte Impounding Order in the matter of trading activities of Hemant Ghai & Ors. gainsAmount already impounded4 51 88 459.07 1 63 28 675.02 2 95 18 680 3 19 98 454 whom amount is to be impounded Hemant Ghai Jaya Hemant Ghai and Entities Liable Jaya Hemant Ghai and Hemant Shyam Mohini Ghai and Hemant DIRECTIONS: In view of the foregoing I in exercise of the powers conferred upon me in terms of Section 19 read with Sections 11(1) 11(4)(d) 11(4A) 11Band 11Bof the SEBI Act hereby issue the following directions: A sum of Rs. 3 90 67 921 being the unlawful gains along with interest is impounded jointly and severally from the Noticees as mentioned in the table below: Entities Liable Jaya Hemant Ghai and Hemant Shyam Mohini Ghai and Hemant gainsAmount already impoundedamountAmount to be 4 51 88 459.07 1 63 28 675.02 2 95 18 680 3 19 98 454 70 69 467 3 90 67 921 Rate of interest for the calculation of interest is 12% p.a. simple interest. Period of interest for the alleged gains made is March 31 2020to January 31 2022. The above mentioned amount shall remain impounded till disposal of the SCN being issued and shall be subject to the directions issued in the final order while disposing of such SCN. The aforesaid amount shall be kept in an escrow account as detailed inbelow. A lien shall be marked in the Escrow Account s in favour of SEBI and the monies kept therein shall not be released without the permission Ad Interim Ex Parte Impounding Order in the matter of trading activities of Hemant Ghai & Ors. of SEBI. The banks where Noticees i.e. Mr. Hemant Ghai Ms. Jaya Hemant Ghai and Ms. Shyam Mohini Ghai are holding accounts are directed that no debits shall be made without the permission of SEBI in the said bank accounts. Further the depositories are also directed that no debit shall be made without the permission of SEBI in respect of the demat accounts held by the said Noticees. However credits if any into the said bank and demat accounts may be allowed. The banks and the depositories are directed to ensure that all the above directions are strictly enforced. Further debits may also be allowed for amounts available in the account in excess of the amount impounded. Banks are allowed to debit the accounts for the purpose of complying with this order. On production of proof by any of the Noticees that the said money has been deposited in the Escrow Account SEBI shall communicate to the Banks and Depositories to defreeze the The Registrar and Transfer Agents are also directed to ensure that till further directions except for compliance of direction at para 8above the securities units held in the name of Noticees mentioned at para 8 above jointly or severally are not transferred redeemed. The Noticees mentioned in the table in para 8are also directed not to dispose of or alienate any of their assets properties securities except for compliance of direction at para 8above till such time the amount mentioned in para 8is credited to an Escrow Account created specifically for the purpose in a Nationalized Bank. Ad Interim Ex Parte Impounding Order in the matter of trading activities of Hemant Ghai & Ors. 9. This Order comes into force with immediate effect and shall remain in force till order to be passed on conclusion of SCN proceedings.s. 10. This Order shall be served on all Recognized Stock Exchanges Depositories Registrar and Share Transfer Agents and Banks to ensure necessary compliance. Place: Mumbai ANANTA BARUA Date: February 03 2022 WHOLE TIME MEMBER SECURITIES AND EXCHANGE BOARD OF INDIA

Loss of future income is an essential component of compensation in injury cases : Jammu and Kashmir High Court

It is the duty of the Tribunal to ensure that the injured boy is paid the compensation, which is just and reasonable. This was held in the judgment passed by a single judge bench comprising of HON’BLE MR. JUSTICE SANJAY DHAR, in the matter National Insurance Company Ltd. V. Umar Ghulam Zargar and ors. [CMAM No. 52/2010], dealt with an issue where the petitioner filed a petition the instant appeal on the grounds that the compensation has been awarded without any basis and without any independent evidence on record and that penal rate of interest could not have been awarded, as the said practice has been deprecated by the Hon’ble Supreme Court. Findings of the Tribunal as regards the occurrence and liability of the appellant insurance company to indemnify the insured have not been challenged by the appellant insurance company. The passenger vehicle in question was being driven in a rash and negligent manner by its driver at the time of the accident. The injured was immediately rushed to District Hospital. The injuries caused to the respondent No. 1 herein had serious consequences to him, as he slipped into coma and became bed ridden. The injured ultimately was declared 100% permanently disabled by the doctor. The Motor Accident Claims Tribunal, Srinagar,on a claim petition filed by the injured through his father, passed an award of ₹18, 55,000/- in favour of the injured with a further direction that out of the aforesaid amount, an amount of ₹18, 30,000/- shall be paid by the insurer/appellant herein, whereas the balance amount shall be paid by the driver of the offending vehicle. The Tribunal also awarded interest @ 6% from the date of presentation of the claim petition till final realization of the awarded amount and in case, the amount is not realized within two months from the date of the award, the rate of interest shall be payable @ 9% from the date of default. After hearing both sides, the Hon’ble High Court of Jammu and Kashmir dismissed the petition and held that the impugned award passed by the learned Tribunal, except to the extent of awarding of interest at the enhanced rate of 9% per annum, is upheld as the as the laid down by the Hon’ble Supreme Court has clearly stated the power the Tribunal has, while awarding enhanced rate of interest in case of default in payment of the awarded sum, it exceeded its jurisdiction and to this extent, the award deserves to be modified. It also held there is no doubt in the mind of the court that the amount of compensation awarded by the Tribunal in favour of the injured is based on evidence on record and the same is not exorbitant. In fact, having regard to the nature of the injuries suffered by the injured, the compensation awarded by the Tribunal in favour of the injured is on a lower side. Click here to view judgement Judgement reviewed by – Vaishnavi Raman

HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR Reserved on: 19.06.2020 Pronounced on: 25 .06.2020 National Insurance Company Ltd. Through : Umar Ghulam Zargar and ors. CMAM No. 52 2010 Mr. J.A. Kawoosa Advocate. Through : Mr. Mir Manzoor Advocate. Coram: HON’BLE MR. JUSTICE SANJAY DHAR JUDGE ORDER Umar Ghulam Zargarwas a young boy aged about 15 years who used to undergo studies and live a normal life like any other child of his age. Unfortunately on 02.04.2007 while he was travelling in a vehicle bearing Registration No. JK03A 1365 alongwith other passengers the said vehicle on reaching Village Siligam KP Road Anantnag met with an accident as a result of which the above named boy suffered multiple grievous injuries. The passenger vehicle in question was being driven in a rash and negligent manner by its driver at the time of the accident. The injured was immediately rushed to District Hospital Anantnag wherefrom he was referred to SKIMS Soura for treatment. An FIR bearing No. 21 2007 for offences under Sections 279 337 and 304 A RPC was registered in respect of 2 CMAM No. 52 2010 the accident with Police Station Aishmuqam. The injuries caused to the respondent No. 1 herein had serious consequences to him as he slipped into coma and became bed ridden. The injured ultimately was declared 100% permanently disabled by the doctor. PW Dr. Abrar Ahmed Wani Assistant Professor Department of Neurosurgery SKIMS Soura has stated that the injured was admitted to SKIMS on 02.04.2007 and operated upon on 03.04.2007. He was discharged from the Hospital on 09.06.2007. The doctor has further stated that the injured was admitted in a comatose condition and even at the time of his discharge he had not regained his consciousness. He has further stated that the injured is 100% permanently disabled and the chances of his recovery are rare. He has observed that only a miracle can help the injured to recover. The doctor has explained that the injured cannot eat by himself and he has to be fed through a tube by somebody and that he needs constant supervision by an attendant. He has also stated that the injured needs special diet and follow up treatment because such patients are prone to infection. He has further stated that the injured will require a special type of bedding to prevent him from bed sores. The doctor admitted the correctness of the Certificate of Disability EXP M which has been issued by him. With the aforesaid facts and evidence on record the Motor Accident Claims Tribunal Srinagar on a claim petition filed by the injured through his father passed an award of ₹18 55 000 in favour of the injured with a further direction that out of the aforesaid amount 3 CMAM No. 52 2010 an amount of ₹18 30 000 shall be paid by the insurer appellant herein whereas the balance amount shall be paid by the driver of the offending vehicle. The Tribunal also awarded interest 6% from the date of presentation of the claim petition till final realization of the awarded amount and in case the amount is not realized within two months from the date of the award the rate of interest shall be payable @ 9% from the date of default. The appellant insurance company herein being aggrieved by the quantum of compensation awarded by the Tribunal has filed the instant appeal on the grounds that the compensation has been awarded without any basis and without any independent evidence on record and that penal rate of interest could not have been awarded as the said practice has been deprecated by the Hon’ble Supreme Court. However findings of the Tribunal as regards the occurrence and liability of the appellant insurance company to indemnify the insured have not been challenged by the appellant insurance company. I have heard learned counsel for the parties and perused the impugned award the grounds of the appeal and record of the Trial Court. The short question that is involved in the instant appeal is as to how to assess the just compensation in a case of instant nature. No one can dispute the fact that no amount of compensation can restore the injured boy to his earlier position. However it is the duty of the Tribunal to ensure that the injured boy is paid the compensation which is just and reasonable. Let us now undertake the exercise to achieve the aforesaid objective. 4 CMAM No. 52 2010 Vide the impugned award the Tribunal has awarded the copensation in favour of the injured under the following heads: S. No. Heads Amount awarded by the Tribunal Medical Expenses Transport Charges Attendant Charges ₹4 00 000 ₹2 00 000 ₹2 70 000 Expenses on account of ₹30 000 special mattress. Expenses on account of special diet ₹90 000 Expenses on account of purchase of feeding tube ₹25 000 Loss of income to the father of the injured ₹90 000 Compensation on account of pain and suffering ₹3 00 000 Compensation on account of loss of amenities ₹2 50 000 Compensation on account of loss of expectation of life ₹50 000 Compensation on account of the fact that the inured has been rendered live a vegetative life ₹1 50 000 Total ₹18 55 000 So far as the first head i.e. medical expenses is concerned learned counsel for the appellant has laid much emphasis on the fact that the injured has placed on record medical bills in the amount of ₹ 98 510.88 only whereas the Tribunal has awarded a sum of ₹4 00 000 on account of medical expenses which is based on no evidence. 5 CMAM No. 52 2010 In the above context it may be noted that there is evidence on record in the shape of statement of the doctor that the injured has remained admitted to the hospital from 02.04.2007 to 09.06.2007 24.03.2008 to 29.03.2008 and 01.04.2008 to 08.04.2008. The doctor has clearly stated that the injured will need follow up treatment throughout his life as such like patients are prone to infection. The injured has thus remained admitted to the hospital from time to time and he needs treatment throughout his life. Therefore limiting the amount only to the bills which has been paid in the name of the claimant only would not be reasonable. It is a fact of common knowledge that when a person is faced with a situation of life and death of his son it is inconceivable to expect such a person to go on preserving all the medical bills for their reimbursement at a later stage. Therefore the Tribunal in the instant case was justified in awarding medical expenses beyond the amount of bills produced by the claimants. Having regard to the nature of injuries suffered by the injured and the period for which he has undergone treatment and is expected to undergo treatment in future the amount awarded by the Tribunal under this head is just and reasonable. As regards the amount of compensation awarded under the head “transport charges” it has been argued that there is no basis for awarding transport charges in the amount of ₹2 00 000 . In this regard it is shown from the evidence on record that the injured has been reduced to a vegetative state and that he needs frequent treatment 6 CMAM No. 52 2010 from the hospital throughout his life. Therefore arranging a special vehicle for him to carry him to the hospital is a necessary consequence. It was not necessary for the injured to place on record the bills to show that he has incurred expenses on hiring a special vehicle for visiting the hospital keeping in view the nature of injuries suffered by him and the mental state of his guardians for whom the priority would have been to restore the health of the injured and not to collect the vouchers. Having regard to the nature of the injuries suffered by the injured the frequency with which he may be required to visit the hospital and the multiplier applicable to his age group an amount of ₹2 00 000 awarded by the Tribunal as transport charges in favour of the injured appears to be just and reasonable. It has been argued by the learned counsel for the appellant that the Tribunal was not justified in awarding the compensation on account of loss of wages to the father of the injured as well as the attendant charges. The argument appears to be misconceived as there is evidence on record in the shape of statement of the father of the injured who has clearly stated that he is doing no other job except attending the injured round the clock. He has also stated that he was compelled to sell 04 Kanals of land for meeting the expenses of treatment and special diet for his injured son. He has also stated that he was earning ₹150 per day. Thus there is evidence on record to show that the injured was being attended to by his father round the clock during his treatment in the hospital and thereafter. The injured is therefore entitled to not only the attendant charges till the date of filing of the claim petition but also the future attendant charges as the evidence on record shows that the injured cannot even 7 CMAM No. 52 2010 feed himself and is dependent upon others for his daily chores. The Tribunal was therefore correct in calculating the attendant charges up to the date of filing of the claim petition equivalent to the loss of wages income that has occurred to the father of the injured because he was looking after his injured son round the clock. Merely because no charges have actually been paid to the father of the injured for attending to his injured son it cannot be said that the attendant charges cannot be denied to the injured. The father of the injured by attending to his injured son must have given up his normal vocation from which he was earning about ₹150 per day and this amount comes to about ₹90 000 till the date of filing of the claim petition. Therefore the Tribunal was justified in awarding this amount as the compensation for loss of income to the father of the injured or in other words the attendant charges up to the date of filing of the claim petition. So far as the future attendant charges are concerned the Tribunal has awarded the sum by calculating it for the next 15 years only which comes to ₹2 70 000 .In my opinion the amount of future attendant charges awarded by the Tribunal is on lower side. Instead of awarding the attendant charges for 15 years the Tribunal should have followed the multiplier system by using the correct multiplier. This system has been recognized by the Hon’ble Supreme Court in “Gobald Motor Service Limited Vs. R.M.K. Veluswami and others reported as AIR 1962 SCR 929. The multiplier system factors in inflation rate rate of interest payable on lump sum award the longevity of the claimants and also other issues such as uncertainties of life. Out of all the various alternative methods the multiplier method has been recognized as the 8 CMAM No. 52 2010 most realistic and reasonable method. It ensures better justice between the parties and thus results in awarding of just compensation within the meaning of the Motor Vehicles Act. Keeping in view the claimant’s age the multiplier in this case should have been 18 as opposite to 15 taken by the Tribunal. Since the quantum of compensation awarded by the Tibunal has not been challenged by the claimant as such I leave it there and hold that the attendant charges awarded by the Tribunal in favour of the injured are neither exorbitant nor without basis. It has also been contended by the appellant that the amount awarded by the Tribunal for treating infection of the claimant special diet charges cost of special mattress compensation on account of pain and sufferings loss of amenities inconvenience and hardship to the family is exorbitant and without any basis. In the above context it may be noted that there is enough evidence on record in the shape of the statements of the doctor and the father of the injured that the injured needs treatment for rest of his life. He requires special mattress to avoid occurrence of bed sores a feeding tube to feed him which is required to be changed frequently the services of a trained nurse and frequent follow up treatment in the hospital. With this evidence on record the compensation awarded by the Tribunal on account of cost of special mattress cost of feeding tube cost of treatment of infection and the expenses on account of special diet are absolutely justified. In fact the Tribunal has taken into 9 CMAM No. 52 2010 account the cost of one special mattress and one feeding tube only and has not taken into consideration the fact that these equipments are required to be changed frequently. If future needs of the injured are taken into account the amount awarded by the Tribunal appears to be on a lower side. Thus it cannot be stated that the amount awarded by the Tribunal on above counts is on a higher side or without any basis. Coming to the non pecuniary damages like compensation on account of pain and suffering and loss of amenities the contention of the learned counsel for the appellant that the amount awarded is on higher side is without any basis. The Hon’ble Supreme Court in the case titled “Master Mallikarjun Vs. Divisional Manager National Insurance Company Ltd. and another reported as 2013 668 while dealing with the issue of award under this head has held that it should be at least ₹6 00 000 if the disability is more than 90%. So far as the present case is concerned in addition to 100% physical disability the young boy is in coma and according the the doctor such patients are kept in ICU or Rehabilitation Centres for years together. With this kind of condition the injured should have been awarded more than what has been awarded by the Tribunal on account of compensation for pain and suffering and loss of amenities. Unfortunately the claimant has not challenged the quantum of compensation and as such he has to remain satisfied with whatever has been awarded by the Tribunal in his favour under these heads. 10 CMAM No. 52 2010 Another head of compensation which is an essential component of compensation in injury cases is the loss of future income and the same has not been taken into account by the Tribunal while passing the impugned award. Although the injured was a non earning person as on date of the accident yet it is a settled law that even in such cases the compensation on account of loss of earning has to be awarded. The injured a young boy was studying at the relevant time. He could have worked and would have earned a reasonable sum of money in future but the Tribunal has overlooked this aspect of the case and has not awarded any compensation in favour of the injured under this head. However as already noted the injured has not challenged the impugned award hence this Court is helpless in awarding any enhanced compensation in his For the foregoing reasons I have no doubt in my mind that the amount of compensation awarded by the Tribunal in favour of the injured is based on evidence on record and the same is not exorbitant. In fact having regard to the nature of the injuries suffered by the injured the compensation awarded by the Tribunal in favour of the injured is on a lower side. Learned counsel for the appellant has also contended that during the pendency of the appeal the injured has passed away and as such the award is required to be slashed down after taking into account the fact that the future needs of the injured are no longer available. Firstly there is nothing on record to show that the injured has died during the pendency of the appeal and secondly even if the injured has 11 CMAM No. 52 2010 died during the pendency of the appeal it will make no difference to the case as admittedly at the time of passing of the impugned award by the Tribunal the injured was surviving. The date of passing of the award is relevant for the purpose of assessment of compensation and not the events subsequent thereto. Lastly it has been argued by the learned counsel for the appellant that the Tribunal has not been justified in awarding interest at a higher rate on the awarded sum in case of default in payment of awarded sum within a particular period. According to the learned counsel such direction amounts to awarding of penal interest which is not statutorily envisaged and prescribed. Learned counsel has relied upon the judgment of the Hon’ble Supreme Court in the case of National Insurance Company Ltd. Vs. Keshav Bahadur reported in AIR 2004 SC 1518. A persual of the impugned award reveals that the learned Tribunal has awarded interest at the rate of 6% per annum from the date of filing of the claim petition till the realization of the awarded amount with a further stipulation that in case the amount is not paid within a period of two months the claimant shall be entitled to interest at the rate of 9% from the date of the default. This is in my view amounts to awarding of penal interest regarding which there is no scope under the law. In the case titled National Insurance Company Ltd. Vs. Keshav Bahadurthe Hon’ble Supreme Court has while dealing with this aspect observed as under: “Though Section 110 CC of the Actconfers a discretion on the Tribunal to award interest the same is meant to be exercised in cases where the claimant can claim the same as a matter of right. In the above 12 CMAM No. 52 2010 background it is to be judged whether a stipulation for higher rate of interest in case of default can be imposed by the Tribunal. Once the discretion has been exercised by the Tribunal to award simple interest on the amount of compensation to be awarded at a particular rate and from a particular date there is no scope for retrospective enhancement for default in payment of compensation. No express or implied power in this regard can be culled out from Section 110 CC of the Act or Section 171 of the retrospective enhancement of interest for default in payment of the compensation together with imposition of penalty which is not statutorily envisaged and prescribed. It is therefore directed that the rate of interest as awarded by the High Court shall alone be applicable till payment without the stipulation for higher rate of interest being enforced in the manner directed by the Tribunal” thereon virtually amounts interest payable In view of the law on the subject as laid down by the Hon’ble Supreme Court it is clear that the Tribunal has while awarding enhanced rate of interest in case of default in payment of the awarded sum exceeded its jurisdiction and to this extent the award deserves to be modified. For the foregoing reasons the impugned award passed by the learned Tribunal except to the extent of awarding of interest at the enhanced rate of 9% per annum is upheld. The appeal stands disposed of accordingly. Ram Krishan) JUDGE Whether the order is speaking: Whether the order is reportable:

Time-period of six months for cooling off u/S 13-B of HMA can be waived by the Court under special circumstances: Delhi High Court

In the matter concerned with mutual divorce u/S 13-B of the Hindu Marriage Act, 1956, the Delhi High Court bench constituting Pratibha M. Singh J. opined that in light of undue delay in passing of motion by the Family Court, the six month time period for cooling off may be waivered. The present matter in Kavita Malik v State of NCT [W.P.(C) 3922/2021] of Delhi arose out of delay in due course of the pandemic. The present petition has been filed by Ms. Kavita Malik, who was married to Mr. Amit Malik on 8th February, 1997. Due to various reasons, the parties did not wish to continue with the marriage and accordingly, they agreed for dissolution of their marriage by mutual consent. The grievance of the Petitioner is that she is a 45 year old lady who had entered into a Memorandum of Understanding with her husband and the various terms and conditions which were to be abided by the parties were given effect to. Both parties are living separately since 2nd June, 2018 but are being forced to continue their marriage. All future plans of the parties have been put on hold and these facts have not been appreciated by the Family Court which has acted with complete callousness in not recording the order on the first motion On the basis of this understanding, the parties through their counsels filed. On 17th November, 2020, the Petitioner moved an application seeking waiver of the cooling-off period of six months. This Court has perused the judgment of the Supreme Court in Amardeep Singh v. Harveen Kaur (2017) 8 SCC 746 where the court dealing with a matter is satisfied that a case is made out to waive the statutory period under Section 13-B(2), it can do so after considering the statutory period of six months specified in Section 13-B(2), in addition to the statutory period of one year under Section 13-B(1) of separation of parties is already over before the first motion itself. The judgment in Devinder Singh Narula v. Meenakshi Nangia, (2012) 8 SCC 580 was also referred to wherein Section 13-B itself provides for a cooling-off period of six months on the first motion being moved, in the event the parties change their minds during the said period. Accordingly, after the initial motion and the presentation of the petition for mutual divorce, the parties are required to wait for a period of six months before the second motion can be moved, and at that point of time, if the parties have made up their minds that they would be unable to live together, the court, after making such inquiry as it may consider fit, grant a decree of divorce declaring the marriage to be dissolved with effect from the date of the decree.

IN THE HIGH COURT OF DELHI AT NEW DELHI W.P.(C) 3922 2021 & CM APPL. 11792 2021 KAVITA MALIK ..... Petitioner Through: Ms. Juhi Arora Advocate. Date of decision: 16th April 2021. STATE OF NCT OF DELHI ..... Respondent Through: Mr. Sumit Jidani Advocate for R 1 M 9810664300) JUSTICE PRATHIBA M. SINGH Prathiba M. Singh J.This hearing has been done through Video Conferencing. The present petition has been filed by Ms. Kavita Malik who was married to Mr. Amit Malik on 8th February 1997. Due to various reasons the parties did not wish to continue with the marriage and accordingly they agreed for dissolution of their marriage by mutual consent. A Memorandum of Understanding was arrived at between the parties on 30th November 2019 by which various terms and conditions were agreed upon by the parties. The first motion petition for divorce by mutual consent was filed on 11th March 2020. However owing to the lockdown physical hearing was not held in the first motion. The Family Court thereafter listed the matter for 20th July 2020 on which date the statements of the parties in the first motion were recorded and the following order was passed: W.P.(C) 3922 2021 “ Efforts for reconciliation have been made if the parties can reside together but both the petitioners have submitted that they cannot reside together and have mutually and amicably decided to part ways to take divorce. Considered. Joint statement of both the petitioners have been recorded separately and both the petitioners have been identified by their counsel. Both the parties are directed to file their original documents and also to submit the signed copy of their statements recorded today as per the directions of the Hon ble High Court after the physical court functioning. Be put up for consideration further proceedings statements and Ld. counsel for the Petitioner submits that on the said date the Family Court had directed the Petitioner after recordal of the statements to file the physically signed copies of the statements. According to her as per the usual practice in the family courts the order on first motion was to be passed on the file upon filing of physical copies. Since the physical copies were filed within a period of two days duly verified by the respective counsels for the parties and no intimation was given by the Court that the first motion is not passed all parties and counsels were under the impression that the order on first motion was passed. On the basis of this understanding the parties through their counsels filed On 17th November 2020 the Petitioner moved an application seeking waiver of the cooling off period of six months in terms of the judgment of the Supreme Court in Amardeep Singh v. Harveen Kaur 8 SCC 746. In the application for second motion an averment was made to the following effect: W.P.(C) 3922 2021 That in terms of the settlement between the parties the first motion divorce petition was filed in 17 03 2020 and the same allowed by the Hon’ble Court vide order dated 20 07 2020. A copy of Order Dated 20 07 2020 is annexed herewith and marked as ANNEXURE P 5.” The order on the first motion was to be Annexure P 5 in the second motion application. Instead of filing the order the application for certified copy of the order on first motion was annexed. The parties however never received the order on the first motion. The second motion was listed on 21st November 2020 however the matter continued to be adjourned from time to time. Finally on 10th March 2021 the second motion was taken up and objections were raised by the Court that the certified copy of the order on the first motion was not filed. The Petitioner applied for the verified copy of the order on the first motion but was not supplied the same. She accordingly re applied for obtaining a copy of the said order. Finally on 16th March 2021 it was realised that a certified copy could not be issued as the order on the first motion itself was not passed. The grievance of the Petitioner is that the Petitioner is a 45 year old lady who had entered into a Memorandum of Understanding with her husband and the various terms and conditions which were to be abided by the parties were given effect to. Both parties are living separately since 2nd June 2018 but are being forced to continue their marriage. All future plans of the parties have been put on hold and these facts have not been appreciated by the Family Court which has acted with complete callousness in not recording the order on the first motion. W.P.(C) 3922 2021 Vide order dated 24th March 2021 this Court had called for the lower court record including the physical record. The physical record has been sent to the Court. A perusal of the physical record shows that the matter was taken up by Ms. Barkha Gupta Judge Family Court Rohini District New Delhi since inception i.e. 18th March 2020 as also on 20th July 2020. The order of 20th July 2020 specifically records that the joint statement of the Petitioners have been recorded. The physical record also has signed copies of the statements by both parties duly verified by both the counsels for the parties as well. It is completely inexplicable as to why the order on the first motion was not passed and whether there was any formality to be completed by the parties considering the fact that the physical copy of their statement was already signed. 10. Since 20th July 2020 till March 2021 the parties have not been able to obtain a copy of the said order due to the fact that the said order has never been passed. Now after almost 8 months the precious time of the parties has been lost and the clock is sought to be set back as the matter has been listed for orders on the first motion tomorrow i.e. 17th April 2021. The parties have in fact moved for waiver of the cooling off period which shows that they had expressed urgency in the orders being passed expeditiously. 11. This Court has perused the judgments of the Supreme Court in Amardeep Singh as also Devinder Singh Narula v. Meenakshi Nangia 8 SCC 580. The legal position on the waiver of the cooling off period of six months as also the purpose of filing of the first motion and the second motion has been settled by the Supreme Court in these two judgements. The relevant paragraphs of the said judgments are set out herein below: W.P.(C) 3922 2021 Amardeep Singh v. Harveen Kaur 2017) 8 SCC 746 “16. We have given due consideration to the issue involved. Under the traditional Hindu Law as it stood prior to the statutory law on the point marriage is a sacrament and cannot be dissolved by consent. The Act enabled the court to dissolve marriage on statutory grounds. By way of amendment in the year 1976 the concept of divorce by mutual consent was However Section 13 B(2) contains a bar to divorce being granted before six months of time elapsing after filing of the divorce petition by mutual consent. The said period was laid down to enable the parties to have a rethink so that the court grants divorce by mutual consent only if there is no chance for reconciliation. 17. The object of the provision is to enable the parties to dissolve a marriage by consent if the marriage has irretrievably broken down and to enable them to rehabilitate them as per available options. The amendment was inspired by the thought that forcible perpetuation of status of matrimony between unwilling partners did not serve any purpose. The object of the cooling off period was to safeguard against a hurried decision if there was otherwise possibility of differences being reconciled. The object was not to perpetuate a purposeless marriage or to prolong the agony of the parties when there was no chance of reconciliation. Though every effort has to be made W.P.(C) 3922 2021 there are chances of to save a marriage if there are no chances of reunion and rehabilitation the Court should not be powerless in enabling the parties to have a better option. 18. In determining the question whether provision is mandatory or directory language alone is not always decisive. The court has to have the regard to the context the subject matter and the object of the provision. This principle as formulated in Justice G.P. Singh s Principles of Statutory Interpretationhas been cited in Kailash v. Nanhku4 SCC 480] as follows:“34. … ‘The study of numerous cases on this topic does not lead to formulation of any universal rule except this that language alone most often is not decisive and regard must be had to the context subject matter and object of the statutory provision in question in determining whether the same is mandatory or directory. In an oftquoted passage Lord Campbell said: “No universal rule can be laid down as to whether mandatory enactments shall be considered directory only or obligatory with an implied nullification for disobedience. It is the duty of courts of justice to try to get at the real intention of the legislature by carefully attending to be considered.”’”“‘For ascertaining legislature’ points out Subbarao J. ‘the court may consider inter alia the nature and design of the statute and the consequences which would follow from construing it the one way or the other the impact of other provisions whereby the necessity of complying with the provisions in question is avoided the circumstances namely statute provides for a contingency of the non the whole scope of intention of the statute the real W.P.(C) 3922 2021 it mandatory compliance with the provisions the fact that the non compliance with the provisions is or is not visited by some penalty the serious or the trivial consequences that flow therefrom and above all whether the object of the legislation will be defeated or furthered’. If object of the enactment will be defeated by holding the same directory it will be construed as mandatory whereas if by inconvenience will be created to innocent persons the object of without very much enactment the same will be construed as directory.”19. Applying the above to the present situation we are of the view that where the court dealing with a matter is satisfied that a case is made out to waive the statutory period under Section 13 B(2) it can do so after considering the following: i) the statutory period of six months specified in Section 13 B(2) in addition to the statutory period of one year under Section 13 B(1) of separation of parties is already over before the first motion itself for mediation conciliation including efforts in terms of Order 32 A Rule 3 CPC Section 23(2) of the Act Section 9 of the Family Courts Act to reunite the parties have failed and there is no likelihood of success in that direction by any further efforts the parties have genuinely settled their iii) differences including alimony custody of child or any other pending issues between the parties iv) The waiver application can be filed one week after the first motion giving reasons for the prayer for waiver. If the above conditions are satisfied the the waiting period will only prolong their W.P.(C) 3922 2021 waiver of the waiting period for the second motion will be in the discretion of the court concerned. 20. Since we are of the view that the period mentioned in Section 13 B(2) is not mandatory but directory it will be open to the court to exercise its discretion in the facts and circumstances of each case where there is no possibility of parties resuming cohabitation and there are chances of alternative rehabilitation. 21. Needless in conducting such proceedings the court can also use the medium of videoconferencing and also permit genuine representation of through close relations such as parents or siblings where the parties are unable to appear in person for any just and valid reason as may satisfy the court to advance the interest of justice.” the parties to say Devinder Singh Narula v. Meenakshi Nangia 2012) 8 SCC 580 “2. Section 13 B itself provides for a cooling off period of six months on the first motion being moved in the event the parties change their minds during the said period. Accordingly after the initial motion and the presentation of the petition for mutual divorce the parties are required to wait for a period of six months before the second motion can be moved and at that point of time if the parties have made up their minds that they would be unable to live together the court after making such inquiry as it may consider fit grant a decree of divorce declaring the marriage to be dissolved with effect from the date of the decree. 12. It is quite clear from the materials on record that although the marriage between the parties was solemnised on 26 3 2011 within 3 months of W.P.(C) 3922 2021 the marriage the petitioner filed a petition under Section 12 of the Hindu Marriage Act 1955 for a decree of nullity of the marriage. Thereafter they have not been able to live together and lived separately for more than 1 year. In effect there appear to be no marital ties between the parties at all. It is only the provisions of Section 13 B(2) of the aforesaid Act which are keeping the formal ties of marriage between the parties subsisting in name only. At least the condition indicated in Section 13 B for grant of a decree of dissolution of marriage by mutual consent is present in the instant case. It is only on account of the statutory cooling off period of six months that the parties have to wait for a decree of dissolution of marriage to be Both judgments make it clear that the time period of six months for cooling off can be waived by the Court under special circumstances. Moreover in the present case the parties are living apart from 2018 and have also finally settled their disputes. There is thus no reason as to why the Family Court did not pass orders on the first motion after recording the statements of the parties and after the physically signed copy was placed on record. Simply adjourning the matter on the said date i.e. 20th July 2020 without passing orders on the first motion has resulted in turning the clock back for the Petitioner. 12. The divorce being one of mutual consent the parties cannot be put to such grave inconvenience due to the action of the Family Court which has failed to pass orders on the first motion. W.P.(C) 3922 2021 13. Ms. Juhi Arora ld. Counsel appears for the Petitioner and submits that as per her information in the Family Court there are several cases where orders on the first motion have not been passed. 14. Under these circumstances and owing to the settled legal position as laid down by the Supreme Court in the aforementioned two judgments the following directions are issued: the present Presiding Officer in the Family Court shall record his satisfaction in respect of the statement recorded by the parties which are already on record. upon the present Presiding Officer recording his satisfaction orders on the first motion shall be passed by the Family Court. Since passing of orders on the first motion is a consequence of the statement recorded upon recordal of the satisfaction in order to ensure that the parties are not put to any further inconvenience the order on the first motion would date back to 20th July 2020. Insofar as the second motion is concerned once the order on the first motion which shall date back to 20th July 2020 is passed by the present Presiding Officer the Court would proceed to pass orders on the second motion in accordance with law. 15. The ld. Registrar General shall look into the issue in respect of other similar cases which may be pending before the Family Courts which are awaiting orders on first motion after statements of parties have been recorded and file a report in this regard for appropriate orders. 16. The petition is disposed of in the above terms. All pending applications are also disposed of. W.P.(C) 3922 2021 APRIL 16 2021 17. List for receiving of the report on 1st July 2021. Let the physical copy of the lower court record be sent back. PRATHIBA M. SINGH J. W.P.(C) 3922 2021

Victory margin being narrow could not have been a ground for issuing order of recounting of votes: High Court of Jammu & Kashmir and Ladakh

The election can be questioned only on the ground that the election has not been free election by reason that corrupt practice or bribery or undue influence has extensively prevailed in that election and that the result of the election has been materially affected by the improper acceptance or rejection of any nomination as held by the High Court of J&K through the learned bench of Hon’ble Chief Justice Pankaj Mithal and Justice Rajnesh Oswal in the case of Farooq Ahmed Vs State of J&K and others [LPA No. 259 of 2019]. The  Appeal was been filed on the grounds that as per sub rule 4 of Rule 36 of the Jammu and Kashmir Panchayati Raj Rules, 1996 (hereinafter “the Rules”). The brief facts are that the election was held for the post of Panch in ward No. 10, Panchayat Halqa, District Poonch under the supervision of respondent No. 6. The total votes polled were 100 out of which 02 votes were declared invalid as per rules. Farooq Ahmed, the appellant herein received 49 votes, Mohd Younis-respondent No. 5 got 48 votes and Mushtaq Ahmed got one vote only. Respondent No. 5 filed an appeal before the Additional Deputy Commissioner, Poonch, and respondent No. 4. The appellant filed his response to the appeal before respondent No. 4 and denied all the allegations leveled by respondent No. 5 in the appeal. Respondent No. 4 without hearing the appellant, passed an order dated 15.07.2019 for recounting of the votes without assigning any reason and fixed the date for recounting of votes on 31.07.2019. The appellant impugned the order dated 15.07.2019 as being illegal and arbitrary contrary to the provisions of section 43 of the Jammu and Kashmir Panchayati Raj Act, 1989 (for short the Act) but the learned Single Judge vide order dated 26.07.2019 dismissed the writ petition filed by the writ petitioner-appellant. Hence, this appeal was filed. Learned counsel for the appellant, Sh. Ajay Singh Kotwal has vehemently argued that the learned Single Judge has not considered that the appeal of respondent No. 5 before respondent No. 4 was misconceived, particularly in view of section 43 of the Act and further that the narrow margin of the victory could never have been a ground for upholding the order of recounting passed by the appellate authority-respondent No. 4. Sh. D. C. Raina, learned Advocate General appearing for the official respondents has vehemently submitted that the appellate authority has the power to pass all the orders as per Rule 43 of the Panchayati Raj Rules and also that it includes order with regard to the recounting of the votes as well. After hearing both the sides, the hon’ble court was of the view that “The victory margin being narrow could not have been a ground for issuing order of recounting of votes in absence of any finding with regard to existence of any of the grounds prescribed by section 43 of the Act.”

HIGH COURT OF JAMMU AND KASHMIR AND LADAKH AT JAMMU CJ Court Case: LPA No. 2519 Farooq Ahmed Reserved on 10.09.2021 Pronounced on 06.10.2021 Through : Sh. Ajay Singh Kotwal Advocate in LPA No. 2519 Sh. R. K. Jain Sr. Advocate with Sh. Pankaj Jain Advocate in OWP No. 3119 Smt. Rozina Afzal Advocate in WP(C) Nos. 2018 & 37719 Sh. Faheem Showkat Butt Advocate in WP(C) Nos. 3144 and 31419 Sh. K. L. Pandita Advocate in WP(C) No. 35219 and WP(C) No. 29319 Sh. R. D. S. Bandral Advocate in WP(C) No. 33019 Through : Sh. D. C. Raina Advocate General with Sh. Ayjaz Lone Dy. AG for respondent Nos. 1 to 4 Sh. K. S. Johal Sr. Advocate with Sh. Supreet Johal Advocate Sh. Ashish Singh Kotwal Advocate Sh. M. A. Bhat Advocate Sh. A. P. Malik Advocate Sh. Intikhab H. Shah Advocate Sh. B. S. Jamwal Advocate State of J&K and others HON’BLE THE CHIEF JUSTICE HON’BLE MR. JUSTICE RAJNESH OSWAL JUDGE Per Rajnesh Oswal J This intra court appeal has been preferred against the judgment order dated 26.07.2019 passed by the learned Single Judge by virtue of which the writ petition filed by the appellant has been dismissed and 2 LPA No. 259 2019 order of recounting of ballots for ward No. 10 Panchayat Halqa Kundan Azmabad Tehsil Mandi District Poonch passed by the Additional Deputy Commissioner Poonch respondent No. 4 herein vide order dated 15.07.2019 has been upheld. The present Appeal has been filed on the grounds that as per sub rule 4 It is further averred that after passing of the judgment by the learned of the Rule 36 of the Jammu and Kashmir Panchayati Raj Rules 1996 for short the Rules) the decision of the Returning Officer vis a vis acceptance or rejection of the ballots is final and cannot be questioned. Further that the learned Single Judge did not appreciate the fact that the order of recounting was passed by the respondent No. 4 in a mechanical and routine manner without asking the parties to substantiate their respective claims by adducing cogent evidence in this regard. Single Judge recounting was done and the appellant was ousted and respondent No. 5 was declared as elected. The appellant again approached the Court and challenged the order of recounting and subsequent proceedings by way of writ petition bearing WP(C) No. 3634 of 2019 titled Farooq Ahmed vs State of J&K and others however the said writ petition was dismissed as not maintainable. are that the election was held for the post of Panch in ward No. 10 Panchayat Halqa Kundaan Azmabaad Tehsil Mandi District Poonch on 20.11.2018 under the supervision of respondent No. 6. The total votes polled were 100 out of which 02 votes were declared invalid as per rules. Farooq Ahmed appellant herein received 49 votes Mohd Younis respondent No. 5 got 48 votes and Mushtaq Ahmed got one The brief facts which are necessary for disposal of the present appeal 3 LPA No. 259 2019 vote only. Counting was repeated thrice before announcing the result and all the contesting candidates were present at the time of counting and whole counting process was undertaken under their observation. It is further stated that the respondent No. 5 was satisfied on the day of polling counting of votes and the appellant was declared winner as Panch of that Ward and the certificate was issued by the Returning Officer in presence of aforesaid persons in favour of the appellant on the same day. The respondent No. 5 remained silent up to 10.12.2018 and filed appeal before the Additional Deputy Commissioner Poonch respondent No. 4 herein on 10.12.2018. The appellant filed his response to the appeal before the respondent No. 4 and denied all the allegations leveled by the respondent No. 5 in the appeal. The respondent No. 4 without hearing the appellant passed order dated 15.07.2019 for recounting of the votes without assigning any reason and fixed the date for recounting of votes on 31.07.2019. The appellant impugned the order dated 15.07.2019 being illegal and arbitrary contrary to the provisions of section 43 of the Jammu and Kashmir Panchayati Raj Act 1989 but the learned Single Judge vide order dated 26.07.2019 dismissed the writ petition filed by the writ petitioner appellant. Hence the appeal. A perusal of the order dated 15.07.2019 passed by the respondent No. 4 reveals that the Additional Deputy Commissioner Poonch ordered recounting of the votes just to clear the doubt of the appellant because of the narrow margin of the winning candidate i.e. appellant herein. Heard Sh. Ajay Singh Kotwal learned counsel for the appellant and Sh. D. C. Raina learned Advocate General assisted by Sh. Ayjaz Lone 4 LPA No. 259 2019 learned Dy. A. G. appearing for the official respondents. Perused the record as well. Learned counsel for the appellant has vehemently argued that the learned Single Judge has not considered that the appeal of respondent No. 5 before the respondent No. 4 was misconceived particularly in view of section 43 of the Act and further that the narrow margin of the victory could never have been a ground for upholding the order of recounting passed by the appellate authority respondent No. 4. Sh. D. C. Raina learned Advocate General appearing for the official respondents has vehemently submitted that the appellate authority has the power to pass all the orders as per Rule 43 of the Panchayati Raj Rules and also that it includes order with regard to the recounting of the votes as well. Before considering the contentions of the parties it will be apt to take note of the section 43 of the Act and rules 36 and 43 of the Rules respectively which read: ―43. Disputes regarding elections.The election of a person as Sarpanch Panch of Halqa Panchayat or as a Chairman of the Block Development Council shall not be called in question except by an application presented to such authority within such time and in such manner as may be prescribed on the grounds that : a) the election has not been a free election by reason that the corrupt practice of bribery or undue influence has extensively prevailed at the election or b) that the result of the election has been materially affected. i) by the improper acceptance or rejection of any nomination or ii) by gross failure to comply with the provisions of this Act or the rules framed thereunder.‖ “36. Rejection of ballot papers.—(1) A ballot paper shall be liable to rejection if no vote is recorded thereon or 5 LPA No. 259 2019 if the ballot paper or the vote recorded thereon is void for uncertainty or if it is otherwise not in conformity with rules. 2) No ballot paper shall be rejected otherwise than on any of the grounds enumerated in sub ruleThe Returning Officer shall record on every ballot paper which he rejects a brief statement or reasons for such rejection. 4) The decision of the Returning Officer as to the validity or otherwise of the ballot paper shall be ―43. Appellate Authority.—(1) An appeal against the election of a candidate as Sarpanch or Panch shall lie to the authority as may be notified by the Government within a period of 30 days from the date of declaration of result. 2) On receipt of the appeal under sub rule the appellate authority shall fix the time place and date of hearing of the appeal such date not being more than seven days after the date of receipt of the appeal 3) At the fixed date and place the Appellate Authority shall hear the appeal and pass such orders as it may deem fit. 4) The orders passed under sub rule shall be Thus a perusal of the section 43 of the Act reveals that the election can be questioned only on the ground that the election has not been free election by reason that corrupt practice or bribery or undue influence has extensively prevailed in that election and that the result of the election has been materially affected by the improper acceptance or rejection of any nomination or by gross failure to comply with the provision of this Act or the Rules framed there under. The Supreme Court in Udey Chand v Surat Singh and another 2009) 10 SCC 170 has held in paras 12 as under: 12. The importance of maintenance of secrecy of ballot papers and the circumstances under which that secrecy can be breached has been considered by this Court in several cases. It would be trite to state that before an Election 13. In Vadivelu v. Sundaram 8 SCC 355 the Apex Court in para 16 has held as under: 6 LPA No. 259 2019 Tribunal can permit scrutiny of ballot papers and order re count two basic requirements viz.: i) the election petition seeking re count of the ballot papers must contain an adequate statement of all the material facts on which the allegations of irregularity or illegality in counting are founded and ii) on the basis of evidence adduced in support of the allegations the Tribunal must be prima facie satisfied that in order to decide the dispute and to do complete and effectual justice between the parties making of such an order is imperatively necessary are satisfied. “16. The result of the analysis of the above cases would show that this Court has consistently taken the view that re count of votes could be ordered very rarely and on specific allegation in the pleadings in the election petition that illegality or irregularity was committed while counting. The petitioner who seeks re count should allege and prove that there was improper acceptance of invalid votes or improper rejection of valid votes. If only the court is satisfied about the truthfulness of the above allegation it can order re count of votes. Secrecy of ballot has always been considered sacrosanct in a democratic process of election and it cannot be disturbed lightly by bare allegations of illegality or irregularity in counting. But if it is proved that purity of elections has been tarnished and it has materially affected the result of the election whereby the defeated candidate is seriously prejudiced the court can resort to re count of votes under such circumstances to do justice between the parties.‖ During the course of arguments the learned counsel for the appellant did not dispute the power lying with the Appellate Authority to order recounting of the votes. But the fact remains that the recounting of votes cannot be ordered on the vague and indefinite allegations made against the elected candidate and there must be clear and specific allegations with regard to grounds conditions mentioned above and 7 LPA No. 259 2019 their consequential effect upon the result. It is clear that the election can be challenged only on the grounds mentioned in section 43 of the Act and while challenging the election the appeal must contain all the material facts with regard to the grounds conditions mentioned above. A perusal of the order of the learned Single Judge reveals that the learned Single Judge in view of the narrow margin of the victory has Hon’ble Apex Court in Bhabhi v Sheo Govind and others AIR 1975 upheld the order of recounting. SC 2117 has held as under: ―17 .We are however unable to agree with this broad statement of the law by the learned Judge because if a person is duly elected even by a narrow margin of votes there is no presumption that there has been illegality or irregularity in the election. This is fact which has to be proved by a person who challenges the election of the duly elected of the duly elected candidate. After all in a large democracy such as our’s where we have a multiparty system where the number of voters is huge and dissevers where the voting is free and fair and where in quite a few cases the contest is close and neck to neck a marginal victory by successful candidate voter his rival can sometimes be treated as a tremendous triumph so as to give a feeling of satisfaction to the victorious candidate. The Court cannot lightly brush aside the success of the duly elected candidate on an election petition based on vague and allegations or frivolous and flimsy grounds.‖ Thus the victory margin being narrow could not have been a ground for issuing order of recounting of votes in absence of any finding with regard to existence of any of the grounds prescribed by section 43 of the Act. We find that the reason furnished by the respondent No. 4 while passing the order dated 15.07.2019 for recounting of the votes that the same 8 LPA No. 259 2019 was passed to clear the doubt of the respondent No. 5 is not in accordance with the provisions of section 43 of the Act and as such the order dated 15.07.2019 is not sustainable in the eyes of law. Also we have not been able to convince ourselves with the reasoning recorded by the learned Single Judge while deciding the writ petition filed by the appellant and as such the order impugned is also not sustainable. We could have remanded the matter back to writ court for fresh consideration but as appellant has himself admitted that after the dismissal of the writ petition by virtue of impugned judgment dated 26.07.2019 the respondent No. 5 has been declared elected after recounting of votes and the appellant had challenged his election along with the order of recounting but the said writ petition was dismissed too and the dismissal of the said petition has not been challenged by the appellant till date. As such we do not deem it appropriate to remand the matter back and rather we dismiss the present Letters Patent Appeal with liberty to the appellant to avail the appropriate remedy as available under law. The connected matters are segregated and be listed before the appropriate Bench. (PANKAJ MITHAL) JUDGE CHIEF JUSTICE JAMMU: Whether the order is speaking: Whether the order is reportable:

Principles of natural justice to be followed in all cases regarding termination: Chhattisgarh High Court

Any person who is being terminated must be given a show cause notice and a chance to be heard. Not following this would make the termination order void and the person is entitled for reinstatement. This was held by Hon’ble Justice Sanjay K. Agrawal in the case of Smt. Indira Patel vs. State of Chhattisgarh and Ors. [Writ Petition (S) No.7669 of 2011] on the 25th of August 2021, before the Hon’ble High Court of Chhattisgarh at Bilaspur. The brief facts of the case are, the petitioner was duly selected and appointed as Aanganwadi Karyakarta in Aanganwadi Centre No.42 in selection process on 21-5- 2007 which she joined on 8-6-2007. Thereafter, she was served with notice dated 17-2-2010 which she replied, but ultimately her services were terminated on 17-8-2010 by the Chief Municipal Officer, Municipal Council, Dallirajhara which she questioned by filing appeal in terms of circular dated 2-4-2008 before the Additional Collector, Durg, but by impugned order dated 28-10-2011 (Annexure P-1), the learned Additional Collector dismissed the appeal affirming the order of the CMO, Municipal Council, Dallirajhara which is sought to be challenged in this writ petition on the ground that the procedure prescribed in circular dated 2-4-2008 terminating the services of Aanganwadi Karyakarta has not been followed and that has caused serious prejudice to the petitioner and therefore the order of the CMO, Municipal Council, Dallirajhara and that of the Additional Collector deserve to be set aside the petitioner be reinstated on the post of Aanganwadi Karyakarta. Through this petition, the petitioner is challenging the order and prays for it to be quashed. The counsel for the petitioner submitted that, in order to remove the petitioner, who was a duly selected Aanganwadi Karyakarta, the procedure prescribed in circular dated 2-4-2008 (clause 13) was imperative and by merely giving show cause notice, her services could not have been terminated. As such, the order of the CMO is absolutely bad in law, but in appeal preferred in accordance with clause 11 of the said circular, the Additional Collector also did not look into the same and dismissed the appeal which is ex facie illegal and bad in law and therefore the impugned orders be set aside and the petitioner be reinstated along with back- wages. The counsel for the respondents supported the order and held it to be valid as per the order issued by the CMO. The learned judge heard both the parties and observed the order issued by the CMO where, detailed procedure has been prescribed for removal of Aanganwadi Karyakarta which includes enquiry by supervisor at the instance of the Project Officer and in case of embezzlement or gross irregularity, charges have to be served to the delinquent Aanganwadi Karyakarta giving 15 days’ time to submit reply and after receipt of reply, it should be placed before the Committee of Janpad Panchayat/Municipal Council which is competent to recruit and thereafter, order has to be passed by the CMO, Janpad Panchayat/Commissioner, Municipal Corporation. Likewise, as per clause 13.2 of the said circular, if it is not the case of embezzlement or gross irregularity, then warning has to be given.

1AFRHIGH COURT OF CHHATTISGARH BILASPURWrit PetitionNo.76611Smt. Indira Patel W o B.C. Patel aged about 37 years OccupationTerminated Aganwadi Worker R o Ward No.24 Rani Laxmibai Ward Dallirajhara New Bus Stand District DurgPetitionerVersus1.State of Chhattisgarh through the Secretary Women and ChildDevelopment Department D.K.S. Bhawan Mantralaya Raipur District RaipurRespondents For Petitioner:Mr. Awadh Tripathi Advocate. For Respondents No.1 to 4 State: Mr. Aditya Sharma Panel Lawyer.For Respondent No.5:Mr. Y.S. Thakur Advocate.For Respondent No.6:None present though served. Hon ble Shri Justice Sanjay K. AgrawalOrder On Board25 08 20211.Proceedings of this matter have been taken up through videoconferencing.2.The petitioner calls in question legality validity and correctness oforder dated 28 10 2011passed by respondent No.3 Additional Collector Durg whereby order dated 17 8 2010passed by respondent No.5 Chief Municipal Officer MunicipalCouncil Dallirajhara District Durg terminating the services of thepetitioner from the post of Aanganwadi Karyakarta has been affirmedby the learned Additional Collector.3.The petitioner was duly selected and appointed as AanganwadiKaryakarta in Aanganwadi Centre No.42 in selection process on 21 5 2007 which she joined on 8 6 2007. Thereafter she was served withnotice dated 17 2 2010 which she replied but ultimately her serviceswere terminated on 17 8 2010 by the Chief Municipal Officer Municipal Council Dallirajhara which she questioned by filing appealin terms of circular dated 2 4 2008 before the Additional Collector Durg but by impugned order dated 28 10 2011thelearned Additional Collector dismissed the appeal affirming the orderof the CMO Municipal Council Dallirajhara which is sought to bechallenged in this writ petition on the ground that the procedureprescribed in circular dated 2 4 2008 terminating the services ofAanganwadi Karyakarta has not been followed and that has causedserious prejudice to the petitioner and therefore the order of the CMO Municipal Council Dallirajhara and that of the Additional Collectordeserve to be set aside the petitioner be reinstated on the post ofAanganwadi Karyakarta.4.Return has been filed by the State respondents No.1 to 4 supportingthe orders impugned passed by the CMO and the Additional Collector.5.No return has been filed by respondent No.5 as well as by respondentNo.6.6.Mr. Awadh Tripathi learned counsel appearing for the petitioner would submit that in order to remove the petitioner who was a duly 3selected Aanganwadi Karyakarta the procedure prescribed in circulardated 2 4 2008was imperative and by merely giving showcause notice her services could not have been terminated. As such the order of the CMO is absolutely bad in law but in appeal preferredin accordance with clause 11 of the said circular the AdditionalCollector also did not look into the same and dismissed the appealwhich is ex facie illegal and bad in law and therefore the impugnedorders be set aside and the petitioner be reinstated along with back wages.7.Mr. Aditya Sharma learned State counsel would support theimpugned orders which in turn was adopted by Mr. Y.S. Thakur learned counsel for respondent No.5 also.8.None present for respondent No.6 though served.9.I have heard learned counsel for the parties and considered theirsubmissions made herein above and also went through the recordwith utmost circumspection.10.Admittedly and undisputedly the petitioner was duly selected asAanganwadi Karyakarta she was removed from service by orderdated 17 8 2010 by respondent No.5 and appeal against the order ofremoval has been dismissed by the Additional Collector. Theprocedure for removal of Aanganwadi Karyakarta has been prescribedby the State Government by circular dated 2 4 2008. Clause 13 ofcircular dated 2 4 2008 prescribes the procedure for removal ofAanganwadi Karyakarta which states as under: 13dk ZdrkZvksa@lgkf dkvksa dks in ls gVkus dh izfdz k%&13 1fdlh vkaxuckM+h dk ZdrkZ@lgkf dk ds lanHkZ esa f’kdk r izkIr gksus ij ckyfodkl ifj kstuk vf kdkjh }kjk lacaf kr Ik Zos{kd ls tkap djokdj izfrosnuizkIr fd k tk sxk o izkIr izfrosnu esa xq.k nks"kksa dk ijh{k.k dj f’kdk r lgh 4ik s tkus ij fn fdlh izdkj dk xcu vFkok xaHkhj vfu ferrk dk izdj.kcurk gS rks lacaf kr dk ZdrkZ@lgkf dk dks ml ij ifjyf{kr gq vkjksiksa lsLi"V voxr djkrs gq viuk i{k j[kus dk volj iznku fd s tkus gsrq iUnzgfnol dk le iznku fd k tkosxk oa mRrj izkIr gkssus ij iqu% xq.k nks"kksa dkijh{k.k dj U k ksfpr fu.kZ ysrs gq fn in ls i`Fkd fd k tkuk vko’ d gksrks in ls i`Fkd fd s tkus laca kh izLrko tkWp izfrosnu lfgr tuiniapk r@uxjh fudk dh ml lfefr ds le{k izLrqr fd k tkosxk tks p u dsfy s l{ke gSA mDr lfefr ds vuqeksnu gksus ds mijkar eq[ dk Zikyuvf kdkjh] tuin iapk r@vk qDr uxj fuxe@eq[ uxj ikfydk vf kdkjh }kjkin ls i`Fkd djus ds vkns’k izlkfjr fd s tkosaxsA 13 2 fn xcu vFkok xaHkhj vfu ferrk dk izdj.k ifjyf{kr ugha gqvk gS oa ek=lkekU ykijokfg kW ifjyf{kr gqbZ gSa rks lacaf kr cky fodkl ifj kstuk vf kdkjh}kjk izFke nks ckj lacaf kr dk ZdrkZ@lgkf dk dks lpsr djrs gq psrkouh tkjhdh tkosxh oa r`rh ckj Hkh lq kkj u vkus ij ml ij Li"V vkjksi vkjksfirdjrs gq lquokbZ dk vafre volj iznku fd k tkosxk oa izkIr Li"Vhdj.k ijU k ksfpr :i ls fopkj djrs gq fn in ls i`Fkd fd k tkuk vko’ d gks rksrn~uqlkj mijksDr df.Mdk 13 1 vuqlkj tuin iapk r@uxjh fudk dksizLrko izLrqr dj lsok lekIr djus dh dk Zokgh dh tkosxhA fn xaHkhjdnkpkj@vfu ferrk dh f’kdk r gksus ij Hkh tuin iapk r@uxjh fudk dh p u lfefr dk ZdrkZ@lgkf dk dks in ls izFkd djus laca kh izLrko izLrqrdjus ds rhu lIrkg dh le kof k ds Hkhrj ikfjr ugha djrh gS oa ifj kstukvf kdkjh mDr dk ZdrkZ@lgkf dk dks tufgr esa in ls i`Fkd fd k tkukvko’ d ekurs gSa rks cky fodkl ifj kstuk vf kdkjh izdj.k ewY kadu lfefr dsle{k j[ksaxsA cky fodkl ifj kstuk vf kdkjh ds }kjk ewY kadu lfefr ds izLrkols ftyk dk Zdze vf kdkjh ds vuqeksnu mijkar in ls i`Fkd fd k tk ldsxkA 13 3ofj"B vf kdkfj ksa vFkkZr ftyk dk Zdze vf kdkjh vFkok muls mPp vf kdkfj ksads fujh{k.k ds nkSjku fLFkfr vlarks"ktud ik s tkus ij fn muds foosd vuqlkjdk ZdrkZ dks in ls i`Fkd fd k tkuk vko’ d ik k tkrk gS rks bl gsrq lacaf krvf kdkjh vius fujh{k.k rFkk vfu ferrkvksa dk foLr`r lqLi"V izfrosnu rS kj djin ls i`Fkd djus gsrq mYys[k djrs gq eq[ dk Zikyu vf kdkjh tuin iapk rvkSj fn uxjh {ks= gS rks vk qDr uxj fuxe@eq[ uxj ikfydk vf kdkjh dksizsf"kr dj nsaxs oa tuin iapk r oa uxjh fudk }kjk df.Mdk 13 1 oa 13 2vuqlkj dk Zokgh dh tkosxhA13 4in ls i`FkDdj.k ds vkns’k ds fo:) vihy dafMdk 11 ds izko kkuksa ds vuqlkjdh tk ldsxhA13 5 fn dksbZ vkaxuckM+h dk ZdrkZ@lgkf dk fcuk fdlh lwpuk ds yxkrkj d ekgls vf kd vof k rd vuqifLFkr jgrh gS rks ifj kstuk vf kdkjh vuqifLFkfr dsdkj.k ij Ik Zos{kd ls d tkap izfrosnu izkIr dj dafMdk 13 1] 13 2 ds vuq:ilsok lekIr djus dh dk Zokgh djsaxsA 13 6vkaxuckM+h dk ZdrkZ@lgkf dk dh lsok dh vf kdre mez 62 o"kZ iw.kZ gksus ij 5ifj kstuk vf kdkjh mUgsa d ekg iwoZ fyf[kr lwpuk nsdj lsok lekIr djus laca kh vkns’k izlkfjr djsaxsA bl gsrq dafMdk 13 1] 13 2 ds vuq:i tuiniapk r@uxjh fudk dh p u lfefr ls vuqeksnu ysus dh vko’ drk ughagksxhALi"Vhdj.k%&mijksDrkuqlkj in ls i`Fkd djus dh izfdz k esa ftl vH FkhZ dhfu qfDr ftl izfdz k ls gqbZ gksxh mlh izfdz k ls mlh izfdz k ds rgr fofgrlfefr o vuqeksnu ds vuqlkj mls in ls i`Fkd fd k tkosxk vFkkZr fn tuiniapk r@uxjh fudk ls p u gqvk gS rks mlh fudk ds ek e ls dafMdk13 1 vuqlkj dk Zokgh djrs gq in ls i`Fkd fd k tkosxk oa ftl vH FkhZ dkp u ewY kadu lfefr rFkk ftyk dk Zdze vf kdkjh ds vuqeksnu ls gqvk gksxkmls rn~uqlkj gh ewY kadu lfefr o ftyk dk Zdze vf kdkjh ds vuqeksnu ls inls i`Fkd fd k tkosxkA 11.A careful perusal of the aforesaid clause would show that detailedprocedure has been prescribed for removal of Aanganwadi Karyakartawhich includes enquiry by supervisor at the instance of the ProjectOfficer and in case of embezzlement or gross irregularity chargeshave to be served to the delinquent Aanganwadi Karyakarta giving 15days time to submit reply and after receipt of reply it should be placedbefore the Committee of Janpad Panchayat Municipal Council whichis competent to recruit and thereafter order has to be passed by theCMO Janpad Panchayat Commissioner Municipal Corporation.Likewise as per clause 13.2 of the said circular if it is not the case ofembezzlement or gross irregularity then warning has to be given. 12.Reverting to the facts of the case in the light of the aforesaidrequirement of conducting enquiry it appears that vide Annexure P 6 the petitioner was only given notice dated 17 2 2010 directing her toappear in the office which she replied on 22 2 2010 and asked forpermission to join and in the meanwhile departmental report was alsosubmitted against the petitioner which is available at page 16 & 17 ofthe writ petition but it appears that thereafter no procedure has beenfollowed as indicated in clause 13.1 of circular dated 2 4 2008 by 6serving copy of charges along with materials giving 15 days notice toreply and it also appears that on 13 8 2010 the Project Officerreferred the matter to the Municipal Council on the basis of resolutionin the meeting of President in Council dated 13 8 2010 andaccordingly order dated 17 8 2010 was passed. As such theprocedure prescribed in clause 13.1 of circular dated 2 4 2008 has notbeen followed while terminating the services of the petitioner whichhas caused serious prejudice to her. It appears that even no showcause notice for termination along with material which has beencollected departmentally by the Project Officer has been served to thepetitioner and no minimum opportunity to her to defend herself hasbeen afforded and she has been terminated which she questioned interms of clause 11 of the said circular but the learned AdditionalCollector misdirected himself by not considering her case in rightperspective and without considering the requirement of holdingenquiry and giving opportunity in terminating the services of thepetitioner who was a duly selected and appointed AanganwadiKaryakarta in terms of clause 13.1 of circular dated 2 4 2008 theimpugned order has been passed affirming the order of the CMO Municipal Council Dallirajhara removing the petitioner from the saidpost. The impugned orders are ex facie illegal and in teeth of clause13 of circular dated 2 4 2008 and also in violation of the principles ofnatural justice. 13.Accordingly the order dated 17 8 2010 removing the petitioner fromthe post of Aanganwadi Karyakarta and the order dated dated 28 10 2011 affirming the said order of removal of the petitioner are herebyquashed. The petitioner would be entitled for reinstatement. In orderto claim back wages the petitioner is at liberty to move the appointing 7authority within six weeks from today which will be considered by theappointing authority in accordance with law. However the officialrespondents are at liberty to proceed in accordance with law but thisshould not be considered as a mandate to initiate disciplinaryproceeding unless it is expedient in the interest of justice to bedecided by the competent authority. 14.The writ petition is allowed to the extent indicated herein above. Noorder as to cost(s). Sd JudgeSoma

The protection of legitimate is at the root of the constitutional principle of the rule of law, it requires certainty in governments dealings with the public: High Court of J&K and Ladakh

A case for applicability of the doctrine of legitimate expectation arises when an administrative body by reason of a representation, which it would be within its powers to fulfil, unless some overriding public interest comes in the way as held by the High Court of J&K and Ladakh through a learned bench of Justice Vinod Chatterji Koul in the case of MS Creations Architects, Engineers, Planners, Interior Designers Vs Union Territory of J&K and others [WP(C) no.2343/2021 CM no.7526/2021]. The case set up by petitioner was that petitioner-firm is a renowned architectural cum structural consultancy, having expertise in the field and that petitioner has also been elected as fellow of Indian institute of Architects bearing Registration No. 21902. It was averred that J&K Project Construction Corporation Limited (for brevity “JKPCC”) is a government owned corporation registered under the Companies Act as it is entrusted with function of effecting constructions of government buildings in Union Territory of J&K and has also power to float tenders on behalf of the Government of J&K for getting the government buildings constructed under its control and supervision. It was stated that JKPCC was also empowered to empanel consultants for providing architectural-cum-structural designs through approved and registered architects. In terms of its decision JKPCC is stated to have empaneled as many as 23 architectural and structural firms for providing the consultancy about the designs and structures etceterea of the buildings intended to be constructed by it. The petitioner claims that he figured at Serial No.10 in the panel. In terms of communication no.PS/MD/ 8339-41 dated 10th March 2016, the earlier communication was superseded with a situation that the agreement required to be drawn with empaneled consultancy firms, shall be work specific only. Per contra, learned counsel for respondents insists that public authorities must be left with same liberty as they have in framing the policies, even while entering into contracts because many contracts amount to implementation or projection of policies of the Government but it cannot be overlooked that unlike policies, contracts are legally binding commitments and that in contracts having commercial element, some more discretion has to be conceded to the authorities so that they may enter into contracts with persons keeping an eye on the augmentation of the revenue. He has placed reliance on Abdul Samad Wani v. Union Territory of J&K, AIR 2021, J&K 174. After hearing both the parties and referring to Judgments of the Supreme Court, the High Court held that “An examination of the afore-noted decisions shows that the golden thread running through all these decisions is that a case for applicability of the doctrine of legitimate expectation, now accepted in the subjective sense as part of our legal jurisprudence, arises when an administrative body by reason of a representation or by past practice or conduct aroused an expectation, which it would be within its powers to fulfil, unless some overriding public interest comes in the way. However, a person, who bases his claim on the doctrine of legitimate expectation in the first instance, has to satisfy that he has relied on the said representation and the denial of that expectation has worked to his detriment. The Court could interfere only if the decision taken by the authority was found to be arbitrary, unreasonable or in gross abuse of power or in violation of principles of natural justice and not taken in public interest. But a claim based on mere legitimate expectation cannot ipso facto give a right to invoke these principles.”

Sr. No. 5 HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT JAMMU CJ Court Reserved on: 11.11.2021. Pronounced on:17.11.2021. Case: LPA No. 219 State of Jammu and Kashmir and others .....AppellantThrough : Sh. Adarsh Bhagat GA. Abdul Majid and others Through : Sh. Ajay Abrol Advocate. Sh. Anirudh Sharma Advocate vice Sh. Rahul Pant Senior Advocate. Sh. Achal Sharma Advocate vice Sh. Sudershan Sharma Advocate HON’BLE THE CHIEF JUSTICE HON’BLE MR. JUSTICE MOHAN LAL JUDGE PANKAJ MITHAL CJ The State of Jammu and Kashmir the Transport Commissioner and the Regional Transport Officer Kathua have together preferred this letters patent appeal against the judgment and order dated 22.11.2018 passed by the writ court allowing SWP No. 2319 2015 Abdul Majid and others v. State of J&K and others holding the petitioners therein entitled to regularization of services in terms of Jammu & Kashmir Civil ServicesAct 2010and as such any regularization within framework of the aforesaid Act is not illegal or against the constitutional mandate. The petitioners respondents on the date of their initial engagement were qualified and eligible for appointment and it is no one’s case that their appointment was de hors the rules or the process prescribed. The brief facts which had led to the filing of the writ petition and consequently this appeal are that that the petitioners respondents were appointed on temporary basis as orderlies in the Transport Department in the year 1999 some in 2002 and 2003 for a period of 89 days but were allowed to continue even thereafter with intermittent break of a day or so. After the enforcement of the above Act as the petitioners respondents have completed 3 LPA No.22 2019 more than seven years of continuous service and have otherwise fulfilled the essential conditions laid down for regularization therein they claimed regularization but their claim was rejected on the ground that they were drawing salary from the contingent fund. The petitioners respondents challenged the aforesaid rejection order and sought direction for regularization by filing SWP No. 250 2013 Abdul Majid and others v. State of J&K and others. The court allowed the aforesaid writ petition on 12.09.2014 and petitioners respondents with the direction to the official respondents to consider their cases for the purposes of regularization strictly in accordance with the aforesaid Act and that the ground that the petitioners respondents were being paid out of the contingent fund would not be a ground for refusing regularization to them. Admittedly the aforesaid order is final and conclusive as it was never questioned by any party in any higher forum. On consideration of the cases of the petitioner respondents for regularization as per the direction of this court the Empowered Committee competent to consider the cases for regularization in its meeting held on 18.05.2015 held that the petitioners respondents have not been engaged against any clear vacancy or post and as such do not fulfill the criteria laid down under Section 5(i) of the Act for regularization. In view of the above order the only ground on which the claim for regularization of services of the petitioners respondents has been rejected is that they were not employed against any clear vacancy or a post. It was also said that though under the Act persons getting salary out of the contingent fund are also not entitled for regularization but this ground was not invoked by the Department probably in the light of the earlier direction of the court. 4 LPA No.22 2019 In view of the aforesaid facts and circumstances basically two grounds have been pressed for denying regularization of services of the petitioners respondents. The first is that they were being paid salary out of the contingent fund and second that they were never appointed against any clear vacancy or post and as such are not entitled for regularization within the meaning of Section 5 of the Act. It is pertinent to mention here that the aforesaid Act came to be enacted and enforced pursuant to the directions of the Supreme Court in the case of Umadeviwhich directed for framing a proper one time scheme for the regularization of temporary workers who have put in over 10 years or more on a sanctioned post. The aforesaid Act envisages to regularize the services of all ad hoc or contractual employees including those appointed on consolidated pay provided they have not been appointed as part time or seasonal employees including those whose wages are paid out of local funds or contingent grants. It further provides that such appointees ought to have been appointed against a clear vacancy or post and that they may have completed 7 years of service on the appointed date. In short a plain reading of Section 3 and Section 5 of the Act provides for the regularization of services of ad hoc or contractual employees including those appointed on consolidated pay if they have been appointed against a clear vacancy or post and have completed 7 years of service provided further that such benefit would not be extended to part time or seasonal employees including those who are being paid out of the local funds or the contingent grants. The issue whether the petitioners respondents were being paid out of the contingent fund had come up for consideration in the first round of litigation i.e. in SWP No. 250 2013 and the order refusing to regularize 5 LPA No.22 2019 services on the above grounds was quashed with the direction to consider the cases of regularization of services of the petitioners respondents afresh strictly in accordance with provisions of the Act and that payment of salary out of the contingent fund would not be a ground for refusal. As stated earlier the aforesaid judgment and order has attained finality and therefore it does not lie in the mouth of the appellants at this juncture to raise again the said issue which stands settled. In fact the said ground was not even invoked by the Department before the Empowered Committee that dealt with the matter of regularization of services of the petitioners respondents. The other issue on which the petitioner respondents have been non suited is that their appointment was not against any clear vacancy or post. In this regard the writ court has opined that no such objection was ever taken by the appellants at any stage in the first round of litigation and as such must be deemed to have been given up or be treated as barred by principle of constructive res judicata. Notwithstanding the above the writ court on the basis of the communication of the Department dated 03.09.2009 recorded a categorical finding that according to the Transport Commissioner all the petitioners respondents were appointed against clear vacancies and therefore the argument has no substance. We have also examined the communication dated 03.09.2009 which is part of the record. It is a letter addressed by the Transport Commissioner to the Commissioner Secretary to the Government for the purpose of considering the cases for regularization of services of the employees of the Department in accordance with the above Act. The said communication contains a chart in the prescribed proforma ‘C’ giving the name of the employees their designation pay date of initial appointment the designation of the appointing authority 6 LPA No.22 2019 whether the person is continuing in service and if his appointment was against a clear vacancy or otherwise. The said chart clearly mentions that the petitioners respondents were appointed against clear vacancy as orderlies on check post on a consolidated remuneration of Rs.1500 per month by the Transport commissioner and that they are continuing in service from the date of their initial appointment. The aforesaid communication clinches the issue regarding the appointment of the petitioners respondents and establishes beyond doubt that as per the own showing of the Transport Commissioner they were appointed against the clear vacancies. In view of the aforesaid facts and circumstances both the grounds that the appointment of the petitioners respondents was not against clear vacancy or post and that they were paid from the contingent fund do not stand substantiated and as such the writ court committed no error of law in holding that they are entitled for regularization of their services under the Act. petitioners respondents states that as their appointment is not against clear vacancy or post they are not qualified for regularization in terms of Section 5 of the Act. The veracity of the said letter has to be judged on the basis of the reasoning recorded therein and that the said reasoning cannot be supplemented by means of pleadings or arguments as has been held by the Apex Court in the case of Mohinder Singh Gill and another v. Chief Election Commissioner and others AIR 1978 Supreme Court 851 wherein it has been laid down that when a statutory authority makes an order based on certain grounds its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. In view of the above dictum the 7 LPA No.22 2019 appellants in fact cannot be permitted to take up any other ground other than refusing regularization on the account of not appointment against clear vacancy or post. It may not be out of context to point out that any intermittent breaks of one or two days in service would not disrupt the continuance in service as such breaks are artificially created. The fact remains that the services continued from day one till the appointed day resulting in completion of seven years of service. The Act contemplates seven years of completed service rather than continuous service and in such a situation intermittent breaks of a day or two or such artificial breaks are meaningless and would not be sufficient to hold that the petitioners respondents do not have seven years of service to their credit. In view of the above decision the submission that the writ court acted contrary to Umadevi’s case and against the constitutional mandate is of no consequence. In fact in holding the petitioners respondents entitled to regularization in accordance with the statutory provisions there seems to be no violation of the constitutional mandate or even the decision of the Apex Court in Umadevi which itself provides for framing of a scheme for one time regularization. The recent decision of the Supreme Court in State of Jammu and Kashmir and others v. District Bar Association Bandipora AIR 2017 Supreme Court 11 that the scheme for regularization framed by the government must be for validating certain irregular appointments and cannot be used to validate illegal appointments and that the court cannot issue direction for regularization without considering the mandate of the Supreme Court and the prevailing rules and regulations on the subject is of no help to the appellants in the present case inasmuch as no illegality has been pointed out at any stage in the appointment 8 LPA No.22 2019 of the petitioners respondents. They may have been irregularly appointed and it is for this reason their cases fell for consideration of regularization in accordance with the statutory provisions of the above Act. The writ court has considered their cases for regularization in the light of the provisions of the Act impinging upon the mandate of the Apex Court. The petitioners respondents have been found entitled for regularization of services in accordance with the prevailing rules and regulations. In view of all that has been said above we find no illegality in the judgment and order passed by the writ court. The appeal as such is bereft of merits and is dismissed with no order as to costs. (PANKAJ MITHAL) JUDGE CHIEF JUSTICE JAMMU Raj Kumar Whether the judgment is reportable :

Conditions under S.50 of the NDPS Act apply only to personal search of the accused: High Court of Karnataka

Procedure of search under S. 50 of the NDPS Act applies only to personal search of the accused. Here in this case, the parcel was seized while the accused was accepting the same from the Postal authorities. It is nothing but catching red-handedly, while the accused was receiving the parcel. This was held in SRI ARJAV DEEPAK MEHTA V. STATE OF KARNATAKA [CRIMINAL PETITION No.8065 of 2020] in the High Court of KARNATAKA by single bench consisting of JUSTICE K.NATARAJAN. Facts are that a police officer registered complaint on information that accused is purchasing and selling psychotropic substances acquired through post. Petitioner while receiving a parcel from the postman was arrested. Two hundred LSD Strips were seized in the presence of panchas by the police officer. Petition is filed by the petitioner under Section 439 of Cr.P.C for bail. The counsel for the petitioner contended that that there was violation of Section 50 of NDPS Act and in support of his contention, he relied upon the judgment of Apex court in the case of Gorakh Nath Prasad vs. State of Bihar. There was no proper weighing done by the raiding authority and field test was not conducted as per the guidelines of NCB. The court made reference to the Supreme Court judgement in State of Himachal Pradesh vs. Pawan Kumar, wherein the Apex court had cited a constitutional bench judgement and had made the following observations, “The above quoted dictum of the Constitution Bench shows that the provisions of Section 50 will come into play only in the case of personal search of the accused and not of some baggage like a bag, article or container, etc. which he may be carrying. Learned counsel for the State has referred to large number of decisions of this Court wherein Section 50 was held inapplicable in the case of search of some baggage or article etc, which was in immediate possession or was being carried by the accused.”

IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 29th DAY OF MARCH 2021 BEFORE THE HON’BLE MR. JUSTICE K.NATARAJAN CRIMINAL PETITION No.80620 SRI ARJAV DEEPAK MEHTA AGED ABOUT 27 YEARS S O DEEPAK MEHTA R AT PRAYAG MANSION FLAT NO.503 5TH FLOOR B.NO.37 No.2 1st MAIN B BLOCK VINAYAKANAGAR KONENA AGRAHARA BENGALURU 560 017 BY SRI ASHOK HARANAHALLI SR. COUNSEL SRI SRINIVASA RAO S.S. ADVOCATE) STATE OF KARNATAKA BY JEEVAN BEEMANAGAR PS BENGALURU 560 001 REPRESENTED BY SPP HIGH COURT BUILDING. BY V.S.HEGDE SPP II) THIS CRIMINAL PETITION IS FILED UNDER SECTION 439 OF THE CODE OF CRIMINAL PROCEDURE PRAYING TO ENLARGE THE PETITIONER ON BAIL IN CR.NO.269 2020 REGISTERED BY JEEVAN THE OFFENCES PUNISHABLE UNDER SECTIONS 20(b) 8(c) 22(c) OF NDPS ACT. POLICE STATION THIS CRIMINAL PETITION HAVING BEEN HEARD AND RESERVED FOR ORDERS ON 23.03.2021 THIS DAY THE COURT PRONOUNCED THE FOLLOWING: This petition is filed by the petitioner accused under Section 439 of Cr.P.C. for granting bail in Crime No.269 2020 registered by the Jeevan Bheemanagar Police Station for the offences punishable under Sections 20(b) 8(c) and 22(C) of the Narcotic Drugs and Psychotropic Substances Act 1985 ‘NDPS Act’ for short). The case of the prosecution is that a case came to be registered on the complaint of one Virupakashaswamy a Police Officer on 12.11.2020 alleging that he received a credible information that some people are purchasing MDMA Crystals Ecstasy Pills Hash LSD Strips through Post from Netherland Poland Germany and other countries and they are selling the same to college students. On the same day he received a message from Vimanapura Post Office that a parcel has come to the Post Office in the name of the petitioner accused. Accordingly at about 2.00 p.m. he went near the house of the petitioner and while the petitioner was receiving the parcel from the Postman while delivering the complainant apprehended the petitioner. Thereafter he seized 200 LSD Strips in the presence of panchas and prepared the panchanama. After apprehending the arrest a case was registered against the petitioner for the aforesaid offences and was remanded to judicial custody. The petitioner approached the Sessions Judge for bail which came to be rejected. Hence he is before this Court. Sri Ashok Haranahalli.S. learned Senior Counsel appearing for petitioner contended that the petitioner is innocent of the alleged offence. He has been falsely implicated in the case. The Police Officer who conducted the search has not followed the provisions of Section 50 of NDPS Act. Though the Police Officer who went alongwith the Assistant Commissioner of Policeis a Gazetted Officer he should not have seized the contraband articles but he should have given the option of right to search to the accused before the rank of a Gazetted Officer or the Magistrate. The ACP himself has seized the contraband articles which amounts to violation of Section 50 of the NDPS Act. He has not informed about the right of search to the accused before the Magistrate or Gazetted Officer. Therefore he prayed for grant of bail. Learned Senior Counsel further contended that the quantity alleged is 200 LSD Strips and the paper weight has also been taken in to consideration but the paper weight should have been excluded. There is no proper weighing done by the raiding authority. The field test has not been conducted as per the guidelines of Narcotics Control Bureau No.1 88. They have to send the samples of seized articles within 72 hours for chemical analysis and the report shall be obtained within 15 days. Even after 4½ months from the date of seizure the report has not been received by the prosecuting agency. Thereby they have violated the procedures to be followed by them as per the guidelines issued by their own Department. Therefore it cannot be presumed that the accused has committed any offence under the NDPS Act. There is no material placed before the Court that the seized article is a contraband article and it is of a commercial quantity in order to bring it under the provisions of Section 37 of the NDPS Act. The petitioner is the permanent resident of Bengaluru and he is ready to abide by the conditions that may be imposed by this Court. Hence prayed for granting of bail. Learned Senior Counsel in support of his argument in respect of violation of Section 50 of NDPS Act and the procedures of Narcotics Control Bureau relied upon the judgments of the Hon’ble Supreme Court High Courts of Delhi Calcutta and Bombay apart from the judgment of a Co ordinate Bench of this Court. Per contra learned SPP II appearing respondent State objected the bail petition and contended that the petitioner purchased the drugs through online booking by opening the Play Store and creating a Dark Web and through Dark Web he has placed the order of purchase of this contraband articles and paid money through Bit Coins. Subsequent to placing of the order the accused deleted the App. It has to be retrieved by the Police. The Technical Team is working for retrieving the deleted messages and collecting the information for placing the order and the payment made through Bit Coins. Though the samples were sent to the Forensic Science Laboratory the Forensic Lab is at Madiwala and it requires much time due to work pressure. The guidelines issued are only for following the same by the Investigating Officer. They have sent the articles within the prescribed time and the result is awaited. The investigation is still under progress. The parcel so seized from the hands of the accused which was delivered from the Post Office does not come under the purview of personal search to show it as violation of Section 50 of the NDPS Act. The ACP who is the rank of Gazetted Officer has given the option to the accused about his right of search before the Gazetted Officer or Magistrate. The accused himself opted for search before the Gazetted Officer and the ACP himself introduced that he is the Gazetted Officer and thereafter the accused has given the consent for search and therefore there is no violation of the mandatory provision of Section 50 of the NDPS Act. A co ordinate Bench of this Court in a similar case considered all the grounds urged by the learned counsel and dismissed the petition. The investigation is still pending. If the petitioner is released on bail the possibility of tampering with the prosecution witnesses and destroying the technical evidence is not ruled out. Hence prayed for dismissal of the bail petition. Upon hearing the arguments and on perusal of the records it shows that the Police Officer Virupakshaswamy along with a team of Police Officers and panchas went to arrest the petitioner accused when the Postman delivered the parcel to the accused on 12.11.2020. While apprehending the accused they informed the accused that they are suspecting if the parcel contains the contraband articles and Narcotic Drugs which is an offence. After questioning the accused about the contents of the parcel they gave an option to the accused whether he wants search before the Gazetted Officer or the Magistrate. For that the accused opted for search before the Gazetted Officer. Then the ACP who accompanied the complainant informed the accused that he is also the rank of a Gazetted Officer and the accused gave consent to search before the ACP. Thereafter the parcel was opened and the ACP saw 200 LSD Strips. They weighed it as 3.95 gms. Later it was weighed with cover which was 50 gms. and after removing the cover it weighed 3.95 gms. They also removed 7 gms. of powder as sample for the purpose of chemical analysis. The same has been mentioned in detail in the seizure panchanama. Thereafter the accused was arrested and remanded to judicial custody. Learned Senior Counsel contended that there is violation of Section 50 of NDPS Act and in support of his contention he relied upon the judgment of the Hon’ble Supreme Court in the case of Gorakh Nath Prasad vs. State of Bihar reported in 2 SCC 305 the judgment of Jammu and Kashmir in the case of Pawan Kumar vs. Union Territory of J & K and another reported in 2020 SCC Online J & K 618 and the judgment of Bombay High Court in the case of Hitesh Hemant Malhotra vs. State of Maharashtra through Vartak Nagar Police Station reported in 2020 SCC Online Bom. 3581. Perused the judgment of the Hon’ble Supreme Court as well as Jammu & Kashmir and Bombay. As regards the violation of mandatory provision the entire procedure of search and seizure has been violated. There is no second though in respect of the guidelines and principles laid down by the Hon’ble Supreme Court in respect of Section 50 of NDPS Act. 10. Even a co ordinate Bench of this Court has held in the case of Dharmasingh vs. State of Karnataka reported in ILR 1992 Kar. 3137 that on the violation of mandatory provision the accused is entitled for bail due to non compliance of mandatory provision prejudice would be caused to the accused. 11. On perusal of the case on hand and the seizure panchanama it is indicated that the Police team gave an option to the accused about the right of search before the Gazetted Officer or Magistrate for that the accused opted for search before the Gazetted Officer and later the ACP informed that he himself is a Gazetted Officer and the accused gave consent and later the search was conducted. It is also pertinent to note that Section 50 of NDPS Act applies to personal search of the accused. In this case the Postal authorities delivered the parcel and the Police apprehended the accused. It is nothing but catching red handedly while the accused was receiving the parcel. The Hon’ble Supreme Court held in the case of State of Himachal Pradesh vs. Pawan Kumar passed on 08.04.2005 in Appeal 222 1997 that Section 50 of NDPS Act has no application when the contraband article was recovered from the bag which was being carried by the accused and Section 50 of NDPS Act applies only in respect of personal search of the accused if the contraband article is kept in the pocket or hidden in the body of the accused persons. The Hon’ble Supreme Court in the case of Pawan Kumar’s case by considering the judgment of the Hon’ble Supreme Court held by the Constitution Bench in the case of State of Punjab vs. Baldev Singh reported in 1999(6) SCC 172 has held at paragraphs 13 and 14 as under: “13. The above quoted dictum of the Constitution Bench shows that the provisions of Section 50 will come into play only in the case of personal search of the accused and not of some baggage like a bag article or container etc. which he may be carrying. 14. Learned counsel for the State has referred to large number of decisions of this Court wherein Section 50 was held inapplicable in the case of search of some baggage or article etc. which was in immediate possession or was being carried by the accused. We do not consider it necessary to burden this judgment by referring to all the authorities cited but would only give a gist of some of the cases which is as under : I. Abdul Rashid Ibrahim Mansuri v. State of Gujarat 2000SCC 513 This is a decision by a Three Judge Bench presided over by Dr. A.S. Anand C.J. who wrote the opinion of the Court in the Constitution Bench decision in State of Punjab v. Baldev Singh. In this case four gunny bags were found in an auto rickshaw which the accused was driving and there was no other person present. The argument based on non compliance of Section 50 as explained in the case of Baldev Singh was rejected on the ground that the gunny bags were not inextricably connected with the person of the accused. II. Madan Lal v. State of H.P. 2003SCC 465It was held that Section 50 would apply in the case of search of a persona as contrasted to search of vehicles premises or articles. III. Gurbax Singh v. State of Haryana 2001 SCC 28 Accused got down from a train carrying a Katta gunny bag) on his shoulder. Held that Section 50 was not applicable. IV. State of Punjab v. Makhan Singh 2004 SCC 453 The accused was apprehended while alighting from a bus with a tin box in his hand in which contraband was found. The High Court acquitted the accused on account of non compliance of Section 50. On the finding that Section will not apply the judgment of the High Court was reversed and the accused was convicted. V. Kanhaiya Lal v. State of M.P. 2000 SCC 380 One kg. of opium was found in a bag which was being carried by the accused. The argument based on Section 50 was rejected on the ground that it was not a case of search of the person of the accused. VI. Birakishore Kar v. State of Orissa 2000 SCC 541 Accused was found lying on a plastic bag in a train compartment. Argument based on Section 50 was rejected on the ground that the accused was sitting on the plastic bag and it was not a case of the search of the person of the accused. VII. Krishna Kanwar v. State of Rajasthan 2004 SCC 608 Held Section 50 applies where search has to be in relation to a person as contrasted to search of premises vehicles articles or bag. VIII. Sarjudas v. State of Gujarat 1999 SCC 508 The accused were riding a scooter on which a bag was hanging in which charas was found Section 50 was held not applicable as it was not a case where the person of the accused was searched. IX. Saikou Jabbi v. State of Maharahstra JT 2003SC 609 Heroine was found in a bag. It was held that Section 50 was not applicable as it applies to search of a person.” The Hon’ble Supreme Court by considering various judgments has held that Section 50 of the NDPS Act applies only to personal search of the accused. Here in this case the parcel was seized while the accused was accepting the same from the Postal authorities. Therefore the contention raised by learned Senior Counsel for the petitioner that there is violation of the mandatory provision is not acceptable. 12. The second contention raised by learned Senior Counsel is that the Police Official has not done field Test in respect of the contraband article and not received the samples. In this regard learned Senior Counsel relied upon the order passed by a Co ordinate Bench of this Court in the case of Kelsi Katte Mahammed Shakir vs. The Superintendent of Customs Bengaluru passed Crl.P.No.5402 2018 wherein it has been held that the instructions issued by the Narcotics Control Bureau to the Investigating Officer to carry the test kit while raiding and getting result from the FSL within 15 days there is violation of the mandatory procedure. Similar view is taken by the same co ordinate Bench in the case of Keval M. Lohith vs. State of Karnataka passed in Crl.P.No.4969 2020 and contended that the petitioner is entitled for bail for not receiving the FSL report within time. However learned SPP II has contended that in a similar case where FSL report was not received a Co ordinate Bench of this Court has rejected the bail in Crl.P.No.7386 2020 dated 06.02.2021. On perusal of the records admittedly the Police raided the accused on 12.11.2020 and seized the contraband articles of 200 LSD Strips and on an enquiry with the accused the accused himself has stated that he has purchased the LSD Stripes from Netherland and it was weighed by the petitioner which contained 3.95 gms. and with cover it weighed 50 gms. Out of which 7 gms. was taken out for test. Though the Police sent the samples to the FSL but the report was not received. The guidelines of Narcotics Control Bureau No.1 88 shows that the result of the sample shall be received within 15 days. This guidelines issued by the Narcotics Control Bureau is for the purpose of the procedure to be followed by the Investigating Officer while dealing with the drug case. It is only guidelines which is directory in nature but not mandatory in nature in respect of receiving the result of the FSL on the samples sent by the Investigating Officer. These guidelines say that the report has to be received within 15 days. The said guidelines are not binding on the FSL to give the result of the samples within 15 days. Since there is only one FSL in Bengaluru for the entire Karnataka and huge number of cases were registered and huge number of samples were sent in a day it is not possible for the FSL to give report within 15 days as per the guidelines issued by the Narcotics Control Bureau to the Police Officials. If at all the guidelines issued by the Narcotics Control Bureau in respect 1 88 instructions should be followed mandatorily then it is the duty of the Narcotics Control Bureau to have their own Forensic Science Laboratory for the purpose of chemical analysis to find out the result within 15 days as per their guidelines. The Central Government also shall make an endeavor to establish separate Forensic Science Laboratory for the purpose of analysis of narcotic drugs within the prescribed time without waiting for long time. Until the Union of India or Narcotic Control Bureau have their own Forensic Science Laboratory the question of getting the result within 15 days is not practically possible. Therefore I hold that getting the result within 15 days is only directory in nature and not mandatory. Therefore merely the result of the sample is not received that itself is not a ground to grant bail to the petitioner. 13. As regards the field test kit being not carried by the raiding officer while going for raid in this regard the Narcotics Control Bureau issued guidelines to the Drug Law Enforcement Officers shall carry the test kit while raiding. But here in this case the Jeevan Bheemanagar Police raided and apprehended the accused and the Police is not a Special Police or Narcotics Control Bureau to carry the narcotic drug kit for conducting field test prior to sending the sample for chemical analysis to FSL. Whether such a narcotic drug kit has been provided to the ordinary Police Station or not is required to be elicited only in the trial but not at this Stage. Here in this case the petitioner was found in possession of 3.95 gms. of LSD strips and as per the Schedule 0.5 gms. is the commercial quantity. Such being the case the contraband article is more than the commercial quantity and the investigation is still pending. Therefore the petitioner is not entitled for bail. 14. Accordingly the Criminal Petition is dismissed. However learned SPP shall make an endeavour to persuade the Home Department to provide Field Test Kits to all the Police Stations in Karnataka if not already provided. He shall also make an endeavour to persuade the Government to establish a separate Forensic Science Laboratory for conducting tests for Narcotic Drugs and contraband articles under the NDPS Act. The Registry is directed to send a copy of this order to the Chief Secretary Government of Karnataka and the Additional Chief Secretary Government of Karnataka Home Department Vidhana Soudha Bengaluru. Sd

Jurisdiction of the High Courts can be invoked if there is no alternative remedy for the petitioner – High Court of Sikkim

The jurisdiction of High Courts under article 226 is applicable only when the other available solutions have been exhausted or are unavailable. Such a power must be exercised only in exceptional circumstances and the discretion of the judges must be within the procedure established. This was upheld by the Hon’ble Mrs. Justice Meenakshi Madan Rai saying, “this Court is aware that the existence of an Arbitration Clause would not divest the High Court of its jurisdiction under Article 226 of the Constitution, neither is the exercise of Writ jurisdiction under Article 226 in a contractual matter ruled out. However, this jurisdiction is invoked when there is no efficacious alternative remedy for the Petitioner” in M/S Linkwell Telesystems Pvt. Ltd. Vs. The state of Sikkim and others [W.P.(C) No.23 of 2021].   The brief facts of the case are the petitioner was allotted the contract for fair price shops in Sikkim. In April, the petitioner sent a notice to the respondents to release funds for the operations. From June, the petitioner paused all the work. The respondents issued a show cause against him citing that the funds had been released in the month of march itself. Aggrieved by this unilateral suspension of services by the petitioner, the respondents terminated the services of the petition and allocated it to a third party. The petitioner appeared before the high court to get such orders and notices quashed. After listening to both the parties, the learned judge observed that clause 7.9 of the contract between both the parties talked about resolution of disputes before an Arbitrator in accordance with the rules of the Indian Arbitration and Conciliation Act, 1996. In Nivedita Sharma v. Cellular Operators Association of India [(2011) 14 SCC 337], the court held that, “However, it is one thing to say that in exercise of the power vested in it under Article 226 of the Constitution, the High Court can entertain a writ petition against any order passed by or action taken by the State and/or its agency/instrumentality or any public authority or order passed by a quasi-judicial body/authority, and it is an altogether different thing to say that each and every petition filed under Article 226 of the Constitution must be entertained by the High Court as a matter of course ignoring the fact that the aggrieved person has an effective alternative remedy”. Relying on the judgement abovementioned and the facts and circumstances of the case, the court dismissed the petition on the ground that there are other alternate remedies available and no exceptional circumstance has been put forth. Click here to read the judgement.

HIGH COURT OF SIKKIM Record of Proceedings Virtual Court No.2 W.P.(C) No.221 M S LINKWELL TELESYSTEMS PVT. LTD. VERSUS PETITIONER THE STATE OF SIKKIM & ORS. RESPONDENTS Date: 09.06.2021 THE HON’BLE MRS. JUSTICE MEENAKSHI MADAN RAI JUDGE For Petitioner Mr. Sajal Sharma Advocate. Mr. Sudesh Joshi Additional Advocate Government Advocate. Gyaltsen For Respondents R 1 & R 2 R 3 O R D E R1. Learned Additional Advocate General for State Respondents No.1 and 2 on advance Notice. 2. Heard Learned Counsel for the Petitioner at length. Briefly the case of the Petitioner is that vide Agreement dated 04.05.2017 the Petitioner was awarded the Contract for the purpose of supply and maintenance of POS Devices POS application installation maintenance integration with the TPDS Software and Automation of Fair Price Shops of the 1421 Fair Price Shops in Sikkim. As per Clause 2 of the said Agreement the Petitioner was to adhere to the Request for Proposal Guidelines and the Service Level Agreement also formed a part of the Agreement. Clauses 2 and 8 of the Agreement were to be read together to determine the rights and liabilities of the parties. 1 | P a g e HIGH COURT OF SIKKIM Record of Proceedings Virtual Court No.2 Clause 7.9 of the RFP contained the Arbitration Agreement as defined under Section 7 of the Arbitration and Conciliation Act 1996. The relevant portion of Clause of 7.9 of the RFP inter alia reads as under “7.9. Resolution of Disputes. FCS&CA Department and the successful bidders shall make every effort to resolve amicably by direct informal negotiation any disagreement or dispute arising between them under or in connection with the contract. Any dispute or difference whatsoever arising between the parties to this Contract out of or relating to the meaning scope operation or effect of this Contract or the validity of the breach thereof which cannot be resolved shall be referred to a sole Arbitrator to be appointed by mutual consent of both the parties herein. If the parties cannot agree on the appointment of the Arbitrator within a period of one month from the notification by one party to the other of existene of such dispute then the Arbitrator shall be nominated by the Secretary Law Department Government of Sikkim “Law secretary”). The provisions of the Arbitration and Conciliation Act 1996 will be applicable and the award made thereunder shall be final and binding upon the parties hereto subject to legal remedies available under the law. Such differences shall be deemed to be a submission to arbitration under the Indian Arbitration and Conciliation Act 1996 or of any modifications rules or re enactments thereof. The arbitration proceedings will be held at Gangtok Sikkim India.” The work was to be taken up by the Petitioner in a phased manner as per the terms and conditions specified in Order No.1804 FCS&CA dated 29.03.2017. The Petitioner commenced the works accordingly. 2 | P a g e HIGH COURT OF SIKKIM Record of Proceedings Virtual Court No.2 By a Letter dated 25.05.2020 addressed to the State Respondent No.2 by the Petitioner the Petitioner raised a Bill of Rs.3 65 01 842.00 only and requested the State Respondent No.2 to release the pending payment within seven days to enable them to run the project besides informing them that the Petitioner may not be able to manage operations beyond 01.06.2020 unless the payments were made over to them for the Bills raised. From the month of June 2020 the Petitioner stopped all works granted to them vide the Contract mentioned That the State Respondent No.2 issued Show Causebearing No.753 F&CSD dated 11.01.2021 reminding the Petitioner that the State Respondent No.2 had released a sum of Rs.1 44 87 880.00 only in March 2017 in favour of the Petitioner as mobilization advance. The Show Cause also stated that from the month of June 2020 without informing the State Respondents No.1 and 2 the Petitioner stopped providing their services resulting in a complete halt in the Public Distribution System through EPOS Machine at Fair Price Shops. That further the unilateral suspension of services is ultra vires the Service Level Agreement. That the discontinuance of services by the Petitioner caused a set back to the State Respondents No.1 and 2 for timely 3 | P a g e HIGH COURT OF SIKKIM Record of Proceedings Virtual Court No.2 implementation of the One Nation One Ration Card Scheme hence they were to explain as to why the Agreement entered on 04.05.2017 should not be terminated. By a Letter also of the same date i.e. 11.01.2021 Annexure 11) the State Respondent No.2 agreed to release payments which were due to the Petitioner in a phased manner. It is the Petitioner‟s case that on 16.01.2021 the response to the Show Cause was given by them. Despite the response to the Show Cause the services of the Petitioner were terminated vide Letter bearing No.801 F&CSD 2021 dated 22.01.2021. Having thus terminated the services of the Petitioner the Respondent No.2 on 02.02.2021 issued “Notice Inviting E Tender” from eligible Bidders for the same works that had earlier been awarded to the Petitioner i.e. Automation of Fair Price Shops in Sikkim. Pursuant to the E Tender the Respondent No.3 was awarded the Contract and Work Order issued on On 24.04.2021 the Petitioner was before the Learned Commercial Court East Sikkim at Gangtok seeking reliefs under Section 9 of the Arbitration and Conciliation Act 1996 the prayers being “i. Kindly issue an ad interim ex parte injunction order to restrain the Respondent from accepting any bid in the Notice Inviting E Tender dated ii. Kindly issue an order of injunction to restrain the Respondent from accepting any bid in relation to the Notice Inviting E Tender dated 02.02.2021 until the 4 | P a g e HIGH COURT OF SIKKIM Record of Proceedings Virtual Court No.2 conclusion of the determination of the controversy between the parties by an Arbitrator. iii. Kindly pass an order quashing the Show Cause Notice bearing No.753 F&CSD dated 11.01.2021. iv. Kindly pass an order quashing Notice of Termination of Service issued by the Secretary Food No.801 F&CSD 2021 dated 22.01.2021. v. Any other order orders that this Hon’ble Court deems fit to pass in the interests of justice.” The reliefs so claimed supra are similar to the prayers made before this Court. Vide an ex parte ad interim Order dated 27.04.2021 the Learned Commercial Court restrained the State Respondent No.2 herein the Secretary Food and Civil Supplies Department who was the Respondent therein from accepting any Bid in connection with the E Tender floated by them on 02.02.2021. Later after hearing both parties by a subsequent Order dated 27.05.2021 the Learned Commercial Court vacated its earlier ex parte ad interim Order dated 27.04.2021. xviii) Learned Counsel for the Petitioner submits that subsequent to the Order dated 27.05.2021 the Petitioner invoked the Arbitration Clause of the Agreement dated 04.05.2017 and sought for appointment of an Arbitrator. The suggested Arbitrator was not agreeable to the State Respondent No.2 and hence further steps in this context are being taken and the process is underway. Having heard and considered the facts placed before this Court admittedly the Petitioner did not impugn the Letter dated 22.01.2021 terminating the Contract. It is also 5 | P a g e HIGH COURT OF SIKKIM Record of Proceedings Virtual Court No.2 admitted that the Petitioner of their own accord stopped the works awarded to them vide the Agreement dated 04.05.2017 from the month of June 2020. Pursuant to the Petitioner having stopped the works the Show Cause Notice dated 11.01.2021 was issued following which the Contract between the Petitioner and the State Respondent No.2 stood terminated on 22.01.2021. Learned Counsel for the Petitioner canvassed the contention that the E Tender dated 02.02.2021 was not assailed as the Petitioner had already written a Letter dated 30.01.2021 to the State Respondent No.2 expressing their willingness to restart the project by mobilizing funds from other projects and internal fund adjustments but sought an assurance from the State Respondent No.2 that pending payments would be cleared. In the interim the Contract came to the awarded to a third party. The Petitioner approached the Learned Commercial Court on 24.04.2021 and is before this Court by way of filing the instant Writ Petition on 31.05.2021 with prayers which are in sum and substance similar in both Courts. 5. It may relevantly be stated here that this Court is aware that the existence of an Arbitration Clause would not divest the High Court of its jurisdiction under Article 226 of the Constitution neither is the exercise of Writ jurisdiction under Article 226 in a contractual matter ruled out. However this jurisdiction is invoked when there is no efficacious alternative remedy for the Petitioner. 6 | P a g e HIGH COURT OF SIKKIM Record of Proceedings Virtual Court No.2 6. The Hon‟ble Supreme Court recently in Bhaven Construction through Authorised Signatory Premjibhai K. Shah vs. Executive Engineer Sardar Sarovar Narmada Nigam Ltd. and Another1 referred to the ratio in Nivedita Sharma v. Cellular Operators Association of India2 and inter alia observed as follows “17. In any case the hierarchy in our legal framework mandates that a legislative enactment cannot curtail a Constitutional right. In Nivedita Sharma v. Cellular Operators Association of India 2011) 14 SCC 337 this Court referred to several judgments and held: “11. We arguments submissions. There cannot be any dispute that the power of the High Courts to issue directions orders or writs including writs in the nature of habeas corpus certiorari mandamus quo warranto and prohibition under Article 226 of the Constitution is a basic feature of the Constitution and cannot be curtailed by parliamentary legislation L. Chandra Kumar v. Union of India 3 SCC 261. However it is one thing to say that in exercise of the power vested in it under Article 226 of the Constitution the High Court can entertain a writ petition against any order passed by or action agency instrumentality or any public authority quasi judicial body authority and it is an altogether different thing to say that each and every petition filed under Article 226 of the Constitution must be entertained by the High Court as a matter of course ignoring the fact that the aggrieved person has an effective alternative remedy. Rather it is settled law that when a statutory forum is created by law for redressal of grievances a writ petition should not be entertained ignoring the statutory dispensation.” emphasis supplied) the procedure established under 18. It is therefore prudent for a Judge to not exercise discretion to allow enactment. This power needs to be exercised in exceptional rarity wherein one party is left remediless under the statute or a clear „bad faith‟ shown by one of the parties. This high standard set by this Court is in terms of the legislative intention to make the arbitration fair and efficient.” 7. In light of the detailed discussions that have emanated supra and in view of the obtaining facts and 1 2021 SCC OnLine SC 8 214 SCC 337 7 | P a g e HIGH COURT OF SIKKIM Record of Proceedings Virtual Court No.2 circumstances in the instant matter as reflected hereinabove I am of the considered opinion that the Petitioner has failed to put forth any exceptional circumstances for invoking the Writ jurisdiction of this Court under Article 226 of the Constitution. 8. The Writ Petition is accordingly dismissed and disposed of. 9. Applications filed along with the Writ Petition if any also stand disposed of. ml ds Approved for reporting : Yes 8 | P a g e

Revisional jurisdiction should be connoted to have a narrower jurisdiction when compared to Appellate Jurisdiction: Bombay High Court

The High Court in revisional jurisdiction should not re-appreciate the evidence as if in the First Appeal and enter different finding even though another finding might also be possible since circumstances in which “appeal” and “revision” are employed in the statute are different. The expression “revision” is meant to convey the idea of a much narrower jurisdiction than that conveyed by the expression “appeal’. This remarkable judgment was recently passed by Bombay High Court in the matter of SHRI SHRIPAD BHASKAR BHAGWAT & OTHERS. V SMT. MANGAL MADHUKAR JOGALEKAR & OTHER. [CIVIL REVISION APPLICATION NO.43 OF 2020] by Honourable Justice Sandeep K. Shinde. This is a Regular Civil Appeal filed by the Applicants and is directed against an eviction decree dated 14th March 2018 passed under the Maharashtra Rent Control Act, 1999 which was dismissed on 25th September 2019, and through this appeal, a revision is preferred by the applicant. The facts of the present case, in brief, are, the regular civil suit was instituted to recover possession of the suit shop on the grounds that premises are reasonably and bonafide required for starting an eatery/hotel and arrears of rent. Suit premises are, two shops and plaintiffs terminated the tenancy and demanded possession of the suit shops, which defendants did not surrender. Plaintiffs alleged that they were running a hotel at Village which they had shut and shifted to Daund and then intended to start hotel in the suit shop premises which the defendants had at their disposal and later sold part of the property to M/s. Chaitanya Developers, for the consideration of Rs.1,12,50,000/-. Courts below concurrently held that during the pendency of the suit defendants sold part of their property to M/s. Chaitanya Developers only after seeking permission for its change of user. However, the need for suit premises being bonafide is an important contention and they alleged conducting business in the name of M/s. Samarth Lodge shows that the plaintiff works as manager in property owned by an uncle and thus the plaintiffs have adequate and suitable premises at their disposal for starting the hotel and therefore, their need for the suit premises is neither reasonable nor bonafide. The Court observed that “In so far as the comparative hardship is concerned, it may be stated that pending suit, defendants have sold out part of the property of commercial potential to Developer for consideration and it has been put to commercial use. Property sold out was in the market area of Daund City. Besides, defendants have admitted, part of the property, i.e., plot no.1 is yet available. As against it, in consideration of the fact that plaintiffs’ family consists of eleven members but they have no suitable premises to start hotel, the issue as regards the comparative hardship as is, answered against the tenants, cannot be faulted with.” Additionally, it was asserted by the court that the High Court in revisional jurisdiction should not re-appreciate the evidence as if in the First Appeal and enter different finding though another finding might also be possible. For this, the court relied on Sri Raja Lakshmi Dyeing Works v. Rangaswami Chettiar to state that “the High Court in revisional jurisdiction should not re-appreciate the evidence as if in the First Appeal and enter different finding though another finding might also be possible.”

on 08 04 2021 on 17 04 5 CRA 43 2020.odt IN THE HIGH COURT OF JUDICATURE AT BOMBAYCIVIL APPELLATE JURISDICTIONCIVIL REVISION APPLICATION NO.43 OF 2020 Shri Shripad Bhaskar Bhagwat& Ors. … ApplicantsVsSmt. Mangal Madhukar Jogalekar& Ors. ... Respondents…Mr. Sugandh B. Deshmukh for the Applicants. Mr. Siddharth C. Wakankar for the Respondents. CORAM : SANDEEP K. SHINDE J. RESERVED ON : 1 st APRIL 2021. PRONOUNCED ON: 8th APRIL 2021.ORAL JUDGMENT : Applicants’ Regular Civil Appeal No.618 directed against the eviction decree dated 14th March 2018 under the Maharashtra Rent Control Act 1999 wasdismissed on 25th September 2019 against which thisrevision is preferred.Shivgan 1 9 on 08 04 2021 on 17 04 5 CRA 43 2020.odt2Facts of the case are as under:.Let me refer the parties as per their status in thesuit i.e. plaintifs and defendants. Respondents plaintifsinstituted Regular Civil Suit No.1510 to recoverpossession of the suit shop premises on the ground thatpremises are reasonably and bonafde required for startingan eatery hotel and arrears of rent. Suit premises are twoshops situated at CTS No.105 Jogalekar Wadi AmbedkarChowk Daund mentioned in paragraph 1A and 1B of theplaint. Suit shop 1A is admeasuring 382 sq.ft. at groundfloor where the defendant no.1 is running grocery shop andshop no.1B admeasuring 332 sq.ft. on the frst floor wherethe defendant nos.2 and 3 are running photo shop. On 6thMay 2010 plaintifs terminated the tenancy and demandedpossession of the suit shops which defendants did notsurrender. Plaintifs’ case is that they were running a hotelat Village: Kashti Taluka: Shrigonda which they had shutand shifted to Daund. That family members who are elevenShivgan 2 9 on 08 04 2021 on 17 04 5 CRA 43 2020.odtin numbers intent to start hotel in the suit shop premises which is in the market and thus it is most ideal location.Plaintifs pleaded their need is genuine. Plaintifs pleaded defendants had at their disposal suitable property atSurvey No.105 A 1 22 2 1 having commercial potential andpending suit defendants sold part of the property to M s.Chaitanya Developers for the consideration ofRs.1 12 50 000 . Thus it is contended that if the decree ofpossession is not passed in favour of the plaintifs greaterhardship would be caused to them. Defendants denied needand requirement of the plaintifs is genuine. They submittedthat plaintifs have other properties at Baramati andadditionally have property at Daund being CTS Nos.1826 to1830 where they are running business of ‘lodging andboarding’. Contention is that plaintifs can start their hotel eatery in the said property. 3The learned trial Court upheld the plaintifs’genuine need and partly decreed the suit. However decreeShivgan 3 9 on 08 04 2021 on 17 04 5 CRA 43 2020.odtwas refused on the ground of arrears of rent.4Heard learned counsel for the parties.5Courts below concurrently held that pending suit defendants tenants sold part of their property to M s.Chaitanya Developers only after seeking permission for itschange of user. Finding is rendered that the property soldby the defendants has had commercial potential and it waslocated in market area. In fact defendant no.1 admitted inthe evidence that part of the property i.e. Plot No.1 is yetin their possession. Undoubtedly evidence of defendantno.1 has established a fact that plot of landsoldby them has been also used for construction of shops. Toarrive at this fnding Courts have relied on the evidence ofshop inspector defendant no.1 besides title documents in respect of the property CTS Nos.1826 to 1830. As againstthis both the Courts rendered a fnding of fact thatplaintifs have established their reasonable and genuineShivgan 4 9 on 08 04 2021 on 17 04 5 CRA 43 2020.odtneed for the suit premises. Defendants countered the needof the plaintifs by contending that plaintifs are inpossession of the property CTS Nos.1826 to 1830 wherethey are conducting business in the name of M s. SamarthLodge. However evidence shows this property waspurchased by Prabhakar Jogalekar paternal uncle ofPlaintifs Nos.2 3 and 4 in his name. But it appears inMunicipal record name of the plaintifs is shown as‘Manager’ of the Samarth Lodge. Thus relying on this fact defendants contended the plaintifs have adequate andsuitable premises at their disposal for starting the hoteland therefore their need for the suit premises is neitherreasonable nor bonafde. Yet the Courts found that theproperty CTS Nos.1826 to 1830 was purchased byPrabhakar Jogalekar and although names of the plaintifsare recorded as ‘Manager’ of the said lodge that itself isnot sufcient to infer hold that it is either owned by theplaintifs and or it is available for starting hotel over there.Therefore in consideration of the evidence Courts belowShivgan 5 9 on 08 04 2021 on 17 04 5 CRA 43 2020.odthave correctly concluded that the plaintifs landlords haveestablished their bonafde need for the suit shops forstarting Hotel in interest of eleven family members.6In so far as the comparative hardship isconcerned it may be stated that pending suit defendantshave sold out part of the property of commercial potentialto Developer for consideration and it has been put tocommercial use. Property sold out was in market area ofDaund City. Besides defendants have admitted part of theproperty i.e. plot no.1 is yet available. As against it inconsideration of the fact that plaintifs’ family consists ofeleven members but they have no suitable premises tostart hotel the issue as regards the comparative hardshipas is answered against the tenants cannot be faulted with. 7The learned counsel for the applicantsstrenuously argued that Courts below ought to havegranted partial decree of eviction in terms of the provisionsShivgan 6 9 on 08 04 2021 on 17 04 5 CRA 43 2020.odtof Section 16(2) of the Maharashtra Rent Control Act. In myview taking into account evidence it cannot be said thatCourts below have failed to exercise the jurisdiction by notgranting decree in respect of the part of the suit premises.8Thus to be stated that fndings recorded by theCourts below is in accordance with law and it is not suferedfrom any error of law. Mr. Wakankar learned counsel for theapplicants has rightly relied on the judgment of the ApexCourt in the case of Sri Raja Lakshmi Dyeing Works v.Rangaswami Chettiar1 to contend that the High Court inrevisional jurisdiction should not re appreciate the evidenceas if in the First Appeal and enter diferent fnding thoughanother fnding might also be possible. Paragraph 3 of thecited judgment reads as under “3 Section 23 of the Tamil Nadu Buildings4 SCC 259Shivgan 7 9 on 08 04 2021 on 17 04 5 CRA 43 2020.odtany case it appears to the High Court that any such decision or ordershould be modified annulled reversed or remitted for reconsiderationit may pass orders accordingly. The language of Section 25 is indeedvery wide. But we must attach some significance to the circumstancethat both the expressions "appeal" and "revision" are employed in thestatute. Quite obviously the expression "revision" is meant to conveythe idea of a much narrower jurisdiction than that conveyed by theexpression "appeal". In fact it has to be noticed that Under Section 25the High Court calls for and examines the record of the appellateauthority in order to satisfy itself The dominant idea conveyed by theincorporation of the words to satisfy "to satisfy" itself Under Section 25appears to be that the power conferred on the High Court UnderSection 25 is essentially a power of superintendence. There fore despitethe wide language employed in Section 25 the High Court quiteobviously should not interfere with findings of fact merely because itdoes not agree with the findings of the subordinate authority. The powerconferred on the High Court under Section 25 of the Tamil NaduBuildingsAct may not be as narrow as therevisional power of the High Court under Section 115 of the CPC but inthe words of Untwalia J. in Dattonpant Gopalverso Devakate v.Vithalrao Marushirao Jenagaval "it is not wide enough to make theHigh Court a second Court of first appeal".” 9Thus having regard to the facts evidence onrecord and fndings being rendered on the cogent andreliable evidence no interference is called for in revisionaljurisdiction.10In the result revision application is dismissed.Shivgan 8 9 on 08 04 2021 on 17 04 5 CRA 43 2020.odt11Mr. Deshmukh the learned counsel for theapplicants submits that let the eviction decree be stayedfor twelve weeks. In view of the facts and the prevailingcircumstances the execution of the decree is stayed for tenweeks. (SANDEEP K. SHINDE J.)Shivgan 9 9

Trial Court should not make any endorsement on original document until the period of limitation to challenge decree has passed: High Court of New Delhi

Trial Court shall not proceed to make any endorsement on the documents which are produced and filed by the petitioner in compliance with the Impugned order till the period of limitation for challenging any decree that may be passed, if at all, against the petitioner has expired and subject to any orders being passed by the Appellate Court in such appeal, if filed by the petitioner. This was held in MS. ANITA CHANDRA v. MR. SUDHIR CHANDRA AND ORS [CM(M) 25/2021] in the High Court of New Delhi by single bench consisting of JUSTICE NAVIN CHAWLA. Facts are that learned Additional District had allowed the application of the respondent no.1 under Section 31 of the SRA, 1963, for a direction to the petitioner to file the documents in original. The application had been made at the stage when the suit was listed for final arguments before the Court. The petitioner has filed petition challenging the order. The learned counsel for the respondent contended that the Court can, at any stage, require the parties to file the documents in original and especially where the authenticity of the documents is in question. He cited judgement of Aktiebolaget Volvo & Ors. vs. R.Venkatachalam & Anr. The court in order to discuss the scheme of the Code of Civil Procedure, 1908 in relation to the Indian Evidence Act, 1872 referred to the judgement of Aktiebolaget Volvo & Ors. vs. R.Venkatachalam & Anr., wherein the following observations were made, “The aforesaid should not be understood as laying down that in all cases the filing of photocopies is enough. If the document is doubtful or for any other reason required by the court to remain in original on the file of the court, the court can always direct so and a party cannot insist on filing of copy only. There may be other instances where filing of the original is necessary, as in the case of documents like Will, Agreements which may be terminated/cancelled by destruction. The courts can in such cases insist upon the original being filed on the record.”

IN THE HIGH COURT OF DELHI AT NEW DELHI Date of Decision: 05.04.2021 CM(M) 25 2021 & CM APPL. 1198 2021 MS. ANITA CHANDRA Through Mr.Abhishek Batra Adv. ..... Petitioner MR. SUDHIR CHANDRA AND ORS Through Mr.Omprakash Adv. ..... Respondents HON BLE MR. JUSTICE NAVIN CHAWLA NAVIN CHAWLA J.This petition has been filed by the petitioner challenging the order dated 16.12.2020 passed by the learned Additional District Judge 03 District East Karkardooma Courts New Delhi in Suit being CS No.2261 2016 titled Sudhir Chandra v. Col. Dinesh Chandra & Anr. allowing the application of the respondent no.1 for a direction to the petitioner to file the documents in original before the Court under Section 31 of the Specific Relief Act 1963 A decree of declaration thereby declaring each of the documents at Annexure A as being CM(M) No.25 2021 Page 1 inoperative and null and void non est b) A decree of cancellation thereby cancelling the General Power of Attorney purportedly dt. 2.7.91 allegedly executed by the plaintiff in favour of defendant No.1 . c) A decree of cancellation thereby cancelling the agreement for sale dt.2.7.91 purportedly executed by the plaintiff in favour of defendant No.1 thereby purporting to agree to sell the Delhi suit property for consideration of Rs.6 d) A decree of cancellation thereby cancelling the affidavit dt.10.9.93 on non judicial stamp paper of Rs.2 bearing No.18988 sold on 9.9.93 executed by defendant No.1 e) A decree of cancellation thereby cancelling the two indemnity bonds executed by defendant No.1 dt.10.9.93 on stamp papers bearing Nos.18985 and 18987 of Rs.10 each. f) A decree of cancellation thereby cancelling the “undertaking” executed by defendant No.1 on 10.9.93 on non Judicial stamp paper of Rs.2 bearing No.18989 purchased on 9.9.93. g) A decree to cancellation thereby cancelling the conveyance deed dt. 15.4.94 executed by President of India through DDA in favour of defendant No.1 registered with the office of Sub Registrar IV Delhi on 19.4.94 vide S.No.1487 Addl. Book No.1 Vol.2525 at pages 103 105. h) A decree of possession in favour of the plaintiff and jointly and severally against the defendant Nos.1 to 3 their servants agents assigns or any other person dealing with them in respect of Delhi suit property comprising of Ground Floor and First Floor admeasuring 370 sq. yds. and bounded as under: 30 wide road Plot No.F 3 Plot No.F 74 Plot No.F 76 East West North South i) A decree for mesne profits and damages in favour of defendant Nos. 1 to 3 for Rs.60 000 p.m. from the plaintiff and against CM(M) No.25 2021 Page 2 the date of filing of the suit till date delivery of possession of the Delhi suit property by defendants to the plaintiff being the damages payable by defendants for their unlawful and unauthorised use and occupation of Delhi suit j) A decree of permanent and perpetual injunction thereby restraining the defendants their servants agents or assigns from in any way dealing with alienating encumbering or parting with possession of Delhi Suit property i.e. property bearing No.F 75 Preet Vihar New Delhi 92 admeasuring 370 sq. yds. and bounded at under: East West North South 30 wide road Plot No.F 3 Plot No.F 74 Plot No.F 76 k) A decree of permanent and perpetual injunction in favour of the plaintiff and against the defendants thereby perpetually restraining the defendants their servants agent or assigns from in any way dealing with alienating encumbering or parting with the possession or the rents of Bulandshahr suit property i.e. five shops situated in Dharam Niwas Civil Lines Bulandshahr U.P. bounded as under: East South Hadudi Singhal Bhawan Kothi At the stage when the suit was listed for final arguments the respondents filed an application seeking filing of the documents in original by the petitioner. The said application has been allowed by the learned Trial Court observing as under: Having heard the submissions and “7. perused the record of the case this court is of the view that defendant Anita Chandra ought to file the original documents in her power and CM(M) No.25 2021 Page 3 possession once final argument are concluded and judgment is reserved. This is imperative in view of section 31 of Specific Relief Act. In the event of the suit being decreed the court would be required to adjudge the document(s) to be void or voidable and order it to be delivered and cancelled . This provision does not instruments(s) document(s) shall be subject to outcome of first appeal. This provision neither states that court will not order document(s) to be delivered and cancelled until and unless the defendant has exhausted all his her remedies under the law after the decree of the trial court. Besides this at this stage it would be too in all probability defendant Anita would go in appeal for the reason that we do not know the future. Cases are not unknown where a party despite not being on the winning side in a lis has preferred not order decree. That apart this does not prejudice defendant Anita. In the event of the suit being dismissed the documents would be released to her. And in the event of the suit being decreed the court would only be doing its duty as enjoined upon it by law. to assume 8. Counsel for defendant Anita Chandra argued that the documents would be mutilated in the court file and as such it would cause irreparable loss to her. This apprehension is being taken care of by asking her to deposit the original documents in her power and possession once final argument are concluded and the judgment is reserved. 9. This application is being disposed of with direction to defendant Anita Chandra to file all the original documents in her power and final argument are possession once concluded and judgment is reserved. However this does not mean that she would not show any original document to the court at the time CM(M) No.25 2021 Page 4 of final arguments in case the court desires to take a look at the same in order to better appreciate the case arguments evidence on record the rival contentions etcetera. List on 16.01.2021 for final arguments. This matter is an old one. Counsels for both the sides are impressed upon to assist expeditious disposal of this case.” the court The grievance of the petitioner in the present petition is that the learned Trial Court could not have taken recourse to Section 31 of the Act for seeking filing of the documents in original by the petitioner. On the other hand the learned counsel for the respondent no.1 submits that the Court can at any stage require the parties to file the documents in original and especially where the authenticity of the documents is in question. He places reliance on the judgment of this Court in Aktiebolaget Volvo & Ors. vs. R.Venkatachalam & Anr. 2009 SCC OnLine Del 1481. I have considered the submissions made by the learned counsels for the parties. In the present case the respondent no.1 has challenged the execution of documents. This Court in Aktiebolaget Volvo has considered the scheme of the Code of Civil Procedure 1908 as also the Indian Evidence Act 1872 and has observed as under: “23. When at the stage of proof of documents requirement under Section 62 of the Evidence Act is only of production of original for inspection of the court Order 13 Rule 1 of the CPC requiring production of originals has to CM(M) No.25 2021 Page 5 be necessarily meant as production of original for inspection of the court and Significantly Order 13 Rule 1 also uses connection with original and "filed" in connection with copies. The different expression used together with definition meaning of produce cited by counsel for plaintiffs also lend me to hold that the original documents are only intended to be produced i.e. to be given inspection of while the copies are to be filed. therefore 24. I scheme of the aforesaid provisions also permits production of originals for inspection only and filing of copies only. the primary document 25. However Order 13 Rule 4 CPC and the practise directions in the trial of suits issued by this court also provide for making of endorsement on documents admitted in evidence. The document which is admitted in evidence original. Is the endorsement of exhibit mark to be made on original only which would again mean placing it on court record In my view no. These provisions are procedural. When the substantive law permits only production for inspection of original once that has been done the endorsement exhibit mark can be put on copy on court record also. CM(M) No.25 2021 Page 6 filing of photocopies 26. The aforesaid should not be understood as laying down that in all enough. If the document is doubtful or for any other reason required by the court to remain in original on the file of the court the court can always direct so and a party cannot insist on filing of copy only. There may be other instances where filing of the original is necessary as in the case of documents like Will terminated cancelled by destruction. The courts can in such cases insist upon the original being filed on the record.” Therefore while filing of the original document is not mandatory at the same time in the present suit as the execution of documents itself is in challenge the Court can and has rightly directed the production of the same in original. At the same time the fear of the petitioner is also germane inasmuch as the learned Trial Court has placed reliance on Section 31 of the Act for directing the production of the documents and has also observed that the same are required to be delivered for purposes of making an endorsement of cancellation incase the respondents are to succeed in the suit. The petitioner therefore rightly apprehends that the decree is passed learned Trial Court would simultaneously proceed to make the endorsement on the documents. 10. Section 31 of the Specific Relief Act reads as under: CM(M) No.25 2021 Page 7 cancellation may ordered. If the instrument has been registered under the Indian Registration Act 1908the court shall also send a copy of its decree to the officer in whose office the instrument has been so registered and such officer shall note on the copy of the instrument contained in his books the fact of its cancellation.” emphasis supplied) 11. A reading of the above provision would clearly show that the Courts have to first adjudicate on the documents in challenge as being void or voidable and thereafter order it to be delivered and cancelled. The decree for the Court would therefore be one of declaration and for a direction to the possessor of the documents to deliver the same for it to be cancelled. The Courts would not at the time of passing of decree itself make such endorsement on the documents merely because the documents are on the record of the Court thereby making the right of the unsuccessful party to appeal against the said decree redundant. To hold otherwise would mean that in case of success in the appeal endorsement made by the Trial Court on the documents in question would have to be cancelled leading to the unwarranted mutilation of the document. Such a course needs to be avoided. CM(M) No.25 2021 Page 8 In view of the above while not interfering with the Impugned Order it is directed that the learned Trial Court shall not proceed to make any endorsement on the documents which are produced and filed by the petitioner in compliance with the Impugned order till the period of limitation for challenging any decree that may be passed if at all against the petitioner has expired and subject to any orders being passed by the Appellate Court in such appeal if filed by the petitioner. 13. The petition is disposed of with the above directions. There shall be no order as to costs. NAVIN CHAWLA J APRIL 5 2021 CM(M) No.25 2021 Page 9

The role of the employer at stage of reference is only administrative and cannot quasi-judicial or judicial function: High Court of Delhi

An employer cannot function in a judicial or a quasi-judicial function with respect to the regulation of its employees irrespective of whether the employer can be classified as an industry or not. This was held in the judgement passed by a single member bench of the High Court of Delhi consisting of Justice Prathiba M. Singh in the case of Sapna v The Government of India [W.P. (C) 8235/2020 & CM Appl. 26694/2020] pronounced on 23rd July 2021. The petitioner, Sapna was working as a sweeper and a peon on daily wage basis for the Ministry of Labour and Employment, Government of India in Rafi Marg, Delhi since 12th May 2007. She was initially performing her duties continuously as an unskilled labourer in the Group-D category. However after the implementation of the 6th Pay Commission, she was classified as Multi-tasking staff and merged with the Group-C category.  On 31st August 2014, the petitioner’s services were terminated after which she filed a statement of claim before the Deputy Labour Commissioner to be referred to the labour court under Section 10 of the Industrial Disputes Act. The petitioner requested the court that she be reinstated  with the back wages and continuity of services. However the Ministry of Labour and Employment submitted that they were executing a sovereign function with the Union of India and could not be classifies as an Industry under the Industrial Disputes Act. The petitioner’s counsel cited the case of All India General Mazdoor Union v GNCTD [106 (2003) DLT 208] where the High Court of Delhi held that an administrative authority does not have the power to reject a claim  and that can only be done by the labour court under Section 10 of the Industrial Disputes Act. The court noted that it was irrelevant whether the Ministry of Labour or Employment was an industry or not as it was not a legal question related to the immediate case at hand. It was further held that the defence that Ministry was of sovereign nature could not be accepted since this sovereign function can anyhow not be stretched to the extent of employment of a sweeper or a peon.

16 IN THE HIGH COURT OF DELHI AT NEW DELHI Date of decision: 23rd July 2021 W.P.(C) 8235 2020 & CM APPL. 26694 2020 Through: Mr. Anuj Aggarwal Advocate. ..... Petitioner JUSTICE PRATHIBA M. SINGH GOVERNMENT OF INDIA & ORS. Through: Ms. Arti Bansal Advocate. ..... Respondents Prathiba M. Singh J.This hearing has been done through video conferencing. The Petitioner in the present petition has challenged the impugned order dated 10th June 2019 passed by the Section Officer Ministry of Labour Government of India by which it has been held that an industrial dispute of a contractual employee working with the Ministry of Labour is not covered under the Industrial Disputes Act 1947as the Ministry of Labour executing a sovereign function for the Union of India is not an “industry” under the ID Act. The reference moved by the Petitioner under Section 10 of the ID Act has been rejected by the Respondent in the following terms: “Sir Conciliation Report No. ALC III 8(95)17 I am directed to refer to the Failure of W.P.(C) 8235 2020 01 03 2018 from the ALC(Delhi) received in this Ministry on 31 01 2018 on the above mentioned subject and to say that prima facie this Ministry does not consider this dispute fit for adjudication for the following reasons: “Industrial dispute of a contractual employee working in the Ministry of Labour is not converted under ID Act as Ministry of Labour executing sovereign function for the Union of India is not an industry as defined under the ID Act 1947.” The brief background of the petition is that she was working as a sweeper peon etc. on daily wage basis from 12th May 2007 up to August 2014 in the Ministry of Labour and Employment Govt. of India located at Shram Sakti Bhawan Rafi Marg Delhi. She claimed to be performing her duties continuously and was an unskilled labourer in the Group D category. She claimed that her position was thereafter designated as MTS i.e. Multi Tasking Staff after implementation of the 6th Pay Commission and was merged with the Group C category. She claimed that the salary etc. were paid to her directly from the Social Security Division of the management. According to the Petitioner her services were terminated on 31st August 2014. Thereafter she filed a statement of claim before the Deputy Labour Commissionerfor being referred to the labour court under Section 10 of the ID Act. The prayer in the said statement of claim was for reinstatement with full back wages and continuity of service with consequential benefits. In the written statement filed before the Labour Commissioner the Ministry took a possession that it is executing a sovereign function with the Union of India and it does not constitute an “industry” under the ID Act. The conciliation proceedings also resulted in a failure and thereafter the impugned order came to passed on 10th June 2019. W.P.(C) 8235 2020 5. Mr. Anuj Aggarwal ld. Counsel appearing for the Petitioner submits that the issue at the time of reference under Section 10 of the ID Act is purely administrative. He submits that the legal question as to whether the Ministry of Labour would constitute an “industry” or not is not an issue which is to be determined at the stage of reference by the said Ministry itself. He submits that this is an issue which would have to be adjudicated upon on merits by the labour court. He thus relies upon the judgment of the Delhi High Court in All India and General Mazdoor Union v. GNCTD 106 2003) DLT 208 to urge that the Ministry cannot by itself decide on merits on question of reference under section 10 of ID Act and not refer the claim to a labour court by holding that the Ministry itself is not an “industry”. This according to him would be completely contrary to law as a determination of an administrative authority cannot result in the rejection of a claim. If the said issue as to whether the Ministry of Labour is an “industry” or not has to be considered it could have only been considered by the appropriate labour court and not by the Government at the time of making a reference to the labour court under section 10 of the ID Act. On the other hand Ms. Bansal ld. Counsel submits that as per the definition of an “industry” under section 2(j) of the ID Act the Ministry itself does not indulge in any manufacturing activity and hence it could not qualify to be an “industry” under the said Act. She accordingly defends the rejection of the reference by the ministry. Heard ld. counsels for the parties and perused the record. This Court has considered the definition of an “industry” under Section 2(j) of the ID Act and has also considered section 10 of the ID Act. W.P.(C) 8235 2020 A perusal of the said definition of “industry” under section 2(j) of the ID Act shows that the definition includes any kind of trade undertaking manufacture or industrial occupation. The role of the Ministry i.e. the employer at the stage of a reference under section 10 of the ID Act is merely refer the dispute to the concerned Court. However the rejection of this reference due to the reason given above is in effect an adjudication which cannot be permissible. Hence the determination as to whether the ministry is an industry or not is a legal question which would have to be decided by a judicial authority. This Court has perused the judgment in All India and General Mazdoor Union referred to by the Petitioner wherein it has been clearly held that the role of the employer at the stage of reference is only administrative and the referring Authority cannot exercise a quasi judicial or a judicial function. The relevant portion of the said judgment is set out below: 4. In my view the above order declining the reference for the aforesaid reasons is not sustainable because by the said order the Secretaryhas proceeded to adjudicate the plea as to whether the circuit House can be treated as an industry as per Section 2(j) of the Act. In my view the aforesaid finding adjudicating the dispute on merits between the parties can only be done by an adjudication under the Industrial Disputes Act and not at the stage of making a reference by the jurisdiction. The Labour Secretary has thus delved into a jurisdiction not vested with him in law. The plea whether the activities of Punjab Bhawan fall within the definition of Industry under S.2(j) of the Act is a plea which can only be raised and adjudicated in a Labour Court Industrial Tribunal. Secretary W.P.(C) 8235 2020 5. In Telco Convoy Drivers Mazdoor Sangh and MANU SC 0605 1989 : IILLJ 558 SC the Hon ble Supreme Court has held a follows: Though in considering the question of making a reference under Section 10(1) the government is entitled to form an opinion as to whether an industrial dispute "exists or is apprehended" but it is not entitled to adjudicate the dispute itself on merits. While exercising power under Section 10(1) of the Act the function of the appropriate government is an administrative function and not judicial or quasi judicial this administrative government cannot delve into the merits of the dispute and take upon itself the determination of the lis which would certainly be in excess of the power conferred on it by Section 10 of the Act." 6. The impugned order adjudicating the question of whether Punjab Bhawan activities were Industry thus clearly runs contrary to the position of law laid down in the aforesaid judgment which view has also been reiterated in Sharad Kumar Vs . Govt. of NCT of Deihi Ors. MANU SC 0313 2002 :8235 2020 8. In the aforesaid judgment in Telco Convoy Drivers Mazdoor Sangh and another Vs. State of Bihar and othersthe Hon ble Supreme Court also held as follows: In several instances this Court had to direct the government to make a reference under Section 10(1) when the government had declined to make such a reference and this Court was of the view that such a reference should have been made. See Sankari Cement Alai Thozhilalar Munnetra Sangam V. Government of Tamil Nadu Ram Avtar Sharma V. State of Haryana MP. Irrigation Karamchari Sangh V. State of M.P. Nirmal Singh V. State of Punjab." 10. Moreover the defence taken in the written statement that the function is sovereign in nature is also quite puzzling inasmuch as sovereign function cannot be stretched to employment of a sweeper or a peon in the Shram Sakti Bhawan where the Ministry of Labour is located. 11. Therefore the impugned order which upholds the defence of the Ministry that it is executing a sovereign function and hence the dispute need not be referred to a labour court is completely untenable. The same is accordingly set aside. 12. Accordingly the Secretary Ministry of Labour and Employment Government of India is directed to make a reference of the disputes raised by the Petitioner to the concerned labour court within a period of four weeks from today. 13. The petition is allowed in the above terms. It is made clear that the observations made in this order would not bind the labour court in any manner which would adjudicate the claim of the Petitioner and the defence taken if any on merits in accordance with law. W.P.(C) 8235 2020 14. The digitally signed copy of this order duly uploaded on the official website of the Delhi High Court www.delhihighcourt.nic.in shall be treated as the certified copy of the order for the purpose of ensuring compliance. No physical copy of orders shall be insisted by any authority entity or litigant. PRATHIBA M. SINGH JUDGE JULY 23 2021 W.P.(C) 8235 2020

Absence of govt. employee without prior permission is a valid ground for dismissal: High Court of Calcutta

When an order by a disciplinary authority of a public institution is passed for removal of an employee on the grounds of unauthorized absence, it cannot be set aside if it is evident that the employee had acted in irresponsibly during the absence. This was decided in the case of Anupam Das Vs. Allahabad Bank & Ors [WPA No. 13189 of 2018] by single bench consisting of Hon’ble Judge Amrita Sinha in the High Court of Calcutta. The facts of the case are that the petitioner was an employee of the Allahabad Bank. A charge sheet was issued against him on five articles of charge all pertaining to continuous absence from work without submission of proper leave application and without obtaining permission of the Competent Authority. It was also alleged that he did not join in his transferred place of posting in violation of the order of his superior authority and also in violation of the order passed by the  High Court. The disciplinary authority conducted an investigation and on perusal of the enquiry report and upon analysis of the witnesses put forth, it concluded, that all the charges leveled against the petitioner was proved. The board imposed the penalty of removal from service. Aggrieved by the order of removal from service, the petitioner has come to this court. The petitioner relies upon the judgment delivered by the Supreme Court in the matter of Krushnakant B. Parmar vs. Union of India & Anr  (2012) 3 SCC 178 where it was held that mere unauthorized absence does not amount to misconduct under the aforesaid.He further said that he was suffering from medical problems and accordingly he was not in a position to join his duties. The absence in such a situation cannot be treated as willful or deliberate. He also contends that the respondents proceeded in a predetermined manner and that the punishment that has been imposed upon him is highly disproportionate. The counsel for the bank/respondent submitted that due opportunity was given to the petitioner to defend himself. Principle of natural justice was duly complied with by the disciplinary authority. The petitioner did not participate in the disciplinary proceeding and ex parte order was passed removing him from service. The petitioner preferred an appeal against the said order but was unsuccessful. Moreover, the letter sent to his residential address was returned with the remark “unclaimed” and the letter sent by e-mail was also not responded by him, though his correspondences with office were made from the same residential address and same e-mail. After considering the contentions put forth by both the sides, the court relied upon the judgement of Supreme Court in the matter of Chennai Metropolitan Water Supply and Sewerage Board & Ors. vs  T. T. Murali Babu  [(2014) 4 SCC 108] “The expression ‘prior permission’ as appearing in the Conduct Regulations has to be given due importance. The service condition of the employee requires a permission to be obtained from the competent authority before he remains absent from work.” The court also observed that the petitioner was handling the foreign exchange services of the bank. Non-reporting to work in such an important department certainly caused inconvenience to the bank. It said “The expression ‘prior permission’ as appearing in the Conduct Regulations has to be given due importance. The service condition of the employee requires a permission to be obtained from the competent authority before he remains absent from work. Remaining absent from 18 work without taking an expressed permission from the competent authority”

IN THE HIGH COURT AT CALCUTTA Constitutional Writ Jurisdiction Present : Hon’ble Justice Amrita Sinha WPA No. 131818 Allahabad Bank & Ors For the writ petitioner Mr. Samim Ahammed Adv Mr. Arka Maity Adv Mr. Utsav Dutta Adv Ms. Saloni Bhattacharya Adv For the respondent Bank Mr. Om Narayan Rai Adv Hearing concluded on Amrita Sinha J.: The petitioner is aggrieved by the order of removal from service passed against him by the disciplinary authority on 14th December 2017 and the order dated 10th May 2018 affirming the same by the The petitioner was an employee of the Allahabad Bank. While he was in service a charge sheet was issued against him on 15th September 2016. There were five Articles of Charge. Article I: He proceeded on leave on several occasions without submission of proper leave application and without obtaining permission of the Competent Authority. Article II: He remained on unauthorized absence from duty upto 15th February 2016. Article III: He remained continuously absent from duty in unauthorized manner since 23rd February 2016 till date Article IV: The letter sent to his residential address on 17th March 2016 was returned with the remark “unclaimed” and the letter sent by e mail was also not responded by him though his correspondences with office were made from the same residential address and same e mail. Article V: He did not join in his transferred place of posting in violation of the order of his superior authority and also in violation of the order passed by the Hon’ble High Court The disciplinary authority was of the opinion that the aforesaid acts of omission and commission committed by the petitioner were in violation of Regulations 3(i) and 3(iii) of the Allahabad Bank Officer Employees’ Regulations 1976 amounting to misconduct under Regulation 24 of the said Regulations The statement of imputation of charges mentioned in details the days on which the petitioner remained absent unauthorizedly. The list of documents and the list of witnesses were also forwarded to the petitioner along with the charge sheet The petitioner did not participate in the disciplinary proceeding and all the letters sent to him by the enquiry officer and the presenting officer returned undelivered. The enquiry conducted ex parte was completed on 24th March 2017 and the enquiry officer submitted his report on 31st August 2017. The disciplinary authority on perusal of the enquiry report and upon analysis of the witnesses put forth in the enquiry concluded that all the charges levelled against the petitioner was proved. The disciplinary authority by order dated 14th December 2017 imposed the penalty of removal from service which shall not be a future employment under Regulation 4(i) of Allahabad Bank Officer Employees’Regulations 1976 herein after referred to as the “D & A Regulations” Aggrieved by the order passed by the disciplinary authority the petitioner preferred an appeal before the appellate authority on 19th January 2018. By an order dated 10th May 2018 the appellate authority dismissed the appeal preferred by the petitioner and upheld the order of the disciplinary authority Being aggrieved the petitioner has filed the instant writ petition The primary contention of the petitioner is that the charge sheet enquiry report findings of the disciplinary authority and the appellate authority does not disclose any misconduct within the meaning of Regulations 3(i) and 3(iii) of the Conduct Regulations He contends that there is no allegation in the charge sheet that his absence was either wilful or deliberate. Mere unauthorized absence does not amount to misconduct under the aforesaid Regulations and hence the charge sheet is vague. In support of the aforesaid contention the petitioner relies upon the judgment delivered by the Hon’ble Supreme Court in the matter of Krushnakant B. Parmar vs Union of India & Anr. reported in3 SCC 178 paragraphs 2 3 4 14 15 16 17 18 and 19 wherein it was held that unless the absence was wilful or deliberate the question of the action being unbecoming of the officer or failure to perform duty does not arise at all The petitioner has relied upon medical documents in support of his absence. He was suffering from medical problems and accordingly he was not in a position to join his duties. The absence in such a situation cannot be treated as wilful or deliberate The petitioner has mentioned in details the reasons for his absence in the appeal preferred by him before the appellate authority He argues that none of the averments made by the petitioner has been disputed by the appellate authority and as such his absence not being wilful or deliberate ought to be condoned and the charge of misconduct is liable to fail The petitioner alleges mala fide at the time of passing of the order of transfer on 1st July 2016 whereby the petitioner was transferred to The petitioner submits that he could not take part in the disciplinary proceeding as the notices were not received by him. He submits that his employer was well aware of his e mail number and the documents ought to have been sent to him through e mail. Non service of the documents relating to his disciplinary proceeding including the enquiry report has caused prejudice to him The petitioner contends that the respondents proceeded in a pre determined manner. On the very day of issuing the charge sheet the employer had declared him to be on unauthorized leave According to the petitioner none of the documents relied upon by the employer were proved by the witnesses. Regulation 6(XIII) of the D A Regulations mandates oral and documentary evidence to be proved by witnesses. That not being done the entire disciplinary proceeding is liable to fail In support of the aforesaid contention the petitioner relies upon the judgment of the Hon’ble Supreme Court in the matter of Ramji Dayawala & SonsLtd. vs Invest Import reported in1 SCC 80 paragraph 16 The petitioner submits that neither the report of the enquiry officer nor the disciplinary authority or the appellate authority contain any independent findings of facts. He submits that he raised as many as ten issues in his appeal before the appellate authority. The appellate authority chose to deal with only issue nos. 1 3 8 9 and 10 and that too while dealing with those issues the relevant evidences were not In this connection the petitioner relies upon the decision delivered by the Hon’ble Supreme Court in the matter of Allahabad Bank & Ors vs Krishna Narayan Tewari reported in 2 SCC 308 paragraph 7 wherein the Court held that in a case where the disciplinary authority records a finding that is unsupported by any evidence whatsoever or a finding which no reasonable person could have arrived at the writ court would be justified if not duty bound to examine the matter and grant relief in appropriate cases. The Court observed that the writ court will certainly interfere with disciplinary enquiry or the resultant orders if the enquiry itself was vitiated on account of violation of principles of natural justice The petitioner argues that the appellate authority failed to appreciate that the order of transfer despite being illegal he intended to join his transferred place of posting but because of health issues he was unable to join. The appellate authority did not deny the aforesaid averment made by the petitioner thereby implying that the reason for not joining the transferred place of posting has been accepted by the by the Court The last contention of the petitioner is that the punishment that has been imposed upon him is highly disproportionate. As the charges against him were vague and not even proved on evidence the punishment is shockingly disproportionate and is liable to be set aside Per contra the learned advocate appearing on behalf of the bank submits that on 14th September 2015 while the petitioner was in office he complained of discomfort and uneasiness. The Branch Manager immediately arranged for medical help and the petitioner was sent to the Calcutta Medical Research Instituteof the Bank to deal with the sudden work load. The petitioner was temporarily posted at the ARMB of the Bank situated in the first floor of the same building where the petitioner was serving. The petitioner was sought to be served with the letter dated March 11 2016 intimating him about his temporary transfer but such attempt failed as the postal envelope addressed to the petitioner returned unserved with the endorsement “unclaimed”. The order of temporary posting was thereafter communicated to the petitioner via e mail. The petitioner did not reply and or respond to the said order of By an order dated 1st July 2016 the petitioner was advised to report at the zonal office Siliguri for receiving posting orders on 4th July 2016 as the Competent Authority of the bank decided to transfer him from the place where he was then posted The bank viewed the action of the petitioner as misconduct and initiated formal disciplinary proceeding against him. The petitioner did not participate in the disciplinary proceeding and ex parte order was passed removing him from service. The petitioner preferred an appeal against the said order but was unsuccessful According to the respondents the disciplinary authority acted strictly in accordance with the provisions mentioned in the D & A Regulations. It has been submitted that due opportunity was given to the petitioner to defend himself. Principle of natural justice was duly complied with by the disciplinary authority. The petitioner for the reasons best known to him did not participate in the disciplinary proceeding. Notices were sent to the petitioner at the address registered in the official record of the bank. The un served letters were returned the endorsement ‘unclaimed’. The bank made a public advertisement in the newspapers and sought to draw the attention of the petitioner. There was no response from his side. The bank was left with no other alternative but to proceed and conclude the disciplinary proceeding ex parte. It has been argued that the scope of review in matters dealing with the disciplinary proceedings of employees under Article 226 of the Constitution of India is extremely limited. The Courts ought not to interfere with the order passed by the disciplinary authority if the same has been passed upon compliance of the provisions of law and principles of natural justice The respondents rely upon the decision delivered by the Hon’ble Supreme Court in the matter of Ram Kumar vs State of Haryana reported in SUPPL SCC 582 paragraphs 7 and 8 and in the matter of National Fertilizers Limited and Another Vs. P.K.Khanna reported in7 SCC 597 paragraph 9 in reply to the argument of the petitioner that the appellate authority did not record any independent reasons at the time of affirming the order passed by the The respondents also rely on the decision delivered by the Hon’ble Supreme Court in Gujarat Electricity Board & Anr. vs Atmaram Sungomal Poshani reported in2 SCC 602 paragraph 4 and in the matter of Tushar D. Bhatt vs State of Gujarat & Anr. reported in 11 SCC 678 paragraph 18 on the issue that an order of dismissal was permissible on the ground of not joining the transferred place of posting Reliance has also been placed on the decision of the Supreme Court in the matter of Maharashtra State Mining Corporation vs Sunil reported in5 SCC 96 paragraphs 2 3 7 8 9 and 10 On the issue raised by the petitioner that the documents placed before the disciplinary authority was not proved in the manner required to be done the respondents relies upon the judgment delivered by the Hon’ble Supreme Court in the matter of Union of India vs H. C. Goel reported in AIR 1964 SC 364 paragraph 23 G.M.S.B.I. vs R. Periyasamy reported in3 SCC 101 paragraph 10 Union of India vs P. Gunasekaran reported in2 SCC 610 and State of Tamil Nadu & Ors. vs S. Subramaniam reported in7 SCC In reply to the contention of the petitioner that the charges mentioned in the charge sheet did not include the charge of absence it has been submitted that there are sufficient charges in the charge sheet clearly indicating unauthorised absence from work. The petitioner was all along aware of all the charges levelled against him. His devotion and sincerity towards his duty were lacking. In such a situation the non recording of the appropriate Regulation dealing with absence will not make the charge sheet bad. In support of the aforesaid contention the petitioner has relied upon the decision of the Hon’ble Supreme Court in the matter of Union Bank of India vs Vishwa Mohan reported in 1998) 4 SCC 310 The respondents pray for dismissal of the writ petition I have heard and considered the submissions made on behalf of both the parties The petitioner was an officer employee of the Allahabad Bank The service of the petitioner was a transferable one. The petitioner on 14th September 2015 fell sick and had to be administered medical treatment. The petitioner reported to work on 13th October 2015 but absented himself on the 15th October 2015 without giving any prior intimation. Since thereafter the petitioner intermittently remained absent from duty without any prior intimation citing health reasons either of himself or his wife. The petitioner did not submit any formal application for obtaining leave. In spite of giving assurance of reporting to duty on a particular day the petitioner did not turn up for work on more than one occasion It appears from records that the petitioner remained absent for eighty one days between 27th November 2015 to 15th February 2016 without submitting any proper application for leave According to Regulation 13 of the Conduct Regulations no officer employee shall absent himself from his duty or be late in attending office or leave the station without having first obtained the permission of the Competent Authority. In case of unavoidable circumstances where availing of prior permission is not possible or is difficult such permission may be obtained later subject to the satisfaction of the Competent Authority It appears in the instant case that the petitioner absented himself from work without obtaining prior permission of the competent authority for days together. The petitioner forwarded a message via email in the morning intimating that he would not be able to report to duty as he was not feeling comfortable. The discomfort of the petitioner was not backed up by medical reports. An officer of the bank ought not to absent himself from duty without any cogent reason. As the petitioner claimed that he was unwell he ought to have submitted proper application(s) for leave along with supporting documents An employee ought to appreciate that he has been appointed employed for a particular purpose for performing certain assigned jobs. Not reporting to duty means that the work which is assigned to the employee has to be performed by some other person as the work of a public authority ought not to be kept pending on account of absence of an employee. The bank in such a case would have been answerable if the work is not performed or completed within the specified time limit. If an employee remains absent from office without giving any prior intimation then it becomes difficult for the employer in the matter of proper administration of the institution. The requirement of prior intimation is for the sole purpose of putting the employer on notice of the absence so that the work may be assigned to some other employee and is not kept pending. In the absence of proper prior notice the employer will not be in a position to assign the work to any other The petitioner was handling the foreign exchange services of the bank. Non reporting to work in such an important department certainly caused inconvenience to the bank. The petitioner by a letter dated 29th December 2015 addressed to the Assistant General Manager of the bank intimated him that there was huge work load and he had verbally requested to reduce his work load. Being aware of the fact that he was holding a responsible post the petitioner ought not to have taken his duty in such a casual and cavalier manner The bank initiated a disciplinary proceeding against the petitioner on account of certain irregularities committed by him. There were as many as five charges mentioned in the statement and articles of charge framed against him. Three out of the five charges relates to his absence from work without obtaining prior permission and without submission of proper leave application. A further charge of not joining his transferred place of posting in violation of the order passed by the High Court Calcutta has also been levelled against him. According to the bank the same amounts to misconduct The petitioner has challenged the same as according to him the Regulation dealing with absence was not specifically mentioned in the articles of charge issued to him. The charge sheet mentioned violation of Regulations 3(1) and 3(3) of the Conduct Regulations. However Regulation 24 relating to misconduct has also been mentioned in the articles of charge Regulation 24 of the aforesaid regulations mentions that a breach of any of the provisions of the Regulations shall be deemed to constitute misconduct punishable under the Regulations. The charges levelled against the petitioner clearly mention the fact of his remaining absent from office without any valid permission and without submitting any documents. The same is in violation of Regulation 13 which certainly amounts to misconduct punishable under the Regulations. 3(1) of the Conduct Regulations is a general provision which mentions that every officer employee shall at all times take all possible steps to ensure and protect the interest of the bank and discharge his duties with utmost integrity honesty devotion and diligence and do nothing which is unbecoming of a bank officer Regulation 3(3) of the Conduct Regulations mentions that no officer employee shall in the performance of his official duties or in the exercise of powers conferred on him act otherwise than in his best judgement except when he is acting under the direction of his official The aforesaid provision lays down the general principles that are required to be followed by all officer employees of the bank. The act of the petitioner in absenting himself from work without any prior intimation is in direct conflict with the provision of Regulation 3(1 Being absent from work without prior intimation cause serious prejudice to the bank and poses problems in the general administration and day to day functioning of the bank. The same is not in the interest of the bank but is against the bank’s interest. Not reporting to work on frequent basis reflects the employee’s lack of devotion and diligence which is unbecoming of the bank officer The expression ‘prior permission’ as appearing in the Conduct Regulations has to be given due importance. The service condition of the employee requires a permission to be obtained from the competent authority before he remains absent from work. Remaining absent from work without taking an expressed permission from the competent authority in advance amounts to misconduct as per the said The petitioner has also not acted in accordance with the order passed by his superior authority. He did not join his transferred place of posting in compliance with the order of his superior authority. The petitioner unsuccessfully challenged the order of transfer before this Court. In the order dated 23rd August 2016 passed in W.P. No. 16506 W) of 2016 filed by the petitioner the Court specifically records that there is no question of staying the impugned order of transfer and the petitioner must report to Siliguri within ten days failing which the bank shall be at liberty to pass proper order including initiation of disciplinary proceeding against him. The disciplinary proceeding against the petitioner was initiated only after he did not comply with the direction passed by the High Court The notice of show cause and the subsequent letters and notices were communicated to the petitioner at the address which was mentioned in his official records. The same returned unserved with the endorsement “unclaimed”. The bank has relied upon Regulation 20 of the D & A Regulations which mention that every order notice and other process made or issued under the Regulations shall be served in person on the officer employee concerned or communicated to him by registered post at his last known address. Admittedly the notices and the processes of the disciplinary proceeding were communicated to the petitioner at his last known recorded address. The same returned unserved. The bank thereafter made a public announcement in the newspaper. The petitioner did not respond to the same. The petitioner tried to make out a case that the bank ought to have communicated the notices and the processes via e mail as the petitioner regularly communicated with his superior officers via e mail. The said contention of the petitioner cannot be accepted as the mode of service of notice has been clearly mentioned in the D & A Regulations of the bank. Serving a copy via e mail may be as a supplementary communication in addition to the prescribed mode of communication but the same cannot be treated as the primary and the only mode of communication. If the mode of communication as prescribed in the Regulations has been followed by the employer then the same has to be accepted as a valid communication irrespective of the fact whether a supplementary additional communication over e mail was made or not. It was the bounden duty of the petitioner to intimate the bank about his proper address and his change of address. The petitioner never recorded his present address in the official records maintained by the bank. It has been submitted by the bank that as many as twenty letters sent to the recorded address of the petitioner returned unserved The petitioner contends that as there is a separate Regulation dealing with absence from duty the bank ought to have invoked the same and thereafter proceeded accordingly. As the bank did not invoke Regulation 13 accordingly the charge of absence from duty cannot be attributed to the petitioner. It has further been submitted that the petitioner all along provided the reason for not reporting to duty to his superior officer. The absence was not wilful and in the absence of a finding that the petitioner remained wilfully absent from duty the period during which he did not report for duty ought not to have been treated as unauthorized. The petitioner has relied upon the judgment delivered in the case of Krushnakant B. Parmar in support of his The Supreme Court in the matter of Chennai Metropolitan Water Supply and Sewerage Board & Ors. vs T. T. Murali Babu reported in 4 SCC 108 paragraph 23 has laid down that the views expressed in the case of Krushnakant B. Parmarhas to be restricted to the facts of the said case regard being had to the real position the nature of the charge levelled against the employee and the material that had come on record during the enquiry. It cannot be stated as an absolute proposition in law that whenever there is a long unauthorized absence it is obligatory on the part of the disciplinary authority to record a finding that the said absence is wilful even if the employee fails to show the compelling circumstances to remain absent The said decision has practically denuded the precedential value of the decision in Krushnakant B. Parmar2 SCC 570 para 14 on the issue of proof of documents. The Supreme Court in the said matter held that the departmental proceeding being a quasi judicial proceeding the charges levelled against the delinquent officer must be found to have been proved. It is the duty of the enquiry officer to arrive at a finding upon taking into consideration the materials brought on record by the parties. Merely tendering the documents without proving the contents thereof will not amount to the documents being proved. The petitioner submits that as the disciplinary proceeding was held ex parte the documents relied upon by the management witness were merely tendered and not proved. Accordingly no reliance can be placed on the In reply to the aforesaid contention the respondents submit that the fact of the case of Roop Singh Negiis different from the facts of the case at hand. It has been submitted that the documents relied upon by the bank were the records of the bank comprising of the attendance register the official communications and the letters and certificates produced by the petitioner. The said documents are of great evidentiary value and there is no requirement for proving the aforesaid documents separately at the time of proceeding with the departmental proceeding. The said documents were enough proof to pass order against the petitioner this connection the respondent has relied upon Constitution bench judgment delivered by the Supreme Court in the matter of H.C. Goel R. Periyasamy P. Gunasekaran supra) S. Subramaniamon the issue that under Article 226 of the Constitution the High Court cannot consider the question of adequacy or sufficiency of evidence in support of a particular conclusion. If there is some evidence to arrive at the finding the Court will not question the same. Here there are evidences galore against the The respondents rely upon the judgment delivered by a three judge Bench of the Hon’ble Supreme Court in the matter of Bhavnagar University vs Palitana Sugar Mills Ltd. & Ors. reported in 2003) 2 SCC 111 paragraph 59 on the issue that a decision is an authority for which it is decided and not what can logically be deduced therefrom. A little difference in facts or additional facts may make a lot of different in the precedential value of a decision The respondents rely upon the judgment delivered by the Hon’ble Supreme Court in the matter of Ram Kumar vs State of Haryana reported in 1987(Supp) SCC 582 para 7 and 8 and the judgment of the Supreme Court in the matter of National Fertilisers Ltd. & Anr. vs P.K. Khanna reported in 7 SCC 597 para 9 wherein the Court held that when the punishing authority agrees with the findings of the enquiry officer and accepts the reasons in support of such finding it is not necessary for the punishing authority to again discuss the evidence and come to the same finding as that of the enquiry officer and give the same reasons for the findings. The Court held that the disciplinary authority is required to give reasons only when the disciplinary authority does not agree with the finding of the enquiry officer The respondents rely upon Regulation 7(2) of the D & A Regulations wherein it is mentioned that the disciplinary authority shall if it disagrees with the finding of the inquiring authority on any article of charge record its reasons for such disagreement and record its own findings on such charge. In the instant case as the disciplinary authority accepted and agreed with the findings of the inquiring authority accordingly there is no requirement for recording further reasons for agreeing with the findings of the inquiry officer The Supreme Court in Gujarat Electricity Board & Anr. vs Atmaram Sungomal Poshani held that whenever a public servant is transferred he must comply with the order and failure to act in compliance with the transfer order would expose him to disciplinary action under the relevant rules. In the said case the respondent lost his service as he refused to comply with the order of transfer from one place to another. The Court was of the opinion that the respondent acted in an irresponsible manner in not complying with the order of transfer which led to his discharge from service In Tushar D. Bhatt the Court reiterated the aforesaid contention. The Court also reiterated the settled legal position that absence from duty without proper intimation is a grave offence warranting removal from service The primary charge against the petitioner in the case at hand is that he remained absent from service without any prior intimation for days together and further failed to act in accordance with the direction given by the superior authority. By order dated 23rd August 2016 passed in W.P. No. 16506of 2016 filed by the petitioner the prayer of the petitioner for staying the impugned order of transfer was categorically refused by the Court with direction to the petitioner to report to Siliguri within ten days failing which the bank shall be at liberty to pass proper order initiation of disciplinary proceeding against him While deciding the case of T.T. Murali Babu the Court relied upon the views expressed by the Court in the case of State of Punjab vs P.L. Singla reported in8 SCC 469 and was of the opinion that the unauthorized absence of an employee as a misconduct cannot be put into a straight jacket formula for imposition of punishment and the extent of the punishment will depend upon the nature of service the position held by the employee the period of absence and the cause explanation for the absence The petitioner has submitted that the punishment imposed upon him is highly disproportionate It is settled law that the Court in review of the punishment imposed upon an employee is not entitled to interfere with the same unless the punishment imposed shocks the conscience of the Court. In the instant case the petitioner being an officer employee of the bank held a responsible post. He ought not to have absented himself for days together citing trivial reasons without any supporting documents Forwarding a communication in the morning intimating the superior officer that he will not attend the office as he was not feeling well cannot be accepted to be a valid application for leave. Absenting from work for days together without any prior intimation and without any supporting document is certainly misconduct on the part of the petitioner A three judge bench of the Supreme Court in SBI vs Ramlal Bhaskar reported in 10 SCC 249 made it succinctly clear that in a proceeding under Article 226 of the Constitution the High Court does not sit as an appellate authority over the findings of the disciplinary authority and so long as the findings of the disciplinary authority are supported by some evidence the High Court does not re appreciate the evidence and come to a different and independent finding of the evidence In the instant case it is clearly evident that the petitioner remained absent without any prior intimation and without supporting documents. The explanation given by the petitioner for his absence not being found satisfactory disciplinary proceeding was initiated against him. The petitioner was given several opportunities to defend himself in the said disciplinary proceeding which the petitioner failed to avail as he did not receive the letters and the notices which were sent to him The petitioner moved out from his residential address as recorded in the official records of the respondent authority and did not care to incorporate his present address in the official records. The public notices published by the bank in the newspapers were also not responded to by the petitioner and thereby he lost the chance of defending himself before the disciplinary authority The Supreme Court in the matter of Vishwa Mohan (supra emphasised that in the banking business absolute devotion diligence integrity and honesty needs to be preserved by every bank employee and in particular the bank officer. If it is not observed the confidence of the public depositors would be impaired The petitioner being an officer employee of the bank ought to have been more diligent and should have acted in a responsible manner with absolute devotion. The action of the petitioner does not reflect the above qualities. The Court does not find any reason to interfere with the order passed by the disciplinary authority duly affirmed by the appellate The writ petition accordingly fails and is hereby dismissed Urgent certified photocopy of this judgment if applied for be supplied to the parties or their advocates on record expeditiously on compliance of usual legal formalities Amrita Sinha J

The principal of multiplier is applicable in case of 20% permanent disability incurred in a motor vehicle accident: Bombay High Court

The claimant is entitled to receive compensation by applying the principal of multiplier in addition to the compensation granted by the Hon’ble tribunal for the 20% permanent disability incurred during the motor vehicle accident, in addition, interest @7.5% on the whole amount from the date of institution of the claim till the realization such an opinion was given by the Hon’ble Bombay High Court before Hon’ble Justice V. M. DESHPANDE in the case of The Oriental Insurance Co. Ltd. vs Rameshwar Daulatrao Shinde [FIRST APPEAL NO.354/2010]. The facts of the case were related to a judgment passed by learned Member, Motor Accident Claims Tribunal, Akola dated 08.12.2009 in M.A.C.P. No.233/2004. The appellant was a  Sectional Engineer who while proceeding for his official duty via motorcycle he met an accident with a tractor who was duly insured by the respondent insurance company. As a result of the accident, the petitioner incurred several injuries along with a 20% permanent disability. The Hon’ble High Court was of the view that the learned Tribunal was erroneous in its judgment and award by reason of not applying the principal of multiplier and not granting interest. Furthermore, the Hon’ble High Court also held “The appellant will be entitled to receive compensation as granted by learned Member, Motor Accident Claims Tribunal, Akola. In addition to that, the appellant will be entitled to Rs.1,09,200/- and also interest at the rate of 7.5% per annum on the amount ready deposited. In addition to that, interest on Rs.1,09,200/- from the date of petition till its realization.” Click here to read the judgment. Judgment Reviewed by: Rohan Kumar Thakur The facts of the case were related to a judgment passed by learned Member, Motor Accident Claims Tribunal, Akola dated 08.12.2009 in M.A.C.P. No.233/2004. The appellant was a  Sectional Engineer who while proceeding for his official duty via motorcycle he met an accident with a tractor who was duly insured by the respondent insurance company. As a result of the accident, the petitioner incurred several injuries along with a 20% permanent disability. The Hon’ble High Court was of the view that the learned Tribunal was erroneous in its judgment and award by reason of not applying the principal of multiplier and not granting interest. Furthermore, the Hon’ble High Court also held “The appellant will be entitled to receive compensation as granted by learned Member, Motor Accident Claims Tribunal, Akola. In addition to that, the appellant will be entitled to Rs.1,09,200/- and also interest at the rate of 7.5% per annum on the amount ready deposited. In addition to that, interest on Rs.1,09,200/- from the date of petition till its realization.” Click here to read the judgment. Judgment Reviewed by: Rohan Kumar Thakur The Hon’ble High Court was of the view that the learned Tribunal was erroneous in its judgment and award by reason of not applying the principal of multiplier and not granting interest. Furthermore, the Hon’ble High Court also held “The appellant will be entitled to receive compensation as granted by learned Member, Motor Accident Claims Tribunal, Akola. In addition to that, the appellant will be entitled to Rs.1,09,200/- and also interest at the rate of 7.5% per annum on the amount ready deposited. In addition to that, interest on Rs.1,09,200/- from the date of petition till its realization.” Click here to read the judgment. Judgment Reviewed by: Rohan Kumar Thakur Furthermore, the Hon’ble High Court also held “The appellant will be entitled to receive compensation as granted by learned Member, Motor Accident Claims Tribunal, Akola. In addition to that, the appellant will be entitled to Rs.1,09,200/- and also interest at the rate of 7.5% per annum on the amount ready deposited. In addition to that, interest on Rs.1,09,200/- from the date of petition till its realization.”

on 30 10 2021 on 02 11 1fa354.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYNAGPUR BENCH AT NAGPURFIRST APPEAL NO.354 2010Arvind Rajaram Nikhade aged about 55 years Occ. Service r o Balvant Colony Near Mitra Nagar Kaulkhed Road Akola Tq. Dist. Akola. .....APPELLANT...V E R S U S...1The Oriental Insurance Co. Ltd. Akola through its Divisional Manager Rayat Haveli Old Cotton Market Akola Tq. Dist. Akola.2.Rameshwar Daulatrao Shinde Aged about adult Occ. Tractor Owner r o Warla Tq. Dist. Washim....RESPONDENT S Mr. C. A. Joshi Advocate for appellant.Mr. P. N. Khadgi Advocate for respondent no.1.Mr. A. A. Choube Advocate for respondent no.2. CORAM: V. M. DESHPANDE J. DATED : 28.10.2021 ORAL JUDGMENT1.Heard Mr. Joshi learned counsel for appellant Mr.Khadgi learned counsel for respondent no.1 and Mr. Choube learned counsel for respondent no.2 owner of offending vehicle. on 30 10 2021 on 02 11 2fa354.odt2.Cause for giving rise to the filing of the present appealis judgment passed by learned Member Motor Accident ClaimsTribunal Akola dated 08.12.2009 in M.A.C.P. No.233 2004. Theappellant is Sectional Engineer. While proceeding for his officialwork to village Kumbhi on motorcycle bearing registration No.MH 30 C 5677 he met with an accident near village Pimpalgaon.The offending vehicle was tractor owned by respondent no.2having registration No. MH 30 I 5259 which was duly insuredwith respondent no.1 Oriental Insurance Company Ltd. Due toaccident appellant suffered injuries and was required to be anindoor patient in various hospitals and he has suffered 20%permanent disability.3.The appellant approached to the Claims Tribunal byfiling claim petition under Section 166 of the Motor Vehicles Act.The said was registered as MACP No. 233 2004. In the said claimpetition appellant claimed Rs.10 00 000 as compensation fromrespondent in the said claim petition. On being noticed insurancecompany as well as the tractor owner appeared and filed theirwritten statements. The common thread of their defence was thatthe appellant also contributed in the accident. In addition to the on 30 10 2021 on 02 11 3fa354.odtsaid it was the defence of the insurance company that the tractordriver was not holding license and therefore i.e. the breach ofcondition of the policy. Therefore the insurance company is notliable for payment of compensation.4.Parties went for trial. The appellant entered intowitness box. He was thoroughly cross examined. He alsoexamined one witness Dr. Abhay Kashinath Patil OrthopedicSurgeon as his witness. Nobody entered into the witness box forand on behalf of insurance company. However respondent no.2examined one Santosh Savant as witness. This Santosh Savant atthe relevant time was driving the vehicle and by examining saidSantosh Savant respondent no.2 has in fact challenged the claimof insurance company that the driver was not holding the license.5.After appreciation of the pleadings documents andevidence as brought on record the learned Member MACT videjudgment and award dated 08.12.2009 partly allowed the claimput forth by the appellant. According to award respondent nos.1and 3 were held to be jointly and severally liable to paycompensation of Rs.3 34 000 inclusive of interim compensation on 30 10 2021 on 02 11 4fa354.odtunder Section 140 of the Motor Vehicles Act. It was also observedby the learned Member of the Tribunal that the appellant will beentitled to claim interest at the rate of 9% p.a. in case insurancecompany and the tractor owner fail to deposit the compensationas directed within a period of 60 days.6.Felt aggrieved thereby appellant has filed presentappeal. According to learned counsel for appellant compensationgranted to him is inadequate. On the other hand learned counselfor the insurance company submitted that the tribunal has grantedjust and adequate compensation. Further the respondents did notchallenge the finding recorded against them.7.In view of the rival submissions made before this Court following points arise for determination. Sr.No.PointsAnswer1Whether the compensation as awardedby Motor Accident Claims Tribunal infavour of the appellant is just andadequate In the negative2. What order As per final order on 30 10 2021 on 02 11 5fa354.odt8.There is no dispute in this case that the appellant wasdischarging his duty as Sectional Engineer with Public WorksDepartment Sub Division Mehkar District Buldhana. From theimpugned judgment itself it is clear that the learned Member ofthe Tribunal has assessed the income of the appellant on the basisof his monthly salary as Rs.14 000 which is not seriouslychallenged. The learned Tribunal has granted compensation byconsidering 20% disability. While considering the income by 20% disability the learned Member has not applied the multiplierwhich is seriously challenged before this Court. The law is wellsettled on this aspect. It would be useful to refer here theauthoritative pronouncement of the Honb’le Court in SandeepKhanuja Vs. Atul Dande & anr. reported in 2017Mh. l. J. 1.Paragraph nos.12 and 13 thereof are as under:“12.We may observe at the outset that it is now asettled principle repeatedly stated and restated time andagain by this Court that in awarding compensation themultiplier method is logically sound and legally wellestablished. This method known as principle of multiplier has been evolved to quantify the loss of income as a resultof death or permanent disability suffered in an accident.Recognition to this principle was given for the first time inthe year 1966 in the case of Municipal Corporation of Delhi v.Subhagwanti & Ors.3 SCC 649. Again in Madhya on 30 10 2021 on 02 11 6fa354.odtPradesh State Road Transport Corporation Bairagarh Bhopal v.Sudhakar & Ors. 3 SCC 64 the Court referred to anEnglish decision while emphasising the import of thisprinciple in the following manner: “4. A method of assessing damages usually followedin England as appears from Mallet v. McMonagle 1969 ACJ 312is to calculate the netpecuniary loss upon an annual basis and to “arrive atthe total award by multiplying the figure assessed asthe amount of the annual ‘dependency’ by a numberof ‘year s purchase’ that is the number of years thebenefit was expected to last taking into considerationthe imponderable factors in fixing either the multiplieror the multiplicand...” 13.While applying the multiplier method futureprospects on advancement in life and career are taken intoconsideration. In a proceeding under Section 166 of theAct relating to death of the victim multiplier method isapplied after taking into consideration the loss of income tothe family of the deceased that resulted due to the saiddemise. Thus the multiplier method involves theascertainment of the loss of dependency or themultiplicand having regard to the circumstances of the caseand capitalising the multiplicand by an appropriatemultiplier. The choice of the multiplier is determined bythe age of the deceased or that of the claimant as the casemay be. In injury cases the description of the nature ofinjury and the permanent disablement are the relevantfactors and it has to be seen as to what would be theimpact of such injury disablement on the earning capacityof the injured. This Court in the case of U.P. State Road on 30 10 2021 on 02 11 7fa354.odtTransport Corporation & Ors. v. Trilok Chandra & Ors.(1996) 4 SCC 362 justified the application of multipliermethod in the following manner:“13. It was rightly clarified that there should be nodeparture from the multiplier method on the groundthat Section 110 B Motor Vehicles Act 1939(corresponding to the present provision of Section168 Motor Vehicles Act 1988) envisaged payment of‘just’ compensation since the multiplier method is theaccepted method for determining and ensuringpayment of just compensation and is expected tobring uniformity and certainty of the awards made allover the country.” The multiplier system is thus based on thedoctrine of equity equality and necessity. A departuretherefrom is to be done only in rare and exceptional cases.”9.In view of the aforesaid in my view learned Member MACT has committed error in observing that since the learnedMember is considering 20% disability it is not necessary to applymultiplier in this case. Therefore that finding needs to be upset inthis appeal.10.Similarly the learned Member in my view has erredin not granting interest. The learned Member has granted 9%interest if the insurance company or tractor owner fail to depositawarded amount in the Court within 60 days. That itself shows on 30 10 2021 on 02 11 8fa354.odtand speaks that the learned Member has disallowed the claim ofthe interest of the appellant. In my view the appellant will beentitled for the interest also.11.In view of the aforesaid in addition to the amountwhat is already awarded in favour of the appellant followingamount will have to be awarded additionally.Rs.14 000 salary per month X 12 Months =1 68 000 20% disability i.e. Rs. 8400 . Rs.8400 will have to be multiplied by the multiplier.12.Now what should be the multiplier in this case. As perExh. 51 which is case summary age of the appellant is recordedby the doctor as 49 years. Similarly Exh. 52 is the certificategiven by Vidarbha Neurosurgical and Spinal Institute Akola. Thatalso shows that age of the appellant in the year 2004 was 49years. The appellant adduced his evidence in the year 2008 andthat time he gave his age as 52 yeas.13.In view of the documentary evidence in the nature ofthe certificates issued by the doctor which is not challenged by on 30 10 2021 on 02 11 9fa354.odtthe insurance company the Court can safely come to theconclusion that at the time of accident the appellant was agedabout 49 years.14.In view of the law laid down by the Hon’ble Apex Courtin Sarla Verma and Ors. .vs. Delhi Transport Corporation and anr.Reported in 6 SCC 121 the multiplier will be 13.Therefore 8400 X 13 = 1 09 200 . Thus this is the amount forwhich the appellant will be entitled in addition to the amountalready awarded in appeal. Plus he will be entitled to interest atthe rate of 7.5% p.a. on the amount which is already awarded bythe Tribunal. Consequently following order is passed.ORDER(i)The appeal is partly allowed.(ii)Judgment and award dated 08.12.2009passed in Motor Accident Claims Petition No.233 2004 is set aside to the extent of not grantingcompensation by applying the principal of multiplierand not granting interest.(iii)The appellant will be entitled to receivecompensation as granted by learned Member MotorAccident Claims Tribunal Akola. In addition to that the appellant will be entitled to Rs.1 09 200 and alsointerest at the rate of 7.5% per annum on the amount on 30 10 2021 on 02 11 10fa354.odtalready deposited. In addition to that interest onRs.1 09 200 from the date of petition till itsrealization.(iv)Statement of learned counsel of theinsurance company is accepted that the insurancecompany will deposit the amount as granted in thisjudgment before the tribunal within a period of 2 ½months from today.After the amount is deposited theappellant would be entitled to withdraw the same.(v)Decree be drawn up accordingly. JUDGEkahale

Residents of Jammu and Kashmir can approach the NHRC in case of any Human Right Violation: Jammu & Kashmir High Court

In case of any Human Right violation the residents of Jammu and Kashmir can approach the National Human Rights Commission. As under the J&K Reorganization Act, the Human Rights Commission of the Union Territory has ceased to exist. The Jammu and Kashmir High Court presided over by J. R. Bindal & J. P. Gupta laid this ratio in the case of Sandeep Mawa vs. Union of India & Ors., [WP(C) PIL No. 17/2020]. The brief facts of this case are that a Petition was filed in the High Court regarding an encounter in which 3 labourers were killed. The FIR initially registered stated that it was an encounter carried out against terrorist. Later, the Armed Forces released a press report stating that the encounter was fake. The Petitioner filed this petition quoting that this was a “blatant violation of human rights.” The Petitioner cited the landmark judgment of People’s Union for Civil Liberties Vs. State of Maharashtra & Extra Judicial Execution Victims’ Families Association Vs. Union of India and stated that the guidelines laid down by the Supreme Court of India are not being followed which will eventually lead to destruction of evidence if immediate steps are not taken in this case. Further, after the J&K Reorganization Act, 2019 the J&K State Human Rights Commission has ceased to exist and despite Section 21 of Protection of Human Rights Act, 1933, mandating a Human rights commission in every Union Territory, Jammu & Kashmir does not have any commission.   The High Court in this case observed that a Petition filed by the parents of the deceased have a similar prayer and so this petition cannot be entertained. The Court stated that “once the parents of the deceased can approach this Court by filing a writ petition prior in time, they can always raise whatever grievance they have. In such a situation, public interest petition filed by a third party cannot and should not be entertained as he has no locus or cause of action to raise that dispute. It cannot be said to be in larger public interest as the guidelines for investigation in such type of cases have already been laid down by Hon’ble the Supreme Court in the cases referred to by the petitioner himself.” The Court with respect to the issue of Human Rights Commission was of the opinion that “Prior to the enactment of the Reorganization Act, the Jammu & Kashmir Protection of Human Rights Act, 1997 was applicable in J&K. In exercise of powers conferred thereunder, the J&K State Human Rights Commission had also been constituted, which was wound up after the enactment of the Reorganization Act. The residents of J&K, if having any grievance regarding violation of their human rights, may have to approach the National Human Rights Commission.” Further the court referred to the notification issued by the Ministry of Law and Justice on 07.02.2019, that the Court of Principal Sessions Judge of each district has been designated as Human Rights Courts. Lastly, with respect to setting up State Human Rights Commission, the court observed that, “The matter in that regard especially with reference to the provisions of Section 21(7) of the Act of 1993 needs to be examined by the Government so that proper remedies are available with the aggrieved persons, who are having any grievance regarding violation of their human rights.” The writ petition stands disposed of, accordingly.

Serial No. 206 HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR WP(C) PIL No. 17 2020(Through Video Conferencing) Sandeep Mawa …Petitioner(s) Through: Mr. Salih Pirzada Advocate Pronounced on: .12.2020 Reserved on: 16.12.2020 Union of India and others ….Respondent(s) Through: Mr. T. M. Shamshi ASGI for the respondent Nos. 1 to 3. Coram: HON’BLE THE CHIEF JUSTICEHON’BLE MR. JUSTICE PUNEET GUPTA JUDGE The present petition has been filed for claiming the following “a) By a writ of Certiorari The investigation initiated by J&K Police related to the Shopian Fake Encounter of 18.07.2020 involving the victims namely Ibrar AhmadMohammed Ibrarand lmtiaz Ahmad residents of District Rajori J&K may be quashed as being illegal and in contravention to the law laid in Extra Judicial Execution Victims Families Association v. Union of India3 SCC622. 2 WP(C) PIL No. 17 2020 By a writ of Mandamus a) The appropriate investigating agency may be directed to register FIR to investigate the matter in terms of law and as per the guidelines formulated under Article 141 in People s Union for Civil Liberties v. State of Maharashtra10 SCC 635. b) The investigation of the case may be entrusted to a Special Investigating Team constituting members other than from J&K Police monitored by this Hon ble Court in furtherance to the dictum of law Extra Judicial Execution Victims Families Association v. Union of India 8 SCC 417 and People s Union for Civil Liberties v. State of MaharashtraRespondent No. 6 may be directed to preserve the graves of the victim from any tampering pending investigation of the d) Respondent no.1 may be directed to constitute a High Powered Committee to analyze the aspect of criminalizing Custodial Killings and Fake Encounters by way of a special e) Respondent no. 1 may be directed to constitute the State Human Rights Commission and Human Rights Courts in terms of Section 21 and 31 respectively in the territory of d) Respondent no. 1 may be directed to pay a compensation of Rs. 1 crore each to the family of the victims.” The learned counsel for the petitioner submitted that in the case in hand the petitioner a public spirited person is the Chairman of J&K Reconciliation Front and a Kashmiri Pandit. He submitted that there was 3 WP(C) PIL No. 17 2020 blatant violation of the human rights in the fake encounter where three labourers namely Ibrar Ahmad Mohammed Ibrar and lmtiaz Ahmad aged about 16 21 and 26 years respectively were killed on 18.07.2020 at Shopian. FIR No. 42 of 2020 was registered at Police Station Hirpora Shopian. It was termed as an encounter with the terrorists. However was found to be fake. This was even admitted by the subsequent press release given by the Armed Forces. Referring to the judgments of Hon‟ble the Supreme Court in People s Union for Civil Liberties v. State of Maharashtra10 SCC 635 Extra Judicial Execution Victims Families Association v. Union of India 3 SCC 622 and People’s Union for Civil Liberties v. State of Maharastra 10 SCC 635 the learned counsel for the petitioner submitted that the guidelines laid down therein by Hon‟ble the Supreme Court in exercise of powers under Section 142 of the Constitution of India are not being followed. The entire evidence will be destroyed in case immediate action is not taken in the matter. Further argument made is that after the promulgation of the Jammu and Kashmir Reorganization Act 2019 for short Reorganization Act‟) the Jammu and Kashmir State Human Rights Commission ceased to exist and presently there is no Human Rights Commission in the Union Territory of J&K though Section 21 of the Protection of Human Rights Act 1993 provides for constitution of Human Rights Commissions in every State and the Union Territory. In the absence of a Forum the aggrieved parties are not able to get 4 WP(C) PIL No. 17 2020 redressal of their grievances. He further submitted that in terms of Section 30 of the 1993 Act Human Rights Courts are to be constituted at all places. Needful has not been done. On the other hand Mr. T. M. Shamshi learned ASGI appearing for respondent Nos. 1 to 3 submitted that the petitioner has filed the present petition raising a personal dispute with reference to three persons who were allegedly killed in an encounter with forces. He has no authorization to raise the dispute. He further submitted that the parents of the deceased have already filed writ petition being WPNo. 320 before the Jammu Bench of this Court wherein different reliefs have been claimed. They are already pursuing the remedies available to them with reference to the aforesaid cause of action. Hence the petition filed in public interest should not be entertained. In fact the petitioner neither has any locus nor any cause of action to raise the dispute. The same is not in larger public interest as the petitioner has referred to only one particular case. As far as the Constitution of the Human Rights Commission is concerned submission of the learned counsel for the respondents is that Section 21 of the Act of 1993 does not provide for constitution of a Human Right Commission in Union Territory as the same talks about constitution of a Commission in the States. The persons aggrieved can always approach the National Human Rights Commission. Heard learned counsel for the parties and perused the paper book. 5 WP(C) PIL No. 17 2020 As far as the prayers made by the petitioner in the present petition are concerned the same have already been extracted in paragraph 1 of this judgment. It would be out of place that if the prayers made in WP(Crl) No. 320 filed by the parents of the deceased is not extracted hereunder to have a glance at the same with reference to the prayers made by the petitioner in the writ petition: “i) Writ of Habeas Corpus directing the respondents to produce sons of the petitioners namely Imtyaz Ahmad Abrar Ahmad and Mohammad Ibrar in the Court. ii) Writ in the nature of Mandamus commanding the respondents to share the whereabouts of their sons who are missing since 18.07.2020 when petitioners lost contact with their sons with a further Writ commanding the respondents to lodge F.I.R. in the matter and investigate the truthfulness of encounter surfaced on the social media and if it is so. Writ in nature of Mandamus commanding respondents to hold a judicial enquiry under the supervision of Hon‟ble High Court so that guilty be punished and family be compensated appropriately.” A perusal of the aforesaid prayers shows that first prayer is for a writ of Habeas Corpus for producing the sons of the petitioner who were missing since 18.07.2020. Second was to lodge FIR and investigate the matter regarding truthfulness of the encounter as appeared in the social 6 WP(C) PIL No. 17 2020 media. Further prayer was made to hold judicial enquiry under the supervision of this Court so that the guilty can be punished. If the prayers made by the petitioner in the present petition are considered viz a viz the prayers made in the writ petition filed by the parents of the deceased it would be evident that most of the prayers are common. Hence a separate petition filed by the petitioner claiming the same to be in public interest cannot be entertained. Merely adding certain judgments of Hon‟ble the Supreme Court laying guidelines with reference to the investigation of the persons killed in encounter will not make any difference as the matter raised by the parents of the deceased persons is already pending consideration in this Court and the provisions of law applicable or any judgment with reference to the subject matter can always be cited even if the same is not quoted in the pleadings. The claim made is with reference to a specific incident for which the petitioner has not been authorized by the aggrieved party to raise a dispute. Further once the parents of the deceased can approach this Court by filing a writ petition prior in time they can always raise whatever grievance they have. In such a situation public interest petition filed by a third party cannot and should not be entertained as he has no locus or cause of action to raise that dispute. It cannot be said to be in larger public interest as the guidelines for investigation in such type of cases have already been laid down by Hon‟ble the Supreme Court in the cases referred to by the petitioner himself. 7 WP(C) PIL No. 17 2020 As far as the Constitution of Human Rights Courts in the Union Territory of J&K is concerned needless to add that vide notification dated 07.02.2019 issued by the Department of Law Justice and Parliamentary Affairs Government of J&K the Court of the learned Principal Sessions Judge of each district has been designated as Human Rights Courts. Hence the grievance of the petitioner to that extent does not survive. As far as constitution of the State Human Rights Commission in Union Territory of J&K is concerned a perusal of Section 21 of the 1993 Act provides for Constitution of a Human Rights Commission in the States. After enactment of the Reorganization Act the Jammu and Kashmir ceases to be a State as now it is a Union Territory w.e.f. 31.10.2019. Section 21(7) of the Act of 1993 which is now applicable in J&K provides that the Central Government may by order confer upon the State Commission the functions relating to human rights being discharged by the Union Territories other than the Union Territory of Delhi for which the powers remain with the National Human Rights Commission. Prior to the enactment of the Reorganization Act the Jammu & Kashmir Protection of Human Rights Act 1997 was applicable in J&K. In exercise of powers conferred thereunder the J&K State Human Rights Commission had also been constituted which was wound up after the enactment of the Reorganization Act. The residents of J&K if having any grievance regarding violation of their human rights may have to approach the National Human Rights Commission. 8 WP(C) PIL No. 17 2020 The matter in that regard especially with reference to the provisions of Section 21(7) of the Act of 1993 needs to be examined by the Government so that proper remedies are available with the aggrieved persons who are having any grievance regarding violation of their human The writ petition stands disposed of accordingly. JUDGE CHIEF JUSTICEWhether the order is speaking: Whether the order is reportable: rights. .12.2020

It is not a father’s ambition that defines the standards for selection in the Indian Army – Delhi High Court

In the case of Dhruv Jakhar Vs Union of India & Ors. [W.P. (C) 5622/2020] Hon’ble Justice Rajiv Sahai and Justice Asha Menon advised the father of the petitioner to allow his son the freedom to choose his life path and allow him to blossom forth in whatever he so chooses, which is certainly not the Indian Army. The petitioner joined the Indian Military Academy for his Pre-Commissioning Training to join the Indian Army as a Commissioned Officer but the petitioner was subjected to ragging and as a result had to be admitted to a hospital. The grievance of the petitioner is also with regard to the conduct of the Honour Code Committee proceedings. According to him, it was illegally constituted from 08 GC Members from the same Battalion, whereas, as per the Rules, they were supposed to be from different Battalions to ensure transparency and prevent miscarriage of justice. Secondly, this Honour Code Committee was attended by the Coy Cdr against whom the petitioner had complained. Further, a Major from the Manekshaw Battalion was nominated as the Presiding Officer of the Honour Code Committee and indirectly exercised influence on the Junior Officers. The petitioner further claimed that on account of the fear exerted by the Coy Cdr who used to start shouting at the petitioner whenever he started to speak in front of the Honour Code Committee. Court observed that, “The Honour Code Committee has been properly constituted and proceedings fairly conducted and decision taken fairly. The petitioner had claimed that the Honour Code Committee had comprised of GCs from the same Battalion. However, the records that were maintained contemporaneously show that the members of the Honour Code Committee were drawn from three other Coys. The Coy Cdr Lt.Col. Yuvraj Malik was not involved in the proceedings. His presence has been noticed only during the questioning/evidence recording.” Court further ennunciated that, “The explanation offered by the petitioner for failure in the three Physical Tests may appear plausible but for the fact that the records reveal that the fundamental cause of failure was the obesity of the petitioner. The petitioner has not been able to clear the ‘toe-touch’ and other Physical Tests despite opportunities during the mandatory and compensatory attempts and even in the Commandant’s Review attempt. This would also show that the petitioner has been granted fair opportunity to clear his Physical Tests. Despite counselling in this regard, the petitioner seems to have not taken adequate measures to reduce his weight. By no means were his instructors acting with bias or vindictiveness if they expected a cadet to withstand rigorous physical challenges.”

IN THE HIGH COURT OF DELHI AT NEW DELHI W.P.5622 2020 Date of Decision: 29th September 2020 DHRUV JAKHAR Through: Mr. Karan Dewan and Ms. Petitioner Aanchal Jain Advs. UNION OF INDIA & ORS. Through: Mr. Satya Ranjan Swain CGSr.C with Mr. Sameer Sinha GP with Major Katoch Legal Cell HON BLE MR. JUSTICE RAJIV SAHAI ENDLAW HON BLE MS. JUSTICE ASHA MENON VIA VIDEO CONFERENCING] JUSTICE ASHA MENON W.P.(C) 5622 2020 & CM APPL. 20364 2020The petitioner is a young aspirant to the Indian Army and has filed this petition with the following prayers: “(i) Writ order in the Nature of Certiorari to quash and set aside the withdrawal letter dated 16.01.2020 and or ii) Writ order in the nature of Mandamus directing the Respondents to take back the Petitioner in the training at the IMA for clearing of the remaining three PT tests and W.P.5622 2020 that on qualifying the same be restored to the original seniority of the 145 Regular Course at par with his Coursemates with all the Consequential Reliefs .....” The facts as are relevant for the disposal of the present petition are as follows. After clearing the Combined Defence Services Examination conducted by the Union Public Service Commission UPSC) and the interview conducted by the Service Selection Board SSB) including medical fitness the petitioner joined the Indian Military Academyon 8th July 2017 for his Pre Commissioning Training to join the Indian Army as a Commissioned Officer. But it appears that his stay has not been very happy as is evident from the averments. The petitioner was subjected to ragging and was admitted to the hospital from 17th July 2017 to 26th July 2017. On 27th July 2017 he also filed a complaint against the ragging and the inhuman treatment that he had been subjected to by his seniors. This seems to have been a harbinger for things to follow. Even as per the petitioner he was subjected to punishments for various infractions right from the First Term of six months. In routine the petitioner should have passed out after completing his course as a Commissioned Officer in a year and a half by the end of 2018. He did complete his First Term successfully and was promoted to the Second Term along with his batch mates in the 143rd Regular Course IMA. However a week before the Second Term came to an end in May 2018 the petitioner was served with a Notice to Show Cause as to why he should not be ‘Relegated’ for having accumulated 60 Restrictions in two W.P.5622 2020 terms from 8th July 2017 to 30th May 2018. Despite his reply the petitioner was ‘Relegated’ and completed his Second Term after repeating it with the 144th Regular Course IMA. According to the petitioner without losing heart or motivation he focused on his training and was promoted to the Final Third Term on 7th January 2019. However on 7th March 2019 the petitioner was served with another Show Cause Notice asking him to explain as to why he should not be ‘Relegated’ to a batch junior for having accumulated 65 Restrictions in two consecutive terms. Despite his request for a fortnight’s time to reply and the supply of copies of the Administrative Instructions of HQ ARTRAC and other documents he was not provided the time nor the documents. Rather in an arbitrary manner the Commandant IMA relegated the petitioner from the 144th Regular Course IMA to the 145th Regular Course IMA. Though the petitioner claimed that he had been unjustly punished and that the punishments were absolutely disproportionate to the alleged offences and were illegal and were imposed against the principles of natural justice and in violation of the Policy issued by HQ ARTRAC he once again commenced his training in his Final Term on 8th July 2019 in Zojila Coy Manekshaw Battalion. According to the petitioner despite his sincere and best efforts he was unnecessarily targeted and singled out by his Company Commander 5622 2020 Honour Code Committee on 9th September 2019 against the petitioner. The grievance of the petitioner is also with regard to the conduct of the Honour Code Committee proceedings. According to him it was illegally constituted from 08 GC Members from the same Battalion whereas as per the Rules they were supposed to be from different Battalions to ensure transparency and prevent miscarriage of justice. Secondly this Honour Code Committee was attended by the Coy Cdr against whom the petitioner had complained. Further a Major from the Manekshaw Battalion was nominated as the Presiding Officer of the Honour Code Committee and indirectly exercised influence on the Junior Officers. The petitioner further claimed that on account of the fear exerted by the Coy Cdr who used to start shouting at the petitioner whenever he started to speak in front of the Honour Code Committee he submitted a written statement on 15th September 2019. The written statement was resubmitted on 24th September 2019 regarding non adherence to Rules because of the presence of his Coy Cdr during the proceedings of the Honour Code Committee. 7. With regard to the final Physical Training tests the petitioner submitted that these tests were slated for 7th November 2019 in the morning during PT time. However the previous night on the directions issued by the Coy Cdr Zojila Coy the petitioner was made to stand outside the Battalion Duty Officer’s room in Full Pack 08 with 40 Kgs of sand and bricks filled into it from 2300 hours to 0200 hours. As a result the petitioner was completely exhausted and he could not perform to the best of his physical capacity. That was the reason why he failed in three of the PT tests namely ‘Toe Touch’ ‘Rope’ and ‘Vault’ and he sought W.P.5622 2020 another chance to clear these tests. Then suddenly on 9th November 2019 the petitioner states he was called by his Battalion Commander and awarded several restrictions in one go which were awarded with back dates. These illegal punishments in the form of 26 restrictions awarded by the Bn Cmdr sealed the future of the petitioner and were only intended to ensure that the petitioner gets withdrawn from the IMA. Instead of providing him with another chance to clear the remaining PT tests as requested the petitioner was issued another Show Cause Notice on 19th November 2019 asking him to explain and show cause as to why he should not be ‘Relegated’ for failure to attain requisite minimum standard in Physical Training and subsequently withdrawn as per Para 70(a)(ii) of the HQ ARTRAC. Once again the petitioner asked for 14 days to submit his reply and in the meantime to be afforded one last chance to appear in the PT tests and if he cleared the same to be permitted to be passed out of the IMA as a Commissioned Officer on 7th December 2019. However despite making this request the petitioner was ‘Relegated’ and subsequently ordered to be withdrawn from the IMA on 23rd November 2019. In the backdrop of these facts the petitioner has sought the quashing of the withdrawal letter dated 16th January 2020 and further directions to the respondents to permit the petitioner to clear the remaining PT tests and on qualifying the same to be restored to the original seniority of the 145th Regular Course IMA. 10. The pleadings have been reproduced in some detail as the learned counsel for the petitioner laid emphasis on these averments to submit that the petitioner was a capable person who has faced challenges stoically W.P.5622 2020 and his sincere efforts reflected his keenness to serve the country and merely because of the prejudice and vindictiveness of his superiors the petitioner should not be denied fulfilment of his dreams. The respondents dispute these allegations and in turn claim that the Officers at the IMA had given every kind of support to the petitioner to improve his attitude and performance and yet the petitioner could not fit into the discipline required for a life in the Indian Army and was also found physically unfit particularly because of being over weight and that action has been taken strictly as per the Rules and upon the third Relegation withdrawal was the only course left with the IMA. It has to be clearly understood that we cannot go into a factual investigation into the truthfulness of these allegations. Nevertheless vide order dated 25th August 2020 we issued the following directions: “Though for the aforesaid reasons we are not inclined to entertain this petition but since the counsel for the respondents Indian Army accompanied by Major Katoch from the Legal Cell of the respondents Indian Army appears to have all records before them and on the basis of which they have been refuting the factual contentions of the petitioner particularly as to the constitution of the Honour Code Committee we deem it appropriate to go through the said records before deciding whether the petition deserves to be entertained or not. Major Katoch to deliver to the residence of one of us the complete records leading to the impugned order dated 16th January 2020 including the Administrative Instructions and other instructions and Policy Documents if any in accordance wherewith the actions leading to the impugned order dated 16th January 2020 have been taken.” W.P.5622 2020 12. These records have since been delivered at the residence of one of us5622 2020 14. With regard to the accusation that there is no record of the punishments imposed nothing could be farther from the truth. Suffice it to note that the punishments have been recorded since the year 2017 right up to 2019 and reveal that the petitioner had been subjected to various punishments by various authorities for various offences and not just by the Coy or Bn Cdr. The dates have been recorded and the names of the officers who had imposed the punishments are also recorded along with the reasons for the imposition of such punishments. 15. The father of the petitioner Lt.Col. P S Jakhar had made a fervent plea to consider the case of his son leniently as the commissioning of his son as an Officer of the Indian Army meant a lot to him as it would be the 4th generation from his family to join the Indian Army. While it may be possible for us to sympathize with the Lt.Col. but it is not a father’s ambition that defines the standards for selection as a Commissioned Officer in the Indian Army. The records reveal that the petitioner was finding it difficult to settle into the regimented and highly disciplined lifestyle at the IMA. Right through from October 2018 to August 2019 the petitioner was counselled mainly focused on the need for discipline. The petitioner used to absent himself from training and special and critical events by malingering or reporting sick. It was this absenteeism and lying about the reasons for such actions that led to several of the punishments as also the Honour Code Committee being constituted against him. 16. That the petitioner lacks the temperament is amply evident from the fact that from his First Term in September 2017 right till August 2019 the petitioner was repeatedly missing from training schedules. W.P.5622 2020 From November 2017 he had been punished for arguing with Senior Officers. Throughout his Second Term he absented himself from not only Physical Training but also from the performance of his punishments. He was punished for misbehaviour too. Repeatedly he was found disregarding the chain of command and punishments did not seem to bring about the desired result. Right from the First Term till the 3rd Relegation the petitioner continued committing the same kind of offences which were in the areas most crucial to the Armed Forces namely building physical and mental strength and developing utmost and unquestioned discipline in following the orders of the superiors. In fact the perusal of his statement given in writing to the Honour Code Committee reflects the same disdain for discipline. It is indeed far fetched to allege as the petitioner has that the punishments given to him between 9th November 2019 and 11th November 2019 totaling 26 were illegal and intended to make up for a shortfall in restrictions to throw him out of the IMA. In fact they were founded on the conclusions of the Honour Code Committee which found him guilty of making false statements to cover up an offence and levelling false allegations against the Coy Cdr and for disobeying orders to undergo punishments. The use of language and the insistence that he was right whereas everybody else was wrong and levelling accusations that the Honour Code Committee was also biased and predetermined in its attitude to the petitioner in this written statement underscores the correctness of the decision of the IMA to withdraw him from the Academy. It is amply clear to us that the petitioner is not suited to a military lifestyle and possibly the desires of his father pushed him into this W.P.5622 2020 direction. There is no doubt that the petitioner has struggled to meet the expectations of his father. The father would be well advised to allow his son the freedom to choose his life path and allow him to blossom forth in whatever he so chooses which is certainly not the Indian Army. The petitioner and his father would do well to accept the decision of the IMA gracefully and utilize all the learning in the 2 years spent by the petitioner at the IMA to work towards a bright future in any other chosen field. 19. There is no merit in the present petition which is accordingly ASHA MENON J. RAJIV SAHAI ENDLAW J. SEPTEMBER 29 2020 W.P.5622 2020

The petitioner was released on bail  after being arrested under Sections 414/34IPC and 30(a)(d) of the Bihar Prohibition and Excise Act 2016:High court of Patna

The petitioner was taken into custody and was held behind bars under Sections 414IPC, “Assisting in concealment of stolen property”, section 34 IPC, “Acts done by several persons in furtherance of common intention” and 30(a)(d) of the Bihar Prohibition and Excise Act 2016, “Penalty for unlawful manufacture, import, export, transport, possession, sale, purchase, distribution, etc. of any intoxicant or liquor.” This is in connection with Roghopur (Rustampur OP) PS Case No. 97 of 2020 dated 23.06.2020 This judgment was given in the high court of Judicature at Patna by honorable Mr. Justice Ahsanuddin Amanullah on the 3rd  of August 2021 in the case of Kapleshi Rai @ Kapeshi Rai @ Papleshi Raiand versus the state of Bihar criminal miscellaneous No. 37479 of 2021, Mr. Ravish Represented as the advocate for the petitioner and Mr. Ajit Kumar represented as the additional Public Prosecutor, for the state of Bihar the proceedings of the court were held via video conference. The following are the facts of the case, the petitioner along with 10 others were accused of dealing in the business of liquor and the police on prior information had visited the venue, the accused ran away on seeing the cops and left behind their two motorcycles, and according to the police, 40 liters of countrymade liquor was recovered by the police from the motorcycle, they also recovered drums used for making country-made liquor which is considered illegal in the state of Bihar The counsel for the petitioner held before the court that this accusation is made merely on suspicion and the petitioner has been falsely implicated, there is no reliable identification or evidence to prove the petitioner was one among the persons who had run away earlier on seeing the police. The counsel further submitted that the motorcycle does not belong to the petitioner and the petitioner has no connection to the place where the liquor was recovered, further, the petitioner has no criminal antecedent, therefore in the absence of evidence to connect the petitioner to the recovered liquor and accuse him under section 76 (2) of the Bihar Prohibition and Excise Act 2016 would not be applicable in the present case. The Additional Public Prosecutor submitted that during recovery of the liquor, the name of the petitioner was held as one of the persons who fled away from the place, and therefore the accusation was made. After considering the facts and circumstances of the case the court held that the petitioner is released on bail upon furnishing bail bonds of Rs. 25,000 with two sureties of the like amount each to the Additional Sessions Judge-II-cum-Excise Court, in connection with PS Case No. 97 of 2020, subject to the conditions laid down in Section 438(2) Cr.P.C., 1973 “(i) that one of the bailors shall be a close relative of the petitioner, (ii) that the petitioner and the bailors shall execute bond with regard to the good behavior of the petitioner, and (iii) that the petitioner shall also give an undertaking to the Court that he shall not indulge in any illegal/criminal activity.” The court concluded that “Any violation of the terms and conditions of the bonds or the undertaking shall lead to cancellation of his bail bonds. The petitioner shall cooperate in the case and be present before the Court on each and every date. Failure to cooperate or being absent on two consecutive dates, without sufficient cause, shall also lead to cancellation of his bail bonds. It shall also be open for the prosecution to bring any violation of the foregoing conditions of bail by the petitioner, to the notice of the Court concerned, which shall take immediate action on the same after giving the opportunity of hearing to the petitioner.”

Date : 03 08 2021 IN THE HIGH COURT OF JUDICATURE AT PATNA CRIMINAL MISCELLANEOUS No. 374721 Arising Out of PS. Case No. 97 Year 2020 Thana RAGHOPURDistrict Vaishali Kapleshi Rai @ Kapeshi Rai @ Papleshi Rai aged about 28 years Gender Male son of Santa Rai Resident of Village Sukumarpur P.S. Raghopur Rustampur OP) District Vaishali ... Petitioner s ... Opposite Party s The State of Bihar Appearance : For the Petitioner s For the State CORAM: HONOURABLE MR. JUSTICE AHSANUDDIN AMANULLAH ORAL JUDGMENT Mr. Ravish Mishra Advocate Mr. Ajit Kumar APP The matter has been heard via video conferencing. 2. The case has been taken up out of turn on the basis of motion slip filed by learned counsel for the petitioner on 26.07.2021 which was allowed. 3. Heard Mr. Ravish Mishra learned counsel for the petitioner and Mr. Ajit Kumar learned Additional Public Prosecutorfor the State. 4. The petitioner apprehends arrest in connection with Roghopur PS Case No. 97 of 2020 dated 23.06.2020 instituted under Sections 414 34 of the Indian Penal Code and 30(a)(d) of the Bihar Prohibition and Excise Act Patna High Court CR. MISC. No. 374721 dt.03 08 2021 2 4 2016of the Act would not apply in the present case. 7. Learned APP submitted that there has been recovery of countrymade liquor and the petitioner is also named as one of the persons who had fled away from the place. 8. Having considered the facts and circumstances of the case and submissions of learned counsel for the parties the Patna High Court CR. MISC. No. 374721 dt.03 08 2021 3 4 Court finds that for the purposes of forming a tentative view taking into consideration the fact that ownership of the motorcycle from which recovery has been made having been specifically denied as also no other criminal case being against him as stated on oath in the present petition the Court is inclined to allow the prayer. 9. Accordingly in the event of arrest or surrender before the Court below within six weeks from today the petitioner be released on bail upon furnishing bail bonds of Rs. 25 000 with two sureties of the like amount each to the satisfaction of the learned Additional Sessions Judge II cum Excise Court Vaishali at Hajipur in RoghopurPS Case No. 920 subject to the conditions laid down in Section 438(2) of the Code of Criminal Procedure 1973 and furtherthat one of the bailors shall be a close relative of the petitioner that the petitioner and the bailors shall execute bond with regard to good behaviour of the petitioner andthat the petitioner shall also give an undertaking to the Court that he shall not indulge in any illegal criminal activity act in violation of any law statutory provisions tamper with the evidence or influence the witnesses. Any violation of the terms and conditions of the bonds or the Patna High Court CR. MISC. No. 374721 dt.03 08 2021 4 4 undertaking shall lead to cancellation of his bail bonds. The petitioner shall cooperate in the case and be present before the Court on each and every date. Failure to cooperate or being absent on two consecutive dates without sufficient cause shall also lead to cancellation of his bail bonds. 10. It shall also be open for the prosecution to bring any violation of the foregoing conditions of bail by the petitioner to the notice of the Court concerned which shall take immediate action on the same after giving opportunity of hearing to the petitioner. aforementioned terms. 11. The petition stands disposed of Anjani

B.K Pavitra & Ors V/s Union Of India & Ors

In the absence of any consequential seniority rule, “catch up” rule would apply. On 27th April 1978, the policy of Reservation in Promotion was introduced in the state of Karnataka, in which reservation up to 15% and 3% was given to the people of scheduled castes and scheduled tribes category, respectively.A roster of 33 points was issued to each cadre of posts, under each appointing authority. Prior to 1st April 1992, no system of carry forward existed, it was introduced after 1st April 1992.As per the appellants, the assistant engineers of the SC/ST category recruited in the year 1987 were promoted to the cadre of assistant executive engineers whereas the assistant engineers of general category, recruited in the year 1976, were considered for promotion to the said cadre.Therefore, as alleged by the appellants, according to the consequential promotions, the reserved category candidates got promotion early, the overall percentage of representation of the SC/STs was higher than the permissible limit and all top positions would likely be filled by the SC/STs. PROCEDURAL HISTORY: This matter was initially taken to the Supreme Court under writ petition (CIVIL) no. 61 of 2002, titled M. Nagraj & others vs. Union of India. Within this judgement the court had upheld the constitutional validity of the 77th, 81st, 82nd and 85th amendment acts.Thereafter, the matter was remitted to the High Court for deciding the validity of the said enactment and the issue was whether the state government had taken effecting measures in compelling data as to show the backwardness, inadequacy of representation and overall administrative efficiency, before making provisions regarding reservation in promotions.The high court upheld the validity of the act and the other contentions of the petitioners as to excessive reservations, no promotions left for the general merit candidates and thus the act being violative of articles 14 and 16 of the Indian constitution, were rejected.The petitioners then filed an appeal in the Supreme Court. ISSUE BEFORE THE COURT: Whether the impugned Act [Karnataka Determination of Seniority of the Government Servants Promoted on the Basis of Reservation (To the Posts in the Civil Services of the State) Act, 2002] is violative of articles 14 and 16 of the Indian Constitution?Whether the high court was erroneous in declaring that it was for petitioners to plead & prove that overall efficiency was adversely affected by giving consequential seniority to juniors getting promotion on account of reservation? RATIO OF THE COURT: In this case the impugned judgment was challenged on the basis of the judgement in the case of Uttar Pradesh Power Corporation vs. Rajesh Kumar, in which validity of Rule 8A of the U.P. Government Servants Seniority Rules, 1991, inserted by way of an amendment in 2007, was put in issue. This rule was further struck down by the Lucknow bench in the case of Prem Kumar Singh vs. State of U.P., and was further upheld by the supreme court.The court had made reference to the case of Indra Sawhney vs. Union of India, wherein the court stated that reservations can only be made at the stage of entry and not at the stage of promotions.Then reference was made to the limitations on promotions which were laid in the case of M. Nagaraj, that a state is supposed to take proper measures to ensure that there is:backwardness;inadequate representation of the SC/STs;and overall administrative efficiency.The court, from the M. Nagaraj case stated that, the power of the state over reservation maybe constitutionally valid, but how the state is exercising such power is a different matter, which can be arbitrary in nature. This exercise of power must be in accordance with article 355 of the Indian Constitution.The court further held that the necessary exercises which were laid in the M. Nagaraj case were required to be taken by the state government, which were not properly taken in this case. Thus, the order of the consequential seniority of the SC/STs as per the roster points could not be sustained. Therefore, in the absence of any consequential seniority rule, “catch up” rule would apply.Mere fact that there is no proportionate representation in promotional posts for the population of SCs and STs is not by itself enough to grant consequential seniority to promotees who are otherwise junior and thereby denying seniority to those who are given promotion later on account of reservation policy.The court observed that the High Court erroneously observed that it was for the petitioners to plead and prove that the overall efficiency was adversely affected by giving consequential seniority to junior persons who got promotion on account of reservation. Plea that persons promoted at the same time were allowed to retain their seniority in the lower cadre is untenable and ignores the fact that a senior person may be promoted later and not at same time on account of roster point reservation. Depriving him of his seniority affects his further chances of promotion. DECISION HELD BY COURT: In this case the judgment was given by JUSTICE ADARSH KUMAR GOEL that it was held by the court that the sections 3 and 4 of the impugned act are ultra vires of the articles 14 and 16 of the Indian Constitution.The court set aside the impugned judgement by High Court allowing the appeals and held that High Court was erroneous in its decision.The court held that the seniority list was to be revised within three months from date of the judgement.

IN THE CIVIL APPELLATE JURISDICTION OF 201 CIVIL APPEAL NO. B.K. PAVITRA & ORS. …APPELLANTS UNION OF INDIA & ORS. CIVIL APPEAL NOS.2369 OF 2011 2370 2373 OF 2011 2374 2377 OF 2011 2378 OF 2011 2379 OF 2011 4320 4327 OF 2011 AND 5280 5286 OF 2011 JUDGMENT ADARSH KUMAR GOEL J These appeals involve the question of validity of the Karnataka Determination of Seniority of the Government Servants Promoted on the Basis of ReservationAct 2002 No.61 of 2002 titled M. Nagaraj and others v Union of India and others. The issue referred to larger Bench in the writ petition along with connected matters was decided by this Court on 19th October 20061. While upholding the constitutional validity of the Constitution Act 1995 the Constitution Eighty first Amendment) Act 2000 the Constitution Act 2000 and the Constitution No.146710. The High Court by the impugned judgment has held the Act to be valid. The question framed for determination by the High Court is as follows 8 SCC 212 Para 124 of ‘M. Nagaraj’it was available upto second level i.e. Assistant Executive Engineer. In Diploma Engineers it was available upto third level i.e. Assistant Executive Engineer Division II. According to the appellants Assistant Engineers of SC ST category recruited in the year 1987 were promoted to the cadre of Assistant Executive Engineers while in general merit Assistant Engineers recruited in 1976 were considered for promotion to the said cadre. The representation of the SC ST group was as follows EE Cadre CE Cadre Engineer in chief 44.44 4.3%v. State of Punjab6 and R.K. Sabharwal v 2 SCC 666 2 SCC 715 7 SCC 209 State of Punjab7 issued a direction to the State of Karnataka to redo the seniority and take further action in the light of the said judgments Pointing out the consequence of accelerated seniority to the roster point promotee it has been averred in the writ petition that the roster point promotee would reach the third level by the age of 45 and fourth fifth and sixth level in next three two and two years. The general merit promotee would reach the third level only at the age of 56 and retire before reaching the fourth level. This would result in reverse discrimination and representation of reserved category would range between 36% to 100%. Stand of the State and the contesting respondents who have been given promotion under the reservation is that inter se seniority amongst persons promoted on any occasion is determined as per Karnataka Government Servants Rules 1957 2 SCC 745 2 SCC 661 under reservation. Thus all candidates promoted ‘on the same occasion’ retained their seniority in the lower cadre. This aspect was not considered in Badappanavarthe matter was put in issue before the High Court. The contention raised on behalf of the appellants was that grant of consequential seniority to candidates promoted by way of reservation affected efficiency of administration and was violative of Articles 14 and 16. In spite of 85th Amendment having been upheld law laid down in Badappanavar Ajit Singh II and Union of India v Virpal Chauhan9 remained relevant in absence of ‘backwardness’ ‘inadequacy of representation’ and ‘overall administrative efficiency’ being independently determined. The State Government had not provided any material or data to show inadequacy of reservation to the 6 SCC 684 members of SC ST nor the State has given any thought to the issue of overall administrative efficiency On the other hand the submission on behalf of the State was that reservation to SCs and STs to the extent of 15% and 3% respectively could never be said to be excessive in view of progressive increase in population of SCs and STs The High Court referring to this Court’s judgment in M. Nagaraj supra) observed that concept of “catch up” rule and “consequential seniority” are judicially evolved concepts to control the effect of reservations. Deleting the said rule cannot by itself be in conflict with “equality code” under the Constitution. The 85th Amendment gave freedom to the State to provide for reservation in promotion with consequential seniority under Article 16(4 A) if ‘backwardness’ ‘inadequacy of representation’ and ‘overall efficiency’ so warranted There is no fixed yardstick to identify and measure the above three factors. If the State fails to identify and measure the above three factors the reservation can be invalid. Examining whether the State had in fact measured the above factors the High Court observed that Order dated 27th April 1978 was issued by the State of Karnataka after considering the statistics available about the representation of SCs and STs in promotional vacancies. On 3rd February 1999 the policy was modified to limit reservation in promotion in cadre upto and inclusive of the lowest category of Group A posts in which there is no element of recruitment beyond 66⅔ %. The said order was further amended on 13th April 1999 to the effect that reservation in the promotion for SCs and STs will continue to operate till their representation reached 15% or 3 respectively and promotion of SCs and STs and against backlog was to continue as per order dated 24th June 1997 till the said percentage was so reached in the total working strength. As per the Karnataka Scheduled Castes Scheduled Tribes and other Backward Classes Reservation of seats in Educational Institutions and of appointments or posts in the services under the State) Act 1994seniority in the lower cadre is maintained in promotional posts for the persons promoted “on one occasion”. Since reservation had not exceeded 15% and 3% for SCs and STs while population of the said categories had increased there was adequate consideration of the above three factors of “backwardness” inadequacy of representation” and “overall efficiency”. Section 3 of the Act provided for an inbuilt mechanism for providing reservation in promotion to the extent of 15 and 3% respectively for the SCs and STs. The State Government collects statistics every year. The High Court held that contention that if all the posts in higher echelons may be filled by SCs and STs the promotional prospects of general merit candidates will get choked or blocked could not be accepted as reservation in promotion was provided only upto the cadre of Assistant Executive Engineers. It was further observed that there was no pleading that overall efficiency of service would be hampered by promoting persons belonging to SCs and STs 10. The impugned judgment has been challenged on behalf of the appellants mainly relying upon judgment of this Court in Uttar Pradesh Power Corporation Limited v. Rajesh Kumar10. It was submitted that the High Court erroneously held that there was an inbuilt mechanism under Section 3 of the impugned Act or that the seniority rule maintaining lower cadre seniority in respect of persons promoted on a particular occasion was a safeguard against excessive reservation Similarly the finding that reservation was only upto a particular level and not beyond or that accelerated promotion upto that level did not affect further promotions was erroneous. It was also submitted that there was no provision for excluding the creamy layer which also rendered the Act invalid. It was submitted that no exercise whatsoever in terms of M Nagaraj case has been undertaken by the State 7 SCC 1 11. Shri Basava Prabhu S. Patil learned senior counsel appearing on behalf of the State submitted that the Act did not deal with the reservation. It only dealt with seniority. Seniority was not a fundamental right but a civil right as held in Bimlesh Tanwar vs. State of Haryana11. M. Nagaraj judgment of this Court had dealt with reservation and not with consequential seniority. Once reservation is within the prescribed limit there was no bar to consequential seniority being granted. It was further submitted that even if seniority is to be struck down the clock cannot be entirely reversed so as to affect seniority of persons who had retired or who are about to retire or who had reached higher positions 12. Shri S.N. Bhat learned counsel for the private respondents supported the impugned judgment and submitted that the Government was not required to carry out the exercise of finding out ‘backwardness’ ‘inadequacy of representation’ and ‘overall administrative efficiency’ for providing consequential seniority to officers on the basis of reservation The said exercise was required to be carried out only for providing reservation in promotion. Reservation in promotion was permissible only upto Class I posts in Karnataka. Moreover inter se seniority of reserved category and general category candidates promoted together was not 5 SCC 604 disturbed. The roster points ensured that there was no excessive representation in different cadres of service. In view of Government Order dated 3rd February 1999 there was enough data available to justify continuance of provision for consequential seniority under the impugned Act. Data collected by the Department of Statistics with regard to overall representation of SCs and STs as on 31st March 2002 showed that the representation of SCs and STs was not above 15% and 3% respectively Section 4 of the Act only protected consequential seniority which was already given. Promotions already effected cannot be disturbed 13. Reference may now be made to the impugned Act. The preamble of the Act refers to policy of reservation in promotion in favour of Government servants belonging to SCs and STs in terms of order dated 27th April 1978. Para 7 of the said order stipulates that inter se seniority amongst persons promoted in accordance with the said order has to be determined in the manner provided under Rule 4 or Rule 4A of the 1957 Rules. There is further reference to the judgment of this Court in Badappanavar to the effect that there was no specific rule permitting seniority to be counted for persons promoted against a reserved roster point. It further refers to the Constitution Act 2001 permitting consequential seniority in the case of promotion on the basis of reservation. It states that to remove any ambiguity and to clarify that government servants belonging to SCs and STs promoted in accordance with the reservation in promotion shall be entitled to seniority as it is available to government servants belonging to other categories. Section 3 of the impugned Act provides that government servants belonging to SCs and STs promoted in accordance with the policy reservation in promotion shall be entitled to consequential seniority on the basis of length of service in a cadre. Proviso to the said section to the effect that inter se seniority of government servants belonging to SCs STs and those belonging to unreserved category promoted at the same time by a common order shall be on the basis of inter se seniority in the lower cadre. Section 4 provides for protection of consequential seniority already accorded from 27th April 1978. Since Sections 3 and 4 are the key sections the same are reproduced below “3. Determination of Seniority of the Government Servants Promoted on the basis of Reservation. Notwithstanding anything contained in any other law for the time being in force the Government Servants belonging to the Scheduled Castes and the Scheduled Tribes promoted in accordance with the policy of reservation in promotion provided for in the Reservation Order shall be entitled to consequential seniority. Seniority shall be determined on the basis of the length of service in a cadre. Provided that the seniority inter se of the Government Servants belonging to the Scheduled Castes and the Scheduled Tribes as well as those belonging to the unreserved category promoted to a cadre at the same time by a common 5 order shall be determined on the basis of their seniority inter se in the lower cadre. Provided further that where the posts in a cadre according to the rules of recruitment applicable to them are required to be filled by promotion from two or more lower cadres i) The number of vacancies available in the promotional cadre for each of the lower cadres according to the rules of recruitment applicable to it shall be calculated and ii) The roster shall be applied separately to the number of vacancies so calculated in respect of each of those lower cadres Provided also that the serial numbers of the roster points specified in the Reservation Order are intended only to facilitate calculation of the number of vacancies reserved for promotion at a time and such roster points are not intended to determine inter se seniority of the Government Servants belonging to the Scheduled Castes and the Scheduled Tribes vis a vis the Government Servants belonging to the unreserved category promoted at the same time and such inter se seniority shall be determined by their seniority inter se in the cadre from which they are promoted as illustrated in the Schedule appended to this Act. 4. Protection of consequential seniority already accorded from 27th April 1978 onwards. Notwithstanding anything contained in this Act or any other law for the time being in force the consequential seniority already accorded to the Government servants belonging to the Scheduled Castes and the Scheduled Tribes who were promoted in accordance with the policy of reservation in promotion provided for in the Reservation Order with effect from the Twenty Seventh Day of April Nineteen Hundred and Seventy Eight shall be valid and shall be protected and shall not be disturbed. “ 14. Question for consideration is whether the impugned Act is consistent with Articles 14 and 16 of the Constitution. The said question has been gone into by this Court inter alia in identical circumstances in Suraj Bhan Meena v. State of Rajasthan12 and Uttar Pradesh Power Corporation Limitedto which we will make a reference at appropriate place. 15. We proceed to deal with the contention that High Court judgment proceeds on incorrect understanding of the law laid down in M. Nagaraj 85th Amendment was upheld with the observation that enabling the State to do away with the ‘catch up’ rule a judicially evolved concept to control the effect of reservations was valid but the exercise of power to do away with the said rule and providing consequential seniority in favour of roster point promotees of reserved category was subject to the limitation of determining the three factors of ‘backwardness’ ‘inadequacy of representation’ and ‘overall efficiency’. The High Court brushed aside the said mandatory requirement by simply observing that Section 3 provided for an inbuilt mechanism as the extent of mechanism was 1 SCC 467 limited to 15% and 3% respectively for the SCs and STs which dispensed with any requirement of determining inadequacy of representation or backwardness. High Court further dispensed with the requirement of determining overall efficiency by observing that there was no pleading that overall efficiency would be hampered by promoting persons belonging to SCs and STs. This reasoning in the judgment of the High Court it is submitted is contrary to the mandate of law as recognized in M. Nagarajand the view similar to the impugned judgment has been repeatedly disapproved in decisions of this Court. 16. We find considerable force in the submission. The issue is no longer res integra and it will be suffice to refer to the law clearly laid down by this Court in this regard In M. Nagaraj this Court considered constitutional validity of 77th 81st 82nd and 85th Amendments. In doing so the Court was concerned with the question whether the amendment infringed the basic structure of the Constitution. It was held that equality is part of the basic structure but in the present context right to equality is not violated by an enabling provision if exercise of power so justifies. In this regard following observations are worthwhile to note “31. At the outset it may be noted that equality rule of law judicial review and separation of powers are distinct concepts. They have to be treated separately though they are intimately connected. There can be no rule of law if there is no equality before the law and rule of law and equality before the law would be empty words if their violation was not a matter of judicial scrutiny or judicial review and judicial relief and all these features would lose their significance if judicial executive and legislative functions were united in only one authority whose dictates had the force of law. The rule of law and equality before the law are designed to secure among other things justice both social and economic In Minerva Mills 3 SCC 625 Chandrachud C.J. speaking for the majority observed that Articles 14 and 19 do not confer any fanciful rights. They confer rights which are elementary for the proper and effective functioning of democracy. They are universally regarded by the Universal Declaration of Human Rights. If Articles 14 and 19 are put out of operation Article 32 will be rendered nugatory … 33. From these observations which are binding on us the principle which emerges is that “equality” is the essence of democracy and accordingly a basic feature of the Constitution 34. However there is a difference between formal equality and egalitarian equality which will be discussed later on 42. ….. ….There can be no justice without equality. Article 14 guarantees the fundamental right to equality before the law on all persons Great social injustice resulted from treating sections of the Hindu community as “untouchable” and therefore Article 17 abolished untouchability and Article 25 permitted the State to make any law providing for throwing open all public Hindu religious temples to untouchables. Therefore provisions of Part III also provide for political and Considering the right of equality in the context of reservation affirmative action it was observed “43. … … … Therefore the concept of “equality of opportunity” in public employment concerns an individual whether that individual belongs to the general category or Backward Class. The conflicting claim of individual right under Article 16(1) and the preferential treatment given to a Backward Class has to be balanced. Both the claims have a particular object to be achieved. The question is of optimisation of these conflicting interests and claims.” 19. Thereafter concepts of ‘equity’ ‘justice’ and ‘merit’ in public employment were referred to and it was held that application of these concepts in public employment depends upon quantifiable data in each case. It was observed “44. … … …Backward Classes seek justice General class in public employment seeks equity The difficulty comes in when the third variable comes in namely efficiency in service. In the issue of reservation we are being asked to find a stable equilibrium between justice to the backwards equity for the forwards and efficiency for the entire system. Equity and justice in the above context are hard concepts. However if you add efficiency to equity and justice the problem arises in the context of the reservation. This problem has to be examined therefore on the facts of each case Therefore Article 16(4) has to be construed in the light of Article 335 of the Constitution. Inadequacy in representation and backwardness of the Scheduled Castes and Scheduled Tribes are circumstances which enable the State Government to act under Article 16(4) of the Constitution However as held by this Court the limitations on the discretion of the Government in the matter of reservation under Article 16(4) as well as Article 16(4 A) come in the form of Article 335 of the 45. … … …The basic presumption however remains that it is the State who is in the best position to define and measure merit in whatever ways it consider it to be relevant to public employment because ultimately it has to bear the costs arising from errors in defining and measuring merit. Similarly the concept of “extent of reservation” is not an absolute concept and like merit it is context specific 46. … … …Therefore “vesting of the power” by an enabling provision may be constitutionally valid and yet “exercise of the power” by the State in a given case may be arbitrary particularly if the State fails to identify and measure backwardness and inadequacy keeping in mind the efficiency of service as required under Article 335.” 20. The above discussion led this Court to hold that conferment of enabling power on State under Article 16(4A) did not by itself violate the basic feature of equality. If the affirmative action stipulated under Article 16(4A) could be balanced with the need for adequate representation for justice to the backwards while upholding equity for the forwards and efficiency for the entire system with the further observation that the content of a right is defined by the Courts and even while the amendment as such could be upheld validity of an individual enactment was required to be gone into. If the State wished to exercise its discretion under Article 16(4A) it was to collect quantifiable data showing backwardness of the class and inadequacy of representation of that class in public employment in addition to compliance with Article 335. It was made clear that even if the State has compelling reasons as stated above the State will have to see that its reservation provision does not lead to excessiveness so as to breach the ceiling limit of 50% or obliterate the creamy layer or extend the reservation indefinitely It may also be worthwhile to note further observations of this Court in the said judgment “49. Reservation is necessary for transcending caste and not for perpetuating it. Reservation has to be used in a limited sense otherwise it will perpetuate casteism in the country. Reservation is underwritten by a special justification. 59. Giving the judgment of the Court in Indra SawhneySupp.SCC 217] Jeevan Reddy J stated that Article 16(4) speaks of adequate representation not proportionate representation although proportion of population of Backward Classes to the total population would certainly be relevant exist two circumstances 102. …. ….. ….. Therefore in every case where the State decides to provide for reservation there namely “backwardness” and “inadequacy of representation” As stated above equity justice and efficiency are variable factors. These factors are context specific There is no fixed yardstick to identify and measure these three factors it will depend on the facts and circumstances of each case. These are the limitations on the mode of the exercise of power by the State None of these limitations have been removed by the impugned amendments. If the State concerned fails to identify and measure backwardness inadequacy and overall administrative efficiency then in that event the provision for reservation would be invalid 104. ….. ….. As stated above be it reservation or evaluation excessiveness in either would result in violation of the constitutional mandate. This exercise however will depend on the facts of each case. In our view the field of exercise of the amending power is retained by the impugned amendments as the impugned amendments have introduced merely enabling provisions because as stated above merit efficiency backwardness and inadequacy cannot be identified and measured in vacuum. Moreover Article 16(4 A) and Article 16(4 B) fall in the pattern of Article 16(4) and as long as the parameters mentioned in those articles are complied with by the States the provision of reservation cannot be Articles 16(4 A) and 16(4 B) are classifications within the principle of equality under 106. According to the Constitutional Law of India by H.M. Seervai 4th Edn. p. 546 equality is not violated by mere conferment of discretionary power. It is violated by arbitrary exercise by those on whom it is conferred. This is the theory of “guided power”. This theory is based on the assumption that in the event of arbitrary exercise by those on whom the power is conferred would be corrected by the courts …... ….. 107. ….. If the State has quantifiable data to show backwardness and inadequacy then the State can make reservations in promotions keeping in mind maintenance of efficiency which is held to be a constitutional limitation on the discretion of the State in making reservation as indicated by Article 335. As the concepts of efficiency stated above backwardness inadequacy of representation are required to be identified and measured 108. Moreover Article 335 is to be read with Article 46 which provides that the State shall promote with special care the educational and economic interests of the weaker sections of the people and in particular of the Scheduled Castes and Scheduled Tribes and shall protect them from social injustice. Therefore where the State finds compelling backwardness and inadequacy it may relax the qualifying marks for SCs STs. These compelling interests however have to be identified by weighty and comparable data interests of 117. ….. Therefore in each case the Court has got to be satisfied that the State has exercised its opinion in making reservations in promotions for SCs and STs and for which the State concerned will have to place before the Court the requisite quantifiable data in each case and satisfy the Court that such reservations became necessary on account of inadequacy of representation of SCs STs in a particular class or classes of posts without affecting general efficiency of service as mandated under Article 335 of the Constitution 118. The constitutional principle of equality is inherent in the rule of law. However its reach is limited because its primary concern is not with the content of the law but with its enforcement and application. The rule of law is satisfied when laws are applied or enforced equally that is even handedly free of bias and without irrational distinction. The concept of equality allows differential treatment but it prevents distinctions that are not properly justified Justification needs each case to be decided on case to case basis 120. At this stage one aspect needs to be mentioned. Social justice is concerned with the distribution of benefits and burdens. The basis of distribution is the area of conflict between rights needs and means. These three criteria can be put under two concepts of equality namely “formal equality” and “proportional equality”. Formal equality means that law treats everyone equal. Concept of egalitarian equality is the concept of proportional equality and it expects the States to take affirmative action in favour of disadvantaged sections of society within the framework of democratic polity. In Indra Sawhney all the Judges except Pandian J. held that the “means test” should be adopted to exclude the creamy layer from the protected group earmarked for reservation. In Indra Sawhney this Court has therefore accepted caste as a determinant of backwardness and yet it has struck a balance with the principle of secularism which is the basic feature of the Constitution by bringing in the concept of creamy layer. Views have often been expressed in this Court that caste should not be the determinant of backwardness and that the economic criteria alone should be the determinant of backwardness. As stated above we are bound by the decision in Indra Sawhney. The question as to the “determinant” of backwardness cannot be gone into by us in view of the binding decision. In addition to the above requirements this Court in Indra Sawhney has evolved numerical benchmarks like ceiling limit of 50% based on post specific roster coupled with the concept of replacement to provide immunity against the charge of discrimination 122. We reiterate that the ceiling limit of 50% the concept of creamy layer and the compelling reasons namely backwardness inadequacy of representation and overall administrative efficiency are all constitutional requirements without which the structure of equality of opportunity in Article 16 22. Question of application of principles laid down in M. Nagaraj supra) for judging the exercise of enabling power of granting consequential seniority and promotion was raised in Suraj Bhan Meena the grant of consequential seniority was not permissible. The High Court quashed the notification providing for consequential seniority on the ground that no exercise had been undertaken in terms of Article 16(4A) to acquire quantifiable data regarding inadequacy of representation to SCs and STs in public service and to assess whether such reservation was necessary. This was upheld by this Court as under “66. The position after the decision in M. Nagaraj case is that reservation of posts in promotion is dependent on the inadequacy of representation of members of the Scheduled Castes and Scheduled Tribes and Backward Classes and subject to the condition of ascertaining as to whether such reservation was at all required 67. The view of the High Court is based on the decision in M. Nagaraj case as no exercise was undertaken in terms of Article 16(4 A) to acquire quantifiable data regarding the inadequacy of representation of the Scheduled Caste and Scheduled Tribe communities in public services. The Rajasthan High Court has rightly quashed the Notifications dated 28 12 2002 and 25 4 2008 issued by the State of Rajasthan providing for consequential seniority and promotion to the members of the Scheduled Caste and Scheduled Tribe communities and the same does not call for any interference.” 23. Again in Uttar Pradesh Power Corporation Limited validity of Rule 8A of the U.P. Government Servants Seniority Rules 1991 inserted by way of an amendment in 2007 was put in issue While a Division Bench of Lucknow Bench in Prem Kumar Singh v State of U.P.13 struck down the said rule another Division Bench at Allahabad in Mukund Kumar Srivastava v. State of U.P.14 took a contrary view. This Court dismissed the appeal filed by the U.P. Power Corporation Limited and upheld the view of the Lucknow Bench Reference was made to observations in para 819 in Indra Sawhney v UOI15 to the effect that reservation under Article 16(4) of the Constitution could only be at the stage of entry into the State service and not in promotion. Reservation in promotion is bound to generate acute heartburning and lead to inefficiency in administration. The members of open category would think that whatever be their record or performance members of reserved category will steal a march over them irrespective of their performance and competence. Once persons coming from different sources join a category or class they must be treated alike for promotion and no distinction was permissible on the 3 All LJ 343 1 All LJ 428 Supp.SCC 217 basis of ‘birth mark’. Reservation in promotion will be contrary to the mandate of Article 335 viz. maintenance of efficiency in administration and put premium on efficiency. Members of reserved category will not work hard since they do not have to compete with their colleagues and because of assured promotion which will be against the goal of excellence under Article 51 AAjit Singhversus State of Punjab and Union of India versus Virpal Chauhan Vesting of the power by an enabling provision may be constitutionally valid and yet “exercise of power” by the State in a given case may be arbitrary particularly if the State fails to identify and measure the backwardness and inadequacy keeping in mind the efficiency of service as required under Article 335 ii) Article 16(4) which protects the interests of certain sections of the society has to be balanced against Article 16(1) which protects the interests of every citizen of the entire society. They should be harmonised because they are restatements of the principle of equality under Article 14 iii) Each post gets marked for the particular category of candidates to be appointed against it and any subsequent vacancy has to be filled by that category candidate iv) The appropriate Government has to apply the cadre strength as a unit in the operation of the roster in order to ascertain whether a given class group is adequately represented in the service. The cadre strength as a unit also ensures that the upper ceiling limit of 50% is not violated. Further roster has to be post specific and not vacancy based v) The State has to form its opinion on the quantifiable data regarding adequacy of representation. Clauseof Article 16 is an enabling provision. It gives freedom to the State to provide for reservation in matters of promotion. Clause of Article 16 applies only to SCs and STs. The said clause is carved out of Article 16(4 A). Therefore clause If the ceiling limit on the carry over of unfilled vacancies is removed the other alternative time factor comes in and in that event the timescale has to be imposed in the interest of efficiency in administration as mandated by Article 335. If the timescale is not kept then posts will continue to remain vacant for years which would be detrimental to the administration. Therefore in each case the appropriate Government will now have to introduce the duration depending upon the fact vii) If the appropriate Government enacts a law providing for reservation without keeping in mind the parameters in Article 16(4) and Article 335 then this Court will certainly set aside and strike down such legislation viii) The constitutional limitation under Article 335 is relaxed and not obliterated. As stated above be it reservation or evaluation excessiveness in either would result in violation of the constitutional mandate. This exercise however will depend on the facts of each case ix) The concepts of efficiency backwardness and inadequacy of representation are required to be identified and measured. That exercise depends on the availability of data. That exercise depends on numerous factors. It is for this reason that the enabling provisions are required to be made because each competing claim seeks to achieve certain goals. How best one should optimise these conflicting claims can only be done by the administration in the context of local prevailing conditions in public inadequacy of x) Article 16(4) therefore creates a field which enables a State to provide for reservation provided there exists backwardness of a class and employment. These are compelling reasons They do not exist in Article 16(1). It is only when these reasons are satisfied that a State gets the power to provide for reservation in the matter of employment.” representation 25. Referring to the “Social Justice Committee Report” relied upon by the U.P. Power Corporation it was observed that the said report was in respect of population and vacancies and not in respect of the concepts evolved in M. Nagaraj and 16(4 B) are enabling provisions and the State can make provisions for the same on certain basis or foundation. The conditions precedent have not been satisfied. No exercise has been undertaken. What has been argued with vehemence is that it is not necessary as the concept of reservation in promotion was already in vogue. We are unable to accept the said submission for when the provisions of the Constitution are treated valid with certain conditions or riders it becomes incumbent on the part of the State to appreciate and apply the test so that its amendments can be tested and withstand the scrutiny on parameters laid down 87. In the ultimate analysis we conclude and hold that Section 3(7) of the 1994 Act and Rule 8 A of the 2007 Rules are ultra vires as they run counter to the dictum in M. Nagaraj. Any promotion that has been given on the dictum of Indra Sawhney and without the aid or assistance of Section 3(7) and Rule 8 A shall remain undisturbed.” In Central Bank of India v. SC ST Employees Welfare Association17 question was whether in absence of a rule of reservation for promotion such reservation was permissible merely because the banks were following reservation policy of the Government of India. The Madras High Court after considering the 12 SCC 308 statistics found that there was no adequate representation of SCs and STs in higher scales. It directed that such representation be granted Plea of the Bank that such reservation will affect efficiency in the administration was rejected. This Court held that in absence of any specific provision for reservation in promotion the Court could not issue a direction for reservation. It was observed “32. We have already noticed above that in matters of promotion within Group A posts which carry an ultimate salary of Rs 5700 per month there was no provision for any reservation. On a conjoint reading of these two Office Memorandums dated 1 11 1990 and 13 8 1997 in the absence of any other provision or rule evidencing such a reservation in the matter of promotions it cannot be said that there was reservation in promotion within Group A posts up to the ultimate salary of Rs 5700 per month. The High Court in the impugned judgment has gone by the lofty ideals enshrined in Articles 15 and 16 of the Constitution as well as the fact that in these Banks there is no adequate representation of SC ST category of officers in Group IV and above That may be so. It can only provide justification for making a provision of this nature. However in the absence of such a provision same cannot be read by overstretching the language of the Office Memorandum dated 13 8 1997. It is for the State to take stock of the ground realities and take a decision as to whether it is necessary to make provision for reservation in promotions to the aforesaid post as In S. Panneer Selvam v. State of Tamil Nadu18 question before the Court was whether in absence of any policy decision by the State for giving consequential seniority to candidates promoted on the basis of reservation prior to a senior general category candidate claim for consequential seniority could be accepted. Answering the question in the negative it was held that in absence of provision for consequential seniority ‘catch up’ rule will be applicable and the roster point promotees cannot claim such consequential seniority. The senior general candidates will regain their seniority on being promoted Observations relevant in this regard are as follows “34. If we look at the above comparative table of the service particulars of the appellants and the respondents it is seen that the contesting respondents U. Palaniappan joined the service almost seven years after the appellants his seniority is automatically accelerated at an unprecedented rate and as on 1 4 2004 his seniority rank as ADE is 150 and seniority of V Appadurai is 120. The appellants who are qualified and senior than the contesting respondents are placed much below in rank in comparison to the person belonging to the reserved class promotees who were promoted following the rule of reservation. It is to be noted that the private respondents in the present case have been promoted temporarily under Rule 39(a) and Rule 10(a)(i) of the General Rules with the condition that their inclusion in the promotional order shall not 1 SCC 292 confer on them any right whatsoever in the service Determination of seniority is a vital aspect in the service career of an employee and his future promotion is dependent on this. Therefore determination of seniority must be based on some principles which are just and fair. In the absence of any policy decision taken or rules framed by the State of Tamil Nadu regarding Tamil Nadu Highways Engineering Service accelerated promotion given to the respondents following rule of reservation in terms of Rule 12 will not give them consequential In the absence of any provision for consequential seniority in the rules the “catch up rule” will be applicable and the roster point reserved category promotees cannot count their seniority in the promoted category from the date of their promotion and the senior general candidates if later reach the promotional level general candidates will regain their seniority. The Division Bench appears to have proceeded on an erroneous footing that Article 16(4 A) of the Constitution of India automatically gives the consequential seniority in addition to accelerated promotion to the roster point promotees and the judgment of the Division Bench cannot be sustained.” It is clear from the above discussion that exercise for determining ‘inadequacy of representation’ ‘backwardness’ and ‘overall efficiency’ is a must for exercise of power under Article 16(4A). Mere fact that there is no proportionate representation in promotional posts for the population of SCs and STs is not by itself enough to grant consequential seniority to promotees who are otherwise junior and thereby denying seniority to those who are given promotion later on account of reservation policy. It is for the State to place material on record that there was compelling necessity for exercise of such power and decision of the State was based on material including the study that overall efficiency is not compromised. In the present case no such exercise has been undertaken. The High Court erroneously observed that it was for the petitioners to plead and prove that the overall efficiency was adversely affected by giving consequential seniority to junior persons who got promotion on account of reservation. Plea that persons promoted at the same time were allowed to retain their seniority in the lower cadre is untenable and ignores the fact that a senior person may be promoted later and not at same time on account of roster point reservation. Depriving him of his seniority affects his further chances of promotion. Further plea that seniority was not a fundamental right is equally without any merit in the present context. In absence of exercise under Article 16(4A) it is the ‘catch up’ rule which is fully applies. It is not necessary to go into the question whether the concerned Corporation had adopted the rule of consequential seniority In view of the above we allow these appeals set aside the impugned judgment and declare the provisions of the impugned Act to the extent of doing away with the ‘catch up’ rule and providing for consequential seniority under Sections 3 and 4 to persons belonging to SCs and STs on promotion against roster points to be ultra vires Articles 14 and 16 of the Constitution. The judgment will not affect those who have already retired and will not affect financial benefits already taken Consequential promotions granted to serving employees based on consequential seniority benefit will be treated as ad hoc and liable to be reviewed. Seniority list may be now revised in the light of this judgment within three months from today. Further consequential action may be taken accordingly within next three months. [ ADARSH KUMAR GOEL [ UDAY UMESH LALIT FEBRUARY 09 2017

Fraud is One of the Exceptions for Grant of Injunction in Respect of Bank Guarantees: High Court of New Delhi

The Court have explained the concept of fraud to be of ‘an egregious nature as to vitiate the underlying transaction’, that fraud has to be of a very high degree, one which would vitiate the very foundation of the bank guarantee.This honorable judgement was passed by High Court of New Delhi in the case of AMR-BBB Consortium Thro’Lead Partner, AMR India Ltd. v. Bharat Coking Coal Ltd. & Anr. [FAO(OS) (COMM) 20/2021, CMs No.4009/2021] by Hon’ble Mr. Justice Rajiv Sahai Endlaw and Hon’ble Mr. Justice Sanjeev Narula The present appeal was filed under Section 37(1)(b) of the Arbitration and Conciliation Act, 1996 is directed against the final judgment/order dated 27th January, wherein the petition filed under Section 9 of the Act, seeking orders restraining the Respondent from encashing bank guarantees, has been decided by directing the Respondents No. 2 to 5  to encash the four bank guarantees and transfer the encashed amount into the account of the learned Registrar General of this Court, to be put in a fixed deposit subject to the outcome of the arbitration proceedings. A Notice Inviting Tender along with Geological Reports furnished, was issued by Bharat Coking Coal Ltd., for “Development of Kapuria Block and extraction of coal by mass production technology package for a minimum guaranteed production of 2.0 million ton per year on turnkey basis”. A letter of acceptance was issued by BCCL to the Appellant contractor. The Appellant in line of the Contract, furnished a performance bank guarantee in favour of BCCL for an amount of Rs. 12,78,49,970. In line with the same, the Appellant conducted Environmental Impact Assessment and Environmental Management Plan, and submitted these reports to BCCL, based whereupon, environmental clearance for the Project was accorded on 19th December, 2014 by the Ministry of Environment and Forest, Government of India. Based on the approved DPR, the Appellant tied up the supply of indigenous and imported plant and machinery/equipment for the Project and in terms of the Contract furnished three bank guarantees for release of 5%-part payment of deliverable plant. On 15th January, 2018, BCCL informed the Appellant that the Internal Rate of Return (IRR) of the total investment in the Project was unfavourable, it was found that the amount of coal extraction is likely to be greatly reduced. The court opinioned that, “The existence of disputes between the parties to the Contract is not a ground for issuing an order of injunction to restrain enforcement of bank guarantees. In the course of commercial dealings, the Appellant has issued an unconditional bank guarantee, the beneficiary is therefore entitled to realize such a bank guarantee in terms thereof, irrespective of any pending disputes.”

IN THE HIGH COURT OF DELHI AT NEW DELHI Reserved Date: 11th February 2021 Pronounced on: 26th March 2021 4010 2021COMM) 20 2021 CMs No.4009 2021 AMR BBB CONSORTIUM THRO’ LEAD PARTNER AMR INDIA LTD. Appellant Through: Mr. Sandeep Sethi Senior Advocate with Mr. Brijesh Kumar Goel and Mr. Rajeev Kumar Advocates. BHARAT COKING COAL LTD. & ANR. Through: Mr. Amit Sharma and Mr. Dipesh Sinha Advocates for R 1. HON BLE MR. JUSTICE RAJIV SAHAI ENDLAW HON BLE MR. JUSTICE SANJEEV NARULA VIA VIDEO CONFERENCING] SANJEEV NARULA J. The present appeal under Section 37(1)(b) of the Arbitration and Conciliation Act 1996 is directed against the final judgment order dated 27th January 2021 passed by the learned Single Judge in OMP (COMM) 31 2021 wherein the petition filed by the Appellant FAO(OS)20 2021 herein under Section 9 of the Act seeking orders restraining the Respondent from encashing bank guarantees has been decided by directing the Respondents No. 2 to 5 to encash the four bank guarantees and transfer the encashed amount into the account of the learned Registrar General of this Court to be put in a fixed deposit subject to the outcome of the arbitration proceedings. The bare essential facts leading to the establishment of the bank guarantees in question are that a Notice Inviting Tender along with Geological Reports furnished therein hereinafter referred to as ‘GRs’] was issued by Respondent No. 1for inter alia “Development of Kapuria Block and extraction of coal by mass production technology package for a minimum guaranteed production of 2.0 million ton per year on turnkey basis” (COMM) 20 2021 DPR on 29th July 2013 the Appellant in line with Clause 4.1.4 of the Contract furnished a performance bank guarantee in favour of BCCL for an amount of Rs. 12 78 49 970 . The Appellant also prepared a mining plan for extraction of coal reserves and submitted the same to BCCL which was approved on 30th December 2014. In line with the same the Appellant conducted Environmental Impact Assessment and Environmental Management Plan and submitted these reports to BCCL based whereupon environmental clearance for the Project was accorded on 19th December 2014 by the Ministry of Environment and Forest Government of India. Based on the approved DPR the Appellant tied up the supply of indigenous and imported plant and machinery equipment for the Project and in terms of Clause 4.1.49.3 of the Contract furnished three bank guarantees for release of 5% part payment of deliverable plant and machinery to BCCL for Rs. 6 40 75 203 20 00 00 000 and 14 79 00 000 respectively. On 15th January 2018 BCCL informed the Appellant that the Internal Rate of Return of the total investment in the Project was unfavourable as upon a re examination of the layout of the proposed panels it was found that the amount of coal extraction is likely to be greatly reduced. Resultantly subsidence studies were done afresh through the Central Institute of Mining and Fuel Research and its report was submitted in June 2018. On 26th November 2018 BCCL informed the Appellant that the reports furnished by the Appellant have been provided to the Design Consultantto re work the integrated economics of this Project. Thereafter on 20th May 2019 FAO(OS)20 2021 BCCL furnished a fresh GR to prepare revised DPR. According to the Appellant the fresh GRs were at great variance to the earlier GRs and called for entire fresh planning of work execution its associated cost changes variations approval of a fresh mining plan obtaining fresh environmental clearance change in locations of ventilation shaft and inclined drivages and other key issues. In these circumstances pursuant to various rounds of high level meetings on this subject it was agreed that the cost of proposal for preparing fresh DPR be submitted by the Appellant to the Committee specifically constituted by BCCL for examining the issues concerning implementation of this Project and for suggesting the way forward. Accordingly the cost and timely proposal for preparing fresh DPR was submitted by the Appellant on 24th July 2019 and in response thereto on 28th December 2019 it was informed by BCCL that the Committee has submitted its report and the final decision would be communicated soon. The Appellant contends that for a long period of twelve months they did not hear from BCCL on the aforesaid cost and timeline proposal. Instead to its dismay a show cause notice dated 10th July 2020 was issued by BCCL titled as “15 days’ notice for cancellation of the contract”. Aggrieved with the aforesaid the Appellant preferred a petition under Section 9 of the Act before this court 1 praying for grant of interim measures of protection and injunction from invocation of the bank guarantees. This 1 Bearing OMP(I)(COMM) No. 200 2020. FAO(OS)20 2021 Court vide order dated 23rd July 2020 observed that the petition was premature as there was neither a final order pursuant to the show cause notice dated 10th July 2020 nor was there any invocation of the bank guarantees. In these circumstances the Appellant withdrew the said petition and the same was accordingly dismissed as withdrawn. Thereafter the Appellant furnished a reply to the show cause notice dated 10th July 2020 and called upon BCCL to withdraw the cancellation notice and have a high level meeting to amicably resolve the issues and suggest the way forward to implement the Project failing which BCCL could take steps to foreclose the Contract under Clause 4.1.20.8. Pursuant thereto a CMD level meeting was held on 27th July 2020 wherein the Appellant again requested BCCL to find an amicable way forward to implement the Project or to amicably foreclose the Contract and start conciliation. The Appellant also addressed further communications to BCCL impressing upon them to go in for conciliation. Ultimately the Appellant vide letter dated 10th November 2020 invoked the arbitration clause contained in the Contract. In consonance thereto the Appellant has filed its request for arbitration and supporting claim statement before the International Chamber of Commerce Paris which has been registered on 21st December 2020. The ICC has notified the said request to BCCL calling upon them to file their response within a period of thirty days. In the background noted above BCCL issued a letter for cancellation of Contract dated 21st January 2021 and also sent letters dated 22nd January FAO(OS)20 2021 2021 to the banks for encashment of the bank guarantees. Aggrieved with the aforesaid action the Appellant filed a petition2 under Section 9 of the Act seeking interim measures for protection which was disposed of vide the Impugned Order dated 27th January 2021 though not letting the monies under the bank guarantee go to BCCL but nevertheless letting bank guarantees be encashed and amounts thereof to be retained in this Court subject to outcome of arbitration proceedings. Aggrieved by the same the present appeal has been preferred by the Appellant. CONTENTIONS OF THE PARTIES 9. Mr. Sandeep Sethi learned Senior Counsel for the Appellant made the following submissions: i) At the outset the learned Single Judge has erred in passing the Impugned Order in as much as the prayers sought in the Section 9 petition were for injunction against encashment of the bank guarantees and stay of operation of the effect of the letters of cancellation of the Contract. The said reliefs were not considered and instead the learned Single Judge directed the banks to encash the bank guarantees and deposit the amount in the Court. Emphasis was laid on the prayer clause to argue that direction to the bank to deposit the amount of the bank guarantees in the Court was sought as an alternate relief in the event that the bank 2 Being OMP(I)(COMM) 31 2021. FAO(OS)20 2021 guarantees had been encashed prior to consideration of interim relief. However the learned Single Judge instead of restraining the banks has directed the encashment of the bank guarantees. ii) Status quo as existing prior to 21st January 2021 should be restored and the amount encashed under the two bank guarantees be forthwith returned to the respective banks for issuance of fresh bank guarantees in favour of BCCL and then all the four bank guarantees can be directed to be kept alive till the outcome of the arbitration proceedings which are underway before the ICC Paris. iii) During the course of the arguments having regard to the law on encashment to bank guarantees we enquired from Mr. Sethi how the Appellant is entitled to a relief of injunction against encashment. Mr. Sethi responded by contending that the facts of the case clearly fall in the well known exceptions recognized by the Courts for granting restraining orders in relation to bank guarantees. Elaborating on this contention Mr. Sethi argued that encashment of the bank guarantees is fraudulent and that BCCL was making an attempt to take advantage of its own defaults that the notice inviting tender in 2010 was based on certain GRs pursuant to which the Appellant had undertaken an extensive examination and exploration and then submitted the DPR to BCCL which was accepted and therefore the stand of BCCL that Appellant did not do any exploration work is untrue and untenable. BCCL thereafter did not complete the land acquisition and did not handover the Project land or take other steps to enable the Appellant to undertake the operations and perform its FAO(OS)20 2021 obligations which is its own failure to meet its obligations and were pre conditions for the Appellant to perform its part. iv) Thus BCCL having concluded that the present Contract is no longer viable cannot take advantage of its own default and then claim entitlement to cancellation of Contract and invoke the bank guarantees as the same is a manifest fraud of such egregious nature that it vitiates the very foundation which underlay the Contract. He submits that this conduct of BCCL in seeking to terminate the Contract and invoking the bank guarantees is ex facie fraudulent and the learned Single Judge had failed to take notice of the aforesaid facts. Several case laws have been cited in support of the above contentions.3 v) In 2019 BCCL obtained fresh GRsand concluded that the terms agreed upon were unviable for executing this Contract. In such circumstances having accepted that the GRs were incorrect the entire NIT and the underlying Contract was rendered void ab initio in the eyes of the law. vi) Elaborating further Mr. Sethi submitted that if the fresh GRs in 2019 are incorrect the conduct of BCCL to cancel the Contract and invoke the bank guarantees is fraudulent. Mr Sethi further argued that on 27th January 2021 when the learned Single Judge heard the matter the bank guarantees had not been encashed and therefore 3 U.P. Cooperative Federation Ltd. v. Singh Consultants and EngineersLtd. 1988SCC 174 and U.P State Sugar Corporation v. M s Sumac International Ltd. 1997SCC 568. FAO(OS)20 2021 there was no justification for the learned Single Judge to have granted the relief under prayerof the petition by directing the banks to encash the bank guarantees and deposit the encashed amount before the Registry of this Court. In these circumstances the amount of the bank guarantees would get locked in till the outcome of the arbitration proceedings which would cripple the financial cash flow of the Appellant that is crucially required to execute the ongoing Project. Several correspondence exchanged between the parties were relied upon to support the aforesaid 10. Mr. Amit Sharma learned counsel for BCCL on the other hand defended the order contending the following: i) There is no fraudulent encashment of the bank guarantees. Some of the bank guarantees in question were given as a security for the advance given towards mobilisation of the equipment. There is nothing on record to suggest that the Appellant had made any payment for the said equipment. ii) The arbitration has since been invoked and the parties are before the ICC Paris and therefore no interim orders are warranted from this court. He further submitted that the Project in question was awarded on a turnkey basis in terms of the NIT and within the scope of work. iii) All the obligations and preparation of DPR was the responsibility of the Appellant including additional exploration. The DPR submitted by the Appellant was not found to be viable. It had adverse effect on the economics of the Project rendering the Internal Rate Returnof FAO(OS)20 2021 the total investment in the Project unfavourable to the economic exploitation of the seams as suggested in the DPR and accordingly it was suggested that a comprehensive DPR be prepared. iv) Coal is a natural resource and cannot be allowed to be wasted. v) Appellant was in breach of the terms and conditions of the Contract by not discharging its obligations and failing to take remedial steps. ANALYSIS AND FINDING 11. We have given our due consideration to the contentions of both the counsels. The bank guarantees are unconditional in nature. In terms thereof the bank has undertaken to pay to the beneficiary immediately on demand all monies payable by the contractor to the extent of the amounts specified therein without any demur reservation recourse contest or protest and or without any reference to the appellant contractor. It has further been stipulated that any such demand made by BCCL on the bank shall be conclusive and binding notwithstanding any difference between the employer and the contractor or any dispute before any Court Tribunal Arbitrator or any other authority. Thus the terms and conditions stipulated therein give an absolute right to BCCL to encash the bank guarantees in accordance with the terms captured above. 12. The contentions urged by Mr. Sethi to our mind do not bring out a case of egregious fraud that has been recognised by the Court to be a ground for to stay the invocation of the bank guarantees. The law relating to invocation of such bank guarantees is by now well settled. There are FAO(OS)20 2021 numerous judgments of the Apex Court and as well as of this Court on this issue and we need not burden this judgment by extracting the views expressed in the said decisions.4 13. For the present appeal it would suffice to note that the Courts have acknowledged fraud as one of the exceptions for grant of injunction in respect of bank guarantees. That fraud has to be of a very high degree one which would vitiate the very foundation of the bank guarantee. The Courts have explained the concept of fraud to be of ‘an egregious nature as to vitiate the underlying transaction’. However the entire appeal is abysmally silent on this aspect. The allegations of fraud as levelled are founded on a different premise. Appellant’s contention is that BCCL orchestrated grounds for termination and cancellation and that amounts to egregious fraud vitiating the very foundation of the Contract. In our view the Appellant’s contention is vague and does not meet the requirement of law on the concept of fraud as a ground for restraining encashment of bank guarantees as laid down in a plethora of judgments on the subject. The case laws cited by the Appellant in support of its contentions we are afraid do not lend any support to the Appellant’s case and on the contrary are entirely against the case set up before us. 14. Further we are of the view that the other reliefs as sought in the present appeal to the effect that the Court should hold and declare the cancellation of the Contract to be void ab initio cannot be granted while 4 Umaxe Projects Private Limited v. Air Force Naval Housing Board 265DLT 599 Atul Gupta and Ors. v. S. Chand and Company Limited and Ors. 2019DRJ 694 FAO(OS)20 2021 entertaining a petition under Section 9 of the Act. The parties are already before the Arbitral Tribunal and in case BCCL has wrongly breached its obligations under the Contract the remedy shall lie before the Arbitral Tribunal. In so far as the encashment of the bank guarantees is concerned the facts leading to the invocation only demonstrates a contractual dispute between the parties where allegations and counter allegations are being levelled against each other for such breaches. Even if we assume Mr. Sethi’s contentions to be the correct factual position and even if we were to form a prima facie opinion that BCCL was at fault for failing to fulfil its obligations under the Contract yet we cannot conclude that the encashment of the bank guarantees is fraudulent. The existence of disputes between the parties to the Contract is not a ground for issuing an order of injunction to restrain enforcement of bank guarantees. In the course of commercial dealings the Appellant has issued an unconditional bank guarantee the beneficiary is therefore entitled to realize such a bank guarantee in terms thereof irrespective of any pending disputes. The fraud which has been recognised by the Courts to be an exception is a fraud of egregious nature underlying the Contract as discussed above. In view of the foregoing we find no ground to interfere with the finding of the learned Single Judge. Having said that we would like to observe that we do find merit in the contention of Mr. Sethi that as the bank guarantees had not been encashed at the point when the matter was heard the learned Single Judge should not have granted the alternate prayer and FAO(OS)20 2021 directed the banks to encash the same. In fact the Impugned Order does not record any reason for declining the main relief of injunction and thus to this extent the learned Single Judge fell in error. It is for this precise reason that we have given our anxious consideration to the Appellant’s contentions to examine if indeed there is a case for the grant restraining orders. However on consideration of the entire factual narrative and the grounds urged we are unable to find any ground compelling enough to order restitution. Even otherwise we may only note that the amount of the bank guarantees in question has been ordered to be deposited before this Court and the same is subject to the outcome of the arbitration proceedings. BCCL has not assailed the Impugned Order. Thus although the Appellant is prejudiced by the encashment but the amount is still secured. In the event the Appellant succeeds in the arbitration proceedings the necessary orders pertaining to the amount of the bank guarantees will necessarily follow. 17. Accordingly the present appeal is dismissed in the afore noted terms. Pending applications stand disposed of. MARCH 26 2021 SANJEEV NARULA J RAJIV SAHAI ENDLAW J FAO(OS)20 2021

Old Pension Scheme to be applicable to those who were selected via examinations in or before 2003 : Delhi High Court

Old Pension Scheme is applicable to those who were selected in the examinations conducted in 2003 but were issued letter in January or February, 2004. The High Court bench consisting of J. Manmohan and  J. Asha Menon allowed a petition making Personnel Below Officer Rank in the Central Reserve Force Border Security Force, Sashastra Seema Bal and Indo-Tibetan Border Police, who gave their examination 2003, eligible for the Old Pension Scheme in the matter of SI/MIN M.R. Gurjar & Ors. v. Union Of India [W.P. (C) 8208/2020]. All the petitioners had applied pursuant to the notification for the post of Constable/GD in Central Armed Police Forced and Sub-Inspectors through Staff Selection Commission and qualified in the said examination of 2003. On the basis of the advertisement, the Old Pension Scheme under CCS (Pension) Rules, 1972 was applicable. The New Contributory Pension Scheme was introduced by a notification dated 22nd December, 2003 and implemented with effect from 1st January, 2004. The Counsel for the petitioner stated that according to the 2003 notification, it was stipulated that the new scheme would not be applicable and the Old Pension Scheme would govern the Armed Forces. It was also contended that batchmates of most of the petitioners were given benefit of the Old Pension Scheme under various judgements passed by this Court such as in Patil Gopal Babulal & Ors. v. Union of India & Ors. [W.P. (C) 11646/2018]. In the counter affidavit filed, the respondents stated that since admittedly the recruitment process was initiated in 2004, the New Pension Scheme was to be made applicable.  

IN THE HIGH COURT OF DELHI AT NEW DELHI Suppl. 50 to 65 W.P.8208 2020 SI MIN M.R. GURJAR AND ORS Through: Mr. Nikhil Palli Advocate. UNION OF INDIA AND ORS Through: Mr. Rakesh Kumar CGSC. W.P.9252 2020 SHABAD PRAKAASH PUNIA AND ORS Through: Mr. Ankur Chhibber Advocate. UNION OF INDIA AND ORS. Through: Mr. Arun Bhardwaj CGSC for UOI. W.P.9311 2020 JASVIR SINGH No.04254893 & ORS. Through: Mr. Nikhil Palli Advocate. UNION OF INDIA & ORS. Through: None. W.P.5075 2020 SUDESH KUMAR SINGH AND ORS Through: Mr. Ankur Chhibber Advocate. W.P.(C) 8208 2020 & connected UNION OF INDIA AND ORS. Through: Mr. Manish Mohan CGSC with Mr. Manisha Saroha and Mr. Sameer Sinha Advocates. W.P.5080 2020 SUJAN SINGH YADAV & ORS. UOI & ORS. Through: Ms. Ankita Patnaik Advocate. Through: Ms. Shiva Lakshmi CGSC with Mr. Siddharth Singh Advocate. W.P.5443 2020 PRASIDDH NARAIN AND ORS. Through: Ms. Ankita Patnaik Advocate. UNION OF INDIA AND ORS Through: Mr.Nirvikar Verma and Mr.Shomendu Ghosh Advocates for W.P.5444 2020 PRAVEEN KUMAR AND ORS Through: Ms. Ankita Patnaik Advocate. W.P.(C) 8208 2020 & connected UNION OF INDIA AND ORS Through: Mr. Jaswinder Singh Advocate. W.P.5445 2020 KULESH KUMAR PATEL AND ORS Through: Ms. Ankita Patnaik Advocate. UNION OF INDIA AND ORS Through: Mr. Tanveer Ahmed Ansari W.P.5447 2020 GAIKWAD VALMIK S AND ORS Through: Ms. Ankita Patnaik Advocate. UNION OF INDIA AND OTHERS Through: Mr. Pardeep Kumar Sharma W.P.11097 2019 AMAR KUMAR Through: Mr. Anil Kumar Sahu Advocate. UNION OF INDIA AND ORS. Through: Mr. Ajay Digpaul CGSC with Mr. Kamal R Digpaul Advocate. W.P.(C) 8208 2020 & connected 60 W.P.12083 2019 KARAMVIR SINGH & ORS. Through: Mr. Anil Kumar Sahu Advocate. UNION OF INDIA & ORS. Through: Mr. G Tushar Rao Advocate for UOI. Mr. Manu Chaturvedi GP with Mr. Arjun Rekhi Advocate. W.P.7745 2020 HARBIR SINGH AND ORS Through: Mr. Ankur Chhibber Advocate. UNION OF INDIA AND ORS Through: Mr. Sushil Kumar Pandey Sr. Panel Counsel with Mr. Rahul Mourya Advocate. W.P.10317 2020 CM APPL.32656 2020 DILIP KUMAR SINGH AND OTHERS UNION OF INDIA AND OTHERS Through: Mr. Vinod Diwakar CGSC with Mr. Himanshu Pathak Advocate. W.P.11061 2020 SH BUDHI SINGH AND ORS Through: Ms. Ankita Patnaik Advocate. W.P.(C) 8208 2020 & connected UNION OF INDIA AND ORS Through: Mr. Farman Ali with Mr. Athar Raza Farooquei Advocates for R 1. W.P.11063 2020 BIJENDRA SINGH AND ORS Through: Ms. Ankita Patnaik Advocate. UNION OF INDIA AND ORS Through: Ms. Sarika Singh Sr Panel Counsel with Mr. Abhishek Khanna W.P.11065 2020 BHUPENDRA SINGH AND ORS Through: Ms. Ankita Patnaik Advocate. UNION OF INDIA AND ORS Through: Mr. Avnish Singh and Ms. Manpreet Kaur Advocates. Date of Decision: 15th January 2021 HON BLE MR. JUSTICE MANMOHAN HON BLE MS. JUSTICE ASHA MENON JUDGMENT MANMOHAN Jin the Central Reserve Police Force W.P.(C) 8208 2020 & connected Border Security ForceSashastra Seema Baland Indo Tibetan Border PoliceRules 1972 was applicable. The New Contributory Pension Scheme was introduced by a notification dated 22nd December 2003 and implemented with effect from 1st January 2004. Learned counsel for the petitioners state that by a notification dated 22nd December 2003 it was stipulated that the new scheme would not be applicable to Armed Forces and that they would be governed by the Old Pension Scheme. They point out that the Ministry of Home Affairsby a communication dated 6th August 2004 has clarified that the CRPF and ITBP is an Armed Force of the Union of India under the administrative control of the MHA and that even the Section 3(i) of the CRPF Act and Section 4of the ITBP Act clearly provides that there shall continue to be an Armed Force maintained by the Central Government and called the ‘CRPF’ ‘BSF’ ‘SSB’ and ‘ITBP’. They submit that even Article 246 read with List I Entry II of the Seventh Schedule of the Constitution of India clearly envisages Armed Forces of Union of India and includes Naval Military and Air Force any other Armed Force of the Union. They further submit that the Apex Court in the case of Akhilesh Prasad v Union Territory of Mizoram 1981 SCC 150 has categorically held that the sub section itself declares in no uncertain terms that CRPF is an Armed Force of the Central Government W.P.(C) 8208 2020 & connected which is the same thing as saying that it is a part of the Armed Force of the Union and that being the position even as per the notification dated 22nd December 2003 the scheme of New Pension Scheme has been excluded from the Armed Forces of the Union. They also contend that batchmates of most of the petitioners have been given benefit of Old Pension Scheme under various judgements passed by this Court in Patil Gopal Babulal & Ors. vs. Union of India & Ors. W.P.(C) 11646 2018 Tanaka Ram & Ors. vs. Union of India & Ors. 2019 174) DRJ 146 Shyam Kumar Choudhary and Ors. vs. Union of India being W.P.(C) No.13517 and Niraj Kumar Singh & Ors. vs. Union of India & Ors. W.P.(C) No.13129 2019. Pursuant to the notice issued in the present petitions the Respondents despite having been given adequate time have not filed reply in most of the matters till date. On behalf of the Respondents further time has been sought for the purpose of filing Counter Affidavit. It is urged that because of the large number of petitioners their factual details could not be verified and a last opportunity be given to them. Learned counsel for the respondents submit that without their counter affidavits being on record they will be handicapped in approaching the Supreme Court because they will not be able to give the mandatory undertaking that the facts stated therein were part of records before this Court. However in the counter affidavit filed in W.P.(C) 12083 2019 it is stated that admittedly since the entire recruitment process was initiated in the year 2004 and the appointment letters were issued between the months of June July 2004 the New Pension Scheme would be applicable and the petitioners would therefore not be entitled to the Old Pension Scheme. It is W.P.(C) 8208 2020 & connected further urged on behalf of Respondents that in W.P.(C) No. 5075 2020 the chart mentioned in the petition shows that the Written Examinations were itself held on different dates of January 2004 and therefore the Petitioners cannot legally exercise lien over a post from the date of advertisement i.e. from a date even prior to the Written Examination. Learned counsel for respondents submit that none of the earlier judgements including Patil Gopal Babulal & Ors. vs. Union of India & Ors. W.P.(C) 11646 2018 and Tanaka Ram & Ors. vs. Union of India & Ors. 2019DRJ 146are applicable to the present case inasmuch as in those cases the recruitment process had started in the year 2003 and some of the incumbents had been issued appointment letters in the year 2003 itself before the New Pension Scheme was made effective from 01st January 2004. Therefore according to them on facts the present batch of matters is different and the petitioners in the present case are not entitled to any relief The issue in the present batch of matters is no longer res integra. Consequently the request for additional time to file counter affidavit is as prayed for. In the case of certain constables of the BSF this Court by its judgment dated 12th February 2019 in Tanaka Ram allowed the prayer of those Petitioners and permitted them to avail of the benefit of the Old Pension Scheme. It was held that the option to continue the Old Pension Scheme should be extended to all those who had been selected in the examination conducted in 2003 but were issued call letters only in January or February 2004. It is also pertinent to mention that the Respondents aggrieved by the said judgment filed an SLP bearing No. 25228 2019 before W.P.(C) 8208 2020 & connected the Apex Court. The said SLP has been dismissed by the Supreme Court vide order dated 02nd September 2019. 10. This Court in Shyam Kumar Choudhary and Ors. vs. Union of India being W.P.(C) No.1358 of 2017 allowed similar petitions vide judgment dated 09th April 2019 against which the Respondents had again filed SLP bearing no. 31539 2019 which was again dismissed on 27th September 2019. The Respondents thereafter chose to file a review petition bearing no.2188 2020 before the Apex Court in the said matter and the said Review petition was also dismissed on merits vide order dated 24th November 2020. 11. Following the judgment of Shyam Kumar Choudhary the learned predecessor Division Bench in Niraj Kumar Singh & Ors. vs. Union of India & Ors. W.P.(C) No.13129 2019 granted similar benefit to 17 petitioners who had applied to the post of Sub Inspector in Central Police Organisations pursuant to an advertisement dated 21st June 2003 even when the written examination and physical efficiency test were held in November 2003 medical examination was held in January February 2004 and final result was declared in May 2004. The said 17 petitioners were issued offer of appointment on 02nd June 2005 and on accepting the same the appointment letter was issued on 14th July 2005 for joining the Sashastra Seema Bal. 12. Another Coordinate Bench vide judgment dated 06th November 2020 in W.P.(C) No. 6548 of 2020 as well 6989 2020 was pleased to allow the said petitions for grant of Old Pension Scheme by following the judgment in Shyam Kumar Choudhary8208 2020 & connected i.e. prior to coming into force of the present contributory pension scheme on 22nd December 2003 this Court is of the view that petitioners cannot be deprived of the benefit of the Old Pension Scheme. 14. This is more so when the batchmates of the petitioners are getting this benefit under various judgements passed by this Court. 15. For the above reasons the petitions are allowed. Respondents are directed to extend the benefit of Old Pension Scheme to each of these Petitioners and pass consequential orders within a period of eight weeks 16. Accordingly the writ petitions along with pending applications stand 17. The order be uploaded on the website forthwith. Copy of the order be also forwarded to the learned counsel through e mail. from today. disposed of. MANMOHAN J ASHA MENON J JANUARY 15 2021 W.P.(C) 8208 2020 & connected

Under Order VII Rule 11 a plaint can only be rejected as a whole and not in part: Bombay High Court

The plaint can and must be rejected in exercise of powers under Order 7 Rule 11(d) CPC on account of non-compliance with mandatory requirements or being replete with any institutional deficiency at the time of presentation of the plaint, ascribable to clauses (a) to (f) of Rule 11 of Order 7 CPC. In other words, the plaint as presented must proceed as a whole or can be rejected as a whole but not in part. This remarkable judgment was passed by the Bombay High Court in the matter of AURANGABAD SMART CITY DEVELOPMENT CORPORATION LIMITED V THE MAHARASHTRA STATE BOARD OF WAQF, AURANGABAD [CIVIL REVISION APPLICATION NO. 16 OF 2021] by Honourable Justice N.J. Jamadar. Through this civil revision petition the legality, propriety, and correctness of an order passed by the Maharashtra State Waqf Tribunal, Aurangabad, is challenged. In this impugned order dated 11th February 2021, an application preferred by Municipal Co. was submitted for rejection of the plaint under Order VII Rule 11(d) of the Code of Civil Procedure (Code) but it was rejected by the lower court. The background facts leading to this application are land bearing Survey No. 210 including CTS No. 2340 (suit property), is the Waqf Property dedicated for the services of Jama Masjid, Aurangabad. In the record of rights, the suit property was shown in the name of Mohammad Azeemuddin, Mutawalli, who was caretaker of the land of the Jama Masjid. The plaintiff avers that while implementing the City Survey Scheme, probably in the year 1971, the name of defendant No.1-Municipal Corporation is recorded as owner and occupant of the suit land without any legal mandate. The mutation of the name of defendant No.1 – Municipal Corporation in the City Survey record, however, neither divest the ownership over the suit land of the Waqf Institution nor confers any right, title, and interest in the suit land upon the Municipal Corporation. The plaintiff Board initiated the proceedings under Section 40 of the Waqf Act, 1995, and passed an order on 25th June 2013 declaring that the suit property and then did not proceed with any other applications. The order passed by the Board on 25th June 2013 declaring the suit property as the Waqf Property, thus, remained intact. Later the appellants here threatened to commence construction of the War Room office of the Smart City Development Corporation over the suit land despite the order of the plaintiff-Board declaring the suit land to be the Waqf Property. Hence the suit for perpetual injunction restraining the defendants from making any sort of construction over the suit land or creating third party interest therein. It is observed that “It is trite law that the rejection of the plaint envisaged by the Order VII Rule 11 of the Code is a rejection of the plaint as a whole. The plaint cannot be rejected in part. If the plaint survives against certain defendants or property, Order VII Rule 11 will have no application at all and the suit as a whole must then proceed to trial.” Thus, it was stated that “the bar to the tenability of the suit in the absence of prayer of possession, does not apply with equal force. The prayer for rejection of the plaint on the said count does not merit acceptance since the Tribunal does not seem to have committed any error. in observing that notice U/S. 487 of the Act 1949 was not warranted as the act attributed to defendant No.1-corporation cannot be said to have been done or purported to be done in pursuance or execution or intended execution of the provisions of the said Act, 1949. The substratum of the plaintiff’s case is that the defendant No.1- corporation has arrogated the suit property though it is a Waqf Property and unlawfully erected structures thereon. In the circumstances, the notice U/S. 487 of the Act, 1949 is plainly not warranted.“

on 23 04 2021 on 24 04 1 C.R.A. No. 16 2021 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CIVIL REVISION APPLICATION NO. 121 1.Aurangabad Smart City Development Corporation Limited through its Additional Chief Executive Officer Smart City Office War Room Dr. Babasaheb Ambedkar Research Centre near Aam Khas Maidan Aurangabad 4310012.The Municipal Corporation AurangabadThrough its Commissioner Municipal Corporation Office Aurangabad....Applicants VERSUSThe Maharashtra State Board of Waqf through its Chief Executive Officer Panchakki Aurangabad ...RespondentMr. V.D. Sapkal Senior Advocate i. by Mr. P.D. Jarare Advocate for applicantsMr. Y.B. Pathan Advocate for respondent C ORAM : N.J. JAMADAR J. Closed for Judgment on : 15th March 2021 Pronounced on : 23rd April 2021JUDGMENT :The legality propriety and correctness of an orderpassed by the Maharashtra State Waqf Tribunal Aurangabad dated on 23 04 2021 on 24 04 2 C.R.A. No. 16 2021 11th February 2021 on an applicationpreferred bythe applicant No.2 defendant No.1 for rejection of the plaint underOrder VII Rule 11(d) of the Code of Civil Procedurewherebythe said application came to be rejected is assailed in this revisionapplication.2.Shorn of unnecessary details the background factsleading to this application can be stated as under:a)The respondent plaintiff is the Board constituted underthe provisions of the Waqf Act 1995is the WaqfProperty dedicated for the services of Jama Masjid Aurangabad. Inthe record of rights the suit property was shown in the name ofMohammad Azeemuddin Mutawalli who was caretaker of the landof the Jama Masjid. Pursuant to the survey of Waqf conductedunder the provisions of the Waqf Act 1995 in the GovernmentGazette published on 17th May 1973 Jama Masjid Aurangabad wasincluded as Waqf Property.b)The plaintiff avers that while implementing the City on 23 04 2021 on 24 04 3 C.R.A. No. 16 2021 Survey Scheme probably in the year 1971 the name of defendantNo.1 Municipal Corporation is recorded as owner and occupant of thesuit land without any legal mandate. The mutation of the name ofdefendant No.1 Municipal Corporation in the City Survey record however neither divests the ownership over the suit land of theWaqf Institution nor confers any right title and interest in the suitland upon the defendant No.1 the Municipal Corporation.c)The plaintiff Board thus initiated the proceedings underSection 40 of the Waqf Act 1995. After providing an opportunity ofhearing to the concerned parties the Board passed an order on 25thJune 2013 declaring that the suit property is a Waqf property.Accordingly the suit property came to be registered as a WaqfProperty vide registration No. MSBW ABD 526 2013.d)The defendant No.1 Municipal Corporation beingaggrieved by the aforesaid order of the plaintiff Board filed anapplication before the Waqf Tribunal being Misc. Application No. 3 of2014. The defendant No.1 Corporation however did not prosecutethe said application and thus it came to be eventually dismissed forwant of prosecution by order dated 4th January 2017. The orderpassed by the Board on 25th June 2013 declaring the suit property asthe Waqf Property thus remained intact. on 23 04 2021 on 24 04 4 C.R.A. No. 16 2021 e)The plaintiff avers that the defendant No.1 Corporationhas erected construction over the portions of the suit land.However the defendant No.1 corporation has no legal right to erectfurther construction upon the land. The defendant No.2 Aurangabad Smart City Development Corporation Limited is anagency of the defendant No.1. The defendant No.1 is in the processof transferring the suit land in favour of defendant No.2. DefendantsNo.1 and 2 have threatened to commence construction of War Roomoffice of the Smart City Development Corporation over the suit landdespite the order of the plaintiff Board declaring the suit land to bethe Waqf Property. Hence the suit for perpetual injunctionrestraining the defendants from making any sort of construction overthe suit land or creating third party interest therein.f)The defendants appeared in response to the suitsummons. The defendant No.1 Municipal Corporation preferred anapplication for rejection of the plaintcontending inter alia that from the averments in the plaint it becomes evident that theplaintiff is not in possession of the suit property and the defendantsare in possession thereof and thus a suit for perpetual injunctionsimpliciter without the substantive relief of possession is barred. Itwas further contended that the suit is also barred by the provisions on 23 04 2021 on 24 04 5 C.R.A. No. 16 2021 of Section 487 of the Maharashtra Municipal Corporation Act 1949(Act 1949) for want of mandatory notice thereunder to theMunicipal Corporation.g)The plaintiff Board resisted the application on the scorethat the notice U S. 487 of the Act 1949 was not at all warranted asthe defendant Municipal Corporation has unlawfully encroached overthe suit property and threatened to commit unlawful acts and thus the said act of the defendant Municipal Corporation cannot be said tobe done or purported to be done in pursuance or execution of theAct 1949. It was denied that the plaintiff is not in possession of thesuit property.h)After appraisal of the averments in the plaint and therival contentions in support of the application for rejection of theplaint and in opposition thereto the Tribunal was persuaded to rejectthe application by the impugned order. The Tribunal was of theview that though there was no clear pleading that the plaintiff Boardis in possession of the suit property yet it did not imply that theplaintiff has admitted the possession of the defendant. Thus theprinciple that a suit for prohibitory injunction simpliciter by a person who is not in possession of the suit property without seeking therelief of possession did not apply with equal force of the facts of the on 23 04 2021 on 24 04 6 C.R.A. No. 16 2021 case. Even otherwise according to the Tribunal the plaintiff Boardhas an option to amend the plaint and seek the relief of possession if found necessary. The Tribunal repelled the challenge to thetenability of the suit for want of notice under Section 487 of the Act 1949 by observing that in the facts of the case notice U S. 487 wasstrictly not warranted and in fact the plaintiff Board had addresseda letter on 25th September 2020 to the Commissioner MunicipalCorporation Aurangabad which amounted to notice U S. 487 of theAct 1949. i)Being aggrieved by and dissatisfied with the aforesaidapproach of the Tribunal the defendants have invoked the revisionaljurisdiction of this Court.3.I have heard Mr. V.D. Sapkal the learned Senior Counselfor the applicants defendants and Mr. Y.B. Pathan the learnedCounsel for the respondent plaintiff. With the assistance of thelearned Counsels for the parties I have also perused the material onrecord especially the plaint in Waqf Suit No. 121 and theorder impugned herein.4.Mr. Sapkal the learned Senior Counsel for the applicants strenuously urged that the Tribunal committed a manifest error in on 23 04 2021 on 24 04 7 C.R.A. No. 16 2021 completely misreading the averments in the plaint. From a plainreading of the plaint according to Mr. Sapkal it becomes abundantlyclear that the plaintiff Board has admitted in unequivocal terms thatthe defendant No.1 Municipal Corporation is in possession of thesuit property and has erected multiple structures thereon. Thus theTribunal could not have observed that the plaintiff has not admittedthe possession of the defendants over the suit property especiallyafter observing that there is no clear pleading to the effect that theplaintiff is in possession of the suit property. Secondly according toMr. Sapkal the Tribunal misdirected itself in rejecting the applicationfor rejection of the plaint on the premise that the plaintiff can amendthe plaint and incorporate the relief of possession. This view vitiatedthe entire reasoning of the Tribunal urged Mr. Sapkal.5.It was further submitted that the bar envisaged by theclauseof Rule 11 of Order VII of the Code need not be statutoryalone. It is well recognized principle of law that a suit for prohibitoryinjunction simpliciter by a person who is not in possession of the suitproperty without seeking the relief of possession is not tenable.Though the attention of the Tribunal was invited to a bindingprecedent of the Supreme Court in the case of Anathula SudhakarVs. P. Buchi Reddyby L.Rs. and Ors. AIR 2008 Supreme on 23 04 2021 on 24 04 8 C.R.A. No. 16 2021 Court 2033 the Tribunal misconstrued the ratio of the said judgmentand allowed the plaintiff board to wriggle out of the situation byobserving that the plaintiff can amend the plaint. Lastly Mr. Sapkalwould urge that the Tribunal had fallen into an error in observingthat the notice to the Municipal Commissioner constituted a notice tothe Municipal Corporation.6.Mr. Y.B. Pathan the learned Counsel for the respondent plaintiff joined issue by canvassing a submission that the provisionsof Section 487 of the Act 1949 were not at all attracted as theplaintiff has invoked the jurisdiction of the Civil Court against theunlawful act of defendant No.1 corporation. To commitencroachment and usurp the Wakf Property can never be an actdone or purported to be done in pursuance or execution or intendedexecution of the Act 1949 stoutly submitted Mr. Pathan. On theaspect of nature of relief in the suit Mr. Pathan would urge that inthe peculiar facts of the case it is not open to the defendant No.1 Municipal Corporation to question the character of the suit property.The Board in exercise of the powers vested in it U S. 40 of the WaqfAct 1995 has lawfully made a declaration that the suit property isthe Waqf Property. A challenge thereto at the instance of defendantNo.1 corporation has since been abandoned. In this state of affairs on 23 04 2021 on 24 04 9 C.R.A. No. 16 2021 the suit seeking the relief of injunction is perfectly in order submitted Mr. Pathan. In order to lend support to this submission Mr. Pathan placed reliance on a judgment of the Gujarat High Courtin the case of Mahulbhai Bipinbhai Tamboli Vs. AkshaybhaiRamanbhai Thakkar dated 26th April 2019 in R Second Appeal No.616.7.Before adverting to deal with the rival contentions itmay be apposite to note the facts which are by and large not indispute. The fact that the suit property is declared a Waqf PropertyU S. 40 of the Waqf Act 1995 is not in dispute. In fact thedefendant No.1 Corporation had preferred Waqf Misc. ApplicationNo. 14 against the said declaration. The said applicationcame to be dismissed for want of prosecution by the Tribunal byorder dated 4th January 2017. This implies that the character of thesuit property as the Waqf Property cannot be questioned unless theorder dated 20th June 2013 passed by the Waqf Board is set aside orvaried by the Tribunal. The necessary corollary is that the plaintiff Board is not required to seek a declaration that the suit property isthe Waqf Property. Conversely from the averments in the plaint itbecomes explicitly clear that defendant No.1 Municipal Corporationhas erected structures over the suit property and they are put to use on 23 04 2021 on 24 04 10 C.R.A. No. 16 2021 for various purposes.8.In the aforesaid fact situation the question as towhether the suit is tenable in the present form wrenches to the fore.The thrust of the submission on behalf of the defendants is that asimpliciter suit for prohibitory injunction without seeking the relief ofpossession is barred by law. To bolster up this submission Mr.Sapkal placed reliance on a judgment of the Rajasthan High Court inthe case of Kundan Mal and others Vs. Thikana Siryari and others AIR 1959 Rajasthan 146 wherein it was held that where plaintiff isnot in possession of the property in dispute he cannot sue forinjunction simpliciter. A strong reliance was also placed on thejudgment of the Supreme Court in the case of Anathula SudhakarVs. P. Buchi Reddyby L.Rs. And Ors. AIR 2008 SupremeCourt 2033 wherein the Supreme Court elaborately considered thescope of a suit for prohibitory injunction in different situations. Theobservations of the Supreme Court in paragraphs No. 11 to 14 areinstructive and thus extracted below:“11.The general principles as to when a meresuit for permanent injunction will lie and when itis necessary to file a suit for declaration and orpossession with injunction as a consequentialrelief are well settled. We may refer to them on 23 04 2021 on 24 04 11 C.R.A. No. 16 2021 briefly.11.1Where a plaintiff is in lawful or peacefulpossession of a property and such possession isinterfered or threatened by the defendant a suitfor an injunction simpliciter will lie. A person hasa right to protect his possession against anyperson who does not prove a better title byseeking a prohibitory injunction. But a person inwrongful possession is not entitled to aninjunction against the rightful owner.11.2Where the title of the plaintiff is notdisputed but he is not in possession his remedyis to file a suit for possession and seek inaddition if necessary an injunction. A person outof possession cannot seek the relief of injunctionsimpliciter without claiming the relief ofpossession.11.3Where the plaintiff is in possession buthis title to the property is in dispute or under acloud or where the defendant asserts titlethereto and there is also a threat of dispossessionfrom defendant the plaintiff will have to sue fordeclaration of title and the consequential relief ofinjunction. Where the title of plaintiff is under acloud or in dispute and he is not in possession ornot able to establish possession necessarily theplaintiff will have to file a suit for declaration possession and injunction. on 23 04 2021 on 24 04 12 C.R.A. No. 16 2021 12.We may however clarify that a prayer fordeclaration will be necessary only if the denial oftitle by the defendant or challenge to plaintiff’stitle raises a cloud on the title of plaintiff to theproperty. A cloud is said to raise over a person’stitle when some apparent defect in his title to aproperty or when some prima facie right of athird party over it is made out or shown. Anaction for declaration is the remedy to removethe cloud on the title to the property. On theother hand where the plaintiff has clear titlesupported by documents if a trespasser withoutany claim to title or an interloper without anyapparent title merely denies the plaintiff’s title itdoes not amount to raising a cloud over the titleof the plaintiff and it will not be necessary for theplaintiff to sue for declaration and a suit forinjunction may be sufficient. Where the plaintiff believing that defendant is only a trespasser or awrongful claimant without title files a mere suitfor injunction and in such a suit the defendantdiscloses in his defence the details of the right ortitle claimed by him which raises a seriousdispute or cloud over plaintiff’s title then there isa need for the plaintiff to amend the plaint andconvert the suit into one for declaration.Alternatively he may withdraw the suit for bareinjunction with permission of the court to file a on 23 04 2021 on 24 04 13 C.R.A. No. 16 2021 comprehensive suit for declaration and injunction.He may file the suit for declaration withconsequential relief even after the suit forinjunction is dismissed where the suit raised onlythe issue of possession and not any issue of title.13.In a suit for permanent injunction torestrain the defendant from interfering withplaintiff’s possession the plaintiff will have toestablish that as on the date of the suit he was inlawful possession of the suit property anddefendant tried to interfere or disturb such lawfulpossession. Where the property is a building orbuilding with appurtenant land there may not bemuch difficulty in establishing possession. Theplaintiff may prove physical or lawful possession either of himself or by him through his familymembers or agents or lessees licensees. Even inrespect of a land without structures as forexample an agricultural land possession may beestablished with reference to the actual use andcultivation. The question of title is not in issue insuch a suit though it may arise incidentally orcollaterally.14.But what if the property is a vacant site which is not physically possessed used orenjoyed In such cases the principles is thatpossession follows title. If two persons claim tobe in possession of a vacant site one who is able on 23 04 2021 on 24 04 14 C.R.A. No. 16 2021 to establish title thereto will be considered to bein possession as against the person who is notable to establish title. This means that eventhough a suit relating to a vacant site is for amere injunction and the issue is one ofpossession it will be necessary to examine anddetermine the title as a prelude for deciding thede jure possession. In such a situation wherethe title is clear and simple the court mayventure a decision on the issue of title so as todecide the question of de jure possession eventhough the suit is for a mere injunction. Butwhere the issue of title involves complicated orcomplex questions of fact and law or where courtfeels that parties had not proceeded on the basisthat title was at issue the court should not decidethe issue of title in a suit for injunction. Theproper course is to relegate the plaintiff to theremedy of a full fledged suit for declaration andconsequential reliefs.”The position was summarised in paragraph No. 17 asunder:“ 17.To summarize the position in regard tosuits for prohibitory injunction relating toimmovable property is as under(a)Where a cloud is raised over plaintiff’stitle and he does not have possession a suit for on 23 04 2021 on 24 04 15 C.R.A. No. 16 2021 declaration and possession with or without aconsequential injunction is the remedy. Wherethe plaintiff’s title is not in dispute or under cloud but he is out of possession he has to sue forpossession with a consequential injunction.Where there is merely an interference withplaintiff’s lawful possession or threat ofdispossession it is sufficient to sue for aninjunction simpliciter.(b)As a suit for injunction simpliciter isconcerned only with possession normally theissue of title will not be directly and substantiallyin issue. The prayer for injunction will be decidedwith reference to the finding on possession. Butin cases where de jure possession has to beestablished on the basis of title to the property as in the case of vacant sites the issue of titlemay directly and substantially arise forconsideration as without a finding thereon it willnot be possible to decide the issue of possession.(c)But a finding on title cannot be recordedin a suit for injunction unless there are necessarypleadings and appropriate issue regarding title(either specific or implied as noticed inAnnaimuthu Thevar Vs. Alagammal 2005(6) SCC202). Where the averments regarding title areabsent in a plaint and where there is no issuerelating to title the court will not investigate or on 23 04 2021 on 24 04 16 C.R.A. No. 16 2021 examine or render a finding on a question of title in a suit for injunction. Even where there arenecessary pleadings and issue if the matterinvolves complicated questions of fact and lawrelating to title the court will relegate the partiesto the remedy by way of comprehensive suit fordeclaration of title instead of deciding the issuein a suit for mere injunction.(d)Where there are necessary pleadingsregarding title and appropriate issue relating totitle on which parties lead evidence if the matterinvolved is simple and straightforward the courtmay decide upon the issue regarding title even ina suit for injunction. But such cases are theexception to the normal rule that question of titlewill not be decided in suits for injunction. Butpersons having clear title and possession suingfor injunction should not be driven to the costlierand more cumbersome remedy of a suit fordeclaration merely because some meddlervexatiously or wrongfully makes a claim or triesto encroach upon his property. The court shoulduse its discretion carefully to identify cases whereit will enquire into title and cases where it willrefer to plaintiff to a more comprehensivedeclaratory suit depending upon the facts of thecase.”9.Mr. Sapkal laid special emphasis on the proposition No. on 23 04 2021 on 24 04 17 C.R.A. No. 16 2021 11.2wherein it was postulated that where thetitle of the plaintiff is not disputed but he is not in possession hisremedy is to file a suit for possession and seek in addition ifnecessary an injunction. A person out of possession cannot seekrelief of injunction simpliciter without claiming the relief ofpossession. In the case at hand according to Mr. Sapkal on a plainreading of the plaint it becomes clear that the plaintiff is not inpossession of the suit property.10.Mr. Sapkal further urged that the observations inparagraph No. 12 of the aforesaid judgment wherein the SupremeCourt adverted to the possibility of plaintiff seeking amendment inthe plaint so as to convert the suit into one for declaration wereread and construed by the Tribunal out of context. The criticismadvanced by Mr Sapkal appears well merited. It is trite that whileconsidering an application for rejection of the plaint the Court has toconsider the averments in the plaint and upon a meaningful readingthereof arrive at a conclusion as to whether the plaint discloses acause of action or is barred by the provisions of any law. Thepossibility of the plaintiff resorting to provisions contained in OrderVI Rule 17 of the Code so as to infuse cause of action or take it outof the purview of the bar created by any law could not have been on 23 04 2021 on 24 04 18 C.R.A. No. 16 2021 permitted to influence the determination of the question of rejectionof the plaint. 11.Indubitably the aspect of rejection of the plaint turnsupon a meaningful reading of the averments in the plaint as a whole.In the case at hand the plaintiff Board has approached the Tribunalwith a case that somewhere in the year 1971 the name of defendantNo.1 Municipal Corporation came to be mutated to the record ofrights of the suit property without any acquisition or instrument.Mere mutation does not confer any right title and interest upon thedefendant No.1 Corporation. Undoubtedly there are averments inthe plaint to the effect that defendant No.1 has erected structuresover the suit land comprising Dr. Ambedkar Research Centre andother offices. The question that crops up for consideration is whether the suit without seeking the relief of possession in thepeculiar facts is untenable 12.I am not able to persuade myself to agree with thesubmission of Mr. Sapkal that the moment the plaintiff does notseek the relief of possession the suit for injunctive relief isunsustainable. The said issue turns upon the nature of theinjunctive relief. Even in the case of Anathula Sudhakar on 23 04 2021 on 24 04 19 C.R.A. No. 16 2021 the Supreme Court adverted to the distinct considerations whichmay arise where the property in question is a building or buildingwith appurtenant land and the property which is a vacant site. Inthe later cases the principle is that possession follows title. If twopersons claim to be in possession of a vacant suit site the one whois able to prove his title thereto will be considered to be inpossession as against the person who is not able to establish histitle. 13.A profitable reference in this context can be made to ajudgment of the Supreme Court in the case of Vishram alias PrasadGovekar and others Vs. Sudesh Govekarby legalrepresentatives and others 2017(11) Supreme Court Cases 345 wherein the plaintiff had sought the relief of mandatory injunctionseeking demolition of the construction carried out by the defendanton the suit property with the allegation that it was illegally put up bythe defendant on the plaintiffs’ land. In the said case the tenabilityof the suit was challenged on the ground that the plaintiffs were notin possession of the suit property. The Supreme Court distinguishing the judgment in the case of Anathula Sudhakarheld that the assertion that the defendants have carried outillegal construction did not imply that the plaintiff admitted the on 23 04 2021 on 24 04 20 C.R.A. No. 16 2021 possession of the defendant over the suit land and therefore thesuit was not untenable in the absence of any relief of possession.14.In the case at hand the nature of injunctive relief soughtby the plaintiff assumes critical significance. There are twodimensions to the relief sought by the plaintiff. One the defendantbe restrained from carrying out any kind of construction over thesuit property. Two the defendant be restrained from creating thirdparty interest over the suit property. These reliefs on a properconsideration have their genesis in the claim of title over the suitproperty. As indicated above until the declaration made by theWaqf Board U S. 40 of the Act 1995 holds the field the plaintiff isentitled to legally assert that the suit property is a Waqf Property.15.The relief of injunction restraining the defendants frommaking any kind of construction over the suit property cannot beequated with a relief of prohibitory injunction restraining thedefendants from causing obstruction to the possession of plaintiff which is often found in run of mill cases. With a categoricalassertion that the defendant No.1 has erected certain structuresover the suit property this relief of injunction seeking restraint onmaking construction over the suit property is required to be on 23 04 2021 on 24 04 21 C.R.A. No. 16 2021 construed as one to restrain the defendants from carrying outfurther construction. The second part of the injunctive relief i.e. ofrestraint from creating third party interest in the suit property is anexercise of incidence of ownership over the suit property plain andsimple. Armed with the declaration that the suit property is a WaqfProperty the plaintiff Board is within its rights in seeking such reliefof injunction irrespective of question of possession as it emanatesfrom the claim of title over the suit property.16.There is another facet to the question in controversy. Asindicated above the plaintiff Board is not enjoined to seekdeclaration of title. The plaintiff Board can lawfully seek the relief ofrestraining defendant from creating third party rights over the suitproperty. This part of the cause of action is not dependent upon thefactum of possession. In any event even if the case of thedefendant is taken as par that the plaintiff cannot seek the relief ofprohibitory injunction without seeking the relief of possession yetthe suit is competent to the extent of the second part of theinjunctive relief i.e. not to create third party interest in the suitland. 17.It is trite law that the rejection of the plaint envisaged by on 23 04 2021 on 24 04 22 C.R.A. No. 16 2021 the Order VII Rule 11 of the Code is rejection of the plaint as awhole. The plaint cannot be rejected in part. A profitable referencein this context can be made to the judgment of the Supreme Courtin the case of Sejal Glass Limited Vs. Navilan Merchants PrivateLimited 2018(11) Supreme Court Cases 780 wherein it wasenunciated that it is a settled law that a plaint as a whole can berejected under Order VII Rule 11 of the Code. If the plaint survivesagainst certain defendants or property Order VII Rule 11 will haveno application at all and the suit as a whole must then proceed totrial.18.The aforesaid pronouncement was followed by theSupreme Court in the case of Madhav Prasad Aggarwal and anotherVs. Axis Bank Limited and another 2019(7) Supreme Court Cases158 wherein the High Court had dismissed the suit as againstrespondent No.1 Axis Bank Limited by invoking provisions of OrderVII Rule 11(d) of the Code as the bar U S. 34 of the Securitisationand Reconstruction of Financial Assets and Enforcement of SecurityInterest Act 2002 was held to operate. The Supreme Courtreiterated the principle that the plaint can be rejected as a wholeand not in part. The observations in paragraph No. 12 are materialand thus extracted below: on 23 04 2021 on 24 04 23 C.R.A. No. 16 2021 “ 12.Indubitably the plaint can and must berejected in exercise of powers under Order 7 Rule11(d) CPC on account of non compliance withmandatory requirements or being replete withany institutional deficiency at the time ofpresentation of the plaint ascribable to clauses(a) toof Rule 11 of Order 7 CPC. In otherwords the plaint as presented must proceed as awhole or can be rejected as a whole but not inpart. In that sense the relief claimed byRespondent 1 in the notice of motion(s) whichcommended to the High Court is clearly ajurisdictional error. The fact that one or some ofthe reliefs claimed against Respondent 1 in thesuit concerned is barred by Section 34 of the2002 Act or otherwise such objection can beraised by invoking other remedies including underOrder 6 Rule 16 CPC at the appropriate stage.” ….. 19.In view of the aforesaid enunciation of legal position inthe facts of the case in my considered view the bar to the tenabilityof the suit in the absence of prayer of possession does not applywith equal force. The prayer for rejection of the plaint on the saidcount does not merit acceptance.20.The Tribunal does not seem to have committed any error on 23 04 2021 on 24 04 24 C.R.A. No. 16 2021 in observing that notice U S. 487 of the Act 1949 was not warrantedas the act attributed to defendant No.1 corporation cannot be said tohave been done or purported to be done in pursuance or executionor intended execution of the provisions of the said Act 1949. Thesubstratum of the plaintiff’s case is that the defendant No.1 corporation has arrogated the suit property though it is a WaqfProperty and unlawfully erected structures thereon. In thecircumstances the notice U S. 487 of the Act 1949 is plainly notwarranted.21.Mr. Sapkal made a strenuous effort to persuade theCourt to hold that the letter dated 25th September 2020 which wasaddressed to the Municipal Commissioner does not amount to anotice to the corporation. Reliance was sought to be placed on ajudgment of the learned Single Judge of this Court in the case ofBajirao Tukaram Manav Vs. Aministerative Officer and another 1985Bom. C.R. 587 wherein it was observed that havingregard to the distinct authorities created under the MunicipalCorporation Act it is not possible to accept the contention that thenotice to the Commissioner can also be said to be a notice to theCorporation within the meaning of Section 487 of the Act 1949.22.I do not find it necessary to delve into this aspect of the on 23 04 2021 on 24 04 25 C.R.A. No. 16 2021 matter as the Tribunal in my considered view was justified inobserving that in the facts of the case especially in the backdrop ofthe nature of allegations against defendant No.1 notice envisagedby Section 487 of the Act 1949 was not warranted.23.The upshot of aforesaid consideration is that this Court isnot persuaded to interfere with the impugned order albeit forreasons in addition to the reasons ascribed in the impugned order.This Court does not find that the Tribunal has committed anyjurisdictional error in rejecting the application for rejection of theplaint. The revision application thus deserves to be rejected.Hence the following order. O R D E RThe revision application stands rejected. No costs. JUDGEMadkar

Taking custody of bride’s jewellery not cruelty u/s 498A IPC: Supreme Court

The issue whether taking custody of the bride’s jewellery for safekeeping could be consider to fall within the purview of cruelty under section 498A of IPC was dealt and decided upon by a division bench of the Supreme Court consisting of Justice Indira Banerjee and Justice J K Maheswari in the matters between Deepak Sharma vs. State of Haryana and Ors. Criminal Appeal No. 83 of 2022 decided on 12.1.2022. The crux of the matter is that allegations was brought about that the complainant’s jewellery taken by the mother in-law and brother in-law, who is the appellant. The appellant is unable to leave country to go and join his employment in USA due to a case involving matrimonial dispute filed by the complainant where he is one of the accused.Both trial court and the Punjab and Haryana High Court, denied him permission to leave the country.This appeal is against the order of the high court to allow the  appellant to leave country. The petitioners contended allegations in the complaint against the Appellant do not, at first glance, reveal any offense against the Appellant, which is persecution, that is, an intentional act of a kind that could lead the woman to commit suicide, pursuant to Section 498A or cause serious injury or danger to the woman’s (physical or mental) life, limb or health. It is not even alleged that the Appellant extorted or misappropriated the complainant’s jewelry or even refused to comply with the same request. Detention of jewelry for security reasons cannot constitute persecution within the meaning of Section 498A of the IPC. There is no demand for dowry or property against the Appellant, or even allegation of threats or torture. From the respondent side, nodody appeared  for before the court in spite of notice.the complainant only alleged before the court that the appellant and his mother has detained all her gold and when she confronted him about the bad habits of her husband, he advised her to accept the culture of her husband or it will not turn out well. The apex court court held  that advising a wife to comply to avoid retaliation from her husband does not constitute cruelty within the meaning of Section 498A of the Indian Penal Code. Failure to control, live independently, or advise as an adult sibling and correcting the Complainant to avoid vengeful retaliation against her husband does not constitute cruelty by the Appellant. A valid passport, visa, and is the fundamental right of freedom to travel abroad cannot be overlooked only because the brother’s wife has filed a case of matrimonial dispute where he is an accused provided the evidences does not disclose any crime on his behalf.The bench believes that Chief Justice Kurukshetra made a mistake in instructing this Appellant not to leave the country without the prior permission of the Court.

IN THE CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 83 OF 2022 Arising out of S.L.P.(CRL.) No. 9762 OF 2021 O R D E R STATE OF HARYANA & ORS No one has appeared on behalf of the Respondent No.2 in spite This appeal is against an order dated 24.11.2021 passed by the High Court of Punjab and Haryana at Chandigarh dismissing Criminal Misc. No.33701 2021 in Criminal Miscellaneous Petition No. 339921 filed by the Appellant for permission to travel back to the United States of America where he has a job and resume his duties. The short question in this appeal is whether the Appellant can be denied his fundamental right of personal liberty to travel abroad subject to possession of a valid passport visa and other requisite travel documents only because he is arrayed as accused in a complaint filed by his brother’s wife against his brother being the husband of the complainant and his parents particularly mother and that too when the allegations in the complaint do not disclose any criminal offence on the part of the Appellant. The answer to the aforesaid question has to be in the negative. The Appellant is the brother in lawof the Respondent No.2and had been residing in the United States of America since 2009 on H1B Visa. The said Nitin Sharma apparently resides at Charlotte in North Carolina as would be evident from the array of accused persons in the complaint. It appears that there were differences and matrimonial disputes between the complainant and her husband Nitin Sharma brother of the Appellant from the inception of their marriage According to the complainant she was also harassed for dowry by her parents in law particularly mother in law. On 16.08.2019 the complainant returned to India allegedly at the behest of her in laws. In November 2019 the complainant’s parents in law returned to India. After the complainant’s parents in law returned the complainant and her parents tried to contact them and also tried to contact the complainant’s husband Nitin Sharma. The complainant’s in laws tried to avoid the complainant and her parents on one pretext or the other and the complainant’s husband Nitin Sharma did not answer their calls. The complainant was not allowed to live in her matrimonial home at Faridabad. On 07.09.2020 an FIR was filed by the complainant against her husband and in laws under Sections 323 34 406 420 498A and 506 of the Indian Penal Code 1860 was registered at the Thanesar City Police Station at Kurukshetra under Section 154 of the Criminal Procedure Code 1973. The complainant’s husband Nitin Sharma her father in law Suresh Chand Sharma her mother in law Satyawati Sharma and the Appellant were arrayed as Accused Nos. 1 2 3 and 4 In a nutshell the material allegations in the FIR were i) The accused pressurized the complainant’s family to organise the marriage ceremony of the complainant and the said Nitin Sharmaat Faridabad instead of Kurukshetra. As ceremonies functions were held at Kurukshetra and Faridabad complainant’s parents incurred expenditure of Rs.23 lakhs ii) The complainant’s mother in law had demanded gold ornaments of her choice saying that her elder daughter in law had brought 70 tolas of gold iii) After marriage the complainant’s in laws expressed dissatisfaction over the dowry brought by her. Her mother in lawtaunted her for bringing less dowry iv) The complainant’s mother in law insulted the complainant even more after a cousin of the complainant’s husband whose marriage took place three days after the complainant got married was gifted a car by the bride’s family. It is alleged that the complainant’s mother in law Accused No.3) demanded a car v) The complainant’s husbandwas not interested in her and found excuses to harass her. He returned home late in an inebriated state and fought with her without reason. After watching television till late at night he slept on the couch vi) The complainant s husbanddid not allow her to go out of the Apartment. He did not arrange for social security health insurance or driving licence for the complainant. He also did not allow her to obtain the same on vii) The complainant’s husbandmade the complainant dependent on him even for small things. He did not give attention to her health and smoked at home and also stocked non vegetarian food in the refrigerator though before marriage he had told her that he was a vegetarian and a non smoker. The complainant’s husband twisted her arms when she tried to stop him from smoking viii) On the pretext of going to play cricket the complainant’s husband left the house early and returned at 3 o’clock at night. She suspected he was living with a lady after she found lease documents in a closet. When the complainant asked her husband(Accused No.1) about the lease documents he left the apartment without giving any answer. He had been in a live in relationship with a woman before marriage. This had not been disclosed to the complainant. ix) On one occasion after the complainant’s husbandhad intoxicated himself with weed the complainant found weed pipe in her husband’s pocket. When she told this to her brother in law and his wife the complainant’s husband abused her pushed her and twisted her arm x) The complainant’s husbandtortured and harassed her with a view to make her leave or to compel her to commit xi) In June 2019 the complainant’s parents in lawwent to U.S.A. Instead of solving the complainant’s problems they both started harassing xii) The complainant’s mother in law gave the complainant stale food and scolded her without reason. When the complainant protested her husband rebuked her for raising her voice in front of her parents in law and xiii) The complainant’s husband’s family told the complainant to go to India so that they could reform her husband Accordingly she came to India in August 2019. xiv) When the complainant’s parents in law returned to India in November 2019 the complainant and her parents tried to contact them and also tried to contact the complainant’s husband avoided the complainant and her parents giving excuses and the complainant’s husband Accused No.1) did not take calls xv) The complainant’s parents in law The accused have collectively ruined the complainant’s life by falsely representing that the complainant’s husband(Accused No.1) was a vegetarian a teetotaller and non smoker when in fact he was a non vegetarian a chain smoker and an alcoholic and also by suppressing his live in relationship with another In the entire complaint there is no specific complaint against the Appellant. The only allegations against the Appellant are “My mother in law and my brother in law have taken all gold and have kept with them. I went to USA with one Mangal Sutra and Chain I am religious and vegetarian which was known to Nitin. For the purpose of harassing me he used to stock non veg in the refrigerator. Before marriage he himself stated that he is non smoker non drinker and vegetarian whereas truth was against this. He used to take intoxicated materials. One time I found weed pipe from his pocket. When this fact was brought into the notice of my brother in law he instead asked me to accept the culture of Nitin One day Nitin came after doing intoxication I thought that I found weed pipe earlier from his pocket and he may not have the habit of weed then I told about this to his brother and sister in law. On this Nitin started abusing and pushed me while twisting my arm and he had been playing psychological game and had been torturing and harassing so that either I myself leave him or commit suicide. My brother in law threatened me to remain quiet otherwise Nitin is a very bad enemy.” The allegations in the complaint against the Appellant prima facie do not disclose against the Appellant any offence under Section 498A of the IPC which contemplates cruelty that is willful conduct of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to the life limb or healthof the woman It is interesting to note that in the complaint the complainant has given the address of her husband in U.S.A. in addition to his permanent address at Faridabad. The complainant has for reasons known to herself not made any reference in her complaint to the fact that the Appellant is a resident of Texas where he is working. The complaint gives the impression that the Appellant is a resident of Faridabad. From the complaint itself it is patently clear that the Appellant does not reside in the same premises as his brother being the husband of the complainant. The averments in the pleadings in the Courts below read with the complaint show that they do not even live in the same place. The Appellant works in Texas U.S.A. whereas his brother lives and works in North Section 498A of the IPC is extracted hereinbelow for convenience : “498 A. Husband or relative of husband of a woman subjecting her to cruelty.—Whoever being the husband or the relative of the husband of a woman subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to The complainant has not given any particulars of the jewellery that had allegedly been taken by her mother in law and brother in law. There is not a whisper of whether any jewellery is lying with the Appellant. It is not even alleged that the Appellant forcibly took away or misappropriated the complainant’s jewellery or refused to return the same inspite of request. Taking custody of jewellery for safety cannot constitute cruelty within the meaning of Section 498A of the IPC. There is not even any allegation against the Appellant of any demand or threat or torture for dowry or property. Failure to control an adult brother living independently or giving advice to the complainant to adjust to avoid vindictive retaliation from the Accused No. 1 cannot constitute cruelty on the part of the Appellant within the meaning of Section 498A of the IPC. There are no specific allegations against the Appellant of misrepresentation or concealment. There is not a whisper of the Appellant’s role in the marriage negotiations that took place in India. As observed above the Appellant who is the elder brother in law of the complainant resides in U.S.A. There is only a general omnibus allegation that all the accused ruined the life of the complainant by misrepresentation concealment etc. On the face of the averments in the complaint the complainant’s husband made certain misrepresentations to her. The Appellant is not liable for the acts of cruelty or any other wrongful and or criminal acts on the part of his parents or brother. There is nothing specific against the Appellant except the vague allegation that the Appellant and his mother that is the complainant’s mother in law kept her jewellery. The only other allegation is that the Appellant had not done anything when the complainant had spoken to the Appellant about his brother’s conduct and behaviour he had told the complainant to remain quiet as Nitin could be a very bad enemy. In any event a deed of compromise has now been executed between the complainant and her husband being the Accused No. 1. A copy of the compromise settlement has been enclosed. The Appellant is not party to the settlement. Having regard to the nature of the allegations it is not understood how and why the Appellant should have been detained in India. In our considered opinion the Chief Judicial Magistrate Kurukshetra erred in directing this Appellant not to leave the country without prior permission of the Court. The High Court rejected the prayer of the Appellant to leave the country with the following observations “I have heard learned counsel for the Applicant Petitioner No.4 learned State Counsel and perused the record This Court vide order dated 13.10.2021 heard the parties and in view of the agreed position directed them to appear before the Magistrate concerned for recording their statement on 28.10.2021. Thereafter learned Chief Judicial Magistrate Kurukshetra sent its report dated 02.11.2021. It has been recorded in the statement that complainant respondent No.2 had stated that she is not willing to get her statement recorded regarding compromise as the divorce proceeding between her and her husband namely Nitin were pending before the Family Court Kurukshetra for 22.02.2022 for recording of the second motion statement. She stated that she wanted to get her statement recorded regarding compromise as well as under second motion on the same day as there was apprehension of fleeing away of her husband who is working in USA. As the complainant expressed her non willingness to get the statement recorded regarding compromise the statement of the parties could not be recorded. The main petition has been filed for quashing of the FIR on the basis of the compromise arrived at between the parties. As the complainant had the apprehension that the accused might flee to USA hence she expressed her willingness for not recording her statement till 22.02.2022 when the case is fixed before the Family Court for recording the second motion statement. In view of the statement made by the complainant respondent No.2 this Court finds no merit in the present application for allowing applicant petitioner No.4 to leave the country during pendency of the present petition. The application being devoid of any merit is hereby The apprehension that the husband of the complainantwho had been working in the U.S.A. might leave the country cannot be ground to deny the Appellant’s prayer to go back to the U.S.A. to resume his duties in a Company in which he has been working for about 9 10 years. The High Court has also not considered the allegations against the Appellant. There is not even any prima facie finding with regard to liability if any of the Appellant to the complainant. There are no specific allegations against the Appellant. The order of the High Court denying permission to this Appellant to leave the country is not sustainable in law and is set aside. The order of the Chief Judicial Magistrate is accordingly modified to the extent that this Appellant has been directed not to leave the country without prior permission of Court. The aforesaid condition shall stand deleted in respect of the Appellant(Accused No.4). It is made clear that the husband Nitin Sharma shall be bound by all the directions in the order dated 13.09.2021 passed by the Court of the Chief Judicial Magistrate Kurukshetra. The instant application was strongly opposed by the State This Court finds no merit in the contentions of the State. Ex facie the allegations in the FIR do not disclose any offence under the provisions of the IPC referred to in the FIR. Ms. Monika Gusain stated that charge sheet has been filed. She has not been able to point out what is the offence so far as this Appellant being the brother of Nitin Sharma living in the USA is concerned. The repetitive allegations in the complaint are directed against the husband of the complainant Nitin Sharma and his parents particularly his mother being the Accused No.2 The appeal is accordingly allowed. Pending applications if any stand disposed of accordingly New Delhi January 12 2022 ITEM NO.7 Court 8SECTION II B S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS Petition(s) for Special Leave to AppealNo(s). 9762 2021 Arising out of impugned final judgment and order dated 24 11 2021 in CRM No. 33701 2021 passed by the High Court of Punjab & Haryana DEEPAK SHARMA Petitioner(s VERSUS THE STATE OF HARYANA & ORS. Respondent(s IA No. 164222 2021 EXEMPTION FROM FILING O.T Date : 12 01 2022 These matters were called on for hearing today HON BLE MS. JUSTICE INDIRA BANERJEE HON BLE MR. JUSTICE J.K. MAHESHWARI Mr. Manu Mridul Adv. Mr. Surya Kant AOR Ms. Priyanka Tyagi Adv Mr. Shalaj Mridul Adv. UPON hearing the counsel the Court made the following O R D E R Dr. Monika Gusain AOR Leave granted. 2 in spite of notice. No one has entered appearance on behalf of the Respondent No Heard the learned counsel for the parties. The order of the High Court denying permission to this Appellant to leave the country is not sustainable in law and is set aside. The order of the Chief Judicial Magistrate is accordingly modified to the extent that this Appellant has been directed not to leave the country without prior permission of Court. The aforesaid condition shall stand deleted in respect of the Appellant(Accused No.4). It is made clear that the husband Nitin Sharma shall be bound by all the directions in the order dated 13.09.2021 passed by the Court of the Chief Judicial Magistrate Kurukshetra. The instant application was strongly opposed by the State This Court finds no merit in the contentions of the State. Ex facie the allegations in the FIR do not disclose any offence under the provisions of the IPC referred to in the FIR. Ms. Monika Gusain stated that charge sheet has been filed. She has not been able to point out what is the offence so far as this Appellant being the brother of Nitin Sharma living in the USA is concerned. The repetitive allegations in the complaint are directed against the husband of the complainant Nitin Sharma and his parents particularly his mother being the Accused No.2 The appeal is accordingly allowed in terms of the signed Pending applications if any stand disposed of accordingly MANISH ISSRANI) COURT MASTER (NSH SIGNED ORDER IS PLACED ON THE FILE

Even if the allegations made in FIR are accepted in their entirety, it does not prima facie constitute any offence against the accused: High Court of Delhi

Where the allegations made in the first information report or the complaint, are taken at their face value and accepted in their entirety, do not prima facie constitute any offence or make out a case against the accused and the same was upheld by High Court of Delhi through the learned bench led by JUSTICE ASHA MENON in the case of MR. ABHISHEK GUPTA & ANR. vs. STATE OF NCT OF DELHI & ANR. [CRL.M.C. 1064/2022] on 16.03.2022. The facts of the case are that property in Punjabi Bagh, Delhi belonged to Mr. Sunil Datt and Mr. Ashok Kumar, whereas the complainant who had been divorced by Mr. Sunil Datt way back in 2000 was claiming a right to the ground floor. She could produce no document to reflect that she had been in possession of the ground floor for the last two years. Moreover, after the husband and wife had divorced, it could not be reasonably believed that 17 years later the respondent would have given the keys of the ground floor to the ex-husband. It was submitted that Smt. Janak Dulari, the aunt of Mr. Sunil Datt and Mr. Ashok Kumar, who are brothers, is living in the first floor of the same property and there were some disputes inter se parties. The petitioner’s counsel submitted that in the initial complaint and PCR calls, the petitioners had not been named. The presence of the petitioner Ajay Gupta was on account of the fact that the brothers, who were residents of Burmingham, United Kingdom had asked him to go to the premises at the instance of Smt. Janak Dulari, their aunt and he had only accompanied the Police. Therefore, there could be no trespass when the petitioner had gone to the property on that occasion. The respondent’s counsel submitted that since there was discretion vested with the Magistrate to accept or reject the conclusions drawn by the Investigating Officer, the petition was premature as it had been filed without waiting for an order to be passed by the Magistrate in terms of Section 190 of the Cr.P.C. It was further submitted that the respondent is a single woman whereas the petitioners are land-grabbers and the relationship between the respondent and her husband Mr. Sunil Datt is irrelevant to the case at hand. It is very clear that the decision to exercise or not to exercise the inherent powers under Section 482 of the Cr.P.C. would be predicated on the facts of each case but while considering the facts of the case, the court cannot embark on an inquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR. It is clear, therefore, that the facts of each case would determine the exercise of the discretion vested in the court to quash criminal proceedings in order to prevent abuse of process of court. The Court held that there is no ground to exercise those powers in the present case. It was observed by Court that, “where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.”

IN THE HIGH COURT OF DELHI AT NEW DELHI Pronounced on: 16th March 2022 CRL.M.C. 1064 2022 & CRL.M.A.4586 2022MR. ABHISHEK GUPTA & ANR. .....Petitioners Through: Mr. Tanmaya Mehta Mr. Arjit Kumar Singh Ms. Shreya Gupta and Ms. Vasu Vats Advs. STATE OF NCT OF DELHI & ANR. .... Respondents Through: Mr. Sanjay Jain ASG with Mr. Amit Gupta APP and Mr. Padmash Mishra and Mr. Nishant Tripathi Advs. with Inspector Narender Singh and SI Subhash Chandra. HON BLE MS. JUSTICE ASHA MENON JUDGMENT The petition has been filed under Section 482 of the Cr.P.C. praying for the quashing of charge sheet dated 4th December 2021 emanating from FIR No.214 2021 dated 30th October 2021 registered with the Crime Branch Rohini Sector 18 Delhi and all proceedings emanating therefrom. The FIR No.214 2021 was registered with the Crime Branch Rohini on the basis of a complaint that was lodged with them on 19th October 2020 by the respondent No.2 by way of an email addressed to the Commissioner of Police Delhi. CRL.M.C. 1064 2022 2. Mr. Tanmay Mehta learned counsel for the petitioner submitted that the entire case was a product of mala fide falsehood and absurdity and this was a case of sheer abuse of the criminal process. It was his contention that the case was covered by the judgment of the Supreme Court in State of Haryana and Ors. Vs. Bhajan Lal 1992 Suppl. SCC 335 and this Court ought to quash the charge sheet in accordance with the guidelines incorporated in Para No.102 of the said judgment. It was further submitted that the entire FIR and the charge sheet dated 4th December 2021 was so absurd and inherently improbable that it was liable to be quashed. The first contention raised by the learned counsel was that property bearing No.17 43 Punjabi Bagh Delhi belonged to Mr. Sunil Datt and Mr. Ashok Kumar whereas the complainant who had been divorced by Mr. Sunil Datt way back in 2000 was claiming a right to the ground floor. She could produce no document to reflect that she had been in possession of the ground floor for the last two years. Moreover after the husband and wife had divorced it could not be reasonably believed that 17 years later the respondent No.2 would have been given the keys of the ground floor by the ex husband. It was submitted that Smt. Janak Dulari the aunt of Mr. Sunil Datt and Mr. Ashok Kumar who are brothers is living in the first floor of the same property and there were some disputes inter se parties. The learned counsel contended that the petitioners have been unnecessarily dragged into these disputes. The learned counsel further submitted that in the initial complaint and PCR calls the petitioners had not been named. The presence of the petitioner No.2 Ajay Gupta at the site on 28th January 2020 was on CRL.M.C. 1064 2022 account of the fact that the brothers who were residents of Burmingham United Kingdom had asked him to go to the premises at the instance of Smt. Janak Dulari their aunt and he had only accompanied the Police. Therefore there could be no trespass when the petitioner No.2 had gone to the property on that occasion. Subsequently there were other complaints made to the Police against some others such as one Mr. Prakash Chand There were complaints by the respondent No.2 against “Uparwali” which would be only against Smt. Janak Dulari who resided on the first floor. Furthermore there were conflicting details given in the various complaints by the respondent No.2 sometimes alleging that Mr. Prakash Chand Sharma had been sent by Smt. Janak Dulari and sometimes alleging that he had gone there at the behest of the petitioners. There were other accusations against Mr. Santosh Kapoor who is the Chartered Accountant of Mr. Sunil Datt and Mr. Ashok Kumar and therefore the petitioners have nothing to do with him. These contradictions were sufficient to falsify the complaint of respondent No.2. It was submitted by the learned counsel that the FIR had been registered for the commission of offences under Section 120B 451 323 506 509 341 read with Section 34 IPC. Yet the complainant has not disclosed any material on the basis of which any of these offences were made out against the petitioners. Hence it was submitted that the charge sheet be quashed. 7. Mr. Sanjay Jain Additional Solicitor General for the respondent No.1 State appearing on advance notice on the other hand CRL.M.C. 1064 2022 submitted that this petition ought to be dismissed at the threshold. Though the charge sheet had been filed cognizance was yet to be taken by the learned Metropolitan Magistrate. Moreover all the arguments submitted by the learned counsel were relevant for determination of the charge that would have to be framed. Relying on the judgment of the Supreme Court in K. Neelaveni Vs. State 2010SCC 607 the learned ASG for the respondent No.1 State submitted that since there was discretion vested with the Magistrate to accept or reject the conclusions drawn by the Investigating Officer the petition was premature as it had been filed without waiting for an order to be passed by the Magistrate in terms of Section 190 of the Cr.P.C. It was further submitted that the complainant respondent No.2 is a single woman whereas the petitioners were land grabbers. It is further submitted that there were 11 accused as per the charge sheet in the case. Moreover the relationship between the complainant respondent No.2 and her husband Mr. Sunil Datt was irrelevant to the case at hand. Further the Investigating Officer had recorded in the Final Report that the complaint filed by Smt. Janak Dulari against the respondent No.2 stood closed. The complaint of respondent No.2 was not being acted upon by the Police of Police Station Punjabi Bagh Delhi which prompted her to send a letter to the Commissioner of Delhi Police. There was no mala fides in such action. 9. When there were allegations of molestation the local Police were bound to have investigated the matter which they failed to violating the directions of the Supreme Court in Lalita Kumari Vs. Govt. of UP & Ors. 2012 SCC 1. Therefore it was but natural for the Commissioner of CRL.M.C. 1064 2022 Police Delhi to mark the complaint to the Crime Branch and he had acted completely within the parameters of law as had the Crime Branch when they registered the instant FIR. As regards the minor discrepancies in the statements of the respondent No.2 she would be able to explain them anyway at the time of trial. All the 11 accused were connected with one another inasmuch as it was found that it was the petitioner No.1 Mr. Abhishek Gupta who had written down the complainant of Smt. Janak Dulari in his own hand. Mr. Sunil Datt and Mr. Ashok Kumar were yet to be arrested in the matter. Thus investigations too were pending. As it was apparently a case in which property was being sought to be usurped from the possession of a single woman who is living in the ground floor peacefully with her young son the Crime Branch rightly charge sheeted all of them including the petitioners. In rejoinder the learned counsel for the petitioners has placed reliance on the judgment of the Supreme Court in Anand Kumar Mohatta Vs. State(2019) 11 SCC 706. 11. Heard learned counsel for the petitioners as well as the learned ASG and considered the materials on record as well as the cited judgments. 12. The Supreme Court in Bhajan Lal case after considering several judgments distilled the principles governing the exercise of the extraordinary power of the court under Article 226 of the Constitution of India or its inherent powers under Section 482 of the Cr.P.C. Several categories of cases by way of illustrations were also listed out. It would be useful to reproduce the same for ready reference below: CRL.M.C. 1064 2022 “102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice though it may not be possible to lay down any precise clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised. 1) Where the allegations made in the first information report or the complaint even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused. 2) Where the allegations in the first information report and other materials if any accompanying the FIR do not disclose a cognizable offence justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code. 3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. 4) Where the allegations in the FIR do not constitute a cognizable offence but constitute only a non cognizable offence no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code. 5) Where in the FIR or complaint are so absurd and inherently improbable on the allegations made CRL.M.C. 1064 2022 the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. 6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act under which a criminal proceeding is instituted) 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 the grievance of the aggrieved party. 7) Where a criminal proceeding is manifestly attended with mala fide and or where the proceeding is wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.” instituted with an ulterior motive 13. At the same time the Apex Court also recorded a note of caution in the following words: “103. We also give a note of caution to the effect that the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases that the court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or the complaint and that the extraordinary or inherent powers do not confer an arbitrary jurisdiction on the court to act according to its whim or caprice.” It is very clear that the decision to exercise or not to exercise the inherent powers under Section 482 of the Cr.P.C. would be predicated on the facts of each case but while considering the facts the court cannot embark on an inquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR. When seen on these touchstones it is clear CRL.M.C. 1064 2022 that the entire thrust of the arguments of the learned counsel for the petitioners is on the genuineness of the allegations made against the petitioners. Thus there has been an emphasis on the fact that though the incident had occurred in Punjabi Bagh it was an year later that the FIR was registered by the Crime Branch that the possession of the respondent No.2 of the ground floor of property No.17 43 Punjabi BaghDelhi was unexplained on the basis of documents that the relationship between the respondent No.2 and her husband was strained and it was not possible to believe that he would have permitted her to enter the premises by handing over the keys to her that there were contradictions in the various complaints given to the Police that the names of the petitioners and others were randomly taken and that there was mala fide in the registration of the complaint by the respondents and the entire case was absurd. 15. Suffice it to note here that these submissions reflecting on the reliability of the statements of the respondent No.2 or the genuineness of her complaint cannot be subject matter of the present proceedings. The court cannot weigh the material in such a fashion to determine the question of truth in the complaint. As observed in Bhajan Lal case it is when the allegations made in the FIR if taken at face value alongwith other materials accompanying the FIR do not disclose an offence that the court would be justified in quashing the FIR. If the allegations made in the FIR or complaint or the evidence collected uncontroverted do not disclose the commission of an offence then the FIR and charge sheet could be quashed. Finally if the allegations in the FIR or CRL.M.C. 1064 2022 complaint were inherently improbable then the FIR and charge sheet could be quashed. None of these situations prevail in the present case. It is meaningless to argue that the respondent No.2 could not produce documents for her authorised entry into the premises as the FIR is not against her. Admittedly the petitioner No.2 claims to have gone to the premisesand had found her there. The inter se rights of the parties i.e. the respondent No.2 her son and Mr. Sunil Datt are for them to resolve. The petitioners cannot question whether or not Mr. Sunil Datt had allowed the mother and son entry into the ground floor as the son had sought such a right from his father as averred by the respondent No.2 in her complaint. 17. The respondent No.2 has clearly stated that while she was staying at property No.17 43 Punjabi Bagh on 28th January 2020 when she was in the house with her son Mr. Sahil Datt petitioner No.2 Ajay Gupta of Ganpati Builders alongwith his goons forcibly entered her house and threatened her alongwith Smt. Janak Dulari intending that they would be forced to vacate the house. They attempted to physically assault her. There was a video clipping of the incident and the matter was immediately reported to the Police vide DD No.50A dated 28th January 2020. On the next day both petitioner No.2 Ajay Gupta and his son petitioner No.1 Mr. Abhishek Gupta again came to the house and threatened them again intending with these threats that the respondent No.2 and her son would vacate the premises. The incident was again brought to the notice of the Police. Another specific incident has been described as having occurred on 4th February 2020 when one Mr. Prakash Chand Sharma came to threaten CRL.M.C. 1064 2022 them and when the Police arrived he apologized and left. There was also an allegation that the petitioner No.2 had sent one drunken man namely Mr. Rajan Makkar to the house when respondent No.2 was alone in the house and his vulgar actions had caused her much distress. Smt. Janak Dulari and her brother had also locked the main gate and abused her. On 20th August 2020 Mr. Santosh Kapoor of Chattarpur alongwith a lady whose identity remained unknown tried to forcibly open the main gate of the house and abused the respondent No.2 and her son this time the intent being also that the respondent No.2 would be forced to withdraw the existing criminal cases under Sections 468 467 and 420 IPC against Mr. Ashok Kandaand the son in law of Smt. Janak Dulari and to accept a fabricated divorce decree. If these allegations were to be taken at face value or they were to be treated as uncontroverted they disclose the commission of various offences by the accused persons including the petitioners in cohort with each other. None of these allegations appear to be absurd or inherently 19. Even if the decision of the Supreme Court in Anand Kumar Mohatta’s casewas to be followed in that the petition for quashing under Section 482 can be considered even after the filing of the charge sheet the facts distinguish that case from the present. In that case there were several facts and circumstances which on the face of it disclosed a civil matter regarding refund of a payment of Rs.1 00 00 000 by the complainant therein to the appellants therein where the appellants were the owners of the immovable property in respect of which a Development CRL.M.C. 1064 2022 Agreement had been entered into by them with the respondent No.2 and it was noted that the FIR was based on the allegations of misappropriation though no actual demand had been made by the respondent No.2 and the appellants continued to have rights in their property which allowed the petitioner No.1 to transfer it to his wife without violating the law. It is clear therefore that the facts of each case would determine the exercise of the discretion vested in the court to quash criminal proceedings in order to prevent abuse of process of court. As noticed hereinabove there is no ground to exercise those powers in the present case. It would be open for the accused being the petitioners to make their submissions on the material placed before the learned Trial Court to seek discharge if at all no offence was made out against them. In the light of these discussions no merit is found in the petition which is dismissed in limine. 22. The order be uploaded on the website forthwith. MARCH 16 2022 JUDGE CRL.M.C. 1064 2022

Mandate of Article 22(5) of Indian Constitution requires that the grounds of detention must be communicated to the detenu: High Court of J&K and Ladakh

In view of the various laws laid down by the Apex Court vitiates the detention order, as not amounting to effect communication of grounds, and resultant deprivation of the right to make representation against the same as held by the Hon’ble High Court of J&K and Ladakh through a learned bench of Hon’ble Mr. Justice Ali Mohammad Magrey in the case of Mohammad Asif Raina Vs Union Territory of J&K and ors [Case no. ([WP Cri) No. 33/2020]. Petition arised when the detenu, Mohd Asif Raina seeked quashment of detention order no. 32/DMK/PSA/2019 dated 22.07.2019 purporting to have been passed by District Magistrate, Kulgam, with consequent prayer for release of the detenu forthwith. Learned counsel for detenu had submitted that the grounds taken in the detention order and the material referred to and relied upon had no relevance because the detenu was already in custody, therefore, there was no possibility that the detenu could be implicated in the activities prejudicial to the public security of the state. It was submitted that in absence of material the detention order was passed on mere ipsi dixit of detaining authority, therefore, the detention order is bad in law. Learned counsel for petitioner in order to strengthening his submission referred to and relied upon (2006) 2 Supreme Court Cases 664 titled T. V Sravanan Alias S.A.R Prasana v. State through Secretary and anr. The Hon’ble court, after a perusal of the record and order passed by District Magistrate, Kulgam, was of view that The only precious and valuable right guaranteed to a detenu is of making an effective representation against the order of detention. Such an effective representation can only be made by a detenu when he is supplied the relevant grounds of detention, including the materials considered by the detaining authority for arriving at the requisite subjective satisfaction to pass the detention order. Since the material is not supplied to the detenu, the right of the detenu to file such representation is impinged upon and the detention order is resultantly vitiated. While relying on the Judgments of Apex Court in the cases of In Ibrahim Ahmad Batti v. State of Gujarat, (1982) 3 SCC 440, Khudiram Das v State of W. B., (1975) 2 SCR 81; Icchu Devi Choraria v. Union of India, (1980) 4 SCC 531, the Hon’ble Court in conclusion stated that “So far as the ground taken i.e non communication of the grounds of detention is concerned, perusal of file reveals, that there is nothing to show or suggest that the grounds of detention couched in English language were explained to the detenu in a language understood by him, as there is no material to that effect on record. This according to the view taken by Hon’ble Apex Court in “LallubhaiJogibhai Patel v. Union of India, (1981) 2 SCC 427”; the detenu did not know English, while the grounds of detention were drawn up in English and an affidavit filed on behalf of the detaining authority stated that while serving the grounds of detention were fully explained to the detenu, but the Apex Court held that, was not a sufficient compliance with the mandate of Article 22(5) which requires that the grounds of detention must be communicated to the detenu.”

HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT SRINAGAR Case no.No. 33 2020 Reserved on 23.09.2021 Pronounced on 28.09.21 …Petitioner Syed Faheem Indrabi Adv. Mohammad Asif Raina Union Territory of J&K and ors Through : Ms. Asifa Padroo AAG. Hon’ble Mr. Justice Ali Mohammad Magrey. JUDGMENT Detenu Mohd Asif Raina son of Kaleemullah R o Arreh District Kulgam through his cousin seeks quashment of detention order no. 32 DMK PSA 2019 dated 22.07.2019 purporting to have been passed by District Magistrate Kulgam with consequent prayer for release of the detenu forthwith. following grounds: The petitioner detenu has challenged the order of detention on the “a) that no compelling reason or circumstance was disclosed in the order or grounds of detention to take the detenu in preventive detention moreso in view of the fact that as on the date of passing of the aforesaid order of detention the detenu was already in custody b) that the detenu has not been provided the material forming basis of the detention order to make an effective representation against his detention order c) that the impugned order has been passed without proper application of mind. d) that the detention order was not provided to the detenu within the statutory period”. Notice was issued to respondents. They appeared through their learned counsel and filed counter affidavit wherein they submitted that the detention order is well founded in fact and law and seeks dismissal of the Heabus Corpus Petition. Heard learned counsel for the petitioner detenu as well as the learned counsel for the respondents perused the writ records as also the copy of detention record was produced by the learned counsel for the respondents. 5. Learned counsel for detenu has submitted that the grounds taken in the detention order and the material referred to and relied upon has no relevance because the detenu was already in custody therefore there is no possibility that the detenu be implicated in the activities prejudicial to the public security of the state. It is submitted that in absence of material the detention order is passed on mere ipsidixit of detaining authority therefore the detention order is bad in law. Learned counsel for petitioner has in order to strengthening his submission referred to and relied upon2 Supreme Court Cases 664 titled T. V Sravanan Alias S.A.R Prasana v. State through Secretary and anr. The only precious and valuable right guaranteed to a detenu is of making an effective representation against the order of detention. Such an effective representation can only be made by a detenu when he is supplied the relevant grounds of detention including the materials considered by the detaining authority for arriving at the requisite subjective satisfaction to pass the detention order. Since the material is not supplied to the detenu the right of the detenu to file such representation is impinged upon and the detention order is resultantly vitiated. Judgements on this point both of the Supreme Court and of various High Courts including our own High Court are galore. I may refer to one such judgment of the Supreme Court herein. In Ibrahim Ahmad Batti v. State of Gujarat 3 SCC 440 the Apex Court relying on its earlier judgments in Khudiram Das v State of W. B. 2 SCR 81 Icchu Devi Choraria v. Union of India 4 SCC 531 in paragraph 10 of the judgment has held as under: “Two propositions having a bearing on the points at issue in the case before us clearly emerge from the aforesaid resume of decided cases: all documents statements and other materials incorporated in the grounds by reference and which had influenced the mind of the detaining authority in arriving at the requisite subjective satisfaction must be furnished to the detenu alongwith the grounds or in any event not later than 5 days ordinarily and in exceptional circumstances and for reasons to be recorded in writing not later than 15 days from the date of his detention and b) all such material must be furnished to him in a script or language which he understands and failure to do either of the two things would amount to a breach of the two duties cast on the detaining authority under Article 22(5) of the Constitution”. In Khudiramcase the Apex Court has explained what is meant by ‘grounds on which the order is made’ in context of the duties cast upon the detaining authority and the corresponding rights accruing to the detenu under Article 22(5). In Smt. Icchu Devi Case the Supreme Court has taken the view that documents statements and other materials referred to or relied upon in the grounds of detention by the detaining authority in arriving at its subjective satisfaction get incorporated and become part of the grounds of detention by reference and the right of the detenu to be supplied copies of such documents statements and other materials flows directly as a necessary corollary from the right conferred on the detenu to be afforded the earliest opportunity of making a representation against the detention because unless the former right is available the latter cannot be meaningfully exercised. So far as the ground taken i.e non communication of the grounds of detention is concerned perusal of file reveals that there is nothing to show or suggest that the grounds of detention couched in English language were explained to the detenu in a language understood by him as there is no material to that effect on record. This according to the view taken by Hon’ble Apex Court in “LallubhaiJogibhai Patel v. Union of India 2 SCC 427” the detenu did not know English while the grounds of detention were drawn up in English and an affidavit filed on behalf of the detaining authority stated that while serving the grounds of detention were fully explained to the detenu but the Apex Court held that was not a sufficient compliance with the mandate of Article 22(5) which requires that the grounds of detention must be communicated to the detenu. The Apex Court observed as under: “Communicate’ is a strong word which means that sufficient knowledge of the basic facts constituting the ‘grounds’ should be imparted effectively and fully to the detenu in writing in a language which he understands. The whole purpose of communicating the ‘grounds’ to the detenu is to enable him to make a purposeful and effective representation. If the ‘grounds’ are only verbally explained to the detenu and nothing in writing is left with him in a language which he understands then that purpose is not served and the constitutional mandate in Article 22(5) is infringed.” In view of the law laid down by the Apex Court in aforesaid cases vitiates the detention order as not amounting to effect communication of grounds and resultant deprivation of the right to make representation against the same. 11. Examining the present case on the touch stone of the above settled position of law and perusal of record the detenu was not supplied the materials relied upon by the detaining authority. The detenu was provided material in the shape of grounds of detention with no other material documents as referred to in the order of detention. On these counts alone the detention of the detenu is vitiated the detenu having been prevented from making an effective and purposeful representation against the order of 12. Accordingly the detention order No. 32 DMK PSA 2019 dated 22.07.2019 is quashed and the detenu Mohd Asif Raina son of Kaleemullah R o Arreh District Kulgam is directed to be released from preventive custody forthwith. No order as to costs. 13. Registrar Judicial to send a copy of this order to Director General of Prisons and also concerned Jail authorities for compliance. Ali Mohammad Magrey) Judge Disposed of. Srinagar 28.09.2021 Syed Ayaz Hussain Whether order is speaking: Yes No. Whether order is reportable: Yes No.

Dismissing the writ petition on grounds of delay should not be the thumb rule: Supreme Court

High Court should exercise its discretion while hearing a petition that has been delayed in filing and dismissing the writ petition on grounds of delay should not be the thumb rule and the court should exercise its judicious discretion after considering all pros and cons of the matter, including the nature of the dispute, the explanation for the delay, whether any third-party rights have intervened etc. In the matter of Vetindia Pharmaceuticals Limited  V State Of Uttar Pradesh And Another, CIVIL APPEAL NO.3647 OF 2020, where the appellant who was a licensed drug manufacturer, took the plea of a bonafide inadvertent printing error on the label, by stating “OXYTETRACYCLINE INJ. I.P. VET” in place of “OXYTETRACYCLINE HCL INJ. I.P. VET. It was pertinent to note that the products were not spurious, adulterated or misbranded. The appellant through their show cause notice explained their stance to their respondents which the latter rejected and further went on to blacklist the appellants through an impugned order. It was alleged that the impugned order for blacklisting contained no specific time duration and even after the appellants seeking clarification on the same, the respondents did not pay heed to it. In light of these circumstances, the appellants filed a writ petition. The court after viewing the blacklisting order held it illegal on various grounds, one of them being it was arbitrarily passed which is against the principle of natural justice. The court opined that “An order of blacklisting operates to the prejudice of a commercial person not only in presenting but also puts a taint which attaches far beyond and may well spell the death knell of the organization/institution for all times to come described as a civil death. The repercussions on the appellant were clearly spelt out by it in the representations as also in the writ petition, including the consequences under the Rajasthan tender, where it stood debarred expressly because of the present impugned order. an order of blacklisting beyond 3 years or maximum of 5 years was disproportionate.”

limine only on the ground of delay as having been preferred ten 3. Ms. Shobha Gupta learned counsel for the appellant submits that it holds a valid licence under the Drugs and Government of Andhra Pradesh. M s Palak Pharmaceuticals year 2007 and in turn had supplied it to the respondent under a tender notice dated 04.10.2006. The label ‘XYO701’ on the the medicine was correctly mentioned as “OXY­125”. The composition of the medicine was also correctly mentioned as INJ. I.P. VET” in place of “OXYTETRACYCLINE HCL INJ. I.P VET”. It was therefore a case of bonafide inadvertent printing error which resulted in misbranding. The product was not 08.09.2009 by the Office of Director Animal Husbandry Department of the respondent referring to the State Analyst report dated 10.10.2008 declaring the batch supplied by the appellant to be of substandard quality Ors. 9 SCC 105 to submit that the show cause notice Anr. vs. State of U.P. & Anr. 2019SCALE 758 where this Shri Ankit Goel learned counsel for the respondents of blacklisting. It was preceded by a show cause notice dated 21.10.2008 and consideration of the reply submitted. The Drugs Act duly supported by the report of the analyst. Any latent defect in the show cause notice has not caused any or adulterated. The appellant took the plea of a bonafide inadvertent printing error on the label by stating VET” in place of “OXYTETRACYCLINE HCL INJ. I.P. VET”. This explanation by finds no consideration by the respondents at any stage. The On 19.05.2011 the appellant requested the respondents for matter was also subsequently followed up by the appellants in requested to withdraw the order dated 08.09.2009. The reiterating violation of clauses 8.12 and 8.23 of the Tender of 2006­07. It however sought certain additional information to on 04.05.2019. The appellant was also debarred from thereafter from the respondents the writ petition came to be the respondents by the appellant. Yet the show cause notice dated 21.10.2008 referred to further action in terms of the Tender for supplying misbranded medicine to the appellant Furthermore the show cause notice did not state that action by any supply by the appellant the order of blacklisting dated 08.09.2009 invoking clauses 8.12 and 8.23 of the Tender is a after the appellant brought this fact to the attention of the respondents they refused to pay any heed to it. Further it West Bengal and another 1 SCC 70 held that there principles of natural justice. In Joseph Vilangandan vs. The Executive Engineer Ernakulam and others 3 SCC 36 this Court was considering a show cause notice as “17. ….“You are therefore requested to show The crucial words are those that have been the sentence which precede and succeed them the words “debarring you as a defaulter” could be with reference to the contract in question only was under contemplation. There are no words in the notice which could give a clear intimation to the addressee that it was proposed to debar him from taking any contract whatever in future under the 11. The question whether a show cause notice prior to blacklisting mandates express communication why blacklisting “27. We are therefore of the opinion that it was as to provide adequate and meaningful opportunity to the appellant to show cause against the same However we may also add that even if it is not mentioned specifically but from the reading of the show­cause notice it can be clearly inferred that requirement. In the present case however reading of could find out that such an action could also be 28. In the instant case no doubt the show­cause notice dated 6­2­2013 was served upon the alleged defaults and breaches of the agreement committed by the appellant the notice specifically mentions that because of the said defaults the appellant was “as such liable to be levied the cost accordingly”. It further says “why the action as competent authority could take other actions as deemed fit. However that may not fulfil the requirement of putting the defaulter to the notice the agreement entered into between the parties would not suffice the aforesaid mandatory penalty of blacklisting and forfeiture of earnest money security deposit is concerned it can be imposed only “if so warranted”. Therefore without 33. When we apply the ratio of the aforesaid difficult to accept the argument of the learned respondents that by omitting to state the proposed notice has not caused any prejudice to the appellant Moreover had the action of blacklisting being specifically proposed in the show­cause notice the appellant could have mentioned as to why such out with extenuating circumstances defending such an action even if the defaults were there and the Department was not satisfied with the explanation blacklist the appellant. Therefore it is not at all acceptable that non­mentioning of proposed any prejudice to the appellant. This apart the extreme nature of such a harsh penalty like blacklisting with severe consequences would itself If the respondents had expressed their mind in the show cause notice to blacklist the appellant could have filed an appropriate response to the same. The insistence of the hold that the order of blacklisting dated 08.09.2009 stands vitiated from the very inception on more than one ground and but for the arguments addressed before us. An order of for all times to come described as a civil death. The representations as also in the writ petition including the consequences under the Rajasthan tender where it stood in accordance with law even if the respondents decided to This court in Kulja Industries Limited vs. Chief General Manager Western Telecom Project Bharat Sanchar Nigam Limited and others 14 SCC 731 despite declining to “28.2. Secondly because while determining the the respondent Corporation may for the sake of objectivity and transparency formulate broad guidelines to be followed in such cases. Different the offences violations and breaches may be prescribed by such guidelines. While it may not be possible to exhaustively enumerate all types of contractual obligations by a contractor the exercise of the power vested in it and inspire confidence in the fairness of the order which the competent authority may pass against a defaulting Since the order of blacklisting has been found to be unsustainable by us and considering the long passage of time M s Daffodills Pharmaceuticals relied upon by the discretionary equitable jurisdiction and not a mandatory Article 226 of the Constitution therefore has to be a judicious exercise of the discretion after considering all pros and cons of the matter including the nature of the dispute the explanation The jurisdiction under Article 226 being equitable in nature jurisdiction will also arise. This Court in Basanti Prasad vs Bihar School Examination Board and others 6 SCC 791 after referring to Moon Mills Ltd. vs. Industrial Court AIR 1967 SC 1450 Maharashtra SRTC vs. Balwant Regular vs. Nandlal Jaiswal and others 4 SCC 566 held that if the delay is properly explained and no third party rights are being affected the writ court under Article 226 of the “18. In the normal course we would not have taken exception to the order passed by the High Court They are justified in saying that a delinquent would not ordinarily assist the tardy and indolent person. This is the traditional view and is well supported by a plethora of decisions of this Court inviolable rule that whenever there is delay the has stated that the writ court in exercise of its extraordinary jurisdiction under Article 226 of the Constitution may condone the delay in filing the case of the respondents that the procedure prescribed under Sections 23 25 and 26 of the Drug Act has been followed. The Act by alleged purchase of the samples under Form 14A at unknown source and date must be rejected outright as an 16. The aforesaid discussion therefore leads us to the delay as the appellant had been pursuing the matter with the High Court therefore erred in dismissing the writ petition on of the order dated 08.09.2009 with no third party rights affected never engaged the attention of the High Court in judicious exercise of the discretionary equitable

A police officer before arrest has to be satisfied that such arrest is necessary to prevent from committing any further offence: High Court of Delhi

A police officer before arrest, has to be satisfied that such arrest is necessary to prevent such person from committing any further offence or for proper investigation of the case or to prevent the accused from causing the evidence of the offence to disappear or tampering with such evidence in any manner; or to prevent such person from making any inducement, threat or promise to a witness so as to dissuade him from disclosing such facts and the same was upheld by High Court of Delhi through the learned bench led by JUSTICE ASHA MENON in the case of SH. MUKHTER AHAMED vs. STATE OF NCT OF DELHI [BAIL APPLN. 720/2022] on 10.03.2022. The facts of the case are that one Arif was arrested by the police with a log of red sandalwood/red sanders who named the applicant as having booked his train tickets. Arif was a freelancer who used to take leather and other goods from the applicant to sell in various parts of the country to earn a living and it is due to this connection that the tickets were booked on the mobile phone of the wife of the applicant. Further, FIR was registered for an offence under Sections 379/411 IPC and it was stated in the Status Report filed by the prosecution that the log of red sandalwood/red sanders was smuggled and that Arif was found without a transit permit to move the wood from Vishakhapatnam to Delhi. The petitioner’s counsel submitted that under Sections 2, 33 and 42 of the Indian Forest Act, 1927, no case would be made out against the applicant and in any case, the punishment prescribed was only imprisonment for six months or fine. Thus the applicant could not be arrested. It was submitted that the applicant had clean antecedents and there was no accusation or record of his having indulged in any similar activities. Thus, he may be granted anticipatory bail. The respondent’s counsel opposed the grant of bail on the ground that the applicant has not participated in investigations, and even after his first application for anticipatory bail was dismissed by the learned Sessions Court. The Court held that it is not a case in which the applicant deserves pre-arrest bail. The anticipatory bail application was accordingly dismissed and observed that, “A person accused of an offence punishable with imprisonment for a term less than seven years or which may extend to seven years with or without fine, cannot be arrested by the police officer only on his satisfaction that such person had committed the offence punishable as aforesaid. A police officer before arrest, has to be satisfied that such arrest is necessary to prevent such person from committing any further offence; or for proper investigation of the case; or to prevent the accused from causing the evidence of the offence to disappear; or tampering with such evidence in any manner; or to prevent such person from making any inducement, threat or promise to a witness so as to dissuade him from disclosing such facts.”

IN THE HIGH COURT OF DELHI AT NEW DELHI Date of Order: 10th March 2022. BAIL APPLN. 720 2022 CRL.M.(BAIL) 244 2022 & CRL.M.A. SH. MUKHTER AHAMED ..... Petitioner Through: Mr. Ravi Kapoor and Mr. Jitender Kumar Mr. Rishav Ambastha Mr. Amandeep Singh and Mr. Gazi Gulfam Advs. STATE OF NCT OF DELHI ..... Respondent Through: Mr. Amit Gupta APP. HON BLE MS. JUSTICE ASHA MENON This is the second bail application filed by the applicant under Section 438 Cr.P.C. for bail in the event of arrest in FIR No.0011 2022 P.S. New Delhi Railways Station for offences under Sections 379 411 IPC and Sections 2 33 & 42 of the Indian Forest Act 1927. 2. Mr. Ravi Kapoor learned counsel for the applicant submitted that one Arif had been arrested by the police with a log of red sandalwood red sanders who named the applicant as having booked his train tickets. According to the learned counsel this was the only incriminating circumstance against the applicant which could be easily explained. According to him Arif was a freelancer who used to take leather and other goods from the applicant to sell in various parts of the country to earn a living and it is due to this connection that the tickets were booked on the BAIL APPLN. 720 2022 mobile phone of the wife of the applicant. It is further submitted that the FIR had been registered for an offence under Sections 379 411 IPC but what was stated in the Status Report filed by the prosecution was that the log of red sandalwood red sanders had been smuggled and that Arif has been found without a transit permit to move the wood from Vishakhapatnam to Delhi. There was no reference to theft. The learned counsel submitted that under Sections 2 33 and 42 of the Indian Forest Act 1927 no case would be made out against the applicant and in any case the punishment prescribed was only imprisonment for six months or fine. Thus the applicant could not be The learned counsel further pointed out that the incident is stated to have taken place on 3rd February 2022 at 2.00 PM but there was a delay in registration of the FIR which occurred only at 6.00 PM. The delay raises further suspicion inasmuch as the Railway Time Table shows the train to have arrived at Delhi at 8.30 AM whereas the FIR records that Arif was found at 2.00 PM in suspicious circumstances with the log of red sandalwood red sanders. Thereafter no notice had been issued to the applicant asking him to join investigation till the time he moved an application for anticipatory bail before the learned Sessions Court. According to him the mala fide is writ large on the action of the police which is evident from the fact that when notice was issued on the said application filed on 8th February 2022 for a response on 9th February 2022 the Investigating Officer sent a notice under Section 41A IPC demanding the appearance of the applicant before him at 11.00 AM on 9th February 2022. It was further argued that a notice under Section 41A BAIL APPLN. 720 2022 IPC is issued only when the IO is satisfied that no arrest was required and yet a contradictory stand has been taken in the Status Report where the IO has sought custodial interrogation. It was submitted that the applicant had clean antecedents and there was no accusation or record of his having indulged in any similar activities. Thus he may be granted anticipatory bail. 4. Mr. Amit Gupta the learned APP for the respondent State has opposed the grant of bail on the ground that the applicant has not participated in investigations though a month has gone by and even after his first application for anticipatory bail was dismissed by the learned Sessions Court on 10th February 2022. The learned APP for the respondent State further submitted that non bailable warrants have been sought for by the IO and issued by the learned Trial Court and that an application for cancellation of non bailable warrants had also been moved in the interregnum. The learned APP further submitted that the judgment of the Supreme Court in Arnesh Kumar Vs. State of Bihar8 SCC 273 does not lay down the law that in all offences punishable with imprisonment for less than seven years no custodial interrogation was possible. It was submitted that the requirements of fair investigation were also to be considered. It was further submitted that Arif during his interrogation had stated that he was an employee of the applicant whereas now it was being claimed that Arif was a freelancer and had only a business connection with the applicant. Six tickets had been booked through the wife of the applicant and mere business relationship does not explain this fact. It was necessary to investigate as to the role of the applicant as smuggling and theft of red sandalwood red sanders was a serious matter. The learned APP has relied on the decisions of BAIL APPLN. 720 2022 Co ordinate Benches of this court in Bhanu Prakash Singh v. State G.N.C.T. of Delhi) 2021 SCC OnLine Del 3018 and Rajender Singh v. State 2021 SCC OnLine Del 4449 in support of his contentions that where investigations required custody the judgment in Arnesh Kumar would not come in the way. Heard submissions and perused the record. There is no gainsaying that even if under the Indian Forest Act offences under Sections 2 33 and 42 are punishable with light punishment smuggling of red sandalwood red sanders is to be seen in the larger context of environmental degradation apart from destruction of invaluable trees. The Forest Act permits cutting and felling of trees but a permit is required for the same. The greed of some people leads them to cut more trees than are permitted. The deforestation that occurs as a result of wanton cutting and felling of trees has long term effects including global warming climate change food shortages and so on. Forests are to be held in trust by the current generation for future generations. Therefore the punishment alone does not reflect the seriousness of the crime. The argument about the use of words such as “theft” and “smuggling” in the FIR and in the Status Report are indeterminate. Theft has occurred when the log was removed without permission from the forest where the tree grew. Further transportation from Vishakhapatnam to Delhi has occurred without permit thus behind the back of the authority authorizing such transit. Theft and smuggling are clearly made out. Thus the offences also under Sections 379 & 411 IPC. 7. When the wife of the applicant has provided the railway tickets not just for one person but for six persons the explanation offered of Arif being BAIL APPLN. 720 2022 a freelancer with whom the applicant had business dealings alone seems an extremely inept attempt by the applicant to distance himself from Arif. Business dealings do not include facilitation of travel by trains. Moreover it does not explain why six persons were provided tickets to go to Vishakhapatnam. The allegation is that they were all given canvas bags containing logs. It is necessary for the investigating agencies to trace out all links in this smuggling and theft of red sandalwood red sanders. It is also to be noted that the applicant has been most reluctant to join investigations. The Investigating Officer is thus unable to move forward in tracing out the links. In Arnesh Kumarthe following observations had been made: “7.1 From a plain reading of the aforesaid provision it is evident that a person accused of an offence punishable with imprisonment for a term which may be less than seven years or which may extend to seven years with or without fine cannot be arrested by the police officer only on his satisfaction that such person had committed the offence punishable as aforesaid. A police officer before arrest in such cases has to be further satisfied that such arrest is necessary to prevent such person for proper from committing any investigation of the case or to prevent the accused from causing the evidence of the offence to disappear or tampering with such evidence in any manner or to prevent such person from making any inducement threat or promise to a witness so as to dissuade him from disclosing such facts to the court or the police office or unless such accused person is arrested his presence in the court whenever required cannot be ensured. These are the conclusions which one may reach based on further offence or Thus when it is clear that it is necessary to arrest the accused for BAIL APPLN. 720 2022 proper investigation of the offence or preventing the accused from causing evidence to disappear or even to prevent the person from committing further offences including of similar nature the police officer can make an arrest. Of course these conclusions have to be fact based. As pithily put in Arnesh Kumarthe questions — Why arrest Is it is really required What purpose it will serve What purpose it will achieve — would help in determining whether the facts disclosed would require a police officer to arrest the person. In the present case the IO has to find out all the links in this smuggling of red sandalwood red sanders extent of theft and smuggling and persons involved and ultimately the role of the applicant as the king pin of the entire activity on account of which he financed the travel expenses of the persons he had sent to Vishakhapatnam from Delhi. This is not a case in which the applicant deserves pre arrest bail. The anticipatory bail application is accordingly dismissed along with all the pending applications. 11. The order be uploaded on the website forthwith. ASHA MENON J. MARCH 10 2022 BAIL APPLN. 720 2022

Circumstances that were not put to the accused in his examination under Section 313 CrPC cannot be used against him and have to be excluded from consideration: Meghalaya High Court

The Court is legally required to bring before the complainant and request his response to the incriminating circumstances. This rule is obligatory and imposes an essential obligation on the court and gives the convicted a corresponding right to explain all criminal information against him. Circumstances that have not been sent to the defendant in his investigation according to Section 313 of the CrPC cannot and must not be held against him. The judgement was passed by the High Court of Meghalaya in the case of Shri. Alphon Khardewsaw Vs. State of Meghalaya [Crl. A. No. 1 of 2018] by Single Bench consisting of Hon’ble Justice Justice Ranjit More & Justice W.Diengdoh. The facts of the case are the accused had assaulted the deceased with a hammer, stones and an iron chain causing multiple fractured wounds on the head of the deceased and as a result, the deceased died on the spot instantaneously. The family members of the deceased on hearing the hue and cry of the deceased rushed to the spot while the accused persons fled away from the spot. During the investigation, it was found that a prima facie case under Section 302 r/w 34 IPC has well been established against both the accused and hence Charge-sheet under Section 302 IPC was filed. Learned counsel for the petitioner submitted that there are inherent contradictions between the witnesses. He further submitted that though the prosecution in the Charge-sheet named 13 witnesses to establish their case against the appellant, but only 8 witnesses were examined. He stated that since the prosecution has not examined the Investigating Officer and the Doctor who conducted the autopsy on the deceased, the contradiction could not be brought on record and therefore, great prejudice is caused to the accused. It was also submitted that in the absence of medical evidence of the Doctor, the prosecution failed to prove that the death of the deceased was homicidal. He further submitted that benefit of the doubt has to be given to the appellant and impugned judgment and order may be quashed and set aside.

Serial No.2 Regular List HIGH COURT OF MEGHALAYA AT SHILLONG Crl.A. No. 18 Shri. Alphon Khardewsaw Date of Hearing: 05 04 2021 Date of Decision:06 05 2021 State of Meghalaya. Vs. Hon’ble Mr. Justice Ranjit More Judge Hon’ble Mr. Justice W.Diengdoh Judge Mr. B.K.Biswa Adv. Mr. M.Halder Adv. For the Petitioner Appellant(s) : Mr. K.C.Gautam Adv. Mr. K.Khan Sr. PP For the Respondent(s) i) Whether approved for reporting in ii) Whether approved for publication Mr. S.Sengupta APP Law journals etc: in press: Per R.More Heard Mr. K.C.Gautam learned counsel for the appellant and Mr. K.Khan learned Sr. PP for the respondents. By the judgment and order dated 22 02 2018 passed in G.R.Case. No. 488 of 1985 the learned Judge District Council Court. Khasi Hills Shillong convicted the present appellant original accused No. 1 for an offence punishable under Section 302 IPC. The learned Judge District Council Court thereafter heard the appellant on the quantum of punishment on 07 03 2018 and by order dated 09 03 2018 directed him to suffer sentence for life imprisonment. The appellant by filing the above appeal has challenged both the orders referred herein above. The prosecution case in short is that in the night of 20 07 1985 at about 8p.m. the accused persons namely Shri. Alphon Khardewsaw and Shri. Siren Marshiangbai of Tiriang had assaulted the deceased namely U Drikshon Khardewsaw at Rwiang on the PWD main road with a hammer stones and an iron chain causing multiple fractured wounds on the head of the deceased and as a result the deceased died on the spot instantaneously. The family members of the deceased on hearing the hue and cry of the deceased rushed to the spot while the accused persons fled away from the spot. During investigation it was found that prima facie case under Section 302 r w 34 IPC has well been established against both the accused and hence Charge sheet No. 43 1985 under Section 302 IPC was filed. In the Charge sheet police named 13 witnesses. The trial of the case started in the year 1992. In the course of the trial the prosecution examined 8witnesses between June 1993 to August 1993 and from August 1993 till 2002 the court repeatedly issued summons to the remaining prosecution witnesses including the Investigating Officer of the case and the Doctor who conducted the post mortem. However the remaining witnesses despite repeated issuance of process by the trial court failed to appear. Consequently these witnesses were dropped and prosecution evidence was treated to be closed. Thereafter the statement of the accused was recorded under Section 313 CrPC in the month of December 2003. Meanwhile it appears from the record that accused No. 2 Shri. Siren Marshiangbai expired in the year 2006. Thereafter defense examined their witnesses DW No.1 and DW No. 2 in the month of September 2006. The learned Judge District Council Court thereafter heard the argument of the prosecution and defense and by passing the impugned order convicted and sentenced the accused No. 1witnesses to establish their case against the appellant but only 8(eight) witnesses were examined. He stated that since the prosecution has not examined the Investigating Officer and the Doctor who conducted the autopsy on the deceased the contradiction could not be brought on record and therefore great prejudice is caused to the appellant accused. It was also submitted that in the absence of medical evidence of the Doctor prosecution failed to prove that the death of the deceased was homicidal. Mr. Gautam further invited our attention to the statement of the appellant accused under Section 313 CrPC and submitted that same is recorded in a perfunctory manner and thereby great prejudice is caused to the appellant accused. In above circumstances he submitted that benefit of doubt has to be given to the appellant and impugned judgment and order may be quashed and set aside. In order to support his submission he relied upon the decision of the Apex Court in Bahadur Naik v. State of Bihar 9 SCC 153 the decision of the Division Bench of High Court of Jharkhand in Manik Singh & Anr. v. State of Jharkhand 2019 SCC Online Jhar 244 the decision of the Apex Court in Samsul Haque v. State of Assam 2019 SCC Online SC 1093 and Nar Sing v. State of Haryana1 SCC 496. Mr. K.Khan learned Sr.PP opposed this appeal vehemently. He submitted that evidence of the eye witnesses that is PW 2 PW 3 PW 4 and PW 5 has fully supported the prosecution case as to the occurrence as such inspite of the fact that the Doctor and the Investigation Officer could not be examined the appellant has been rightly tried and sentenced by the court below and no prejudice has been caused to the defense due to non examination of these witnesses. In this regard he relied upon the decision of the Apex Court in Dayal Singh & Ors. v. State of Uttaranchal8 SCC 263 and Bahadur Naik v. State of Biharto contend that non examination of the Doctor in the present case is not fatal to the prosecution case. This decision however is not applicable since in the present case the prosecution failed to examined not only the Doctor but the Investigating officer as well and non examination of the Investigating Officer has caused great prejudice to the defense as contradiction in the evidence of the eye witnesses could not be brought on record. So far as statement of the accused under Section 313 CrPC is concerned he conceded that same is not recorded in terms of the provision of Section 313 CrPC as interpreted by the Apex Court. However he submitted that for that purpose the appeal can be remanded back to the trial court. PW 2 U Bendro Khardewsaw was the informer at whose instance the FIR was registered. In the FIR he has stated that 3(three) persons namely Mr. Kanding Marbaniang Mr. Alphon Khardewsaw and Mr. Siren Marshiangbai had beaten his brother to death using a log of wood as a result of which he died on the spot. In his evidence before the court he has however stated that on reaching the place of occurrence he saw the 2(two) accused persons namely Mr. Alphon Khardewsaw and Mr. Siren Marshiangbai beating his brother with an iron chain and hammer. PW 2 has admitted that the contents of the FIR was written by PW 6 as explained by him. This statement is corroborated by PW 6 who has admitted his handwriting and signature on the FIR saying that FIR was written by him as explained by PW 2. PW 2 has stated that at the time of the incident around 8 p.m. he was at home when he heard a sound from his sister PW 3 Ka Sbiansimai Khardewsaw and wife of the deceased PW 4 Ka Albina Mawlieh. He has further stated that the distance from the place of occurrence and his house is about half km. PW 4 has stated in her cross examination before the Magistrate First Class on oath that she went to call the brother of her husband. Thus PW 3 and PW 4 have offered different explanations pertaining to the presence of PW 2 at the place of occurrence. PW 3 Ka Sbiansimai Khardewsaw sister of the deceased in her cross examination stated that the first person who arrived at the place of occurrence after hearing their shout was PW 5 U Wosting Marngar the brother in law of the deceased. PW 5 has however in his cross examination before the court admitted that he appeared at the place of occurrence about 10 minutes after hearing the hue and cry. Pw 3 in her cross examination has stated that one Shri. Kanding was also present at the place of occurrence. This fact is not supported in her examination in chief. PW 3 further stated that the place of occurrence is very close to the Forest check gate of Myriaw Syiemship. The above evidence of the alleged eye witnesses that is PW 2 PW 3 PW 4 and PW 5 in our opinion is full of inherent contradictions. PW 2 in his FIR stated that a log of wood was the weapon of assault. However in the deposition before the court he stated that the deceased was assaulted by the accused persons with an iron chain and hammer. This witness in the FIR stated that he saw 3(three) persons namely the present appellant the deceased Siren Marshiangbai and one Kanding Marbaniang assaulting the deceased. However in the deposition before the court he stated that only the appellant accused and deceased Siren Marshiangbai assaulted the deceased. If the evidence of PW 3 and PW 4 is taken into consideration it is clear that they have offered different explanation pertaining to the presence of PW 2 at the place of occurrence. This major contradiction has been ignored by the court below in finding of guilt against the appellant accused. The prosecution as stated earlier has failed to examine the Investigating Officer and in the absence of the examination of the Investigating Officer the defense has been vitally prejudiced as necessary contradictions could not be taken from the Investigating Officer. The Apex Court in Bahadur Naikin para 2 observed that non examination of the Investigating Officer as a witness is of no consequences when material contradictions could not be brought on record. However in the present case there are inherent contradictions in the evidences of PW 2 PW 3 PW 4 and PW 5 who are the eye witnesses. Therefore it can definitely be said that great prejudice has been caused to the appellant accused by such non examination. Facts of the present case and facts of Manik Singh’s caseare more or less similar. In Manik Singh’s case also the Investigating Officer and the Doctor who conducted the post mortem were not examined the Division Bench also found that there are apparent discrepancies in the FIR and the evidence of the informant and evidence of other witnesses. The Division Bench of Jharkhand accordingly acquitted the appellant therein by giving benefit of doubt. This takes us to consider another submission of Mr. Gautam learned counsel for the appellant that prosecution failed to comply with the mandatory provision of Section 313 CrPC. The statement under Section 313 CrPC of the present appellant was recorded by the court on 04 12 2003. It reads as follows: “Examination U S 313 Crpc I did not murdered one U Drikson Khardewsaw. The evidence against me that I used a chain to kill the deceased is not true. I do not know the deceased. I don’t know one U Bendro Khardewsawthe Apex Court reiterated the object scope and importance of statement under Section 313 CrPC. The Apex Court made the following observations in para 10 to 13 as follows: There are two kinds of examination under Section 313 CrPC. The first under Section 313(1)(a) CrPC relates to any stage of the inquiry or trial while the second under Section 313(1)(b) CrPC takes place after the prosecution witnesses are examined and before the accused is called upon to enter upon his defence. The former is particular and optional but the latter is general and mandatory. In Usha K. Pillai v. Raj K. Srinivas3 SCC 208 this Court held that:3. … the court is empowered byclause to question the accused at any stage of the inquiry or trial whileclause obligates the Court to question the accused before he enters his defence on any circumstance appearing in prosecution evidence against him. 11. The object of Section 313(1)(b) CrPC is to bring the substance of accusation to the accused to enable the to explain each and every circumstance appearing in the evidence against him. The provisions of this section are mandatory and cast a duty on the court to afford an opportunity to the accused to explain each and every circumstance and incriminating evidence against him. The examination of the accused under Section formality. Section is not a mere 313(1)(b) CrPC 313 CrPC prescribes a procedural safeguard for an accused giving him an opportunity to explain the facts and circumstances appearing against him in the evidence and this opportunity is valuable from the standpoint of the accused. The real importance of Section 313 CrPC lies in that it imposes a duty on the court to question the accused properly and fairly so as to bring home to him the exact case he will have to meet and thereby an opportunity is given to him to explain any such point. 12. Elaborating upon the importance of a statement under Section 313 CrPC in Paramjeet Singh v. State of Uttarakhand10 SCC 439 this Court has held as under:“22. Section 313 CrPC is based on the fundamental principle of fairness. The attention of the accused must specifically be brought to inculpatory pieces of evidence to give him an opportunity to offer an explanation if he chooses to do so. Therefore the court is under a legal obligation to put the incriminating circumstances before the accused and solicit his response. This provision is mandatory in nature and casts an imperative duty on the court and confers a corresponding right on the accused to have an opportunity to offer an explanation for such incriminatory material appearing against him. Circumstances which were not put to the accused in his examination under Section 313 CrPC cannot be used against him and have to be excluded from consideration.”4 SCC 116 and State of Maharashtra v. Sukhdev Singh 3 SCC 700.)” In Basavaraj R. Patil v. State of Karnataka8 SCC 740 this Court considered the scope of Section 313 CrpC and in paras 18 to 20 held as under:speaking for a three Judge Bench has focused on the ultimate test in determining whether the provision has been fairly complied with. He observed thus:‘21…..The ultimate in determining whether or not the accused has been fairly examined under Section 342 would be to enquire whether having regard to all the questions put to him he did get an opportunity to say what he wanted to say in respect of prosecution case against him. If it appears that the examination of the accused person was defective and thereby a prejudice has been caused to him that would no doubt be a serious infirmity.’ 19. Thus it is well settled that the provision is mainly intended to benefit the accused and as its corollary to benefit the court in reaching the final conclusion. 20. At the same time it should be borne in mind that the provision is not intended to nail him to any position but to comply with the most salutary principle of natural justice enshrined in the maxim audi alteram partem. The word ‘may’ in clauseof sub sectionin Section 313 of the Code indicates without any doubt that even if the court does not put any question under the clause the accused cannot raise any grievance for it. But if the court fails to put the needed question under clauseof the sub section it would result in a handicap to the accused and he can legitimately claim that no evidence without affording him the opportunity to explain can be used against him. It is now well settled that a circumstance about which the accused was not asked to explain cannot be used against him.” In Nar Singh’s casethe Apex Court briefly summarized the course available to the appellate court whenever the plea of permission to put question to the accused on vital piece of evidence is raised in the appellate court as follows: 30.1. Whenever a plea of non compliance of Section 313 CrPC is raised it is within the powers of the appellate court to examine and further examine the convict or the counsel appearing for the accused and the said answers shall be taken into consideration for deciding the matter. If the accused is unable to offer the appellate court any reasonable explanation of such circumstance the court the accused has no acceptable may assume explanation to offer. In Samsul Haquethe Apex Court summarized the purpose and requirement of Section 313 CrPC. The Apex Court made following observation in para 21 and 22: 30.2. In the facts and circumstances of the case if the appellate court comes to the conclusion that no prejudice was caused or no failure of justice was occasioned the appellate court will hear and decide the matter upon 30.3. If the appellate court is of the opinion that non compliance with the provisions of Section 313 CrPC has occasioned or is likely to have occasioned prejudice to the accused the appellate court may direct retrial from the stage of recording the statements of the accused from the point where the irregularity occurred that is from the stage of questioning the accused under Section 313 CrPC and the trial Judge may be directed to examine the accused afresh and defence witness if any and dispose of the matter afresh. 30.4. The appellate court may decline to remit the matter to the trial court for retrial on account of long time already spent in the trial of the case and the period of sentence already undergone by the convict and in the facts and circumstances of the case may decide the appeal on its own merits keeping in view the prejudice caused to the The most vital aspect in our view and what drives the nail in the coffin in the case of the prosecution is the manner in which the court put the case to Accused 9 and the statement recorded under Section 313 CrPC. To say the least it is perfunctory. 22. It is trite to say that in view of the judgments referred to by the learned Senior Counsel aforesaid the incriminating material is to be put to the accused so that the accused gets a fair chance to defend himself. This is in recognition of the principles of audi alteram partem. Apart from the judgments referred to aforesaid by the learned Senior Counsel we may usefully refer to the judgment of this Court in Asraf Ali v. State of Assam. The relevant observations are in the following paragraphs: “21. Section 313 of the Code casts a duty on the court to put in an enquiry or trial questions to the accused for the purpose of enabling him to explain any of the circumstances appearing in the evidence against him. It follows as necessary each material circumstance appearing in the evidence against the accused is required to be put to him specifically distinctly and separately and failure to do so amounts to a serious irregularity vitiating trial if it is shown that the accused was prejudiced. inculpatory material 22. The object of Section 313 of the Code is to establish a direct dialogue between the Court and the accused. If a point in the evidence is important against the accused and the conviction is intended to be based upon it it is right and proper that the accused should be questioned about the matter and be given an opportunity of explaining it. Where no specific question has been put by the trial court on the prosecution evidence it would vitiate the trial. Of course all these are subject to rider whether they have caused miscarriage of justice or prejudice. This Court also expressed similar view in S. Harnam Singh v. State Delhi Admn.) while dealing with Section 342 of the Criminal Procedure Code 1898 it was the duty of the court to bring the substance of accusation to the appellant accused to enable him to explain each and every circumstance appearing in the evidence against him. The provision of Section 313 CrPC is not only mandatory but it cast a duty upon the court to afford an opportunity to the appellant to explain each and every circumstance and incriminating evidence against him. Obviously in the present case this was not done and therefore in our considered opinion great prejudice is caused to the appellant accused. By now it is established principle of law that where there is a perfunctory examination under Section 313 CrPC the matter is capable of being remitted to the trial court from the stage at which prosecution was closed. However in the present case examination under Section 313 CrPC of the appellant accused was not only perfunctory but prosecution also failed to examined the Investigating Officer and the Doctor. On that count also great prejudice is caused to the appellant accused. Coupled with this fact we also must consider the inordinate delay in trial of the appellant accused. Though charge sheet was submitted in the year 1985 appellant accused was convicted by impugned judgment and order dated 22 02 2018. Thus trial remained pending for 33 In above circumstances we are of the view that appellant accused could not have been convicted and sentenced by the trial court. Rather the appellant accused is entitled to be given the benefit of the doubt. As such the impugned judgment of conviction and sentence passed by the court below cannot be sustained in the eyes of law and same is quashed and set aside. The appeal is accordingly allowed. The appellant accused is directed to be released forthwith if not required in any other case. Judge R. More) Judge 06 .05.2021 “Samantha PS”

Petitioner seeks for parole as he was the only one available to solemnize the marriage of his daughter and the court granted the same: High court of Punjab and Haryana at Chandigarh

Parole is conditional freedom for a prison inmate. The prisoner also called a “parolee” gets out from behind bars but has to live up to a series of responsibilities. A parolee who doesn’t follow the rules risks going back into custody.  The parole was granted to the petitioner for the marriage of his daughter however was asked to report back to prison after the date.  This judgment and the final order were given in the high court of Punjab and Haryana at Chandigarh on the 20th of May 2021 by Hon’ble Mr. Justice Jaswant Singh and Hon’ble Mr. justice Sant Parkash in the case of Iqbal vs. state of Haryana and others CRWP-4395-2021.  The proceedings of the court were held in a virtual platform due to Covid-19. Mr. Mohd. Hussain represented the petitioner and Ms. Shruti Jain represented the state of Haryana. The following are the facts of the case, under article 226/227 of the constitution of India i.e., it empowers the high courts to issue, to any person or authority, directions, orders, or writs. Article 227 determines that every High Court shall have superintendence and section 3(1) (b) of the Haryana good conduct prisoners (temporary release) act 1988 i.e.  Procedure for temporary release A prisoner desirous of seeking temporary release under section 3 or section 4 of the Act, shall make an application in form A-I or form A-2, as the case may be, to the Superintendent of Jail. An adult member of the prisoner’s family may also make such an application. Therefore, a petition was filed by Mr. Iqbal for directing the respondents to provide the petitioner with four-week parole regarding the marriage of his daughter fixed for 23/05/2021. However, under section 20 of the narcotic drugs and psychotropic substance act 1985 and section 120-B and 201 IPC i.e. (Causing disappearance of evidence of the offense, or giving false information to screen offender). The petitioner was convicted and FIR no.219 was filed in the police station Bilaspur in Gurugram and he was sentenced to 12-year rigorous imprisonment. According to the counsel of the petitioner, the marriage of his daughter was fixed on 23/05/2021. No one in the family is capable and can make the arrangement of the marriage of the daughter of the petitioner. Recently the petitioner lost his father who was the only one taking care of the family due to the absence of the petitioner. So, therefore, he was seeking parole to enable him to solemnize the daughter’s marriage. Documents and evidence included the marriage card and panchayat report was annexed. As the father of the bride performance of certain important rituals is requisite in the marriage.

on 08 07 CRWP 4395 2021 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CRWP 4395 2021 DATE OF DECISION: 20.05.2021IQBAL ...PETITIONER...V.STATE OF HARYANA AND OTHERS...RESPONDENTS...CORAM: HON BLE MR. JUSTICE JASWANT SINGH HON BLE MR. JUSTICE SANT PARKASHPresent:Mr. Mohd. Shahid Hussain Advocate for the petitioner.Ms. Shruti Jain Goyal DAG Haryana. SANT PARKASH J.(b) of the Haryana Good Conduct PrisonersAct 1988 is for issuance of directions to the respondents to grant four weeks parole for the marriage of daughter of the petitioner which is fixed for 23.05.2021.The petitioner was tried in FIR No.219 dated 31.05.2017 under Section 20 of the Narcotic Drugs and Psychotropic Substance Act 1985 and Sections 120 B and 201 IPC Police Station Bilaspur District Gurugram and accordingly he has been convicted and sentenced for 12 years rigorous imprisonment vide judgment of conviction and order of sentence dated 17.12.2020 and 22.12.2020 on 08 07 CRWP 4395 2021 2 respectively. Against the judgment of conviction and order of sentence petitioner filed an appeal before this Court which is still pending admitted for final adjudication.Learned counsel for the petitioner submits that the marriage of the daughter of petitioner namely Shihana is fixed for 23.05.2021 with Sajid. There is no responsible person in the family of the petitioner to make the arrangement of marriage of the daughter of the petitioner. Moreover father of the petitioner has also died few months ago who was taking care of his family in the absence of petitioner. Copy of the marriage card and Panchayat report is annexed herewith as Annexures P 1 and P 2.Learned State counsel has admitted the facts regarding the marriage of the daughter of the petitioner and has no objection if the petitioner be released on parole to enable him to solemnize the marriage of his daughter which is fixed for 23.05.2021.Heard the arguments of learned counsel for the parties and have also perused the documents available on the file.Admittedly the marriage of the daughter of the petitioner is fixed for 23.05.2021 and the petitioner being the father has to make the arrangements and perform certain important rituals ceremonies in the marriage. Moreover there is no other responsible person in the family to make the arrangements. In view of the above the present petition is disposed of with a direction to respondent No.4 Superintendent District Jail Gurugram to release the petitioner on parole w.e.f. 21.05.2021 to on 08 07 CRWP 4395 2021 3 25.05.2021 to perform the marriage of his daughter which is fixed for 23.05.2021 subject to his furnishing requisite bail bonds to the satisfaction of jail authorities. The petitioner is directed to surrender before the Jail authorities on 26.05.2021 at 10:00 a.m. positively.A copy of this order be supplied to learned State counsel and be also sent to respondent No. 4 Superintendent District Jail Gurugram for ensuring requisite compliance.JUDGE JUDGE 20.05.2021sonika whether speaking reasoned:Yes Nowhether reportable:Yes No

Court can deny pre-trial amendment in plaint only in exceptional cases: High Court of Karnataka

When an application is made for amending the original plaint submitted, the court cannot deny leave to amend unless there is some exception like inconsistent pleas and it shall ordinarily lean in favor of granting the permission to amend. This was decided in the case of Puttamma v. Chittibabu [Writ Petition No. 30810 of 2018 (GM-CPC)] by the High court of Karnataka by Hon’ble Justice Krishna S. Dixit. The facts of the case are that the petitioner, who is the plaintiff of the original suit, approached the High court by filing writ petition for maintaining its application intended to amend the plaint originally introduced, after the lower court declined it. The petitioner wanted leave to amend the plaint for introducing the ground of “easement of necessity” in terms of section 13  of the Easements Act, 1882. After service of notice, the respondent-defendant having entered appearance through his counsel resists the writ petition making submission in justification of the impugned order and the reasons on which it has been predicated. The court said that it was a long settled position of law that ordinarily the request for pre-trial amendments is favored as a rule and declined as an exception; this approach is not reflected in the impugned order and thus there is an error apparent on its face that has caused prejudice to the petitioner. It is true that any amendment would inevitably cause some change and it would cause some prejudice to the other side. The court must note the enormity of change and the consequent prejudice that the other side would be put to, should leave for amendment be granted, after going by the pleadings and the subject application there. It was also observed by the court that there is force in the contention of the counsel for the petitioner that the impugned order of the kind is treated as a discretionary one and therefore the Writ Court should not readily interfere with it in the absence of any culpable error being demonstrated The respondent contended that the amendment if sanctioned would amount to permitting the plaintiff to take up inconsistent plea which the law doesn’t permit. But the court said that it difficult for the court to take consider this argument. It agreed that defendants in a suit are permitted to take up inconsistent plea and not the plaintiffs and for this it relied upon the judgement of the Apex court in Usha Balasaheb Swami.  Vs. Kiran Appaso Swami,(2007) 5 602 where it was held “ It is equally well settled principle that a prayer for amendment of the plaint and a prayer for amendment of the written statement stand on different footings. The general principle that amendment of pleadings cannot be allowed so as to alter materially or substitute cause of action or the nature of claim applies to amendments to plaint.” The court observed that these observations cannot rescue the respondent as it is are no thumb rules by the apex Court. Talking about easement rights, the court said that an easement requires that some diminution of the natural rights incidental to the ownership of a piece of land is reflected in a corresponding right superimposed on the natural rights incidental to another piece of land; much deliberation is not warranted since all this is to be debated in the trial of the suit.

...PETITIONER IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 5TH DAY OF FEBRUARY 2021 BEFORE THE HON’BLE MR. JUSTICE KRISHNA S.DIXIT WRIT PETITION NO.30810 OF 2018SMT. M P PUTTAMMA W O RAMACHANDRAIAH AGED ABOUT 46 YEARS RESIDING AT NO.10 KHATHA NO.202 HOSAKEREHALLI VILLAGE BANGALORE SOUTH TALUK BANGALORE 560085. BY SRI. GANGADHARAPPA A V ADVOCATE) V CHITTIBABU S O V VARADARAJULU AGED ABOUT 51 YEARS RESIDING AT NO.18 OPP TO BDA COMPLEX 21ST MAIN ROAD B.K.COMPLEX BANASHANKARI II STAGE BANGALORE 560070. …RESPONDENT BY SRI.ASHOK HARANAHALLI SR.COUNSEL A WITH SRI.ABHINAY Y.T ADVOCATE FOR RESPONDENT) THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO CALL FOR THE RECORDS AND PROCEEDINGS OF THE CASE AND QUASH THE ORDER DATED 22.06.2018 PASSED BY THE COURT OF THE 63RD ADDL. CITY CIVIL & SESSION JUDGE BANGALORE CITY CCH NO.64) ON I.A.NO.ii IN O.S.NO.1541 2017 CERTIFIED COPY OF WHICH IS PRODUCED AS ANNEXURE E AND BE PLEASED TO ALLOW THE APPLICATION I.A.NO.II AS PRAYED FOR TRUE COPY OF WHICH IS PRODUCED AS ANNEXURE C. AND ETC. THIS WRIT PETITION COMING ON FOR ORDERS THIS DAY THROUGH PHYSICAL HEARING THE COURT MADE THE 2 Petitioner being the plaintiff in a suit for declaration & injunction in O.S.No.1541 2017 is knocking at the doors of writ court for assailing the order dated 22.6.2018 a copy whereof is at Annexure E whereby the learned LXIII Addl. City Civil Judge Bangalore Cityhaving rejected her application in I.A.No.II filed u o VI Rule 17 r w Section 151 of CPC 1908 has declined leave to amend the plaint for introducing the ground of “easement of necessity” in terms of section 13 of the Easements Act 1882. After service of notice the respondent defendant having entered appearance through his counsel vehmently resists the writ petition making submission in justification of the impugned order and the reasons on which it has been 3. Having heard the learned counsel for the parties and having perused the petition papers this Court is inclined to grant indulgence on costs in the matter for the following reasons: a) Admittedly the suit is one for declaration & injunction the respondent being the defendant is resisting the same by filing the Written Statement issues are framed is true trial is yet to commence is not disputed it has been a long settled position of law that ordinarily the request for pre trial amendments is favoured as a rule and declined as an exception this approach is not reflected in the impugned order and thus there is an error apparent on its face that has caused prejudice to the petitioner. b) As already mentioned above the decree sought for in the suit is for declaration & injunction concerning the right of way the suit as originally founded was on the premise that it is a public way and that the respondent should not interfere with the same now also the prayer will remain same since what is sought to be introduced by way of amendment to the plaint is only the ground of easement of necessity thus the nature of the suit does not much change any amendment would inevitably cause some change and it would cause some prejudice to the other side is true what the courts need to see is the enormity of change and the consequent amount of prejudice that the other side would be put to should leave for 4 amendment be granted going by the pleadings and the subject application & the objections thereto this Court is of a considered opinion that there will be no substantial change in the structure of the suit if amendment as sought for is c) The vehement contention of respondent’s counsel that the amendment if sanctioned would amount to permitting the plaintiff to take up inconsistent plea which the frowns is bit difficult to countenance ordinarily defendants in a suit are permitted to take up inconsistent plea and not the plaintiffs is true the Apex Court in Usha Balashaheb Swami Vs. Kiran Appaso Swami 5 SCC 602 at para 19 observed as under: “It is equally well settled principle that a prayer for amendment of the plaint and a prayer for amendment of the written statement stand on different footings. The general principle that amendment of pleadings cannot be allowed so as to alter materially or substitute cause of action or the nature of claim applies to amendments to plaint. It has no counterpart in the principles relating to amendment of the written statement. Therefore addition of a new ground of defence or substituting or altering a defence or taking inconsistent pleas in the written statement would not be objectionable while adding altering or substituting a new cause of action in the plaint may be objectionable.” These observations do not come to the rescue of the respondent inasmuch as the proposition pleaded is not treated as a Thumb Rule by the Apex Court whether a plaintiff can be permitted to take up inconsistent pleas depends upon a host of factors including the nature of the suit proceedings. d) There is yet another reason for not pressing into service the principle of inconsistent pleas the contention that once the plaintiff frames his suit on the ground of public way the other ground of easement of necessity tentamounts to a contra plea does not merit acceptance Sec.13 of the Act which enacts the easement of necessity presupposes dominant heritage of one and the servient heritage of another is true even then there is nothing repugnant in a public way becoming a dominant heritage in a limited sense in other words there is no contradiction even if it is assumed that the path in question is of public use the essence of the section being two separate owners and nothing more. An easement requires that some diminution of the natural rights incidental to the ownership of a piece of land is reflected in a corresponding right superimposed on the natural rights 6 incidental to another piece of land much deliberation is not warranted since all this is to be debated in the trial of the suit. e) The contention of learned counsel for the respondent that the right of the plaintiff to amend his pleadings is not as wide as is conceded to the defendant is supported by the decison of the Apex Court in Baldev Singh Vs. Manohar Singh AIR 2006 SC 2832 the relevant part of para 15 therein reads as under: “…15 That apart it is now well settled that an amendment of a plaint and amendment of a written statement are not necessarily governed by exactly the same principle. It is true that some general principles are certainly common to both but the rules that the plaintiff cannot be allowed to amend his pleadings so as to alter materially or substitute his cause of action or the nature of his claim has necessarily no counterpart in the law relating to amendment of the written statement. Adding a new ground of defence or substituting or altering a defence does not raise the same problem as adding altering or substituting a new cause of action. Accordingly in the case of amendment of written statement the courts are inclined to be more liberal in allowing amendment of the written statement than of plaint and question of prejudice is less likely to operate with same rigour in the former than in the latter case.” This ruling becomes handy in cases where the request of the defendant for leave to amend the Written Statement is to be treated qua the opposition thereto by the plaintiff the thrust 7 of the observation is to be viewed from that angle nothing much in this decision comes to the rescue of the respondent. f) There is force in the contention of the learned counsel for the petitioner that the impugned order of the kind is treated as a discretionary one and therefore the Writ Court should not readily interfere with vide SADHANA LODH VS. NATIONAL INSURANCE COMPANY & ANOTHER 3 SCC 524 in the absence of any culpable error being demonstrated. But some prejudice is being caused to the respondent by petitioners amendment of the plaint it is tritely said that there is no prejudice to a party which cannot be compensated by awarding costs and therefore petitioner has to pay the costs. g) Learned counsel for the respondent is justified in contending that whether the amendment if sanctioned should have retrospective effect or otherwise needs to be examined by the learned trial Judge while hearing the suit and therefore that issue is not foreclosed here. It hardly needs to be stated that the court has got discretion to decide the same keeping in view well settled principles which govern the doctrine of relation back after hearing both the stakeholders. 8 In the above circumstances this Writ Petition succeeds impugned order invalidated petitioner s subject application having been favoured leave is accorded for amending the plaint subject to she paying a cost of Rs.5 000 to the respondent within three weeks or before the next date of hearing of the suit whichever is earlier failing which the impugned order now set at naught shall resurrect on its own as phoenix relegating the petitioner to the original The petitioner to file the amended plaint within three weeks whereupon the respondent to file the additional Written Statement if any within three weeks next following All contentions of the parties having been kept open the learned Judge of the court below is requested to expeditiously try & dispose off the suit in accordance with law. plaint. Sd

A litigant ought not to suffer due to the mistake by the counsel: Delhi High Court

Though, this Court is usually not inclined to allow evidence at the stage of final arguments, considering the fact that the documents in the case at hand were already on record with an application, and it only appears to have been a mistake by the counsel for the Defendant, this Court is of the opinion that a litigant ought not to suffer due to the same as held by the hon’ble High Court of Delhi through the learned bench led by Justice Prathiba M. Singh in the case of Ashok Kumar Sharma V. Sushil Chander Sharma & Ors (C.R.P. 272/2019 & CM APPL. 51182/2019) The brief background is that a civil suit for possession and recovery of arrears of mesne profits and damages, was filed by Mrs. Shakuntala Devi – wife of Late Mr. Rajinder Pal Sharma against the Defendant – Mr. Ashok Kumar Sharma. Mr. Rajinder Pal Sharma and Mr. Ashok Kumar Sharma are brothers. The Defendant examined three witnesses including an official from the Army Base Workshop, Delhi Cantt., to bring on record documents relating to the appointment, salary and pension of Mr. Rajinder Pal Sharma and Late Mr. Jaswant Rai Sharma. Thereafter, the matter was fixed for final arguments. Around the time when submissions were being heard, it appears that the Defendant realized that some documents which were on record had not been exhibited through the evidence of DW-4, who was the witness from the Army. DW-5 was also examined, however, ld. counsel for the Defendant did not confront the documents to the official from the Army, and completely missed out the fact that the application for placing on record additional documents was yet to be adjudicated, and the same continued to remain pending. It was during the final hearing then that the application was pressed before the Trial Court and the Trial Court primarily held that the Defendant had adequate opportunity to place his evidence on record, and thus at this belated stage, he cannot be permitted to lead evidence. Upon the perusal of the facts and arguments by the respective sides, the Hon’ble Court held, “The Plaintiff is a senior citizen who undoubtedly wishes for expeditious disposal. Thus, having perused the record and the application along with the documents thereto, this Court is inclined to only allow two pages of the documents i.e., page nos. 317 and 318, which is a letter dated 12th April, 2008, issued by the Army Base Workshop attaching therewith the details of the basic pay of Mr. Rajinder Pal Sharma in a chart form, to be permitted to be proved. The petition is disposed of in the above terms. All pending applications are also disposed of.”

A 17IN THE HIGH COURT OF DELHI AT NEW DELHI Date of decision: 8th November 2021 C.R.P. 272 2019 & CM APPL. 51182 2019 ASHOK KUMAR SHARMA Through: Mr. Bharat Gupta & Mr. Varun ..... Petitioner Tyagi Advocates. SUSHIL CHANDER SHARMA & ORS Through: Mr. Subhash Sharma Advocate. JUSTICE PRATHIBA M. SINGH Prathiba M. Singh J.(Oral) 1. This hearing has been done through video conferencing. The present petition has been filed challenging the impugned order dated 23rd October 2019 passed by the ld. ADJ 12 Central District Tis Hazari Courts Delhi by which the application under Order VIII Rule 1A of the CPC was dismissed by the Trial Court. By the said application the Defendant in the suit Petitioner herein sought to place on record certain documents. The brief background is that a civil suit bearing Suit No. 514 2008 for possession and recovery of arrears of mesne profits and damages was filed by Mrs. Shakuntala Devi wife of Late Mr. Rajinder Pal Sharma against the Defendant Mr. Ashok Kumar Sharma. Mr. Rajinder Pal Sharma and Mr. Ashok Kumar Sharma are brothers. The suit property is the first floor of the property bearing No. H 72 Shivaji Park Punjabi Bagh New Delhi 110026. The suit was tried before the ld. ADJ and the Plaintiff examined four witnesses and closed his evidence. The Defendant examined three witnesses C.R.P. 272 2019 Digitally Signed By:DEVANSHUJOSHISigning Date:10.11.2021 12:09:15 including an official from the Army Base Workshop Delhi Cantt. to bring on record documents relating to the appointment salary and pension of Mr. Rajinder Pal Sharma and Late Mr. Jaswant Rai Sharma. Thereafter the matter was fixed for final arguments. Around the time when submissions were being heard it appears that the Defendant realized that some documents which were on record had not been exhibited through the evidence of DW 4 who was the witness from the Army. DW 5 was also examined however ld. counsel for the Defendant did not confront the documents to the official from the Army and completely missed out the fact that the application for placing on record additional documents was yet to be adjudicated and the same continued to remain pending. It was during the final hearing then that the application was pressed before the Trial Court and the Trial Court primarily held that the Defendant had adequate opportunity to place his evidence on record and thus at this belated stage he cannot be permitted to lead evidence. The copy of the impugned order passed by the ld. ADJ reads as under: for defendant “Further arguments heard. During arguments it is that on pointed out by counsel 08.03.2019 an application u o 8 Rule 1 A CPC was filed by the defendant to take on record certain documents and prove the same as per law. But the said application has not been disposed off till date. He submits that there are some documents in the said application which are necessary for the disposal of the case. Hence the defendant be permitted to take these documents on record and prove the same. Ld. Counsel for the plaintiff has opposed the same on the ground that after filing of the said application the defendant did not press the said application and led further defence evidence and C.R.P. 272 2019 Digitally Signed By:DEVANSHUJOSHISigning Date:10.11.2021 12:09:15 closed DE on 07.06.2019 and therefore he cannot be allowed to say that the application has not been disposed off though formally no order has been passed to dispose off the same. I have heard the submissions of Ld. Counsel for parties and perused the record. Considering the facts that after filing of the application defendant evidence was led and thereafter DE was closed vide separate statement of counsel for defendant and case was fixed for final arguments on 07.06.2019 hence now no ground is made out for allowing the said application as it would amount to re opening of the defendant evidence. Further Ld. Counsel for defendant submits that he want to prove only two documents which pertains to the salary of Rajinder Pal but after perusing the said application I found that there is no mention that he wants to prove any of the documents relating to DW Rajinder Pal. In these circumstances application u o 8 Rule 1 A CPC is dismissed.” The present petition has been preferred challenging this order. The submission of Mr. Gupta ld. counsel for the Defendant is that the case of the Defendant before the Trial Court is that the suit property is an HUF property as Mr. Rajinder Pal Sharma did not have the capability to purchase the property which he wishes to prove through the salary slips etc. On the other hand ld. counsel for the Plaintiff Mr. Sharma submits that these are nothing but delaying tactics and the suit has been pending since 2008 i.e. for more than 13 years. Thus the Plaintiff being a senior citizen the matter ought to be expedited. Heard ld. Counsels for the parties and perused the record. Upon perusing the application for additional documents there can be no doubt that the application has been pressed at the belated stage. All the C.R.P. 272 2019 Digitally Signed By:DEVANSHUJOSHISigning Date:10.11.2021 12:09:15 documents which were annexed with the application for additional documents filed before the Trial Court could have been easily confronted to the witness DW 4 who was summoned by the Defendant. However for whatever reason the said witness was not confronted and the application continued to remain pending without the documents being taken on record. One of the documents which was annexed to the application shows the details of the basic pay drawn by Mr. Rajinder Pal Sharma in the form of a chart for the period January 1950 to 30th September 1977. This document has been duly attested by Lieutenant Colonel Major from the Legal Cell of the Army Base Office. The said documents could have been easily confronted to the witness who appeared from the Army at that stage. However the counsel seems to have completely missed out the same. At the stage of final arguments the ld. counsel for the Defendant appears to have realised that this application continues to remain pending and the documents were not taken on record. Hence the delay for the last two years has taken place Though this Court is usually not inclined to allow evidence at the stage of final arguments considering the fact that these documents were already on record with an application and it only appears to have been a mistake by the counsel for the Defendant this Court is of the opinion that a litigant ought not to suffer due to the same. 10. The Plaintiff is a senior citizen who undoubtedly wishes for expeditious disposal. Thus having perused the record and the application along with the documents thereto this Court is inclined to only allow two pages of the documents i.e. page nos. 317 and 318 which is a letter dated 12th April 2008 issued by the Army Base Workshop attaching therewith the C.R.P. 272 2019 Digitally Signed By:DEVANSHUJOSHISigning Date:10.11.2021 12:09:15 details of the basic pay of Mr. Rajinder Pal Sharma in a chart form to be permitted to be proved. 11. Accordingly the following directions are issued: i) These two pages i.e. page nos. 317 and 318 which are already on record are permitted to be proved by the Defendant in accordance with law. No other documents are being permitted to be taken on ii) For the said purpose the Defendant is permitted to summon any concerned official from the Legal Cell of the Army Base Workshop so that the genuineness of these documents can be established. iii) For the said purpose one date shall be fixed by the Trial Court. This permission is being given to the Petitioner herein subject to payment of Rs.10 000 as costs to the Plaintiff. iv) If on the date fixed the concerned witness is not summoned or does not appear since these documents are stated to be obtained under RTI the Defendant shall be permitted to produce one witness to prove how these documents were procured. The said witness shall be cross examined by the Plaintiff in one session itself and the matter shall immediately thereafter proceed for final arguments. v) An attempt shall be made by the Trial Court to adjudicate the suit within a period of six months from the date of next hearing. 12. The petition is disposed of in the above terms. All pending applications are also disposed of. NOVEMBER 8 2021 PRATHIBA M. SINGH J C.R.P. 272 2019 Digitally Signed By:DEVANSHUJOSHISigning Date:10.11.2021 12:09:15

Courts should not enlarge history sheeter accused on bail with a blinkered vision: Supreme Court

There is no doubt that liberty is important, even that of a person charged with crime but it is important for the courts to recognise the potential threat to the life and liberty of victims/witnesses, if such accused is released on bail. This was said in the case of Sudha Singh vs The State Of Uttar Pradesh [CRIMINAL APPEAL NO. 448 OF 2021] by Chief Justice S.A Bobde, Justice A.S. Bopanna, and Justice V. Ramasubramanian in the Supreme Court.  The facts of the case are that the High Court simply ignored the antecedents of the accused and the potential to repeat his acts by organising his criminal activities and acted on liberal terms by granting bail to the accused who has been arrested with respect to the offence punishable under Section 3 (1) of the U.P. Gangster and Anti-Social Activities (Prevention) Act, 1986. Assailing the order of the High Court, the wife of the deceased victim filed a Criminal appeal The appellant contended that the conduct of the accused during the trial of the case has been one of non cooperation, by not cross examining the witnesses first, then praying for their recall and then threatening witnesses through his henchmen. In fact, the conduct of the accused impelled the Sessions court to direct the police to provide security in the court during the trial and provide security to the witnesses. It is also contended by the appellant that the grant of bail in a routine manner to gangsters, has had an adverse effect in the past, upon the law and order situation. The appellant cites the example of a person who was prosecuted in connection with 64 criminal cases which included cases of murders, offences of dacoity, criminal intimidation, extortion and offences under the UP-Gangster Act, etc., but who was released on bail. Ultimately, when a police team went to apprehend him in a case, allegedly 8 policemen were killed and many grievously injured. Therefore, the appellant contends that courts must be extremely careful in releasing of history sheeters who have been charged with serious offences like murder, rape or other kinds of bodily harms several times The Court referred to the case of In Ash Mohammad v Shiv Raj Singh [CRIMINAL APPEAL NO.  1456  OF 2012] wherein this Court observed that “when citizens were scared to lead a peaceful life and heinous offences were obstructions in the establishment of a well-ordered society, the courts play an even more important role, and the burden is heavy. It emphasized on the need to have a proper analysis of the criminal antecedents of the accused” After analysing the facts of the case in the light of the above judgment, the Court said that, “We find in this case that the high court has overlooked several aspects, such as the potential threat to witnesses, forcing the trial court to grant protection. It is necessary for courts to consider the impact that release of such persons on bail will have on the witnesses yet to be examined and the innocent members of the family of the victim who might be the next victims”. Hence, the Court allowed the appeal and set aside the order of High Court granting bail to the accused. Click here to read judgment

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

Denying Appointment to women only on the ground that nature of the employment would require working during night hours is violative of Fundamental Rights: High Court of Kerala

A woman who is fully qualified cannot be denied her right to be considered for employment only on the basis of her gender. It is the bounden duty of the respondents who are Government and Government functionaries to take all appropriate steps to see that a woman is able to carry out the duties assigned to her at all hours, safely and conveniently. This remarkable judgment was passed by the Kerala High Court in the matter of TREASA JOSFINE V STATE OF KERALA & ANR. [WP(C). No. 25092 OF 2020] by Honourable Justice Anu Sivaraman. This writ petition was filed to seek a writ of mandamus to call for the records for the post of safety officer and to declare Section 66(1)(b) of the Factories Act, 1948 as unconstitutional since it is violative of Article 14, 15 and 16 of the Constitution. Additionally, the petitioner also demanded the second respondent issue a fresh notification to the post of safety officer, incorporating the qualified Women Candidates. The brief facts of the case are, petitioner is an engineering graduate in Safety and Fire Engineering whereas Respondent No. 2 is a public sector undertaking under the State of Kerala. The petitioner is engaged as Graduate Engineer Trainee (Safety) and the permanent post of Safety Officer was available for which applications were sought by the company but it was limited to only male candidates which were contended to be violative of Fundamental Rights. Whereas the respondents stated that the post of Safety Officer is a statutory post and as per Section 66(1)(b) of the Factories Act, 1948, women employees shall not be required or permitted to work except between 6 a.m. and 7 p.m. Graduate Engineer Trainee (Safety) is required to work only from 9 a.m. to 5 p.m. whereas Safety Officer is around the clock post and person engaged as Safety Officer will have to work even during night time which was affirmed by the Director. Thus, there was no illegality in excluding women from applying for the post of Safety Officer. The Court relied on Hindustan Latex Ltd. v. Maniamma [1994 (2) KLT 111] to contemplate upon the issue related to Section 66(1)(b) and stated that the provisions of Section 66(1)(b) can only be protected against exploitation of a woman worker by requiring her to work during night hours without her consent. The Court also observed the judgment in Omana Oomen v. F.A.C.T. Ltd. [1990 (1) KLT 614] and Leela v. State of Kerala [2004 (5) SLR 28] and observed that the provision of Section 66(1)(b) embodies a special provision in favor of women and does not suffer from the vice of discrimination. It was further observed that “provisions of Section 66(1)(b) are beneficial in nature and are intended to protect women from exploitation. In the factual situation involved, we have to consider the fact that the Factories Act, 1948 was enacted at a time when requiring a woman to work in an establishment of any nature, more so in a factory, during the night time could only be seen as exploitative and violative of her rights. But with development and advancement, women have been engaged in several professions requiring round the clock labor and have proved themselves quite capable of facing the challenges of such engagement.” The Court also added that “It is the bounden duty of the respondents who are Government and Government functionaries to take all appropriate steps to see that a woman is able to carry out the duties assigned to her at all hours, safely and conveniently. If that be so, there would be no reason for denying appointment to a qualified hand only on the ground that she is a woman and because the nature of the employment would require her to work during night hours”

Treasa Josfine vs State Of Kerala on 9 April 2021 Kerala High Court Treasa Josfine vs State Of Kerala on 9 April 2021 IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN FRIDAY THE 09TH DAY OF APRIL 2021 19TH CHAITHRA 1943 WP(C).No.25092 OF 2020(J PETITIONER : TREASA JOSFINE AGED 25 YEARS D O.BRUNO KUNJUMON THYTHOPPIL HOUSE SAKTHIKULANGARA P.O. KOLLAM 691 581 BY ADVS SRI.P.R.MILTON SRI.GEORGE VARGHESEDEPARTMENT THIRUVANANTHAPURAM 695 001 2 THE MANAGING DIRECTOR THE KERALA MINERALS AND METALS LTD. SANKARAMANGALAM CHAVARA PIN 691 583 KOLLAM ADDL. 3 UNION OF INDIA REPRESENTED BY IT S SECRETARY DEPARTMENT OF LABOUR RAFI MARG NEW DELHI 110 011 25092 2020 R1 BY SR.GOVERNMENT PLEADER SRI.BIJOY CHANDRAN R2 BY ADV. SMT.LATHA ANAND R3 BY SRI.P.VIJAYAKUMAR ASGI THIS WRIT PETITIONHAVING BEEN FINALLY HEARD ON 18 03 2021 THE COURT ON 09 04 2021 DELIVERED THE FOLLOWING WP(C).No.25092 OF 2020(J : 2 : Indian Kanoon JUDGMENT Treasa Josfine vs State Of Kerala on 9 April 2021 Dated this the 9th day of April 2021 The prayers in this writ petition are as follows : i) Issue a writ of mandamus or any other appropriate writ order or direction to call for the records relating to Exhibit P7 notification dated 24.10.2020 for the post of safety officer and quash the same as illegal and unconstitutional ii) Issue a writ of mandamus or any other appropriate writ order or direction to declare that section 66(1)(b) of the Factories Act 1948 is unconstitutional as violative of Article 14 15 and 16 of the Constitution iii) Issue a writ of mandamus or any other appropriate writ order or direction to the second respondent to issue a fresh notification to the post of safety officer incorporating the qualified Women Candidates 2. Heard the learned counsel for the petitioner the learned Government Pleader the learned Standing Counsel appearing for the 2nd respondent and the learned Assistant Solicitor General of India appearing for the 3rd respondent 3. It is submitted that the petitioner is an engineering graduate in Safety and Fire Engineering. The 2 nd respondent a public sector undertaking under the State of Kerala has engaged the petitioner as Graduate Engineer Traineeand the petitioner had worked as such for the period from 19.11.2018 to 18.11.2019 and from 26.11.2019 to 25.5.2020. It is submitted that there is a WP(C).No.25092 OF 2020(J) permanent post of Safety Officer available in the company. By Ext.P7 a notification was published inviting applications for the said post. However it is stated in the notification that only male candidates need apply for the post. The petitioner has approached this Court challenging the said provision in the notification on the ground that it is discriminatory and that the right of the petitioner for being considered for appointment as Safety Officer is violated due to the said provision. The petitioner further contends that any provision as contained in Section 66(1)(b) of the Factories Act 1948 to the extent it denies the right of the petitioner to participate in the selection for appointment as Safety Officer is violative of the valuable rights guaranteed to the petitioner under Articles 14 15 and 16 of the Constitution of India and is therefore liable to be set 4. A counter affidavit has been placed on record by the 2 nd respondent. It is stated that the post of Safety Officer is a statutory post and the provisions of the Factories Act have to be complied with while issuing notification for filling up the said post. It is submitted that as per Section 66(1)(b) of the Factories Act 1948 women employees shall not be required or permitted to work except between 6 a.m. and 7 p.m. It is submitted that Graduate Engineer Traineeis required to work only from 9 a.m. to 5 p.m. However it is submitted that Safety Officer is a round the clock post and that the WP(C).No.25092 OF 2020(J) person engaged as Safety Officer will have to work even during night time if required. It is stated that the company had vide letter dated 22.7.2020 sought the opinion of the Director of Factories and Boilers Kerala about the possibility of including women Indian Kanoon Treasa Josfine vs State Of Kerala on 9 April 2021 candidates in the recruitment process for selection to the post of Safety Officer by Ext.R2(a) letter However the Director had clarified that women cannot be engaged in factories beyond 7 p.m. and that therefore permission cannot be accorded for considering women for the appointment. It is therefore contended that there is no illegality in excluding women from applying for the post of Safety Officer. It is stated that Section 66(1)(b) is a social welfare measure intended to safeguard the security and health of employees and cannot be held to be discriminatory or violative of the petitioner s rights. It is further contended that the vires of Section 66(1)(b) had been considered by a Division Bench of this Court in Leela v. State of KeralaSLR 28] and it was held that the provision is only a protective measure intended for the welfare of women and that it does not deny opportunity or livelihood to women employees. It is submitted that there is every power in the Government to regulate working hours of employees to meet the concerns of welfare of the employees and the larger public interest and that therefore the provision is perfectly legal and valid It is submitted that the respondents have not denied WP(C).No.25092 OF 2020(J) opportunity to the petitioner and were only obeying the statutory mandate of the Factories Act. It is further contended that no provision in an enactment can be struck down as being arbitrary or unreasonable and that the issue stands covered against the petitioner. Several decisions of the Apex Court are also relied on in support of the said contention 5. A reply statement has been placed on record by the petitioner 6. A statement has been filed by the 1 st respondent as well wherein it is stated that the Labour Department has informed that draft ordinance for amendment of the Factories Act 1948 enabling women employees to work night shifts was approved by the Council of Ministers on 5.8.2020 and the Labour Department has issued a letter to the Secretary Ministry of Home Government of India for approval of the Hon ble President of India for the said amendment. It is submitted that the amendment has not been brought into effect and that therefore going by the present situation the restriction for women to be engaged in factories after 7 p.m. and before 6 a.m. continues in force 7. I have considered the contentions advanced. The issue is simply whether the provisions contained in Section 66(1)(b) of the Factories Act 1948 would stand in the way of the 2 nd respondent WP(C).No.25092 OF 2020(J) considering the application of the petitioner for appointment as Safety Officer. Section 66 reads as follows : 66. Further restrictions on employment of women. The provisions of this Chapter shall in their application to women in factories be supplemented by the following further restrictions namely: a) no exemption from the provisions of section 54 may be granted in respect of any b) no woman shall be required or allowed to work in any factory except between the hours of 6 A.M. and 7 P.M Indian Kanoon Treasa Josfine vs State Of Kerala on 9 April 2021 Provided that the State Government may by notification in the Official Gazette in respect of any factory or group or class or description of factories vary the limits laid down in clausebut so that no such variation shall authorize the employment of any woman between the hours of 10 P.M. and 5 A.M. c) there shall be no change of shifts except after a weekly holiday or any other 2) The State Government may make rules providing for the exemption from the restrictions set out in sub sectionto such extent and subject to such conditions as it may prescribe of women working in fish curing or fish canning factories where the employment of women beyond the hours specified in the said restrictions is necessary to prevent damage to or deterioration in any raw material 3) The rules made under sub sectionshall remain in force for not more than three years at a time 8. A Division Bench of this Court in Hindustan Latex Ltd. v ManiammaKLT 111] considered the issue and held that the provisions of Section 66(1)(b can only be a protection against WP(C).No.25092 OF 2020(J) exploitation of a woman worker by requiring her to work during night hours without her consent. Construing the provisions of Article 15 the Division Bench held that what is meant by special provision for women provided in clausewhich are reasonable and do not obliterate or render illusory the constitutional guarantee enshrined under Article 16(2). It was further held that in a case where the woman herself seeks a consideration of her appointment which would involve waiving of the special privilege which is being granted to her under Section 66(1)(b) the State cannot rely on the said apparently beneficial provision to deny an appointment which the petitioner would otherwise be eligible for 9. A learned Single Judge of this Court in Omana Oomen v. F.A.C.T. Ltd.KLT 614] had considered a challenge against denial of appointment to women employees on the ground that they have to work in night shifts. Considering the factual aspects where other women had been appointed to the same post earlier and where WP(C).No.25092 OF 2020(J) male employees were working in day shifts it was held that Section 66(1)(b) which is a protective provision cannot be relied on to deny appointment to the petitioners only on the ground that they are women. It was held that the company could have moved the Government for a permission as provided in the proviso to Section 66(1)(b) which was not done. It was therefore held that since it is possible for the company to accommodate male technicians exclusively in day shifts as asserted by the petitioners the denial of employment to the petitioners on the ground that they would have to work night shifts was not sustainable Indian Kanoon Treasa Josfine vs State Of Kerala on 9 April 2021 10. In Leela v. State of KeralaSLR 28] a Division Bench of this Court was considering a challenge to Section 66(1)(b) of the Factories Act. The petitioner therein had challenged the promotion given to a junior hand as Supervisoron the ground that she could not be required to work between 7 p.m. and 6 a.m. as provided under Section 66(1)(b). The Division Bench considered the issue and held that Section 66(1)(b) is a beneficial provision and does not provide a bar against employment of women. It was held that the provision under challenge is a special provision which enjoys the protection of Article 15(3) and does not embody a principle of discrimination on sex but is calculated to save women from the hazards of working during night in factories. It was held WP(C).No.25092 OF 2020(J) that the proviso to Section 66(1)(b) is only an enabling provision and exemptions granted in certain industries cannot apply across the board. It was further held that the provision was calculated to ensure the women shall be able to take care of their families and that children do not suffer. The decision of the Andhra Pradesh High Court in K.S.Triveni & Ors. v. Union of India & Ors.and that the Madras High Court in Vasantha R. v. Union of India & Ors.as well as of this Court in Rajamma v. State of Kerala & Ors.were considered and it was held that in the case on hand there was no discrimination based on sex. The contentions were therefore rejected and it was held that the provision of Section 66(1)(b) embodies a special provision in favour of women and does not suffer from the vice of discrimination 11. The Madras High Court in Vasantha R. v. Union of India & Ors.had considered a similar challenge to Section 66(1)(b). It was held that the provision which denies an opportunity for women to work during night hours where they are desirous of doing so for betterment of their employment prospects would be violative of the provisions of Articles 14 15 and 16 of the Constitution and had struck down the said provision as being discriminatory WP(C).No.25092 OF 2020(J 12. The Andhra Pradesh High Court had also occasion to consider a similar challenge and it was held that the provision could not stand in the way of a woman being employed during night hours unless there is a compulsion on the part of the employer on the woman to carry out her duties in a factory during the night time 13. This Court in Sanuja v. Kerala State Beverages Corporation Ltd.KLT 44] had considered a challenge to Rule 7(37) of the Abkari ShopsRules 2002 which provided that women cannot be engaged to work in foreign liquor shops. After consideration of the case law on the point as also the changed circumstances this Court held that the restriction against women being employed in liquor outlets would violate the provisions of Articles 14 15 16 and 19 of the Constitution. The provisions were therefore held to be discriminatory and violative of the provisions of Articles 14 and 15 14. Having considered the contentions advanced I find that the basic contention urged by the respondent is that the provisions of Section 66(1)(b) are beneficial in nature and are intended to protect women from exploitation. In the factual situation involved we have to consider the fact that Factories Act 1948 was enacted at a time when requiring a woman to work in an establishment of Indian Kanoon Treasa Josfine vs State Of Kerala on 9 April 2021 any nature more so in a factory during night time could only be seen as WP(C).No.25092 OF 2020(J) exploitative and violative of her rights. Apparently the World has moved forward and women who were relegated to the roles of home makers during the times when the enactment had been framed have taken up much more demanding roles in society as well as in economic spheres We have reached a stage where the contributions made by women in the spheres of economic development cannot be ignored by any industry. Women are being engaged to work during all hours in several industries including Health Care Aviation and Information Technology. Women have been engaged in several professions requiring round the clock labour and have proved themselves quite capable of facing the challenges of such engagement. The Apex Court in Secretary Ministry of Defence v. Babita Puniya and others7 SCC 469] has declared that an absolute bar on women seeking command appointment violates the guarantee of equality under Article 14 of the Constitution. It was held that submissions based on stereotypes premised on assumptions about socially ascribed roles result in gender discrimination against women and violate their fundamental rights. In the present scenario to say that a graduate engineer in safety engineering cannot be considered for appointment as Safety Officer in a public sector undertaking because of an offending provision under Section 66(1)(b) of the Factories Act according to me is completely untenable and WP(C).No.25092 OF 2020(J) unacceptable. This is evident from the fact that the State of Kerala has approved an amendment to the Rules which permits the engagement of women on condition that all safety precautions and facilities for such engagement are arranged by the employer 15. True a Division Bench of this Court considered the issue and held that Section 66(1)(b) is only a protective provision. If that be so it can be operated and exercised only as a protection and cannot be an excuse for denying engagement to a woman who does not require such protection any more The decision in Hindustan Latex Ltd. s case cited supra and the subsequent laying down of the law by the Apex Court would make it abundantly clear that a woman who is fully qualified cannot be denied of her right to be considered for employment only on the basis of her gender. It is the bounden duty of the respondents who are Government and Government functionaries to take all appropriate steps to see that a woman is able to carry out the duties assigned to her at all hours safely and conveniently. If that be so there would be no reason for denying appointment to a qualified hand only on the ground that she is a woman and because the nature of the employment would require her to work during night hours. I am therefore of the opinion that the embargo contained in Ext.P7 that only male candidates can apply is violative of the provisions of Articles 14 15 and 16 of the Constitution WP(C).No.25092 OF 2020(J) of India. The said provision in Ext.P7 notification is therefore set aside. I reiterate the finding of the Division Bench that the provisions of Section 66(1)(b) are only protective in nature. I make it clear that such protective provisions cannot stand in the way of a woman being considered for employment for which she is otherwise eligible There will accordingly be a direction to the 2 nd respondent to consider the application submitted by the petitioner for appointment to the post of Safety Officer notwithstanding the provisions of Section 66(1)(b) of the Factories Act 1948. Appropriate action shall be taken without further delay This writ petition is ordered accordingly Indian Kanoon Treasa Josfine vs State Of Kerala on 9 April 2021 A N U S I V A R A M A N J U D G E J v t 3 0 . 3 . 2 0 2 1 W P. N o . 2 5 0 9 2 O F 2 0 2 0A P P E N D I X PETITIONER S EXHIBITS E X H I B I T P 1 T R U E C O P Y O F T H E D E G R E E C E R T I F I C A T E O F T H E F A C U L T Y O F ENGINEERING ISSUED BY THE COCHIN UNIVERSITY OF SCIENCE AND TECHNOLOGY REGISTER NO.16143048. EXHIBIT P2 TRUE COPY OF THE CALL LETTER DATED 26 9 2018 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER DATED 26 9 2018 EXHIBIT P3 TRUE COPY OF THE OFFER ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER NO.TP PD R44(A) 18 DATED 22 10 2018 EXHIBIT P4 TRUE COPY OF THE PERSONNEL ORDER ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER NO.TSP PD RS 93 18 DATED 19 11 2018 EXHIBIT P5 TRUE COPY OF THE REENGAGEMENT LETTER ISSUED BY THE 2ND RESPONDENT COMPANY TO THE PETITIONER NO.TSP PD RS 93 19 DATED 19 11 2019 EXHIBIT P6 TRUE COPY OF THE EXPERIENCE CERTIFICATE ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER DATED 10 11 2020 EXHIBIT P7 TRUE COPY OF THE NOTIFICATION DATED 24 10 2020 ISSUED BY THE 2ND RESPONDENT S EXHIBITS EXHIBIT R2(a) TRUE COPY OF THE LETTER DATED 22.07.2020 ISSUED BY KMML TO THE DIRECTOR OF FACTORIES AND BOILERS KERALA EXHIBIT R2(b) TRUE COPY OF THE REPLY LETTER RECEIVED FROM THE DIRECTOR OF FACTORIES AND BOILERS KERALA DATED 24.08.2020 EXHIBIT R1(a) TRUE COPY OF LETTER No.LBRD b2 118 2020 LBRD DATED 28.10.2020 ALONG WITH THE PROPOSED AMENDMENT ORDINANCE TRUE COPY P.A. TO JUDGE Indian Kanoon

Prima Facie case against the accused governs the Grant of bail under Section 43(5)D of UAPA: Supreme Court of India

While considering the grant of bail under Section 43D (5) in The Unlawful Activities (Prevention) Act, 1967, it is the bounden duty of the Court to apply its mind to examine the entire material on record for the purpose of satisfying itself, whether a prima facie case is made out against the accused or not. This auspicious judgment was passed by the Supreme Court of India in the matter of SUDESH KEDIA V UNION OF INDIA [CRIMINAL APPEAL NO. 314-315 of 2021] by Honourable Justice L. Nageswara Rao and Honourable Justice S. Ravindra Bhat. The Appellant is accused of committing offenses under Sections 120B, 414, 384, 386, and 387 of the Indian Penal Code,1860 read with Sections 17, 18, and 21 of the Unlawful Activities (Prevention) Act, 1967 along with Sections 25 (1B) (a), 26 and 35 of the Arms Act and Section 17 (1) (2) of the Criminal Law Amendment Act. The application filed for grant of bail was dismissed by the Special Judge NIA at Ranchi and the High Court too dismissed his criminal appeal and upheld the order of the Special Judge. Thus, he filed this appeal. The facts of the case are in the FIR it was alleged that one Vinod Kumar and others were operatives of a terrorist gang and they were extorting levy from coal traders, transporters, and contractors. In exercise of powers conferred under Section 6 (5) and Section 8 of the National Investigation Agency Act, 2008, the Central Government directed NIA to take up investigation in view of the gravity of the offenses involving the seizure of arms and ammunitions and huge amounts of cash. The members of TPC, according to the charge-sheet, had been extorting money from businessmen in Amrapali and Magadh coal mining areas and had also been obstructing the smooth supply of transport of coal. During the investigation, The National Investigation Agency submitted a supplementary charge sheet in which the modus operandi of collecting levy from contractors, traders, transporters, etc. was given. Another supplementary charge-sheet was filed in which it was mentioned that the accused was engaged in transporting coal on behalf of GVK Power and Godavari Commodities and had paid levy from his current account. Thus, he colluded with the members of the terrorist gang (TPC) and was a party to a criminal conspiracy to raise funds for a terrorist gang. Thus, the HC rejected the bail application since Prima facie they were satisfied that it is a case of terror funding. The Supreme Court observed that “Section 43-D (5) mandates that a person shall not be released on bail if the court is of the opinion that there are reasonable grounds for believing that the accusations made are prima facie true. Apart from the other offenses, the Appellant is accused of committing offenses under Section 17, 18, and 21 of the UA (P) Act. The Appellant is accused of providing funds to a terrorist organization. According to the prosecution, he has entered into a conspiracy with the other members of the organization to strengthen and promote the activities of the organization. Further, an amount of Rs. 9,95,000/- was seized from the Appellant’s house, making him liable for punishable under Section 21 of the Act.” The Court relied on National Investigation Agency v. Zahoor Ahmad Shah Watali to consider the parameters for exercise of the power under Section 43 (5) D and opined that, “Appellant is entitled to bail and that the Special Court and High Court erred in not granting bail to the Appellant” since, “The material on record shows that the Appellant paid levy/extortion amount to the terrorist organization and Payment of extortion money does not amount to terror funding. Appellant paid money to the members of the TPC for the smooth running of his business. Prima facie, it cannot be said that the Appellant conspired with the other members of the TPC and raised funds to promote the organization.”

IN THE CRIMINAL APPELLATE JURISDICTION Arising out of SLPNos . 314 315 of Nos 6259 62620) Sudesh Kedia Appellantread with Sections 17 18 21 of the Unlawful ActivitiesAct 1967 along with Sections 25(a) 26 35 of the Arms Act and Section 17 (2) of the Criminal Law Amendment Act The application filed for grant of bail was dismissed by the Judicial Commissioner cum Special Judge NIA at Ranchi on 14.02.2020. The High Court dismissed the criminal appeal filed by the Appellant and upheld the 1 | P a g e order dated 14.02.2020 of the Special Judge. Therefore the present appeal 2. On a complaint made by Shri Ramadhari Singh Sub Inspector Police Station Simariya FIR No. 02 2016 was registered on 11.01.2016 at Police Station Tandwa under Sections 414 384 386 387 120B IPC Sections 25 1B)26 35 of the Arms Act and Section 17(2) of the CLA Act against Vinod Kumar and others. The allegation against the persons named in the FIR is that they were operatives functionaries of a terrorist gang TPC and they were extorting levy from coal traders transporters and contractors. After investigation a charge sheet was filed on 10.03.2016 in the court of Chief Judicial Magistrate at Chatra against Vinod Kumar Ganjhu. In exercise of powers conferred under Section 6 5) and Section 8 of the National Investigation Agency Act 2008 the Central Government directed NIA to take up investigation in view of the gravity of the offences involving seizure of arms and ammunitions and huge amounts of cash. The members operatives of Tritiya Prastuti Committeeaccording to the charge sheet have been extorting money from businessmen in 2 | P a g e Amrapali and Magadh coal mining areas and they have amassed movable and immovable properties from the said money. They have also been obstructing smooth supply of transport of coal 3. During investigation the statement of the Appellant was recorded under Section 164 Cr.PC. The Appellant stated that Subhan Miyan contacted him and demanded money for the smooth functioning of the business of the transport company i.e. M s. Esskay Concast and Minerals Pvt. Ltd. He further stated that he had a meeting with A 5 A 10 A 11 & A 14. There was constant demand of payment of levy he admitted payment of huge amount The National Investigation Agency submitted a supplementary charge sheet against A 1 to A 16 on 21.12.2018 in which the modus operandi of collecting of levy from contractors traders transporters etc. was given. It was mentioned in the supplementary charge sheet that coal traders transporters were paying cash to Shanti Sah Sanchalan Samiti Central Coalfield Limited village committees and TPC operatives for carrying on their business smoothly. 3 | P a g e 5. On further investigation a second supplementary charge sheet was filed on 10.01.2020 in which the Appellant was shown as A 19. According to the supplementary charge sheet the Appellant is engaged in transporting of coal on behalf of GVK Power and Godavari Commodities. He had attended meetings with TPC leaders and had paid levy to TPC leader AkramanCCL employees and village committee members from his current account. In view of the payments made by him an inference was drawn that the Appellant colluded with the members of the terrorist gang was seized from his residential premises. The Appellant was apprehended on 10.01.2020. He moved an application for bail in the Court of Judicial Commissioner cum Special Judge National Investigation Agency at Ranchi. The submission made on behalf of the Appellant that he was a victim and he was forced to pay the levy as demanded by the organization was not accepted by the special 4 | P a g e court. The Special Court was convinced with the contention of the prosecution that apart from the meeting with the members of the terrorist organization the Appellant had also paid huge amount of money to The appeal filed against the judgment of the special court was dismissed by the High Court on 24.06.2020 In view of the admissions of the Appellant that he had been paying extortion money it was held that he contributed to funding of the terrorist organization. The High Court observed that there is material on record to show that he was in constant touch with the members of the terrorist organization in order to run his business Prima facie the High Court was satisfied that it is a case of terror funding. Referring to Section 43 Dof the UA P) Act and relying upon the judgment of this Court in National Investigation Agency v. Zahoor Ahmad Shah Watali1 the High Court concluded that the accusations against the Appellant are prima facie made out disentitling the Appellant for grant of bail. 15 SCC 1 5 | P a g e 7. We have heard C. A. Sundaram learned senior counsel for the Appellant and Mr. Sairica Raju learned Additional Solicitor General for the Respondent. It was submitted by the Appellant that the only accusation is payment of illegal levy to TPC for the smooth functioning of the business. The Appellant is not a member of TPC and cannot be accused of terror funding. On the other hand there was no way he could carry on smooth transportation of coal without meeting the demand of the terrorist organization. The meeting that the Appellant had with the members of the organization could not have been avoided and it was only for the purpose of his complying with the demand made by the members of the organization. It was submitted on behalf of the Appellant that a perusal of the charge sheet and the other material on record would not disclose any offence under Section 17 of the UAAct as it cannot be said that by any stretch of imagination that the Appellant has raised funds for the terrorist According to the prosecution the Appellant was providing financial support to TPC and the material 6 | P a g e gathered during investigation discloses that the Appellant has committed offences under Section 17 of the UAAct. Huge amount of money that was paid by the Appellant to protect his business which amounts to raising funds to the terrorist organization. It was submitted that the judgment of the High Court does not warrant any interference as the Appellant was in constant touch with the members of the organization TPC) which shows his involvement with the terrorist Section 43 Dmandates that a person shall not be released on bail if the court is of the opinion that there are reasonable grounds for believing that the accusations made are prima facie true. Apart from the other offences the Appellant is accused of committing offences under Section 17 18 and 21 of the UAAct The Appellant is accused of providing funds to a terrorist organization. According to the prosecution he has entered into a conspiracy with the other members of the organization to strengthen and promote the activities of the organization. Further an amount of Rs. 9 95 000 Rupees Nine Lakh and Ninety Five Thousand only) was 7 | P a g e seized from the Appellant’s house making him liable for punishable under Section 21 of the Act In National Investigation Agency v. Zahoor Ahmad Shah Watalithis Court considered the parameters for exercise of the power under Section 43 5) D held as follows “23. By virtue of the proviso to sub sectionit is the duty of the Court to be satisfied that there are reasonable grounds for believing that the accusation against the accused is prima facie true or otherwise. Our attention was invited to the decisions of this Court which has had an occasion to deal with similar special provisions in TADA and MCOCA. The principle underlying those decisions may have some bearing while considering the prayer for bail in relation to the offences under the 1967 Act as well. Notably under the special enactments such as TADA MCOCA and the Narcotic Drugs and Psychotropic Substances Act 1985 the Court is required to record its opinion that there are reasonable grounds for believing that the accused is “not guilty” of the alleged offence There is a degree of difference between the satisfaction to be recorded by the Court that there are reasonable grounds for believing that the accused is “not guilty” of such offence and 8 | P a g e the satisfaction to be recorded for the purposes of the 1967 Act that there are reasonable grounds for believing that the accusation against such person is “prima facie” true. By its very nature the expression “prima facie true” would mean that the materials evidence collated by the investigating agency in reference to the accusation against the accused concerned in the first information report must prevail until contradicted and overcome or disproved by other evidence and on the face of it shows the complicity of such accused in the commission of the stated offence. It must be good and sufficient on its face to establish a given fact or the chain of facts constituting the stated offence unless rebutted or contradicted. In one sense the degree of satisfaction is lighter when the Court has to opine that the accusation is “prima facie true” as compared to the opinion of the accused “not guilty” of such offence as required under the other special enactments. In any case the degree of satisfaction to be recorded by the Court for opining that there are reasonable grounds for believing that the accusation against the accused is prima facie true is lighter than the degree of satisfaction to be recorded for considering a discharge application or framing of charges in relation to offences under the 1967 9 | P a g e 11. While considering the grant of bail under Section 43 5) D it is the bounden duty of the Court to apply its mind to examine the entire material on record for the purpose of satisfying itself whether a prima facie case is made out against the accused or not. We have gone through the material on record and are satisfied that the Appellant is entitled for bail and that the Special Court and High Court erred in not granting bail to the Appellant for the following reasons: A) A close scrutiny of the material placed before the Court would clearly shows that the main accusation against the Appellant is that he paid levy extortion amount to the terrorist organization. Payment of extortion money does not amount to terror funding. It is clear from the supplementary charge sheet and the other material on record that other accused who are members of the terrorist organization have been systematically collecting extortion amounts from businessmen in Amrapali and Magadh areas. The Appellant is carrying on transport business in the 10 | P a g e area of operation of the organization. It is alleged in the second supplementary charge sheet that the Appellant paid money to the members of the TPC for smooth running of his business. Prima facie it cannot be said that the Appellant conspired with the other members of the TPC and raised funds to promote the B) Another factor taken into account by the Special Court and the High Court relates to the allegation of the Appellant meeting the members of the terror organization. It has been held by the High Court that the Appellant has been in constant touch with the other accused. The Appellant has revealed in his statement recorded under Section 164 Cr.PC that he was summoned to meet A 14 and the other members of the organization in connection with the payments made by him Prima facie we are not satisfied that a case of conspiracy has been made out at this stage only on the ground that the Appellant met the members of the organization 11 | P a g e An amount of Rs. 9 95 000 was seized from the house of the Appellant which was accounted for by the Appellant who stated that the amount was withdrawn from the bank to pay salaries to his employees and other expenses. We do not agree with the prosecution that the amount is terror fund. At this stage it cannot be said that the amount seized from the Appellant is proceeds from terrorist activity. There is no allegation that Appellant was receiving any money. On the other hand the Appellant is accused of providing money to the members of TPC. 12. After a detailed examination of the contentions of the parties and scrutiny of the material on record we are not satisfied that a prima facie case has been made out against the Appellant relating to the offences alleged against him. We make it clear that these findings are restricted only for the purpose of grant of bail to the 12 | P a g e Appellant and the trial court shall not be influenced by these observations during trial 13. For the aforementioned reasons the judgment of the High Court is set aside and the Appellant is directed to be released on bail subject to the satisfaction of the Special Court. The appeals are allowed accordingly. .....................................J [ L. NAGESWARA RAO ....................................J [ S. RAVINDRA BHAT New Delhi April 09 2021. 13 | P a g e

Petitioner Enlarged on bail by the High Court for criminal breach of trust: Karnataka High Court

The criminal petition is filed under section 438 of Cr.P.C (direction for grant of bail to a person apprehending arrest) praying to be enlarged on bail, by the petitioner for the offence punishable under section 403 (dishonest misappropriation of property), 406 (punishment for criminal breach of trust), 408(criminal breach of trust by clerk or servant), 409 (criminal breach of trust by public servant or by banker, merchant or agent), 418 (cheating with knowledge that wrong loss may ensure to person whose interest offender is bound to protect) 420 (cheating and dishonestly inducing delivery of property) read with 34 of IPC ( acts done by several person in furtherance of common intention). And the petition is allowed by the High court of Karnataka through the learned bench led by the Honorable MR. Justice H.P. Sandesh in the case Keshava M P and Pavithra Suresh vs state of Karnataka ( criminal petition no 289/2022) on 20th January 2022. Learned counsel, Sri lakshmikant K appeared from the side of petitioner and learned High court government pleader, sri H S Shankar appeared from the side of respondent. Brief facts of the case are that the petitioner No.1 was working as Territory Manager in the IIFL Company and they used to keep the pledged articles and disburse the loan amount and when the pledged articles were examined, came to know that fake articles were pledged and some of the gold articles are missing and hence suspected the role of the petitioner No.1 and also other employees accused Nos.2 to 4. Accused No.5 is the wife of petitioner No.1 and they indulged in such acts. Based on the complaint, the police have registered the case against the petitioners and also other accused persons for the offence punishable under Sections 403, 406, 408, 409, 418, 420 read with 34 of IPC. Arguments presented by the learned counsel appearing on behalf of the petitioner that these two petitioners, who happens to be the husband and wife have not indulged in any such offence and the alleged incident was taken place on 1st July 2021 and the complaint was lodged on 18th September 2021 and no specific allegations are made in the complaint and also worth of the criminal breach of trust is also not mentioned in the complaint. Only with an oblique motive, a false case has been registered against the petitioners. Arguments presented by the learned High court government pleader appearing on behalf of the respondent side that the specific allegations are made in the complaint that these two petitioners who are the husband and wife have indulged in committing the offence of criminal breach of trust and some of the gold articles which were pledged were missing and when such allegations are made, it is not a fit case to exercise the discretion in favour of the petitioners. After hearing both the counsels and using the records presented before the Honorable court by them, though the allegation is made with regard to breach of trust is concerned against this petitioner and also against other employees, nothing is stated in the complaint about the total amount of criminal breach of trust for committing fraud. When such being the factual aspects of the case, it is a fit case to exercise the powers under Section 438 of Cr.P.C. and this Court can direct the petitioners to assist the Investigating Officer during the course of investigation. And the petition is allowed by the court that the petitioner shall be realised on bail on certain grounds such as : The petitioners shall surrender themselves before the Investigating Officer within ten days from the date of receipt of a certified copy of this order and shall execute a personal bond for a sum of Rs.2,00,000/- (Rupees Two Lakhs only) each with two sureties each for the like-sum to the satisfaction of the concerned investigating Officer. The petitioners shall not indulge in hampering the investigation or tampering the prosecution witnesses. The petitioners shall co-operate with the investigating Officer to complete the investigation and they shall appear before the investigating Officer, as and when called for. The petitioners shall not leave the jurisdiction of the Investigating Officer without prior permission till the charge-sheet is filed or for a period of three months, whichever is earlier. And the petitioners shall mark their attendance once in a month that is, on 30th of every month between 10.00 a.m. and 5.00 p.m., before the investigating Officer for a period of three months or till the charge-sheet is filed, whichever is earlier. Click here to read the judgement

IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 20TH DAY OF JANUARY 2022 THE HON BLE MR. JUSTICE H.P. SANDESH CRIMINAL PETITION NO.289 2022 BETWEEN: 1. KESHAVA M.P. S O PUTTASWAMAIAH AGED ABOUT 34 YEARS. 2. PAVITHRA SURESH W O KESHAVA M.P. AGED ABOUT 32 YEARS. BOTH ARE RESIDING AT NO.116 3RD MAIN 3RD CROSS WARD NO.27 VIVEKANANDANAGARA NEAR H.P.GAS OFFICE RAMANAGARAM DISTRICT 562159. STATE OF KARNATAKA BY SAMPIGE HALLI POLICE STATION BY ITS PUBLIC PROSECUTOR HIGH COURT BUILDING BANGALORE 560 001. BY SRI LAKSHMIKANTH K ADVOCATE) ...PETITIONERS ...RESPONDENT BY SRI H.S. SHANKAR HCGP) THIS CRIMINAL PETITION IS FILED UNDER SECTION 438 OF CR.P.C PRAYING TO ENLARGE THE PETITIONERS ON BAIL IN THE EVENT OF THEIR ARREST IN CR.NO.190 2021 REGISTERED BY SAMPIGEHALLI POLICE STATION BENGALURU FOR THE OFFENCE PUNISHABLE UNDER SECTIONS 403 406 408 409 418 420 READ WITH 34 OF IPC PENDING ON THE FILE OF IV ADDL.C.M.M. BENGALURU. THIS CRIMINAL PETITION COMING ON FOR ORDERS THROUGH VIDEO CONFERENCE THIS DAY THE COURT MADE THE FOLLOWING: O R D E R This petition is filed under Section 438 of Cr.P.C. praying this Court to enlarge the petitioners on bail in the event of their arrest in respect of Crime No.190 2021 registered by the Sampigehalli Police Station Bengaluru the offence punishable under Sections 403 406 408 409 418 420 read with 34 of IPC. 2. Heard the learned counsel for the petitioners and the learned High Court Government Pleader appearing for the respondent State. 3. The factual matrix of the case is that petitioner No.1 was working as Territory Manager in the IIFL Company and they used to keep the pledged articles and disburse the loan amount and when the pledged articles were examined came to know that fake articles were pledged and some of the gold articles are missing and hence suspected the role of the petitioner No.1 and also other employees accused Nos.2 to 4. Accused No.5 is the wife of petitioner No.1 and they indulged in such acts. Based on the complaint the police have registered the case against the petitioners and also other accused persons for the offence punishable under Sections 403 406 408 409 418 420 read with 34 of IPC. The learned counsel for the petitioners would submit that these two petitioners who happens to be the husband and wife have not indulged in any such offence and the alleged incident was taken place on 01.07.2021 and the complaint was lodged on 18.09.2021 and no specific allegations are made in the complaint and also worth of the criminal breach of trust is also not mentioned in the complaint. Only with an oblique motive a false case has been registered against the petitioners. Per contra the learned High Court Government Pleader appearing for the respondent State would submit that specific allegations are made in the complaint that these two petitioners who are the husband and wife have indulged in committing the offence of criminal breach of trust and some of the gold articles which were pledged were missing and when such allegations are made it is not a fit case to exercise the discretion in favour of the petitioners. Having heard the learned counsel for the petitioners and the learned High Court Government Pleader appearing for the respondent State and also on perusal of the contents of the complaint though allegation is made with regard to breach of trust is concerned against this petitioner and also against other employees nothing is stated in the complaint about the total amount of criminal breach of trust for committing fraud. When such being the factual aspects of the case it is a fit case to exercise the powers under Section 438 of Cr.P.C. and this Court can direct the petitioners to assist the Investigating Officer during the course of investigation. In view of the discussions made above I pass the The petition is allowed. Consequently the petitioners shall be released on bail in the event of their arrest in connection with Crime No.190 2021 registered by the Sampigehalli Police Station Bengaluru for the offence punishable under Sections 403 406 408 409 418 420 read with 34 of IPC subject to the following conditions: The petitioners shall surrender themselves before the Investigating Officer within ten days from the date of receipt of a certified copy of this order and shall execute a personal bond for a sum of Rs.2 00 000 each with two sureties each for the like sum to the satisfaction of the concerned Investigating Officer. The petitioners shall not indulge in hampering the investigation or tampering the prosecution iii) The petitioners shall co operate with the Investigating Officer investigation and they shall appear before the Investigating Officer as and when called for. iv) The petitioners shall not leave the jurisdiction of the Investigating Officer without prior permission till the charge sheet is filed or for a period of three months whichever is earlier. v) The petitioners shall mark their attendance once in a month i.e. on 30th of every month between 10.00 a.m. and 5.00 p.m. before the Investigating Officer for a period of three months or till the charge sheet filed whichever is earlier. Sd

Non-bailable warrant cannot be issued without the execution of service report: High Court of Jharkhand

Non-bailable warrants are usually issued in cases where the accused has showed signs of absconding or the presence of the accused person cannot be secured. However it is necessary that the service report is executed before any non-bailable warrant can be issued. This was upheld by a single member bench of the High Court of Jharkhand consisting of Justice Sanjay Kumar Dwivedi in the case of Khubhi Mahto v The State of Jharkhand [Cr. M.P. No. 707 of 2021] on the 22nd of June 2021. On 14th February 2017, a bailable warrant was issued against the witnesses and the next date was issued against the witnesses of the case, however in the next hearing on 4th April 2017, the petitioner was absent. The PWs did not appear to present evidence causing the next hearing to be further postponed to 23rd May 2017. On 1st May 2017 the records for the case were transferred to the court of Judicial Magistrate in Giridih. The petitioner’s counsel left for Tenughat and so the case could not be located. The case continued to be shifted multiple times and witnesses mostly failed to show up in court. The petitioner, Khubhi Mahto contended that he was regular in attending court since the charges were framed, yet no witnesses turned up for the prosecution of the case and on 1st November his bail bonds were cancelled and a non-bailable warrant was issued under Section 83 and 83 of the Cr.PC without awaiting the execution of the service report. It was also added that the guidelines issued by the High Court of Jharkhand in the case of Md. Rustum Alam v State of Jharkhand [2020(2) JLJR 712] where it was held that a person could not be declared as absconding without recording a satisfactory reason for the same, were not followed in the immediate case. For these reasons the petitioner pleaded that the orders dated 6th June 2019 and 11th September 2019 will both be quashed for not following the correct legal procedures.

Cr.M.P. No. 7021 IN THE HIGH COURT OF JHARKHAND RANCHI 1.Khubhi Mahto @ Khugi Mahto s o late Yugal Mahto aged about 63 2.Ranjit Prasad @ Ranjeet Kumar s o Khubhi Mahto aged 28 years 3.Kalawati Devi w o Khubhi Mahto aged about 61 years All r o village Chandra Marani PO and PS Sariya District Giridih ….. Petitioners Versus The State of Jharkhand …... Opposite Party CORAM: HON’BLE MR. JUSTICE SANJAY KUMAR DWIVEDI For the Petitioners : Mr. Yogesh Modi Advocate For the State : Mr. Vishambhar Shastri APP 3 22.06.2021 Heard Mr. Yogesh Modi the learned counsel for the petitioner and Mr. Vishambhar Shastri the learned State counsel. This petition has been heard through Video Conferencing in view of the guidelines of the High Court taking into account the situation arising due to COVID 19 pandemic. None of the parties have complained about any technical snag of audio video and with their consent this matter has been heard. 3. The learned counsel for the petitioners is directed to remove the defects within two weeks. If the defects are not removed the office shall list the matter before the appropriate Bench. 4. The petitioner has filed this petition for quashing the orders dated 06.04.2019 11.09.2019 and order dated 11.02.2021 passed in Cr. Rev. No.520. 5. Mr. Yogesh Modi the learned counsel appearing for the petitioner assailed the impugned order on the ground that on 14.02.2017 bailable warrant was issued against the witnesses and the next date was fixed on 04.04.2017 and the petitioners were absent. No PWs were present for evidence and the next date fixed was 23.05.2017. On 01.05.2017 the records of the case was transferred to the court of Judicial Magistrate 1st Class Giridih. The conducting counsel for the petitioners left Giridih and settled in Tenughat and the petitioners could not locate the case. On 13.08.2018 the case was transferred to the court of learned SDJM Giridih and on 27.09.2018 again the case was transferred to the court of Sri Nishi Kant Judicial Magistrate 1st Class Giridih. He submits that as the conducting lawyer was shifted to Tenughat the petitioner have not been able to locate the file. He further submits that after framing of charge w.e.f. 14.09.2015 till 14.02.2017 the petitioners regularly attended the court proceeding but no witnesses turned up for the prosecution in the case. He submits that by order dated 01.11.2017 bail bonds of the petitioners were cancelled and non bailable warrant was issued. He submits that at the outset bailable warrant is required to be issued. He further submits that there is no report of service of execution of non bailable warrant. He further submits that straight way without awaiting the service report of non bailable warrant process under section 82 Cr.PC was issued by order dated 06.04.2019 and by order dated 11.09.2019 process under section 83 Cr.PC has also been issued against the petitioners. He further submits that there is no satisfaction of the Magistrate while issuing the processes under section 82 and 83 Cr.PC. According to him the guidelines of this Court as held in the case of “Md. Rustum Alam @ Rustam v. State of Jharkhand ” reported in 2020JLJR 712 has not been followed. 6. Mr. Shastri learned counsel appearing respondent State tried to justify the impugned orders and submits that there is no illegality in the impugned orders. In view of the above facts and considering the order sheets which have been annexed with the petition it transpires that after cancellation straightway non bailable warrant has been issued without awaiting the execution of service report under section 82 Cr.PC and process under section 83 Cr.PC has been issued. The guidelines issued by this Court in “Md. Rustum Alam @ Rustam v. State of Jharkhand ” reported in 2020JLJR 712 has not been followed. 8. Accordingly 06.04.2019 11.09.2019 and order dated 11.02.2021 are quashed. The petitioners are directed to appear before the court below on or before 26.07.2021 and the court below will consider the case of the petitioners considering that earlier the petitioners were appearing regularly. 9. SI Cr.M.P. No. 7021 stands disposed of.

“Appellant files appeal after approximately eight months after the last date permissible under the RTI Act.”: SEBI, Part 1.

The appellate authority under the RTI (Right to Information) Act of the Securities and Exchange Board of India comprising of Mr. Anand Baiwar adjudicated in the matter of Aarti Harshad Patil v CPIO, SEBI, Mumbai (Appeal No. 4367 of 2021) dealt with an issue in connection with Section 2 (f), Section 8 (1) (d) and Section 19 (1) of the Right to Information Act, 2005. The appellant, Ms Aarti Harshad Patil had filed an application via RTI MIS Portal on the 12th of September, 2020 under the Right to Information Act, 2005. The respondent responded to the application by a letter on the 5th of October, 2021, filed by the appellate. After receiving a letter from the respondent on 5th of October, 2021, on his application, the appellate decided to file an appeal on the 13th of July, 2021. Under Section 19(1) of the RTI Act, an aggrieved person may prefer the first appeal within thirty days from the receipt of the response from the CPIO of the concerned public authority. In the instant case, the impugned response from the respondent is dated 5th of October, 2020. The appellant, therefore, should have filed the first appeal on or before expiry of thirty days from the date of receipt of the said response. As noted above, the appellant has filed this first appeal on July 13, 2021 i.e. approximately eight months after the last date permissible under the RTI Act. In this appeal, the appellant has neither requested for condonation of delay nor made any submission regarding the reason for the delay. In the absence of any reason that prevented the appellant from filing the first appeal in time, it was considered that this appeal as time barred and hence, liable to be dismissed.

Appeal No. 43621 BEFORE THE APPELLATE AUTHORITY Under the Right to Information Act 2005) SECURITIES AND EXCHANGE BOARD OF INDIA Appeal No. 43621 Aarti Harshad Patil CPIO SEBI Mumbai The appellant had filed an application dated September 12 2020 under the Right to Information Act 2005 of the RTI Act an aggrieved person may prefer the first appeal within thirty days from the receipt of the response from the CPIO of the concerned public authority. In the instant case the impugned response from the respondent is dated October 05 2020. The appellant therefore should have filed the first appeal on or before expiry of thirty days from the date of receipt of the said response. As noted above the appellant has filed this first appeal on July 13 2021 i.e. approximately eight months after the last date permissible under the RTI Act. In this appeal the appellant has neither requested for condonation of delay nor made any submission regarding the reason for the delay. In the absence of any reason that prevented the appellant from filing the first appeal in time I consider this appeal as time barred and hence liable to be dismissed. 3. Notwithstanding the above observation I consider the appeal on merit. I have carefully considered the application the response and the appeal and find that the matter can be decided based on the material 4. Queries in the application The appellant vide her application dated September 12 2020 sought the available on record following information: 1. How many investors have filed complaint against Anugrah Stock & Broking Pvt Ltd and status thereof. 2. Record of all communication between Anugrah Stock & Broking Pvt Ltd and SEBI NSE and BSE 3. Any other matter which is of importance in the matter of Anugrah Stock & Broking Pvt Ltd Appeal No. 43621 4. As per circular SEBI HO MIRSD DPIEA CIR P 2020 115 dated 1st Jul 2020 What is the status of implementation in Anugrah Stock & Broking Pvt Ltd case. The respondent in response to the query number 1 informed the number of complaints received by SEBI against Anugrah Stock Broking Pvt Ltd. during the period from April 01 2020 to September 15 2020. With respect to query numbers 2 and 4 the respondent informed that SEBI will not be able to confirm deny the existence or otherwise of any examination communication notes in the matter for which information has been sought by the appellant. The respondent also informed that the requested information is exempted under Section 8(1)(d) of the RTI Act. However it was informed that NSE is conducting forensic audit and based on the findings if any SEBI may take appropriate action as deemed fit. Further any such proceedings for action is conducted confidentially because of their sensitive nature. It was also informed that pursuant to examination analysis if any regulatory action is taken by SEBI the same would be available in the public domain on the SEBI website. With respect to query number 3 the respondent observed that the query is vague and not specific and accordingly cannot be construed as seeking “information” as defined under section 2(f) of the RTI Act. 6. Ground of appeal The appellant has filed the appeal on the ground that access to the requested information was refused. The appellant in her appeal reiterated the queries raised in her application. 7. Query number 1 I have perused the query and I find that the respondent has provided the information regarding number of complaints received by SEBI against Anugrah Stock & Broking Pvt Ltd. On perusal of the appeal I note that the appellant has not made any specific submission against the response provided by the respondent. In this regard I note that the Hon’ble High Court of Delhi in the matter of Ms Vandana Mittal v. CIC and Others7244 2009] held that if no ground for interference in the impugned response is made out in the appeal such appeal is liable to be rejected. In view of these observations I find that no interference is warranted at this stage. 8. Query numbers 2 and 4 I note that the appellant had sought record of all communication between Anugrah Stock & Broking Pvt Ltd and SEBI NSE and BSE. The appellant also sought status of implementation of SEBI Circular dated July 01 2020 with respect to the case of Anugrah Stock & Broking Pvt Ltd. On consideration I note that a response neither confirming nor denying existence of examination communication notes is justified where disclosure of existence of examination or otherwise would itself amount to disclosure of exempted information. It is understood that SEBI receives alerts and references from various sources and these may or may not result in further action by SEBI such as examination or investigation. Further such examination or investigation may or may not Appeal No. 43621 establish the suspected violations or lead to enforcement actions. Maintaining confidentiality of investigation is important since reports of an investigation may result in unwarranted speculation or concern in the market or may affect evidence collection during the investigation or may result in unnecessary harm to third parties. Further the respondent informed that if any regulatory action is initiated by SEBI pursuant to the examination analysis the same would be available on the website of SEBI. In view of these observation I agree with the response that SEBI will not be able to confirm deny existence of examination in the present matter. I note that the respondent also denied the requested information by invoking the provisions of sections 8(1)(d) of the RTI Act. In this regard I am of the opinion that SEBI being the regulatory authority for the securities market gets various references documents from market participants and the information contained in those documents may contain information in the nature of commercial confidence disclosure of which may adversely impact the competitive position of the concerned entities. Having regard to the aforesaid I find that the disclosure of the requested information may cause irreparable damage to the reputation of that entity and may also affect its competitive position and therefore the same is exempted from disclosure under section 8(1)(d) of the RTI Act. Accordingly I do not find any deficiency in the response. 10. Query number 3 Upon a perusal of the query I note that the same is vague. Further it is difficult to ascertain what exact 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 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. Accordingly I do not find any deficiency in the response. 11. 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. Appeal No. 43621 Place: Mumbai Date: August 09 2021 ANAND BAIWAR APPELLATE AUTHORITY UNDER THE RTI ACT SECURITIES AND EXCHANGE BOARD OF INDIA

There is no element of permanence connected to the term ‘resides’ under the Hindu Marriage Act : The High Court of Calcutta

The court interpreted Section 126(1)(b) and implied that is a proceeding under Section 125 of the Hindu Marriage Act may be taken against any person in any district where he or his wife resides. Reliance was placed on the case Vijay Kumar Prasad Versus State of Bihar and others (2004) 5 SCC 196, in the case of Sri Debmalya Chattopadhyay v. Smt. Baisakhi Chowdhry [CRR/764/2019]. Moreover, the bench was presided over by a single-judge bench led by Mr Justice Jay Sengupta in the High Court of Calcutta. The facts of the case are as follow. The petitioner filed an application under  Section 12 of the Hindu Marriage Act,1955 before the learned District Judge, Birbhum at Suri praying for a decree of nullity of marriage. The opposite party filed a revisional application praying for transfer of the suit to the Court of the learned District judge at Purba  Bardhaman. Later, the opposite party filed an application under Section 125 of the HMA code. The petitioner filed an application before the Magistrate praying for dismissal of the case on the ground of lack of territorial jurisdiction. The petitioner’s submitted, the opposite party/wife actually stayed at Bolpur, Birbhum. This was what she had stated clearly in her application under Section 125 of the Code. As the Hon’ble Court refused to accede to the prayer of the present opposite party and after taking into consideration the submissions of the respective parties, was pleased to transfer the case to Bolpur, Birbhum. There was no reason for which the present proceeding under Section 125 of the Code should be taken up at a different place. The opposite party submitted that Although it was stated in the application under Section 125 of the Code that after being deserted by her husband, the wife took refuge at her father’s place at Bolpur, it was also quite categorically mentioned, both in the cause title as also in the affidavit, that the temporary residence ‘hal sakin’ of the petitioner/wife was at Paschim Bardhaman. That is why, she had to be put up at her brother-in-law’s place at Paschim Bardhaman. The jurisdiction for a proceeding under Section 125 of the Code was not exactly similar to that of a matrimonial suit between a couple. Section 126 (1) of the Code used the expressions ‘is’ and ‘resides’. Therefore, if the wife at present stayed, even temporarily, at a particular place, she would be entitled to initiate a proceeding under Section 125 of the Code or to continue the same at such place. The Court submitted that “simply because the petitioner had received a notice in another proceeding at her parent’s place at Bolpur, it cannot preclude her from claiming that she was presently residing at Purba Bardhaman.” Section 126 (1)(b) implies that a proceeding under Section 125 of the Code may be taken against any person in any district where he or his wife resides. Further, the court added “There is no element of permanence connected to the term ‘resides’. Therefore, if a wife resides at a place for a reasonable length of time so as to claim such place at least as her temporary residence, she should be entitled to initiate or continue a proceeding under Section 125 of the Code at such place. On this, reliance is placed on a decision of the Hon’ble Apex Court in Vijay Kumar Prasad case.” The High Court of Calcutta submitted that the impugned order was a reasoned one and the proceeding could not be dismissed on the ground of lack of territorial jurisdiction. Click here to view the judgement.

IN THE HIGH COURT AT CALCUTTA CRIMINAL REVISIONAL JURISDICTION THE HON’BLE JUSTICE JAY SENGUPTA C.R.R. 764 Of 2019 Sri Debmalya Chattopadhyay Smt. Baisakhi ChowdhuryFor the petitioner For the Opposite Party : Mr. Tapas Kr. Ghosh Mr. Tanmoy Chowdhury : Mr. Uday Sankar Chattopadhyay Mr. Santanu Maji Ms. Snigdha Saha Mr. Pronoy Basak Heard on : 14.09.2021 Judgment on : 01.10.2021 JAY SENGUPTA J: This is an application challenging an order dated 15.02.2019 passed by the learned Judicial Magistrate 3rd Court Purba Bardhaman in Misc. Case No. 175 of 2018 thereby rejecting the prayer of the petitioner for dismissal of an application under Section 125 of the Code on the ground of lack of jurisdiction and also seeking transfer of the proceeding from the 2 learned Trial Court to a learned Court of competent jurisdiction at Bolpur The marriage between petitioner husband and the opposite party wife took place on 12.03.2017. Thereafter disputes arose between them. The petitioner filed an application under Section 12 of the Hindu Marriage Act 1955 being MAT Suit No. 55 of 2018 before the learned District Judge Birbhum at Suri praying for a decree of nullity of marriage. The opposite party filed a revisional application praying for transfer of the suit to the Court of the learned District Judge at Purba Bardhaman. On 20.06.2018 this Court disposed of the application by transferring the matrimonial proceeding from the Court at Suri Birbhum to the Court at Bolpur Birbhum. On 04.06.2018 the opposite party filed an application under Section 125 of the Code being Misc. Case No. 1718 presently pending before the learned Judicial Magistrate 3rd Court Purba Bardhaman. The petitioner filed an application before the learned Magistrate praying for dismissal of the case on the ground of lack of territorial jurisdiction. But the same was dismissed by the impugned order. 5. Mr. Tapas Kr. Ghosh learned counsel appearing on behalf of the petitioner submitted as follows. The opposite party wife actually stayed at Bolpur Birbhum. This was what she had stated clearly in her application under Section 125 of the Code. That was also the place where her father resided. However giving the address of her brother in law she sought to have a proceeding under Section 125 of the Code initiated at Purba fact a matrimonial suit that was filed by petitioner husband at Suri Birbhum was transferred to Bolpur Birbhum by an order of this Court. In the said civil revision this Hon’ble Court refused to accede to the prayer of the present opposite party and after taking into consideration the submissions of the respective parties was pleased to transfer the case to Bolpur Birbhum. There was no reason for which the present proceeding under Section 125 of the Code should be taken up at a different place. 6. Mr. Uday Sankar Chattopadhyay Learned Counsel appearing on behalf of the opposite party wife submitted as follows. Although it was stated in the application under Section 125 of the Code that after being deserted by her husband the wife took refuge at her father’s place at Bolpur it was also quite categorically mentioned both in the cause title as also in the affidavit that the temporary residence ‘hal sakin’ of the petitioner wife was at Paschim Bardhaman. In fact after being deserted by her husband the petitioner was unable to meet both ends at her paternal home. That is why she had to be put up at her brother in law’s place at Paschim Bardhaman. The jurisdiction for a proceeding under Section 125 of the Code was not exactly similar to that of a matrimonial suit between a couple. Section 126 1) of the Code used the expressions ‘is’ and ‘resides’. Therefore if the wife at present stayed even temporarily at a particular place she would be entitled to initiate a proceeding under Section 125 of the Code or to continue the same at such place. On this reliance was placed on a decision of the Hon’ble Apex Court in Vijay Kumar Prasad Versus State of Bihar and others5 SCC 196 and on a decision of the Hon’ble Madras High Court in K. Mohan Versus Balakanta Lakshmi 1983 CrlJ 1316. The decision of this Hon’ble Court passed on 20.06.2018 in CO 1175 2018 was arrived at “without going into the controversy between the parties”. There was no finding whatsoever on what was the place where the lady was residing. As such the said order could not come in the way of this Court to have a proceeding under Section 125 of the Code continue at a different place. I heard the submissions of the Learned Counsels appearing on behalf of the parties and perused the revision petition. It appears from the records that although the opposite party wife in her application under Section 125 of the Code stated that after the unfortunate incidents happened at her matrimonial home she was staying at her parents’ place both in the cause title of the application as well as in the affidavit portion she clearly mentioned her temporary residence to be at Udayan Palli Galsi District Purba Bardhaman care of one Rathindra Nath Chowdhury. In the present application too learned counsel for the petitioner asserted the same fact that the opposite party was presently residing at her brother in law’s place at Purba Bardhaman being unable to meet both ends at her paternal home. Moreover simply because the petitioner had received a notice in another proceeding at her parent’s place at Bolpur it cannot preclude her from claiming that she was presently residing at Purba Bardhaman. The decision of this Hon’ble Court passed on 20.06.2018 in CO No. 1175 of 2018 was clearly arrived at “without going into the controversy between the parties”. There was no finding in the order passed by this Court that could prevent the opposite party from claiming that she presently resides at Purba Bardhaman. 10. Section 126implies that a proceeding under Section 125 of the Code may be taken against any person in any district where he or his wife 11. There is no element of permanence connected to the term ‘resides’. Therefore if a wife resides at a place for a reasonable length of time so as to claim such place at least as her temporary residence she should be entitled to initiate or continue a proceeding under Section 125 of the Code at such place. On this reliance is placed on a decision of the Hon’ble Apex Court in Vijay Kumar Prasad and on a decision of the Hon’ble Madras High Court in K. MohanP. Adak

No right and/or equity is created by practice of fraud as fraud vitiates everything : The High Court of Calcutta

The High Court of Calcutta commented on the case of admission process being corrupt and fraudulent involving the seats of MDS course(Master of Dental Surgery). The Hon’ble High Court of Calcutta led by the division bench through Mr Chief Justice Rajesh Bindal and Mr Justice Rajarshi Bharadwaj in the case of Amiya Sarkar v. the State of West Bengal & Ors[WPA/7729/2020]. The petitioner, Amiya Sarkar, moved on to the High Court with the contention, that the State University was aware of the fact that the applicants before the West Bengal Administrative Tribunal being private respondents herein were not entitled to the benefits. Moreover, it was the duty of the respondent authorities to direct the private respondents to vacate their seats being occupied by them illegally and fraudulently. Also, that the Respondent No. 2 was under the obligation of law to direct the proceeding to be initiated against the private respondents and also against those who had assisted the private respondent in closing their eyes against the illegal activities of the private respondent for some extraneous conditions. Furthermore, it was the duty on part of Respondent No. 2 to act in terms of the provision of Rule 3(1)(i) of the West Bengal Dental Service (for Placement of Trainee Reserve) Rules, 2013, which clearly provides for the criteria to fill up seats for admission in MDS as an ‘in service’ candidate under the Trainee Reserve quota and the same cannot be allowed to be violated by the respondent authorities. The High Court agreed with the supra contention that it was a well-principled rule of law that, fraud vitiates everything and no right and/or it equity is created by the practice of fraud. “It cannot be denied that it is the duty of the state authorities to be loyal, honest, fair and impartial to the public at large and not to a person or persons, who by way of his connections with the higher authorities adopt corrupt and fraud practices.” The court while accepting the petitioner’s contention, however, concluded that since this public interest litigation has been read before this on the double court on September 18, 2020 that is after three years since the private respondent began his MDS course. “Therefore, due to this lapse of time, it would not be equitable to interfere with the private respondent’s completion of the MDS course. Given the circumstances of this case, the parties will bear their own costs. “ The Hon’ble Court for the foregoing reasons dismissed the writ petition.

IN THE HIGH COURT AT CALCUTTA Appellate Side) CONSTITUTIONAL WRIT JURISDICTION Pronounced on: 01.10. 2021 WPA 77920 With CAN 1 OF 2020 Amiya Sarkar ........Petitioner The State of West Bengal & Ors. ........Respondents Through: Mr. Uday Chandra Jha and Ms. Maheshwari Sharma Advocatses present through VC Vs Through: Mr. Debaki Nandan Maiti Advocate ... for the respondent Nos. 4 9 Mr. Kallol Basu and Mr. Suman Banerjee Advocates ….for the private respondent Nos. 12 13 Coram: THE HON’BLE JUSTICE RAJESH BINDAL CHIEF JUSTICETHE HON’BLE JUSTICE RAJARSHI BHARADWAJ Rajarshi Bharadwaj J. 1. It is contended by the learned counsel for the petitioner that the seats of MDS course are being distributed to the persons who are adopting corrupt practices and are involved in fraudulent activities denying those seats to the eligible and deserving candidates. The petitioner also contends that respondent No. 4 being 2 WPA 77920 the State University was aware of the fact that the applicants before the West Bengal Administrative Tribunal being private respondents herein were not entitled to the benefits. Moreover it was the duty of the respondent authorities to direct the private respondents to vacate their seats being occupied by them illegally and fraudulently. Also that the respondent no.2 was under obligation of law to direct the proceeding to be initiated against the private respondents and also against those who had assisted the private respondent in closing their eyes against the illegal activities of the private respondent for some extraneous conditions. Furthermore it was the duty on part of respondent no. 2 to act in terms of the provision of Rule 3(1)(i) of the West Bengal Dental Service Rules 2013 which clearly provides for the criteria to fill up seats for admission in MDS as an ‘in service’ candidate under the Trainee Reserve quota and the same cannot be allowed to be violated by the respondent authorities. 2. The contention that it is a well principled rule of law that fraud vitiates everything and no right and or equity is created by practice of fraud is completely true. It cannot be denied that it is the duty of the state authorities to be loyal honest fair and impartial to the public at large and not to a person or persons who by way of his connections with the higher authorities adopt corrupt and fraud practices. 3. But this public interest litigation has been moved before this Court on the September 18 2020 i.e. after three years since the private respondent began his MDS course i.e. in April 18 2017. Therefore due to this lapse of time it would not be equitable to interfere with the private respondent’s completion of MDS course. 4. For the foregoing reasons the writ petition is dismissed. All pending application are also accordingly disposed of. 3 WPA 77920 5. Given the circumstances of this case the parties will bear their own costs. CHIEF JUSTICE(RAJARSHI BHARADWAJ) JUDGE 01 .10.2021 PA

If it is summoned by the Court then respondent needs to appear or represent them through counsel for opposition : High Court of Kerala

Court has validly served the respondent to be present in person or to be represented through counsel inferentially guiding to the impression that they have something to offer in opposition to the various reliefs sought for in this writ petition and was upheld by High Court of Kerala through the learned bench led by HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN in the case of THAHIRA N.P. v STATE OF KERALA (WP(C) NO. 6492 OF 2022) on 21st March, 2022. Facts of the case are that petitioners have approached seeking a direction to respondents 2 and 3 to answer the queries posed by them in Exts.P7 and P8, particularly as to whether they have any intention to acquire their property and as to how they can impose an embargo against its alienation by them, if there is any such. Learned counsel for the petitioner states that learned Senior Government Pleader said that it is for respondents 2 and 3 to reply to the petitioners and that the State of Kerala and its functionaries had no role to play, particularly because the proposal is one which is propounded by the Municipality. Endorsements on file reveal that even though summons from this Court have been validly served on respondents 2 and 3, they have chosen not to be present in person or to be represented through counsel; inferentially guiding me to the impression that they have nothing to offer in opposition to the various reliefs sought for in this writ petition. Court allowed the writ petition and direct the competent among respondents 2 and 3 to immediately take up Exts.P7 and P8 and hear the petitioners, thus culminating in an appropriate proceedings and action thereon – particularly with respect to the allegation of the petitioners that their property has not been acquired, but an embargo of alienation imposed against it, as expeditiously as is possible, but not later than two weeks from the date of receipt of a copy of this judgment.  Court directed the petitioners to mark appearance before the third respondent – Secretary of the Municipality, along with the certified copy of this judgment, at 11 a.m. on 25.03.2022.

IN THE HIGH COURT OF KERALA AT ERNAKULAM THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN MONDAY THE 21ST DAY OF MARCH 2022 30TH PHALGUNA 1943 WP(C) NO. 6492 OF 2022 THAHIRA N.P. AGED 50 YEARS W O. ABDUL BASHEER GAREEB NAWAS KOLARI AMSOM KALLOOR DESOM MATTANNOOR P.O THALASSERY TALUK KANNUR DISTRICT PIN 670 702 ABDUL BASHEER AGED 61 YEARS W O. LATE ABDUL KHADER GAREEB NAWAS KOLARI AMSOM KALLOOR DESOM MATTANNOOR P.O THALASSERY TALUK KANNUR DISTRICT PIN 670 702 STATE OF KERALA REPRESENTED BY ITS SECRETARY LOCAL SELF GOVERNMENT DEPARTMENT THIRUVANANTHAPURAM 695 001 THE MATTANUR MUNICIPALITY MUNICIPAL OFFICE MATTANNOOR KANNUR DISTRICT PIN 670 702 REPRESENTED BY THE SECRETARY MATTANNOOR MUNICIPALITY MUNICIPAL OFFICE MATTANNOOR KANNUR DISTRICT PIN 670 702 SMT. MABLE .C .KURIAN SR.G.P THIS WRIT PETITION HAVING COME UP FOR ADMISSION ON 21.03.2022 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 6492 OF 2022 The petitioners have approached this Court seeking a direction to respondents 2 and 3 to answer the queries posed by them in Exts.P7 and P8 particularly as to whether they have any intention to acquire their property and as to how they can impose an embargo against its alienation by them if there is any such. 2. The afore request of the petitioner made by their learned counsel Sri.Varghese C.Kuriakose was answered by the the learned Senior Government Pleader Smt.Mable C.Kurian saying that it is for respondents 2 and 3 to reply to the petitioners and that the State of Kerala and its functionaries had no role to play particularly because the proposal is one which is propounded by the Municipality. 3. Unfortunately the endorsements on file reveal that even though summons from this Court have been validly served on respondents 2 and 3 they have chosen not to be present in person or to be represented through counsel inferentially guiding me to the impression that they have nothing to offer in opposition to the various reliefs sought for in this writ petition. WP(C) NO. 6492 OF 2022 4. Resultantly I allow this writ petition and direct the competent among respondents 2 and 3 to immediately take up Exts.P7 and P8 and hear the petitioners thus culminating in an appropriate proceedings and action thereon particularly with respect to the allegation of the petitioners that their property has not been acquired but an embargo of alienation imposed against it as expeditiously as is possible but not later than two weeks from the date of receipt of a copy of this judgment For the afore purpose I direct the petitioners to mark appearance before the third respondent Secretary of the Municipality along with the certified copy of this judgment at 11 a.m. on 25.03.2022 Sd DEVAN RAMACHANDRAN WP(C) NO. 6492 OF 2022 APPENDIX OF WP(C) 6492 2022 TRUE COPY OF THE DOCUMENT NO. 522 2006 OF SRO MATTANNOOR DATED 14 03 2006 OBTAINED BY THE 1ST PETITIONER TRUE COPY OF THE DOCUMENT NO 524 2006 OF SRO MATTANNOOR DATED 14 03 2006 OBTAINED BY THE 2ND PETITIONER TRUE COPY OF THE NOTICE DATED 11 03 2009 ISSUED BY THE 3RD RESPONDENT TO THE 2ND TRUE COPY OF THE ORDER DATED 25 06 2009 IN APPEAL NO 394 2009 PASSED BY THE COURT OF THE TRIBUNAL FOR LOCAL SELF GOVERNMENT INSTITUTIONS THIRUVANANTHAPURAM TRUE COPY OF THE ORDER DATED 25 06 2009 IN APPEAL NO. 395 2009 PASSED BY THE COURT OF THE TRIBUNAL FOR LOCAL SELF GOVERNMENT INSTITUTIONS THIRUVANANTHAPURAM TRUE COPY OF THE JUDGMENT IN W.P(C) NO. 22775 2009 DATED 22 08 2012 PASSED BY THIS TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE 1ST PETITIONER DATED 02 02 2022 TO THE 2ND AND 3RD RESPONDENTS TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE 2ND PETITIONER DATED 02 02 2022 TO THE 2ND AND 3RD RESPONDENTS TRUE COPY OF THE ACKNOWLEDGMENT CARD SIGNED BY THE 2ND RESPONDENT IN RELATION TO EXT P7 Exhibit P10 TRUE COPY OF THE ACKNOWLEDGMENT CARD SIGNED BY THE 2ND RESPONDENT IN RELATION TO EXT P8

There is sufficient power in the Courts, under the Code of Civil Procedure, to ensure that injustice is not done to any party who has a just case: High Court Of Chhattisgarh

Under Order 9 Rule 13 CPC an ex parte decree passed against a defendant can be set aside upon satisfaction of the Court. Such an opinion was held by The Hon’ble High Court Of Chhattisgarh before The Hon’ble Shri Deepak Kumar Tiwari in the matter of Bagas Ram Verma Vs. Sanjay Kumar [MA No. 91 of 2019].  The facts of the case were associated with an appeal against an order passed by the 1st Additional District Judge, Rajnandgaon dated 30.01.2019 wherein the application by the appellant was rejected under Rule 13 of CPC. A civil suit was filed by the respondent against the appellant for recovery of the amount. Without giving any opportunity to the appellant, the said suit was decided ex-parte. It was noticed that during the proceedings of the trial court, the appellant who was supposed to appear was absent while his counsel appeared on behalf of him. It was submitted that the appellant was not aware of the date of the hearing and due to the misunderstanding the ex-parte order was passed.It was stated that the respondent denied the averment of the appellant and contended that the appellant had intentionally not appeared before the Court. Later, the Trial Court dismissed the application of the appellant since he did not appear in the proceedings or had shown any cogent reason to remain ex-parte in the civil suit.  Considering all the facts, The Hon’ble Court stated that “Therefore, looking to the facts and circumstances, this court is of the view that the appellant has established the sufficient cause for his non-appearance as his counsel has noted wrong date in his diary and so he has also not informed him, hence the application under Order 9 Rule 13 of Code of Civil Procedure is deserves to be allowed and accordingly allowed… Resultantly, the Appeal is allowed…”

1NAFRHIGH COURT OF CHHATTISGARH BILASPUR MA No. 919Order Reserved On : 18 10 2021 Order Passed On : 01 11 2021Bagas Ram Verma S o Lt. Shri Gaindu Ram Verma Aged About 50Years R o Village Rahud P.S. And Tah. Khairagarh DistrictRajnandgaon Chhattisgarh. At Present R o Sisly Matale Gali Ward No. 05 Rajnandgaon Tah. And District Rajnandgaon Chhattisgarh...(Judgment Debtor Applicant) AppellantVersus Sanjay Kumar S o Lt. Shri M.L. Kannoje Aged About 40 YearsOccupation Government Service R o Gandhi Chowk Ward No. 33 Tah. And District Rajnandgaon Chhattisgarh....(Decree Holder NonApplicant) Respondent For Appellant : Shri Rakesh Thakur Advocate. For Respondent: None though served.Hon ble Shri Deepak Kumar Tiwari J C A V Order1.The appellant has preferred this present Appeal against the order dated 30.1.2019 passed by the 1st Additional District Judge Rajnandgaon in MJC No.13 2017 whereby the application under Order 9 Rule 13 of the CPC moved by the appellant has been rejected.2.Facts of the case are that the respondent herein has filed the civil suitviz. Civil Suit No.2 B 2014 against the appellant for recovery ofamount. The said suit was decided ex parte on 18.11.2016 withoutgiving opportunity to the appellant. 23.It was the stand of the appellant that in the proceeding before the trialCourt he was supposed to appear however his counsel was appearing.It was further pleaded by the appellant that he was not aware about thedate of hearing on 18.11.2016 and his counsel also could not appear.Because of misunderstanding the ex parte order has been passed. Hecame to know about the ex parte order on 2.12.2016 and applied forcertified copy on the same day and filed an application under Order 9Rule 13 of the CPC. 4.The respondent has also filed his reply to the said application anddenied the averment of the appellant and pleaded that the appellant hasintentionally not appeared before the trial Court when the matter wascalled for recording the plaintiff’s evidence. He further pleaded thatthe application of the appellant is false and fabricated and as such theapplication should be dismissed.5.The trial Court has dismissed the application of the appellant filed underOrder 9 Rule 13 of the CPC holding that the appellant has not assignedor shown any cogent reason to remain ex parte in the civil suit and alsodid not appear on the subsequent dates also. The appellant was havingsufficient time to recall the ex parte order.6.Heard learned counsel for the appellant and perused the record.7.Considering the facts of the case the plaint was instituted on02.01.2014 for recovery of loan amount and defendant has alsosubmitted his written statement and contested the suit and on the dateof hearing on 18.11.2016 defendant’s contention is that his counselcould not appear because of misunderstanding his counsel has notedwrong date in his diary hence exparte order has been passed he came 3to know about the exparte decree on 02.12.2016 and applied forcertified copy and filed application under Order 9 Rule 13 of the C.P.C.for setting aside the Exparte decree passed on 18.11.2016. Appellanthas also filed affidavit in support of his application. The Plaintiff Nonapplicant has opposed his application. 8.In the matter of United Bank of India v. Naresh Kumar {A.I.R. 1997S.C. 3} it was observed as under: "there is sufficient power in the Courts under theCode of Civil Procedure to ensure that injusticeis not done to any party who has a just case. Asfar as possible a substantive right should not beallowed to be defeated on account of aprocedural irregularity which is curable." 9.In G.P. Srivastava vs Shri R.K. Raizada & Ors {(2000) 3 SCC 54} ithas been observed thus : “7. Under Order 9 Rule 13 CPC an ex partedecree passed against a defendant can be setaside upon satisfaction of the Court that eitherthe summons were not duly served upon thedefendant or he was prevented by any “sufficientcause” from appearing when the suit was calledon for hearing. Unless “sufficient cause” isshown for non appearance of the defendant inthe case on the date of hearing the court has nopower to set aside an ex parte decree. The words“was prevented by any sufficient cause fromappearing” must be liberally construed to enablethe court to do complete justice between theparties particularly when no negligence orinaction is imputable to the erring party.Sufficient cause for the purpose of Order 9 Rule13 has to be construed as an elastic expressionfor which no hard and fast guidelines can beprescribed. The courts have a wide discretion indeciding the sufficient cause keeping in view thepeculiar facts and circumstances of each case.The “sufficient cause” for non appearance refersto the date on which the absence was made aground for proceeding ex parte and cannot be 4stretched to rely upon other circumstancesanterior in time. If “sufficient cause” is made outfor non appearance of the defendant on the datefixed for hearing when ex parte proceedingswere initiated against him he cannot bepenalised for his previous negligence which hadbeen overlooked and thereby condoned earlier.In a case where the defendant approaches thecourt immediately and within the statutory timespecified the discretion is normally exercised inhis favour provided the absence was not malafide or intentional. For the absence of a party inthe case the other side can be compensated byadequate costs and the lis decided on merits.”10.Therefore looking to the facts and circumstances this court is of theview that the appellant has established the sufficient cause for his nonappearance as his counsel has noted wrong date in his diary and so hehas also not informed him hence the application under Order 9 Rule 13of Code of Civil Procedure is deserves to be allowed and accordinglyallowed. 11.Resultantly the Appeal is allowed and the impugned order dated30.01.2019 passed in M.J.C. No. 13 2017 by first Additional DistrictJudge Rajnandgaon & exparte decree passed in C.S.No. 2B 2014 dated18.11.2016 are hereby set aside on payment of costs of Rs. 5 000 tothe other side. 12.The parties are directed to appear before the trial court for furtherdirections on 26.11.2021. Sd JudgeBarve

Government authorities to ensure that public land is not encroached upon by converting them into places for worship: Delhi High Court

“This Court expresses grave concern over the fact that public land is sought to be encroached upon under the shelter of a place of worship. As is seen in a large number of cases, rights are claimed by parties under the garb of temples or other places of worship located on government land. This trend has been repeatedly frowned upon by the Supreme Court and other courts.” Hence, the States and Union Territories have been instructed to review the situation and act expeditiously in such matters. This ration was laid down by the Delhi high Court presided over by J. P.M. Singh in the case of Bal Bhagwan Vs. Delhi Development Authority, [CM (M) 416/2019]. The Present petition is filed seeking permeant injunction against the Respondents i.e. Delhi Development Authority (“DDA”), from forcefully dispossessing the Plaintiff from three temples situated on the private lands. The facts of the case are that the Plaintiff states that he has been assigned as the manger by a registered will through one Late Swami Onkara Nand of the entire temple complex. He further alleges that DDA claims this suit premise to be government land and is trying to forcefully remove and dispossess the Plaintiff from the temples as he is illegally living there. The Plaintiff earlier filed a suit for Temporary injunction in the Trial court and later appealed to the High Court. Both the courts dismissed the case of the Plaintiff, but he further appealed to the Supreme Court and while admitting the petition the Court directed the DDA from taking any coercive steps against the Plaintiff. Hence, the present petition for Permanent Injunction has been filed by the Plaintiff. The Court in this case observed that, “However, before this Court the Plaintiff’s case has changed and is– one of settled possession and not of adverse possession. The issue, therefore, is very short – Whether the Plaintiff claiming settled possession without any ownership can be dispossessed or is entitled to injunction against dispossession.?” The Court stated that plaintiff is not entitled to any relief and further observed that, “Insofar as the Shamlat Deh land is concerned, the Plaintiff cannot claim any rights in the same as the same vests for the common interest of the villagers. This Court agrees with the stand of the DDA that the land has been urbanised and once urbanization takes place, the village owners have no rights.” (…) though the land in question was vested in the DDA several years ago, the DDA is yet to obtain possession of the land. An important developmental project has been derailed because of the present litigation as the DDA continues to make valiant attempts to obtain possession in accordance with law. The mandir constitutes a miniscule portion of the entire land which has various commercial shops and residences. Clearly, the Plaintiff, or anyone occupying or claiming rights through the Plaintiff, does not have any right to continue to remain in possession of the suit property. Ld. counsel for the DDA has submitted that an alternative accommodation has been given to the dwellers in the colony. It is for the DDA to ensure that the same is provided to everyone in occupation, in accordance with its policy.” Lastly expressing grave concern, the court stated that, “Such attempts by unscrupulous parties ought to be discouraged, inasmuch as the occupants, under the garb of a place of worship, turn the land into a completely unplanned encroachment by hundreds of people. The authorities have an obligation to ensure that in public land, places of worship are not created in this manner. Moreover, in the present case, an infrastructure project is being completely crippled due to the pendency of this litigation. This would be contrary to even public interest.”

BAL BHAGWAN IN THE HIGH COURT OF DELHI AT NEW DELHI Reserved on: 11th November 2020 Date of decision: 18th December 2020 CM416 2019 ..... Petitioner Through: Mr. Y. K. Kapur and Mr. Manish Vats Advocates416 2019 girdawari. The translation of the Khasra girdawari filed by the Petitioner is taken on record. Application is disposed of. CM416 2019 & CM APPL.11534 2019Brief Background The present petition arises out of a suit for permanent injunction filed by the Petitioner Plaintiff Mr. Bal Bhagwan against the Delhi Development Authority seeking permanent injunction restraining the DDA from demolishing or forcibly dispossessing the Plaintiff from three temple premises namely Mandir Kali Mai Mandir Bada Beer Dham and Mandir Shivji Maharaj situated on private land bearing Khasra No. 1075 803 50 measuring 4 bigha 3 biswas and a temple premises of Sankat Mochan Bajrang Bali on land measuring 2 bigha 11 biswas in Khasra No. 1074 803 50 of village Khampura Raya Delhi bearing MCD No.2151 18 Swami Onkara Nand Ashram New Patel Nagar New Delhi416 2019 were located on two separate khasras with three temples being located on Khasra No. 1075 803 50 and one temple being located on Khasra No.1074 803 50. It is claimed that the said four temples are in the possession of the Plaintiff as they are managed by him and they have been running at least since the 1960s. 7. Swami Onkara Nand expired on 10th May 1982 and by way of a registered Will dated 13th April 1982 the Plaintiff was made the manager of the entire temple complex. It is claimed that the DDA attempted to take forcible possession of the suit property and dispossess the Plaintiff leading to the filing of the suit for permanent injunction. The DDA filed its written statement and claimed that the entire land is government land and that the Plaintiff is in illegal occupation of the same. It took the stand that the Plaintiff who has no rights in the suit property cannot prevent the DDA from taking over the land which is meant for rehabilitation of the Kathputli Colony dwellers and had been vested in the DDA by the Ministry of Rehabilitation way back in 1982. Both Courts have agreed with the DDA and have dismissed the Plaintiff’s application for interim injunction. Plaintiff’s Submissions 8. Mr. Kapur ld. counsel appearing for the Plaintiff has urged before this Court that insofar as the DDA is concerned the issue only relates to 2 Bighas and 11 Biswas as the other land has been held to be Shamlat Deh land. The stand of the DDA is that the land was acquired and was put at its disposal. However the Plaintiff claims that he himself is in settled possession of the land in question. Reliance is placed on the Jamabandis dating back to 1946 47 and the Khasra Girdawaris dating back to 1967 68 CM416 2019 which show the existence of the temple. Mr. Kapur specifically relies upon the various documents of the Revenue Authorities filed by the DDA to show that these documents themselves establish the existence of the temple as also the fact that the same was managed by Swami Onkara Nand. Vehement reliance is also placed on an alleged copy of DDA’s City Planning Wing’s document which shows the regularisation of New Patel Nagar area of which the suit property is alleged to be forming part. It is claimed that the survey which was conducted in this area on 15th September 1977 itself shows the existence of a temple on the said land. 9. Ld. counsel submits that once the Plaintiff has been shown to be in settled possession on the basis of the Jamabandis Khasra Girdawaries and the DDA’s own plan the possession of the Plaintiff cannot be disturbed except in accordance with law. It is further urged that the documents which are relied upon by the DDA show that the DDA had acquired this land from the Ministry on an ‘as is where is’ basis. Thus when the transfer took place in 1982 since the temple was already in existence and the Plaintiff his predecessor was managing the said temple the DDA was well aware of the risk of taking over the said land. Further it is argued that the Plaintiff has been paying all the necessary charges to the local authorities including water telephone electricity and also the house tax. It is submitted that the possession of the Plaintiff not being in dispute the dismissal of the application under Order XXXIX Rules 1&2 CPC is erroneous and is contrary to law. 10. Ld. counsel also relies upon the relevant paragraphs of the written statement to show that there is no denial by the DDA on the claim of settled possession. The only claim of the DDA is that the Plaintiff is an encroacher. CM416 2019 Ld. counsel urges that as per the provisions of Order VIII Rule 5 CPC any denial which is not a specific denial is no denial in the eyes of law. The DDA has not specifically denied the claim of settled possession and thus the stand of the Plaintiff that he is in settled possession should be deemed to be admitted by the DDA. 11. Mr. Kapur ld. counsel specifically points out glaring errors in the order of the Trial Court dated 10th December 2018 which observes that the existence of the temple is shown but the name of the Plaintiff is not shown. This according to the ld. counsel is a completely incorrect and blatantly wrong finding by the Trial Court which is clearly rebuttable from a plain reading of the khasra girdawaris which show that Swami Onkara Nand was managing the temple. It is further argued that the land being part of a bigger block of land unless and until demarcation is done the Plaintiff cannot be dispossessed. 12. Mr. Kapur submits that there is a difference between settled possession and adverse possession. The Plaintiff in this case was only pleading settled possession but the Court below has confused the same with adverse possession. He refers to paragraphs 11 16 and 26 of the plaint and submits that the stand of the Plaintiff is very clear that it is one for settled possession. Further the Court below has confused the claim of the Plaintiff to be one for title and ownership whereas the claim is only for an injunction on the basis of settled possession. 13. Reference is made to the prayer in the plaint to argue that in respect of both the portions of land i.e. 4 bighas and 3 biswas and 2 bighas and 11 biswas the Plaintiff seeks an injunction against dispossession. The finding of the Trial Court insofar as the 2 bigha portion is concerned is that the CM416 2019 Plaintiff is an encroacher. It is submitted that once the Plaintiff is admitted to be an encroacher he cannot be dispossessed except in accordance with law as he is in settled possession. 14. It is submitted that the finding of the Trial Court that the Plaintiff has no title to the land itself shows the misconception on the basis of which the Trial Court has proceeded as this was not a suit where the Plaintiff was seeking declaration of ownership title. This misconception has led to an erroneous judgment by the Trial Court and the errors by the Trial Court have just been perpetuated by the ld. District Judge. 15. Mr. Kapur ld. counsel submits that the land in question has in fact been handed over to the MCD NrDMC as per the DDA’s own admission at page 275. Ld. counsel relies upon the notice under Order XII Rule 8 CPC to the DDA to produce certain documents. In response to the said notice the DDA has stated as under: In reply to para 6 of the Notice it is submitted that the Kathputali Colonly Area the Municipal Corporation of Delhi since been succeeded by the North Delhi Municipal Corporation and the drawings layout plan of the said are not available with the D.D.A and can be from North Delhi Municipal 16. It is submitted that since the land has now been transferred to the MCD NrDMC the DDA has no right on the said land. In any event insofar as the 4 Bigha 3 Biswas portion of land is concerned the same has been held to be Shamlat Deh land and does not belong to the DDA. CM416 2019 17. It is further submitted that both the Civil Judge and the Appellate Court admit that the possession is with the Plaintiff. These findings are not challenged by the DDA either by filing cross objections or otherwise. It is submitted that since the said findings are not challenged the Court has to proceed on the basis that the Plaintiff is in settled possession of the land. He submits that the Trial Court has simply relied upon the judgment of the Supreme Court in Jagpal Singh & Ors. v State Of Punjab & Ors. 2011SCC 396 which in his submission is per incuriam as is clear from a reading of various judgments of the Supreme Court including Rame Gowda v. M. Varadappa Naidu 1 SCC 769 Puran Singh v. State of Punjab 1975) 4 SCC 518 Munshi Ram & Ors. v. Delhi Administration AIR 1968 SC 702 Maria Margarida Sequeira Fernandes & Ors. v. Erasmo Jack De Sequeirathrough LRs 5 SCC 370 and finally Poona Ram v. Moti Ramthr LRs and Ors. 2 SCALE 207. 18. Ld. counsel relies upon Government of AP v. Thummalla Krishna Rao & Anr. 2 SCC 134 to argue that once a party is openly in possession for an appreciable length of time he cannot be dispossessed except by impartial adjudication. It is submitted that an order under Order XXXIX Rules 1 and 2 CPC is not an impartial adjudication. Reliance is also placed on Krishna Ram v. Mrs. Shobha 4 SCC 131. It is urged on behalf of the Plaintiff that the Trial Court ought to honour the judgments. It is submitted that the judgment in Jagpal Singh is completely distinguishable as it was a case where the gaon sabha land was taken over for commercial use and was encroached upon. Under those circumstances the Supreme Court held in favour of the State. It was also not a case of settled possession. CM416 2019 19. Reliance is also placed on Ashwani Kumar Singh v. UP Public Service Commission & Ors. AIR 2003 SC 2661 to argue that the Trial Court cannot blindly follow a judgment without appreciating the factual context of the same. Ld. counsel vehemently urges that the Plaintiff’s case is not of adverse possession but settled possession. It is argued that the order of the Trial Court is perverse and is liable to be set aside due to non application of mind. It is also argued that if the settled legal position is not followed by a judgment then that judgment cannot stand in the eyes of the law. The following cases were relied on for this proposition: Arulvelu & Anr. v. State represented by the PP & Anr. 2009 10 SCC 206 S. R. Tewari v. UOI & Anr. 6 SCC 602 and Associate Builders v. DDA 3 SCC 49. DDA’s Submissions 20. Mr. Rajiv Bansal ld. senior counsel along with Mr. Dhanesh Relan ld. counsel appears for the DDA. He raises two preliminary objections. The first preliminary submission is that the petition is under Article 227 of the Constitution of India which is not an appellate remedy. The scope of judicial review is limited in such a petition. The Court is not to act as an appellate authority and neither is such a petition to be treated as a second appeal. The Court cannot interfere unless there is flagrant miscarriage of justice or abuse of principles of law. The Trial Court’s finding has to be perverse or patently erroneous for the Court to exercise jurisdiction in such a petition. It is submitted that the Court cannot re appreciate the evidence and also cannot reverse the finding on insufficiency of evidence. The Court also cannot substitute the trial court’s finding with its own opinion in the matter. It is further submitted that if there are two concurrent findings the power under CM416 2019 Article 227 ought to be sparingly exercised. Reliance is placed on the following judgments: a) Annad Kumar v. Dinesh Kumar 125 ALR 75 b) Surender v. Roshani & Ors. 2010 SCCOnline Del 2482 c) Estralla Rubber v. Dass EstateLtd. 8 SCC 97 d) Ouseph Mathai & Ors. v. M. Abdul Khadir 1 SCC 319 e) Nawab Shaqafath Ali Khan v. Nawab Imdad Jah Bahadur 2009) 5 SCC 162 21. It is submitted that Article 227 basically deals with jurisdictional errors. The question as to what constitutes a jurisdictional error is laid down in S. Satnam Singh & Ors. v. Surender Kaur & Anr. 5 SCC 562. If the Trial Court considers irrelevant facts or ignores relevant facts the same constitutes a jurisdictional error. It is submitted that in the present petition none of the grounds raised portray any jurisdictional error. Unless it can be shown that the issue goes to the root of the matter the Court does not exercise jurisdiction under Article 227. 22. Mr. Rajiv Bansal ld. senior counsel takes the Court through the plaint to argue that in respect of 4 Bighas and 3 Biswas the case is that the same is a private land however no document is placed on record to establish title. Insofar as 2 Bighas and 11 Biswas are concerned it is submitted that the acquisition proceedings were not challenged by the Petitioner. The finding of the Trial Court is that the so called private land is only ‘shamlat deh’ land i.e. it belongs to the common village community. He submits that in both these parcels of lands which are more than one and a half acres i.e. 6 700 sq. yards the four Mandirs are in a very small portion and the remaining CM416 2019 portion consists of a residence shops and factories. Thus the land is used for commercial purposes and not for the purposes of Mandirs. 23. The plaint is referred to in order to show that in paragraph 25 there is an implied admission that the land is Government land. The further submission is that there are contrary pleas that are taken by the Plaintiff. On the one hand the Plaintiff claims settled possession but on the other hand the Plaintiff pleads adverse possession. 24. The second preliminary submission raised is that the suit filed by the Petitioner is a simpliciter suit for injunction and no declaration is sought. Finally the prayer in the plaint is referred to argue that the same is only for a permanent injunction and there is no declaration which is being sought. It is submitted that this is completely contrary to the settled legal position in Anathula Sudhakar v. P. Buchi ReddyBy Lrs & Ors 4 SCC 594 where the Supreme Court has made it clear that if the title to the property is in dispute or under a cloud the prayer for declaration is mandatory to be sought by the Plaintiff. The relief of injunction is only consequential in nature. Reliance is placed on paragraphs 13 and 21 of the said judgment. It is submitted that the Plaintiff while pleading ownership has not placed a single document on record except the Will of late Swami Onkara Nand to establish title. 25. Mr. Bansal thereafter refers to the Will dated 13th April 1982 by Swami Onkara Nand to canvas the proposition that in the Will there are no details as to on what basis the Plaintiff’s Guru claims to be the owner of the suit property. Further the Will only mentions one temple with a number of living rooms. He thus submits that the prayer is in respect of the remaining set of four temples which are not mentioned in the Will. CM416 2019 26. Ld. Senior Counsel further refers to the order passed on 8th November 2011 in W.P.(C) 7200 2011 titled Richpal Singh & Ors. v. MCD & Ors. which relates to the same property i.e. MCD No.2151 of 2018 where the Plaintiff herein ought to have been a party. He submits that in the said writ petition the ld. Single Judge had directed that if there was no sanctioned plan and there was any unauthorized construction MCD was required to take action in accordance with law. On a query put by the Court Mr. Kapur on instructions from his client submits that the Plaintiff was a party in the said writ petition i.e. Respondent No.4 but he was not served in the said writ petition. 27. On the aspect of the DDA having taken over the land on ‘as is where is’ basis according to Mr. Bansal ld. counsel this only meant that the Government of India was not giving any guarantees or warrantees in respect of the land. The transfer of property to MCD NrDMC was for the purposes of providing municipal amenities and facilities in the area concerned. He also reiterated that Khasra Girdhawaris and other revenue records do not confer any title. Insofar as settled possession is concerned he relied upon the judgment of Maria Margaritato argue that once the Court had looked at the facts and passed an order sufficient compliance of due process takes place. 28. Ld. counsel thereafter placed reliance upon the Appellate Court’s judgment to argue that the Appellate Court has clearly come to the conclusion that the acquisition of the property having been admitted by the Plaintiff himself he cannot claim any rights in respect of the acquired property or slum. CM416 2019 29. The award is thereafter relied upon to argue that the Plaintiff did not have any claims and all the claimants were heard before the award was passed almost 60 years ago. Even as per the demarcation report relied upon by the Plaintiff himself the acquisition was upheld by the High Court in W.P.(C) 7200 2011 titled Richpal Singh & Ors. v. MCD & Ors. Rejoinder and Sur rejoinder Submissions 30. Mr. Kapur has commenced his rejoinder submissions and submits that in so far as the District Court’s findings are concerned there are no cross objections filed by the DDA. Hence the issue is only with respect to the 2 bighas and 11 biswas of land and not the other part of the land which has been declared as shamlat deh land. 31. He thereafter relies upon the record of W.P.(C) 7200 2011 titled Richpal Singh & Ors. v. MCD & Ors and Cont. Cas 750 2012 titled Richpal Singh & Ors. v. PK Gupta & Anr arising therefrom to argue that the Plaintiff herein who was Respondent No. 4 in the said writ was never served in the matter. Even the order dated 8th November 2011 does not record the appearance of Respondent No. 4 i.e. the Plaintiff. In the said order it has merely been directed that if there is no sanctioned plan demolition action can be taken in accordance with law. However no demolition was carried out by the Municipal Authorities. The contempt petition also had an Action Taken Report filed by the DDA wherein the DDA took the stand that the area marked in blue was construction made prior to February 2007 and was protected under the prevalent regulations. Ld. counsel submits that the Plaintiff had no knowledge of these proceedings and having acquired knowledge thereafter cannot be held to be bound by the said order. CM416 2019 32. Mr. Kapur ld. counsel thereafter relies upon the photographs filed by the DDA to argue that these photographs in fact establish settled possession of the Plaintiff. 33. Ld. counsel further submits that the proposition that if a suit for declaration is not filed the suit for injunction is not maintainable is clearly not the declared position of law. He also relies upon the judgments in Annad Kumar v. Dinesh Kumar 2017 SCC Online All 1889 Kishore Kumar Khaitan & Ors. v. Praveen Kumar Singh AIR 2006 SC 1474 and Achutananda Baidya v. Prafullya Kumar Gayen & Ors. AIR 1997 SCC 2007 to argue that whenever there is a perverse or patently illegal finding or the approach of the Trial Court is wrong then the petition under Article 227 would be maintainable. 34. Mr. Bansal ld. counsel concluding his submissions relies upon a compilation of documents to argue that the project of the Kathputli Colony was fully sanctioned as per the orders in the said writ petition. He submits that in so far as the shamlat deh land is concerned the villagers are the co sharers only till the land is organised and the village is urbanised. Once the village is urbanised under Section 407 of the Delhi Municipal Corporation Act 1957 the land vests with the Central Government. He relies upon the Khasra Girdawari at page 48 to argue that even the Khasra Girdawari relied upon by the Plaintiff clearly shows that ownership of the land is with the Sarkar i.e. the Government. The possession of the land is with the Mandir and Bal Bhagwan i.e. the Plaintiff is only the manager of the said Mandir. The Khasra Girdawari cannot vest either ownership or possessory interest in the Plaintiff. 35. Mr. Bansal ld. counsel thereafter relies upon the orders in Suit No. CM416 2019 478 2011 titled Balbir Singh & Ors. v. Bal Bhagwan which according to him do not vest any ownership or title in the Petitioner. He submits that even as per the plaint itself at page 92 the order was an order relating to Order VI Rule 17 CPC and thus the interpretation given by the Petitioner to the said order is not tenable. Finally Mr. Bansal relies upon the judgment in Ashok Kapoor & Ors. v. MCD 2045 2008 order dated 11th March 2014] to argue that the view of the Supreme Court has completely changed after the judgment in S.P. Chengalvaraya Naidu Vs. Jagannath AIR 1994 SC 853 where the Supreme Court has held that land grabbers and other illegitimate claimants to public land ought not to be encouraged. Moreover apart from the three principles governing the grant of temporary injunction a fourth principle of public interest can also be applied. He submits that the interests of the Petitioner herein cannot be kept above the other citizens who are now waiting for a developed colony. 36. Mr. Kapur concludes his submissions by arguing that the said judgment in Ashok Kapur would be per incuriam as it does not discuss Rame GowdaAnalysis & Findings 37. An application under Order XXXIX Rules 1 & 2 CPC which was rejected by both the Trial Court and the Appellate Court is the subject matter of the present petition which has been argued extensively by ld. counsels for the parties. This comes as no surprise as the land involved is precious land located in the heart of Delhi in which the Plaintiff wishes to continue to retain possession. 38. On 4th August 2020 the photographs of the area were called for by CM416 2019 this Court. They revealed that the temples are merely a minute portion of the suit property which is surrounded by residential and commercial properties. The entire area has no sanctioned plan. The Plaintiff obviously does not wish to be dispossessed from the suit property. 39. A perusal of the plaint shows that the Plaintiff claims ownership in the suit property. Paragraph 10 of the plaint reads as under: “10. That the plaintiff is owner in possession or a transfree successor from the original owner of the suit property through documents in his favour and the suit legal occupier of However before this Court the Plaintiff concedes that he does not have any document of title in respect of the suit property. Thus the only question is whether the Plaintiff is entitled to interim relief from being dispossessed. 40. In the plaint it is admitted that the land is government land and that the Plaintiff has rights in the same by way of adverse possession. The relevant extract of the plaint reads as under: “That no action to take forcible possession after dispossessing the plaintiff from the suit land can be taken as the same is barred by Section 27 read with Article 112 of Limitation Act 1963. The government can take action for eviction and for possession against the alleged illegal occupant on the government land within 30 years and the period of limitation had began to run. under this act against a like suit by a private person and hence the threat of alleged action of dispossession forcible dispossession by the defendant is barred by time as the right of the defendant has extinguished in respect of the suit property. Even otherwise the plaintiff is owner by adverse CM416 2019 possession in view of notice of defendant issued in the month of November 1982 to the plaintiff and other residents of the area site of New Patel Nagar in respect of alleged acquired land of village Khampur Raya Delhi.” 41. However before this Court the Plaintiff’s case has changed and is one of settled possession and not of adverse possession. The issue therefore is very short Whether the Plaintiff claiming settled possession without any ownership can be dispossessed or is entitled to injunction against dispossession 42. The suit seeks the following reliefs: “It is therefore prayed that this Hon ble Court may graciously be pleased to pass a decree of permanent injunction restraining the defendant from demolishing the suit property and forcibly dispossessing the plaintiff from the suit property i.e. three temples premises namely Mandir Kali Mai Mandir Shivji Maharaj situated on private land bearing Khasra No. 1075 803 50 measuring 4 bigha 3 biswas and a temple premises of Sankat Mochan Bajrang Bali land measuring 2 bigha 11 biswas in Khasra No. 1074 803 50 of village Khampura Raya Delhi bearing MCD No.2151 18 Swami Onkara Nand Ashram New Patel Nagar New Delhi without due process of law. It is further prayed that the costs of the present suit may also be award in favour of the plaintiff and against the defendant. Any other order as this Hon ble Court may deem fit and proper may also be passed in favour of the plaintiff and against the defendant in the interest of justice.” CM416 2019 Thus the only relief claimed is permanent injunction against demolition and forceful dispossession. 43. The case of the DDA is that the land was acquired by the government and was placed with the DDA. The acquisition proceedings have acquired finality. The land was also placed with municipal authorities in order to develop municipal amenities facilities in the area. The Plaintiff has been argued to be a tress passer and illegal occupant who has no ownership rights whatsoever in the suit property. 44. The Trial Court vide its order dated 10th December 2018 held as i. That one part of the suit property lies in Khasra No.1074 803 50 and another part lies in Khasra No.1075 803 50 Insofar as Khasra No. 1074 803 50 is concerned the same is part of acquired land which was purchased by the DDA on 2nd September 1982. The acquisition is not challenged and the same is more than 60 years old. The Plaintiff thus encroached in Khasra No. 1074 803 50. Insofar as Khasra No.1075 803 50 is concerned the same is private land i.e. Shamlat Deh land. Following the judgment in Jagpal Singhthe Trial Court held that Shamlat Deh land is meant for the common use of the village and no one person can claim rights in the same. iv. That the Plaintiff does not have title on either part of the suit property and at best he is an encroacher. v. The Plaintiff claims ownership on one hand and on the other hand claims rights by way of adverse possession. CM416 2019 vi. The judgment in Rame Gowdahas been considered by the Trial court along with the judgment in Maria Margaridait is argued that the same constitutes a jurisdictional error under Article 227 and hence the present petition is maintainable. CM416 2019 48. The grounds raised for seeking interference under Article 227 of the Plaintiff are devoid of any merits. The land admittedly is government land. The Plaintiff has no title to the said land. The Plaintiff has also been changing stances since the filing of the suit and has become wiser as the litigation has progressed. Initially after claiming ownership rights by way of adverse possession in the present writ petition the only argument of the Plaintiff has been that he is in settled possession and cannot be dispossessed except by due process of law. The Trial Court and the Appellate Court have considered the Plaintiff’s case as pleaded in the plaint. The said forums cannot therefore be faulted. The Trial Court has dealt with the pleadings and documents in detail and cannot therefore be alleged to have failed in rendering the necessary findings. In the opinion of this Court there is no jurisdictional error. However the Court has also examined the merits of the matter in view of the various issues raised before it. Each of broad submissions made on behalf of the Petitioner are dealt with hereinbelow. The effect of property being vested with DDA on an ‘as is where is’ 49. The property in question has been vested vide letter dated 2nd September 1982 by the Ministry of Settlement of Rehabilitation Government of India with the DDA. The said vesting would in effect mean that the DDA is free to deal with it and take action in whatever manner it deems appropriate including taking action against any encroachment. This Court agrees with the DDA’s submission that the DDA is the owner of the land and the term ‘as is where is’ basis merely means that there are no guarantees or warranties that are being given by the Government of India in CM416 2019 respect of this land. The fact that the property was vested in the DDA on ‘as is where is’ basis does not mean that the DDA cannot take any action to remove an unauthorised occupant or encroacher. The property being transferred to the MCD NrDMC 50. Insofar as the transfer of the property to MCD NrDMC is concerned once the land is urbanized the land can be transferred to the Corporation for the purpose of providing municipal amenities and facilities. This cannot be a ground for the Plaintiff to argue that the DDA has no right in the suit property. In any event the suit filed by the Plaintiff is against the DDA and not against the Corporation. Thus the DDA is entitled to defend itself in the present suit. The legality and validity of Khasra Girdawaris and other revenue 51. The award by which Khasra No. 1075 803 50 was acquired was passed more than 60 years ago and has not been challenged by the Plaintiff herein. The Plaintiff claims to be in possession of the private land. Though ownership is claimed no documents such as sale deed etc. have been placed on record. The land was acquired under the Resettlement of the Displaced Persons Act 1948. The title of the land was vested in community and the Plaintiff has no title in the said land. 52. The Petitioner relies upon these records to prove possession. Mr. Kapur admits to the fact that the revenue records do not vest title with DDA in the property but have been filed to show possession. Mr. Bansal submits that the said documents do not confer any title and the settled position as CM416 2019 laid down in Union of India & Ors. v. Vasavi Cooperative Housing Society Limited & Ors.2 SCC 269] has been relied upon. 53. It is also well settled that jamabandis and khasra girdawaris do not vest any ownership rights as per the judgment of the Supreme Court in State of A.P. v. Star Bone Mill and Fertiliser Company 9 SCC 319. In any event even the khasra girdawari for the year 2000 01 to 2004 05 clearly shows that the Plaintiff does not have any ownership rights. Settled possession 54. The foundation of the Plaintiff’s case before this Court is one of settled possession which cannot be disturbed except by due process of law. The core of the argument is based on the judgment of the Supreme Court in Rame Gowda which is a division bench judgment. In order to prove settled possession the Plaintiff relies upon jamabandis and khasra girdawaris. Both these documents merely show that there was a mandir which was under the management of the Plaintiff. The khasra girdawari for the year 2000 01 to 2004 05 records the following: CM416 2019 Khasra No. Owner’s Name in Jamabandi No. Khewat No.99 Cultivator’s name in short with khatauni No. and Lagan Under possession of Mandir managed by Bal Bhagwan jagat Village Singh Khushhal Rajendra Chandr Jagan Singh s o Ghisa 56. A perusal of these entries in the khasra girdawari clearly shows that in respect of Khasra No.1074 803 50 the owner is Sarkar daulat i.e. the government and insofar as Khasra No.1075 803 50 is concerned it is shown as Shamlat Deh land. Admittedly the ownership of these lands does not vest in the Plaintiff and the plea to the contrary in the plaint is false to the knowledge of the Plaintiff himself. 57. All the rights that the Plaintiff is claiming is as the Manager of the Mandir and chela of Swami Onkara Nand. Insofar as Khasra No.1074 803 50 is concerned firstly Swami Onkara Nand did not have any ownership of the land. The Will dated 13th April 1982 relied upon by the Plaintiff is thus of no consequence. In any case the Manager of the Mandir cannot claim the right to remain in possession forever especially when the CM416 2019 land is government land. Even if the said possession is treated as settled possession the same can only be protected against forceful taking of possession. The person in settled possession cannot question being dispossessed in accordance with law after due process has been followed. 58. What constitutes ‘due process’ is now well settled in view of the judgment of the Supreme Court in Maria Margarida wherein the Court has observed as under: “81. Due process of law means nobody ought to be condemned unheard. The due process of law means a person in settled possession will not be dispossessed except by due process of law. Due process means an opportunity for the Defendant to file pleadings including written statement and documents before the Court of law. It does not mean the whole trial. Due process of law is satisfied the moment rights of the parties are adjudicated by a competent Court. 82. The High Court of Delhi in a case Thomas Cook Limited v. Hotel Imperial 2006 88) DRJ 545: (NOC) 169) held as “28. The expressions ‘due process of law’ ‘due course of law’ and ‘recourse to law’ have been interchangeably used in the decisions referred to above which say that the settled possession of even a person in unlawful possession cannot be disturbed ‘forcibly’ by the true owner taking law in his own hands. All these expressions however mean the same thing ejectment from settled possession can only be had by recourse to a court of law. Clearly ‘due process of law’ or ‘due course of law’ here CM416 2019 that a person simply mean in settled possession cannot be ejected without a court of law having adjudicated upon his rights qua the true owner. Now this ‘due process’ or ‘due course’ condition is satisfied the moment the rights of the parties are adjudicated upon by a court of competent jurisdiction. It does not matter who brought the action to court. It could be the owner in an action for enforcement of his right to eject the person in unlawful possession. It could be the person who is sought to be ejected in an action preventing the owner from ejecting him. Whether the action is for enforcement of a right or protection of a right is not of much consequence. What is important is that in either event it is an action before the court and the court adjudicates upon it. If that is done then the ‘bare minimum’ process’ or ‘due course’ of law would stand satisfied as recourse to law would have been taken. In this context when a party approaches court seeking a protective remedy such as an injunction and it fails in setting up a good case can it then say that the other party must now institute an action in a court of law for enforcing his rights i.e. for taking back something from the first party who holds it unlawfully and till such time the court hearing the injunction action must grant an injunction anyway I would think not. In any event the ‘recourse to law’ stipulation stands satisfied when a judicial determination is made with regard to the first party’s protective action. Thus in the requirement of CM416 2019 present case the Plaintiff’s failure to make out of a case for an injunction does not mean that its consequent cessation of user of the said two rooms would have been brought about without recourse to law.” 59. The issue as to what constitutes ‘due process’ is thus settled beyond any doubt. The Plaintiff who is claiming possession can be dispossessed in the suit for injunction filed by him. Due process does not always mean that the owner has to file the suit to prove his title. So long as a Court of law has examined the documents and has given a fair hearing to the parties concerned the compliance of due process has taken place. Moreover due process of law also does not mean the final adjudication after trial. It merely means an opportunity being given to present the case before the Court of law and the rights of the parties being adjudicated. It does not mean the whole trial as per Maria Margaridais to the effect that if a party is in settled possession his possession cannot be disturbed without due process of law being followed. The said case related to a private land in dispute between two private parties. The lands of the Plaintiff and the Defendant were adjoining in nature and there was a dispute as to the demarcation thereof. Since the identification and extent of the land itself was in doubt the Court in order to protect the Plaintiff held that the owner would have to assert his title in an independent suit. The facts of the said case cannot be compared to the facts of the present case to permit an encroacher and illegal occupant to retain possession of the suit property. 61. The plea of adverse possession though pleaded in the plaint has been given up in the present petition and only settled possession is argued. The CM416 2019 question as to whether the Plaintiff is in settled possession or not in terms of the test laid down in Puran Singh need not be gone into in the present case inasmuch as the fact that the Plaintiff is in possession in whatsoever capacity to the knowledge of the authorities is clear from the khasra girdawari itself. The person in settled possession cannot continue to remain in possession forever. Once a Court of law has arrived at the conclusion that the person in possession has no rights the possession can be taken away. The Trial Court has not merely relied upon Jagpal Singh supra) but also considered various judgments of the Supreme Court including Rame Gowda and Maria Margarida which is per incuriam is without any merit. 62. Several judgments on various propositions have been cited which according to the Court do not require any consideration in the present case. The main question to be determined is whether the Plaintiff who is in settled possession can be dispossessed in an application under Order XXXIX Rules 1 & 2 CPC. The answer is a clear yes. 63. Insofar as the Shamlat Deh land is concerned the Plaintiff cannot claim any rights in the same as the same vests for the common interest of the villagers. This Court agrees with the stand of the DDA that the land has been urbanised and once urbanization takes place the village owners have no rights. 64. The plea that the suit itself is not maintainable due to absence of the relief of declaration in view of the judgment of the Supreme Court in Anathula Sudhakar is not being gone into in this petition. The CM416 2019 DDA is permitted to raise this plea before the Trial Court at the appropriate stage. In this petition only the application under Order 39 Rules 1 & 2 CPC is being considered. 65. Mr. Bansal further submits that Kathputli Colony is one of the first Public Private Partnershipmodel for redevelopment which is taking place for providing alternative accommodation to the dwellers in the colony. More than 3000 dwellers have been moved out from there and that land which is the subject matter of the suit is situated in a very crucial position as also in effect acting as a hindrance in the implementation of the project itself. 66. Though the land in question was vested in the DDA several years ago the DDA is yet to obtain possession of the land. An important developmental project has been derailed because of the present litigation as the DDA continues to make valiant attempts to obtain possession in accordance with law. The photographs in the present case are extremely revealing. The mandir constitutes a miniscule portion of the entire land which has various commercial shops and residences. The case of the DDA is that the Plaintiff is earning huge revenues by collecting rent from these occupants however this Court does not see the need to go into this aspect. Clearly the Plaintiff or anyone occupying or claiming rights through the Plaintiff does not have any right to continue to remain in possession of the suit property. Ld. counsel for the DDA has submitted that an alternative accommodation has been given to the dwellers in the colony. It is for the DDA to ensure that the same is provided to everyone in occupation in accordance with its policy. 67. Finally this Court expresses grave concern over the fact that public CM416 2019 land is sought to be encroached upon under the shelter of a place of worship. As is seen in a large number of cases rights are claimed by parties under the garb of temples or other places of worship located on government land. This trend has been repeatedly frowned upon by the Supreme Court and other courts. The Supreme Court in its judgment in Union of India v. State of Gujarat & Ors. 14 SCC 62 has in fact taken cognizance of this menace and directed State Governments and Union Territories to review the situation and take appropriate action in an expeditious manner. The relevant extract of the judgment reads as under: “5. As an interim measure we direct that henceforth no unauthorised construction shall be carried out or permitted in the name of temple church mosque or gurdwara etc. on public streets public parks or other public places etc. In respect of the unauthorised construction of religious nature which has already taken place the State Governments and the Union Territories shall review the same on case to case basis and take appropriate steps as expeditiously as possible.” 68. Such attempts by unscrupulous parties ought to be discouraged inasmuch as the occupants under the garb of a place of worship turn the land into a completely unplanned encroachment by hundreds of people. The authorities have an obligation to ensure that in public land places of worship are not created in this manner. Moreover in the present case an infrastructure project is being completely crippled due to the pendency of this litigation. This would be contrary to even public interest. 69. The land being public land the Plaintiff is not entitled to any relief. CM416 2019 The petition is dismissed with costs of Rs.1 lakh to be deposited by the Plaintiff with the High Court of Delhi Legal Aid Society. All pending applications are also disposed of. DECEMBER 18 2020 PRATHIBA M. SINGH J. CM416 2019

The demand of illegal gratification is sine qua non to constitute the offence and mere recovery of currency notes cannot constitute the offence under Section 7 : The High Court of Chhattisgarh

In a case of illegal gratification, there are three essential ingredients to constitute the offence. They are (i) demand, (ii) acceptance and (iii) recovery.  The aforesaid has been established by the High Court of Chhattisgarh while adjudicating the case of Bhimendra Kumar Verma v. State of Chhattisgarh [Criminal Appeal No.1367 of 2019] which was decided upon by a single judge bench comprising Justice Arvind Singh Chandel on 18th October 2021. The brief facts of the case are as follows. Complainant Devendra Kumar Choudhary (PW1) had not supported the case of the prosecution and turned hostile. With regard to the initial demand also, he has not supported the case of the prosecution. The transcription (Ex.P4) also does not contain any demand of bribe. Therefore, the initial demand was not established. With regard to demand of bribe at the time of trap also, no shadow witness is available in this case. Complainant Devendra Kumar Choudhary (PW1) himself had not supported the case of the prosecution on this point also. The transcription 15does not show that at the time of trap also, the Appellant made any demand for bribe from the Complainant. From the evidence adduced by the prosecution, it is clear that in the personal search of the Appellant, no tainted money was recovered from him. The tainted money was recovered from the drawer of the table. As per the statement of Complainant Devendra Kumar Choudhary (PW1), he had kept the tainted money in the drawer of the table without the knowledge of the Appellant. On being told by this witness that the tainted money was kept in the drawer of the table, the Appellant, after being pressurised by the Anti-Corruption Bureau officials, took out the tainted money from the said drawer of the table and handed over the same to them. The court perused the facts and arguments presented. It was hence of the opinion that “if on dipping of the hands of the Appellant in a solution of sodium carbonate colour of that solution turned into pink, that does not help the case of the prosecution. Thus, from the entire evidence adduced by the prosecution in this case, in my considered view, both demand and acceptance of bribe money are not proved. Therefore, conviction of the Appellant is not sustainable. He is entitled to get benefit of doubt. 18. In the result, the appeal is allowed. The conviction and sentence imposed upon the Appellant are set aside and he is acquitted of all the charges framed against him.”

NAFRHIGH COURT OF CHHATTISGARH BILASPURCriminal Appeal No.13619Judgment Reserved on : 22.9 . 2021 Judgment Delivered on : 18.10.2021Bhimendra Kumar Verma son of Late Udayram Verma aged about 47 yearspresently residing at Village Jaamgaon Police StationPatanDistrict Durg Chhattisgarh Appellantversus State of Chhattisgarh through Station House Officer Anti Corruption BureauRaipur District Raipur Chhattisgarh Respondent For Appellant : Shri Kashif Shakeel AdvocateFor Respondent : Shri Ghanshyam Patel Government Advocate Hon ble Shri Justice Arvind Singh ChandelC.A.V. JUDGMENT1.This appeal has been preferred against judgment dated 30.8.2019passed by the Special Judge under the Prevention of CorruptionAct 1988and 8th Additional SessionsJudge Raipur in Special Sessions Trial No.3116 wherebythe Appellant has been convicted and sentenced as under: ConvictionSentenceUnder Section 7 of the PCAct Rigorous Imprisonment for 3years and fine of Rs.5 000 with default stipulationUnder Section 13(1)(d)read with Section 13(2) ofthe PC Act Rigorous Imprisonment for 3years and fine of Rs.5 000 with default stipulationBoth the jail sentences aredirected to run concurrently 22.Case of the prosecution in short is that at the relevant time theAppellant was posted as a Sub Engineer in Zone No.5 of RaipurMunicipal Corporation. Complainant Devendra Kumar Choudhary(PW1) was having a plot measuring 1650 Sq.Ft. by the side of theroad in Changorabhatha Raipur. For widening of the road someportion of his plot was acquired. In the remaining part of the plotmeasuring 1211 Sq.Ft. for commercial construction of 455 Sq.Ft.at the ground floor and for construction of commercial office andresidence total in 500 Sq.Ft. at the first floor he had obtained duepermission from the Municipal Corporation but he had not startedthe construction. Thereafter changing the previous plan ofconstructions he submitted a new application for construction of aparking in the ground floor and for construction of commercialbuilding in remaining floors. For the said purposes when he metwith the Appellant he demanded bribe of Rs.5 000. Since theComplainant did not want to give the bribe on 13.7.2009 hesubmitted a written complaintto the Superintendent ofPolice Anti Corruption Bureau Raipur. For confirmation he wasgiven a micro cassette tape recorder along with a cassette forrecording of the conversation. On 15.7.2009 he again met with theAppellant and recorded their conversation in the said tape recorder.On 17.7.2009 he went to the office of Superintendent of Police Anti Corruption Bureau and submitted the tape recorder along withthe recorded cassette and also submitted his second writtencomplaintof the conversation was prepared. TheComplainant submitted 10 currency notes in the denomination ofRs.500 total Rs.5 000 for giving to the Appellant as bribe. Theirnumbers were noted and a panchnama thereof was prepared. Atrap proceeding was demonstrated to the Complainant and thepanch witnesses. The Complainant was again given a microcassette tape recorder along with a cassette for recordingconversation to be taken between the Complainant and theAppellant at the time of giving bribe. Thereafter the trap party wentto the office of the Appellant. The Complainant alone went insidethe office of the Appellant. After some time he came out of theoffice and gave a signal to the trap party. The trap party wentinside the office of the Appellant where his hands were caught andon being asked he told that the tainted money was kept in thedrawer of the table. Numbers of the tainted currency notes werecompared with the numbers already recorded in the preliminarypanchnama. The numbers matched. Hands of the Appellant andthe recovered tainted currency notes were dipped into differentsolutions of sodium carbonate on which their colour turned intopink. On completion of the investigation and after obtainingsanction for prosecution a charge sheet was filed against theAppellant. Charges were framed against him by the Trial Court. 3.To bring home the offence the prosecution examined as many as12 witnesses. Statement of the Appellant was also recorded underSection 313 of the Code of Criminal Procedure in which he deniedthe guilt pleaded innocence and false implication. No witness hasbeen examined by the Appellant in his defence. 44.On completion of the trial the Trial Court convicted and sentencedthe Appellant as mentioned in 1st paragraph of this judgment.Hence this appeal. 5.Learned Counsel appearing for the Appellant submitted that theTrial Court has wrongly convicted the Appellant. It was argued thatboth the demand and the acceptance of bribe money by theAppellant are not proved in this case. Complainant DevendraKumar Choudharyhas not supported the case of theprosecution and turned hostile. He categorically admitted that henever met with the Appellant nor did the Appellant ever make anydemand for bribe from him. According to this witness his brotherVijay used to go to the office of the Municipal Corporation and thedemand of money was made from him. This witness furtheradmitted that on submission of the amended plan and map for theconstructions Vijay was asked to deposit fresh fees for obtainingdue permission. Since according to the Complainant necessaryfees was already deposited but demand for deposit of fees wasagain made he went to the office of Anti Corruption Bureau andmade the complaint. It was further argued that as stated by theComplainant at the time of trap also the Appellant had not madeany demand nor did he accept any money from him as bribe and hehimself without the knowledge of the Appellant kept the money inthe drawer of the table and that money on being asked by the trapparty was taken out by the Appellant from the drawer. Therefore even acceptance of bribe is not established. In the transcriptions(Ex.P4 and P9) also there is no demand of bribe by the Appellant.Therefore if any amount has been recovered from the Appellant on 5being taken out by him from the drawer of the table the offencealleged against him is not proved. It was further argued that thesanction for prosecution has been accorded mechanically withoutexamining the documents and evidence and therefore theconviction of the Appellant is not sustainable. Reliance was placedupon13 SCC 55(2015) 10 SCC 152(2016) 3 SCC 108and3 SCC 687demand acceptance and(iii) recovery. 10.In B. Jayaraj caseit was held by the Supreme Court asunder: “7.Insofar as the offence under Section 7 is concerned it is a settled position in law that demand of illegal gratificationis sine qua non to constitute the said offence and mere recovery 6of currency notes cannot constitute the offence under Section 7unless it is proved beyond all reasonable doubt that the accusedvoluntarily accepted the money knowing it to be a bribe. Theabove position has been succinctly laid down in severaljudgments of this Court. By way of illustration reference may bemade to the decision in C.M. Sharma v. State of A.P. 15SCC 1 and C.M. Girish Babu v. CBI 3 SCC 779.8.In the present case the complainant did not supportthe prosecution case insofar as demand by the accused isconcerned. The prosecution has not examined any other witness present at the time when the money was allegedly handed over tothe accused by the complainant to prove that the same waspursuant to any demand made by the accused. When thecomplainant himself had disowned what he had stated in theinitial complaintbefore LW 9 and there is no otherevidence to prove that the accused had made any demand theevidence of PW 1 and the contents of Ext. P 11 cannot be reliedupon to come to the conclusion that the above material furnishesproof of the demand allegedly made by the accused. We are therefore inclined to hold that the learned trial court as well asthe High Court was not correct in holding the demand alleged tobe made by the accused as proved. The only other materialavailable is the recovery of the tainted currency notes from thepossession of the accused. In fact such possession is admitted bythe accused himself. Mere possession and recovery of thecurrency notes from the accused without proof of demand willnot bring home the offence under Section 7. The above also willbe conclusive insofar as the offence under Sections 13(1)(d)(i)andis concerned as in the absence of any proof of demandfor illegal gratification the use of corrupt or illegal means orabuse of position as a public servant to obtain any valuable thingor pecuniary advantage cannot be held to be established.9.Insofar as the presumption permissible to be drawnunder Section 20 of the Act is concerned such presumption canonly be in respect of the offence under Section 7 and not theoffences under Sections 13(1)(d)(i) andof the Act. In anyevent it is only on proof of acceptance of illegal gratificationthat presumption can be drawn under Section 20 of the Act thatsuch gratification was received for doing or forbearing to do anyofficial act. Proof of acceptance of illegal gratification canfollow only if there is proof of demand. As the same is lackingin the present case the primary facts on the basis of which thelegal presumption under Section 20 can be drawn are whollyabsent.” 711.Further in P. Satyanarayana Murthy casethe SupremeCourt held as follows: “22.In a recent enunciation by this Court to discern theimperative prerequisites of Sections 7 and 13 of the Act it hasbeen underlined in B. Jayaraj v. State of A.P. 13 SCC55 in unequivocal terms that mere possession and recovery ofcurrency notes from an accused without proof of demand wouldnot establish an offence under Section 7 as well as Sections13(1)(d)(i) andof the Act. It has been propounded that inthe absence of any proof of demand for illegal gratification theuse of corrupt or illegal means or abuse of position as a publicservant to obtain any valuable thing or pecuniary advantagecannot be held to be proved. The proof of demand thus hasbeen held to be an indispensable essentiality and of permeatingmandate for an offence under Sections 7 and 13 of the Act. QuaSection 20 of the Act which permits a presumption asenvisaged therein it has been held that while it is extendableonly to an offence under Section 7 and not to those underSections 13(1)(d)(i) andof the Act it is contingent as wellon the proof of acceptance of illegal gratification for doing orforbearing to do any official act. Such proof of acceptance ofillegal gratification it was emphasised could follow only ifthere was proof of demand. Axiomatically it was held that inabsence of proof of demand such legal presumption underSection 20 of the Act would also not arise.23.The proof of demand of illegal gratification thus isthe gravamen of the offence under Sections 7 and 13(1)(d)(i)andof the Act and in absence thereof unmistakably thecharge therefor would fail. Mere acceptance of any amountallegedly by way of illegal gratification or recovery thereof dehors the proof of demand ipso facto would thus not besufficient to bring home the charge under these two sections ofthe Act. As a corollary failure of the prosecution to prove thedemand for illegal gratification would be fatal and mererecovery of the amount from the person accused of the offenceunder Section 7 or 13 of the Act would not entail his convictionthereunder.” 12.Again in Krishan Chander caseit was held by theSupreme Court thus: 8“35.It is well settled position of law that the demand forthe bribe money is sine qua non to convict the accused for theoffences punishable under Sections 7 and 13(1)(d) read withSection 13(2) of the PC Act. The same legal principle has beenheld by this Court in B. Jayaraj v. State of A.P. 13 SCC55 A. Subair v. State of Kerala 6 SCC 587 and P.Satyanarayana Murthy v. State of A.P. 10 SCC 152upon which reliance is rightly placed by the learned SeniorCounsel on behalf of the appellant.” In paragraph 39 it was further held by the Supreme Court thus: “39.In view of the aforesaid reasons the approach ofboth the trial court and the High Court in the case is erroneousas both the courts have relied upon the evidence of theprosecution on the aspect of demand of illegal gratification fromthe complainant Jai Bhagwanby the appellant thoughthere is no substantive evidence in this regard and the appellantwas erroneously convicted for the charges framed against him.The prosecution has failed to prove the factum of demand ofbribe money made by the appellant from the complainant JaiBhagwanwhich is the sine qua non for convicting himfor the offences punishable under Sections 7 and 13(1)(d) readwith Section 13(2) of the PC Act. Thus the impugned judgmentand orderof the High Court is not only erroneous butalso suffers from error in law and therefore liable to be setaside.”13.In N. Vijayakumar caseit was held by the Supreme Courtas follows: “26.It is equally well settled that mere recovery by itselfcannot prove the charge of the prosecution against the accused.Reference can be made to the judgments of this Court in C.M.Girish Babu v. CBI 3 SCC 779 and in B. Jayaraj v.State of A.P. 13 SCC 55. In the aforesaid judgments ofthis Court while considering the case under Sections 7 13(1)(d)(i) andof the Prevention of Corruption Act 1988 it isreiterated that to prove the charge it has to be proved beyondreasonable doubt that the accused voluntarily accepted moneyknowing it to be bribe. Absence of proof of demand for illegalgratification and mere possession or recovery of currency notes 9is not sufficient to constitute such offence. In the saidjudgments it is also held that even the presumption underSection 20 of the Act can be drawn only after demand for andacceptance of illegal gratification is proved. It is also fairly wellsettled that initial presumption of innocence in the criminaljurisprudence gets doubled by acquittal recorded by the trialcourt.27.The relevant paras 7 8 and 9 of the judgment in B.Jayaraj v. State of A.P. 13 SCC 55 read as under:15 SCC 1 and C.M.Girish Babu v. CBI 3 SCC 779.8.In the present case the complainantdid not support the prosecution case insofar asdemand by the accused is concerned. Theprosecution has not examined any otherwitness present at the time when the moneywas allegedly handed over to the accused bythe complainant to prove that the same waspursuant to any demand made by the accused.When the complainant himself had disownedwhat he had stated in the initial complaint(Ext.P 11) before LW9 and there is no otherevidence to prove that the accused had madeany demand the evidence of PW1 and thecontents of Ext. P 11 cannot be relied upon tocome to the conclusion that the above materialfurnishes proof of the demand allegedly madeby the accused. We are therefore inclined tohold that the learned trial court as well as theHigh Court was not correct in holding the 10demand alleged to be made by the accused asproved. The only other material available isthe recovery of the tainted currency notes fromthe possession of the accused. In fact suchpossession is admitted by the accused himself.Mere possession and recovery of the currencynotes from the accused without proof ofdemand will not bring home the offence underSection 7. The above also will be conclusiveinsofar as the offence under Sections 13(1)(d)(i) andis concerned as in the absence ofany proof of demand for illegal gratification the use of corrupt or illegal means or abuse ofposition as a public servant to obtain anyvaluable thing or pecuniary advantage cannotbe held to be established.9.Insofar as the presumption permissibleto be drawn under Section 20 of the Act isconcerned such presumption can only be inrespect of the offence under Section 7 and notthe offences under Sections 13(1)(d)(i) andof the High Courtis fit to be set aside. Before recording conviction under theprovisions of the Prevention of Corruption Act the courts haveto take utmost care in scanning the evidence. Once conviction is 11recorded under the provisions of the Prevention of CorruptionAct it casts a social stigma on the person in the society apartfrom serious consequences on the service rendered. At the sametime it is also to be noted that whether the view taken by the trialcourt is a possible view or not there cannot be any definiteproposition and each case has to be judged on its own merits having regard to evidence on record.”14.In the light of above view taken by the Supreme Court I shallexamine the statements of witnesses of the present case. In theinstant case Complainant Devendra Kumar Choudharyhasnot supported the case of the prosecution and turned hostile. Asregards the incident in his Court statement it is deposed byComplainant Devendra Kumar Choudharythat for obtainingbuilding construction permission he had submitted an application inthe prescribed proforma and for seeking information in that regardhe had been sending his brother Vijay to the office of the MunicipalCorporation. According to this witness Vijay had been telling himthat the Appellant was making demand of Rs.5 000. On this hehimself met with the Appellant. The Appellant demanded Rs.5 000from him. On this he went to the office of the Anti CorruptionBureau and submitted the written complaintin the office of the Anti Corruption Bureau or not is not 12recollected to him. With regard to the trap proceeding this witnessdeposed that at the time of trap he alone had gone inside the officeof the Appellant. There a talk took place between him and theAppellant and he took out the tainted money from his pocket andkept the same in the drawer of the table placed there. Thereafter the trap party entered the office of the Appellant and caught theAppellant. In paragraphs 17 and 18 of his examination this witnesscategorically deposed that the written complaintsof the conversation there is nodemand of bribe from the Complainant. In this regard panchwitness Abhinav Shrivastavaand Investigating Officer S.S.Bhagatadmitted the fact that the transcriptiondoesnot contain anything regarding demand of bribe. With regard to thetranscriptionalso S.S. Bhagatfurther admitted thatthe transcriptiondoes not contain anything to show that anydemand of bribe was made by the Appellant for doing the work ofthe Complainant. 16.It is not in dispute that the tainted money was not recovered in thepersonal search of the Appellant but it was recovered from adrawer of the table placed in his office. As deposed byComplainant Devendra Kumar Choudharyon beingpressurised by the Anti Corruption Bureau officials the Appellant 14took out the tainted money from the drawer of the table and handedover the same to them. Whereas according to the case ofprosecution the tainted money was taken out from the said drawerof the table by panch witness Moinuddindeposed that at the time of trap proceeding he carried out the work of dipping of hands and tainted money indifferent solutions of sodium carbonate vide Ex.P19. From perusalof Ex.P19 it reveals that panch witness Moinuddin who had takenout the tainted money from the drawer of the table had dipped hishands into a solution of sodium carbonate but colour of thatsolution had not turned into pink. Therefore the case of theprosecution that panch witness Moinuddin had taken out the taintedmoney from the drawer of the table is not established. Hence there appears substance in the statement of ComplainantDevendra Kumar Choudharythat on being pressurised bythe Anti Corruption Bureau officials the Appellant had taken out thetainted money from the drawer of the table. 17.On a minute examination of the above evidence it is clear thatComplainant Devendra Kumar Choudharyhas notsupported the case of the prosecution and turned hostile. Withregard to the initial demand also he has not supported the case ofthe prosecution. The transcriptionalso does not containany demand of bribe. Therefore the initial demand is notestablished. With regard to demand of bribe at the time of trapalso no shadow witness is available in this case. ComplainantDevendra Kumar Choudharyhimself has not supported thecase of the prosecution on this point also. The transcription 15(Ex.P9) does not show that at the time of trap also the Appellantmade any demand for bribe from the Complainant. From theevidence adduced by the prosecution it is clear that in the personalsearch of the Appellant no tainted money was recovered from him.The tainted money was recovered from the drawer of the table. Asper the statement of Complainant Devendra Kumar Choudhary(PW1) he had kept the tainted money in the drawer of the tablewithout the knowledge of the Appellant. On being told by thiswitness that the tainted money was kept in the drawer of the table the Appellant after being pressurised by the Anti CorruptionBureau officials took out the tainted money from the said drawer ofthe table and handed over the same to them. Therefore if ondipping of the hands of the Appellant in a solution of sodiumcarbonate colour of that solution turned into pink that does not helpthe case of the prosecution. Thus from the entire evidenceadduced by the prosecution in this case in my considered view both demand and acceptance of bribe money are not proved.Therefore conviction of the Appellant is not sustainable. He isentitled to get benefit of doubt. 18.In the result the appeal is allowed. The conviction and sentenceimposed upon the Appellant are set aside and he is acquitted of allthe charges framed against him. Sd JUDGE Gopal

Court finds substance to reduce the substantive sentence inflicted on the appellant : High Court of Delhi

The instant appeal has been filed under section 374 of the Code of Criminal Procedure Code, 1973.”) by the appellant against the judgment of conviction dated 15th January, 2016 passed by learned Additional Sessions Judge-01, North District, Rohini, Delhi (hereinafter “learned ASJ”) in Session Case (SC) No. 39/2015, wherein Appellant/Accused was convicted for the offences punishable under sections 323/506(II)/377 of the Indian Penal Code, 1860 (hereinafter “IPC”) and under Section 6 of the Protection of Children from Sexual Offences Act, 2012 (hereinafter “POCSO Act”) was held by the HIGH COURT of DELHI led by HON’BLE MR. JUSTICE CHANDRA DHARI SINGH in the case of LAXMAN @ LUCKY vs. STATE (CRL.A. 321/2016) on 04th March, 2022. Brief facts of the case are that a FIR was lodged against the Appellant/Accused by the father of the victim. As per the FIR, on 5th January, 2015 Complainant’s son aged about 10 years disclosed him that on the very same day around 4:00 P.M. Appellant/Accused, i.e., Laxman took the victim to the NALA, near DESU Colony, Rana Pratap Bagh, Delhi and committed Sodomy(unnatural sexual act) and threatened him not to tell the incident to anybody otherwise he would kill him. On the said complaint instant FIR was lodged and the Appellant/Accused was arrested on the same day, i.e., on 5 th January, 2015. Learned ASJ recorded statement of the Appellant/Accused prescribed under Section 313 (1) (b) of the Cr.P.C. Upon conclusion of the Trial in Sessions Case No. 39/2015, the learned ASJ vide impugned judgment dated 15th January 2016, has convicted the Appellant/Accused for the offences punishable under Sections 323/506(II)/377 of the IPC and Section 6 of POCSO Act, and vide order dated 28th January 2016 The learned counsel for the Appellant/Accused submitted that the learned Trial Court failed to appreciate the oral and circumstantial evidence(s) on record in its proper perspective and committed error by taking adverse inference against the accused, in regard to charges framed against him. Learned counsel further submitted that there is delay in lodging the FIR as the incident of sodomy happened on 15th August, 2014, however, the present complaint was lodged on 5th January 2015. The delay in lodging the FIR has not been explained by the complainant. It is also submitted that there is no medical report of the victim on record showing any sodomy. It is further submitted that the father of victim had himself denied medical examination of his son. Therefore, these facts are sufficient to create doubt over the allegations. The counsel on behalf of the accused submitted that there is not a single witness to prove that whether such incident had ever happened. Alternatively, learned counsel for the Appellant/Accused submitted that the Appellant/Accused was arrested on 5th January 2015, and since then he is languishing in jail and has already completed about 7 years; the Appellant/Accused was about 21 years young boy on the date of the incident; his conduct in jail is found to be satisfactory in the nominal roll. Therefore, keeping in view his young age as well as the financial condition, it is prayed that his sentence may be reduced for the period already undergone. Learned Asst. Public Prosecutor raised objection to the contentions propounded on behalf of the Appellant/Accused and submitted that the evidence on record squarely proved that victim was minor at the time of commission of crime; the appellant has committed sodomy on the victim; and all prosecution witnesses, exhibited documents and other circumstantial evidence(s) have proved the case of the prosecution beyond reasonable doubt. Therefore, the findings of the Trial Court do not warrant any interference. The court held that the accused has committed sodomy on the minor victim, therefore he is guilty for the offence punishable under section 377 of the IPC and section 6 of the POCSO Act. As per the nominal roll of 2nd December, 2021 the conduct of the Appellant/Accused is found satisfactory in the custody and there is no other criminal case pending against him, the court has reduced the sentence inflicted on the Appellant/Accused. Court is of the opinion that the interest of justice would met if the substantive sentence imposed upon the appellant/accused is reduced to the period already undergone by him.

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

If the nature of injury renders a person 100% disable of his vocational capacity, then in such case it would be considered as a permanent disability: Chhattisgarh High Court.

Any form of disability which prevents a person from performing his duty as he used to do prior would be treated as 100% disability in his/her vocational capacity. This requires insurance companies to follow their clauses accordingly. This was decreed by Hon’ble Shri Justice Goutam Bhaduri in the case of Yaduvir Singh Bisht Vs. National Insurance Company Limited and Ors. [WPC No. 1647 of 2013] on the 02nd of July 2021 at the Hon’ble High Court of Chhattisgarh, Bilaspur. The brief facts of the case are, the petitioner who is a sub-inspector was discharging his duties in the coming operation at the forest and at that time of incident he stepped over a pressure bomb and as a result he sustained grievous injuries on his right leg and elbow. He was hospitalised and treated and disability to the extent of 45% was assessed by the medical officers. The state government to protect and encourage its employees had entered into a memorandum of understanding with the insurance company. as per the policy in case of loss of limb, eye or ear he was to be given an assured sum of Rs.5 Lakhs in which the petitioner falls. It was submitted that the insurance company did not release the said amount even after repeated letters by the director general of police. A legal notice was sent as well but remained unresponded. Thus, in hope of remedy, the petitioners have filed the present petition. The counsel for the insurance company submitted that the, petitioner was not entitled for any relief to get a claim of Rs.5 Lakhs instead he was entitled for Rs.1 Lakh as according to the MoU the nature of injury which the petitioner had sustained would fall within the ambit of permanent loss/damage of part or body. Therefore, the petitioner is entitled to receive Rs. 1 Lakh. He would further submit that the medical certificate only says about 45% disability. Consequently, the claim of the petitioner to the extent of Rs.5 Lakh as has been recommended by the State Government cannot sustain. However, the counsel for the petitioner said that, the loss of a body part is relate to the occupation of the injured and the loss of limb herein in this case has rendered the petitioner incapable to perform the same job in future up till he retired besides the mental and physical agony. Therefore, the National Insurance Company be directed to release the amount of Rs.5 Lakhs as per the terms and conditions of the policy.

1AFRHIGH COURT OF CHHATTISGARH BILASPUR WPC No. 16413Ex.S.I.(GD) Yaduvir Singh BishtS o Late Balwant Singh Bisht AgedAbout 63 Years No. 710240216 BN 55 CRPF R o RZ C 2 134 D MahabirEnclave Part 1 Street No.4 New Delhi 110045 Petitioner Versus 1.National Insurance Company Limited Through Divisional Manager DivisionalOffice 14 Sterling Cinema Building 2nd Floor 65 Murzban Street Mumbai 4000012.State Of Chhattisgarh Through Secretary Home Department Bilaspur C.G.3.The Director General Of Police Police Headquarter Raipur C.G.4.The Superintendent Of Police South Buster Dantewada C.G. RespondentsFor Petitioner:Ms. Trishna Das Advocate For Respondent No.1:Shri Dashrath Gupta Advocate For Respondents State:Ms. Astha Shukla PLHon ble Shri Justice Goutam BhaduriOrder02 07 20 211.Heard.2.The instant petition is for release of the amount of Rs.5 Lakhs against theinsurance claim in lieu of the compensation to the petitioner on account of thefact that the petitioner while performing his duties in Bomb Detection & DisposalSquad suffered injuries because of land mine blast on 15.02.2007. Therefore 2as per the Memorandum of Understandingof the State Government withthe National Insurance Company Limited the petitioner since has suffered thepermanent disability to the extent of 45% of his leg resulting into completeinability to perform the vocation was entitled to get the claim of Rs.5 Lakhs.3.Learned counsel for the petitioner would submit that the petitioner wasdischarging his duties in the combing operation at forest and at that time ofincident he stepped over a pressure bomb at Dantewada as a result hesustained grievous injuries on his right leg and elbow and becameunconscious. She would further submit that subsequently he was hospitalizedand was treated at the end of recovery disability to the extent of 45% wasassessed by the medical officers. She would further submit that since the jobwas hazardous as such the State Government to protect and encourage theemployee in the like situation entered into a Memorandum of Understanding(MoU) with the insurance company. The said MoU was effective in the State ofChhattisgarh for naxallite related violence and as per the policy in case of lossof limb eye or ear he was to be given an assured sum of Rs.5 Lakhs in whichthe petitioner falls. It is stated that the Director General of Police and theauthorities recommended for release of the said amount of Rs.5 Lakhs byrepeated letters but eventually the said amount was not paid by the insurancecompany. The legal notice by the counsel was also sent but it wasunresponded therefore eventually this petition has been filed. Reference isalso made to the law laid down by the Supreme Court in the case of ChanappaNagappa Muchalagoda V. Divisional Manager New India InsuranceCompany Limited {AIR 2020 SC 166} to draw an analogy that the loss of body 3part would have a nexus with the vocation and the loss of limb herein in thiscase has rendered the petitioner incapable to perform the same job in futureuptill he retired besides the mental and physical agony. Therefore the NationalInsurance Company be directed to release the amount of Rs.5 Lakhs as per theterms and conditions of the policy. 4.According to the State the petitioner was an ex service man before beingsuperannuated and worked as Sub Inspector in CRPF and while he was postedin District Dantewada Camp Aranpur which is a Naxallite area of districtDantewada. On 15.02.2007 a patrolling party proceeded for area dominationand searching and when they were returning back to the camp Aranpur apressure bomb exploded and the petitioner who was working under the BombDisposal Squad was injured and the pressure bomb was dug out after searchand a report to this effect was registered as F.I.R. No.0 2007 dated 05.02.2007at P.S. Camp Aranpur District Dantewada. As per the State in order to boostthe moral of the employees officers deployed in naxallite area a policy decisionwas taken and therefore a MoU was entered in between the State ofChhattisgarh and National Insurance Company and while the incidenthappened in view of the MoU which was in operation and clause 8 thereofpurports that after submission of the relevant claim documents the claim wouldbe settled as early as possible within one month.5.It is further submitted by the State that upon the injured petitioner making aclaim before the State authorities the letter was first sent to the DivisionalManager on 02.04.2011 along with all relevant documents i.e. the claim of theinjured petitioner copy of the F.I.R. copies of the medical certificates etc. but 4nothing happened as such it was followed by another letter dated 24.06.20211followed by letter dated 01.11.2011 and 08.02.2013 and lastly on 21.08.2013 however the amount was not released for which the petitioner is entitled. 6.Learned counsel for the National Insurance Company would submit that thepetitioner was not entitled for any relief to get a claim of Rs.5 Lakhs instead hewas entitled for Rs.1 Lakh as according to the MoU the nature of injury whichthe petitioner had sustained would fall within the ambit of permanentloss damage of part or body. Therefore the petitioner is entitled to receive Rs.1 Lakh. He would further submit that the medical certificate only says about45% disability. Consequently the claim of the petitioner to the extent of Rs.5Lakh as has been recommended by the State Government cannot sustain. 7.I have heard learned counsel for the parties and perused the documents. 8.Admitted facts of this case are that the petitioner while performing his duty inthe naxallite combing operation sustained injury by a pressure bomb. Thepetitioner was working in bomb disposal squad. By such injury he sustained45% permanent disability. State Government in order to boost the moral of theemployee who are engaged in the naxallite operation had entered into an MoUwith National Insurance Company. The entire object to provide the protectiveumbrella to its employees so as to assure the financial support who takes upsuch hazardous and risky job. It is obvious that because of the people likepetitioner are at field discharging their duty under such life threateningcondition the general people in urban area takes pleasant sleep including theofficers of National Insurance Company. It is because of people like the 5petitioner who are performing their duty the naxallite operations are fenced toparticular area and not allowed to spread over State. The State Governmenttherefore to encourage and boost the moral of its force had entered into anMoU with Insurance Company to strike a balance of human loss & bodily injuryand to mitigate it by other way of support. 9.The MoU for the particular subject which is on record between the StateGovernment and the National Insurance Company the relevant clause thereof isreproduced hereinunder: “1 The insurance policy will cover the police personnel engaged in theNaxal affected area of the State of Chhattisgarh.2 This policy will be effective any where in the State of Chhattisgarh for Naxalrelated violence.4 All claim amount will be similar for all irrespective of rank.6 Benefits under the policy are as under:1Death 100% of Sum InsuredRs. 10 00 000.00 2Permanent Disability 100% of Sum InsuredRs. 10 00 000.003Loss of Two Limbs or Two Eyesor Two Ears. 100% of Sum InsuredRs. 10 00 000.004Loss of one Limb or one eye orone ear. 50% of Sum Insured Rs. 5 00 000.00 5Permanent Loss damage of anypart of the body. 10% of Sum Insured Rs. 1 00 000.00 6In case of hospitalization due toinjury Lump sum payment of Rs.10 000 per week subject to amaximum of Rs. 20 000 Rs. 20 000.00 7Children EducationCompensation on death of thepolice person. Rs. 25 000.008 After submission of relevant claim documents as specified above claimshall be settled as early as possible within one month. 610.The petitioner who now stands superannuated sustained permanent bodilyinjury. His medical certificate disability certificate is reproduced hereinunder: “DISABILITY CERTIFICATEDistrict Medical Board: JagdalpurCertificate No. 240 Date: 17 09 07(Recent attested photograph showing thedisability affixed here) CERTIFICATE FOR THE PERSONS WITH DISABILITIESThis is to certify that Shri Y. S. Bisht Son of Shri Balwant SingghBisht Age: 56 years old male Registration No. 55BN CRPF JD CrossRestriction of in case of Maluniled Fracture CaladiumpermanentSouth Bastar Dantewada (C.G.)”11.The return of the State shows that after the examination of the documents theState recommended by its letters dated 02.04.2011 24.06.2011 and01.11.2011 08.02.2013 & 21.08.2013 repeatedly asked the Divisional Manager National Insurance Company to release the amount of Rs.5 Lakhs consideringthe nature of injury.12.As has been laid down by the Supreme Court that the percentage of injury willhave a bearing to the vocational disability if the nature of injury renders a 7person 100% disable of his vocational capacity then in such case it would beconsidered as a permanent disability. The Supreme Court in the case ofChanappa Nagappa Muchalagoda V. Divisional Manager New IndiaInsurance Company Limited {AIR 2020 SC 166} specifically laid down thatwhen an injury rendered a person incapable to do a particular job consideringthe avocation it would deemed to be 100% loss of earning capacity. In theinstant case since the petitioner was working as Sub Inspector under theCRPF in Bomb Detection & Disposal Squad and after he sustained injury afterthe accident the injury would not had allowed him to go for a combing operationwhich requires a particular type of specialized acts during duty. Therefore unless and until the petitioner is fit to the extent of 100% he could not havedischarged the nature of duty which the petitioner was performing.Consequently the injury which caused disablement to the part of the right leg tothe extent of 45% and would render the petitioner not to perform his duty to theextent of aggression as was earlier one it would be deemed to be consideredto be loss of limb. The meaning of loss of limb cannot be given a narrowinterpretation or a definition that computation only would be considered only forloss of limb. It is obvious that in the like nature of incident if a person isexposed to any bomb he would not embrace it get his bodily part amputated tocome under definition of loss of limb to get a higher claim. Therefore theincapacity to perform the vocation to the fullest by petitioner for cause of 45%permanent disability of leg would mean that permanent disability sustained innaxallite operation rendering one unfit to do same job would amount to loss oflimb as per MoU. The benevolent object of MoU cannot be seen in narrowlence only to avoid liability by insurance company. The denial of the claim by 8insurance company will defeat the trust in the system & will impress upon thepeople working in naxallite operation that sword is dangling over them withoutany sense of security. 13.Therefore I am of considered opinion that as per the MoU the petitioner wouldbe entitled to get a sum of Rs.5 Lakhs as insurance claim. The documentswould show that despite the State persuaded the insurance company to releasethe amount to the tune of Rs.5 Lakhs considering the injury sustained by thepetitioner and various letters having written however the insurance companyremained dormant. There is no denial in the reply of the insurance companyalso that the letters written by the State were not received from 2011.Accordingly it is directed that the insurance company shall pay an amount ofRs.5 Lakhs to the petitioner within a period of 45 days from the date of receiptof the copy of this order which shall carry an interest @ 6 % p.a. from January2008.14.Accordingly the writ petition stands allowed. SD Sd Goutam Bhaduri JudgeAshu

Appellant has 8 queries regarding Karvy’s closure cum transfer application: SEBI, Part 1.

The appellate authority under the RTI (Right to Information) Act of the Securities and Exchange Board of India comprising of Mr. Amarjeet Singh adjudicated in the matter of Ashok Kumar Agarwala v CPIO, SEBI, Mumbai (Appeal No. 4365 of 2021) dealt with an issue in connection with Section 2 (f) of the Right to Information Act, 2005. The appellant, Mr Ashok Kumar Agarwala had filed an application via RTI MIS Portal on the 25th of May, 2021 under the Right to Information Act, 2005. The respondent responded to the application by a letter on the 9th of June, 2021, filed by the appellate. After receiving a letter from the respondent on 9th of June, 2021, on his application, the appellate decided to file an appeal on the 9th of July, 2021. In his application the appellant was seeking the following information regarding Karvy’s closure cum transfer application:            

Appeal No. 43621 BEFORE THE APPELLATE AUTHORITY Under the Right to Information Act 2005) SECURITIES AND EXCHANGE BOARD OF INDIA Appeal No. 43621 Ashok Kumar Agarwala CPIO SEBI Mumbai The appellant had filed an application dated May 25 2021under the Right to Information Act 2005 held that “The Commission observes that 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 non available information. 6. Query number 5 The appellant vide query number 5 inter alia sought information regarding action taken against the said TM for their illegal activities of collecting excessive statutory charges from the clients. In response to query number 5 the respondent informed that if any action is taken by SEBI the same would be available in the public domain on the SEBI website. The respondent also provided the link to access the SEBI website for updated information from time to time. It is understood that SEBI conducts examinations investigations confidentially to examine alleged or suspected violations of laws and regulations relating to the securities market. However post investigation whenever violations are established appropriate enforcement actions are taken under provisions of the SEBI Act 1992 and Regulations framed thereunder which culminate in the issuance of orders and the same are available on the SEBI website which is in public domain. I note that the respondent also provided the link to access the SEBI website. In view of the same I do not find any deficiency in the response. 8. Query number 6 The appellant vide query number 6 sought the following information “6. What are the rights of the client in this regard and what action can the client take against such illegal activities and against whom ” 9. With respect to query number 6 the respondent provided the link for accessing the document enumerating the rights and obligations of the broker and client as prescribed by SEBI and Stock Appeal No. 43621 Exchanges. The respondent also provided the link for accessing the SCORES portal for lodging a grievance if any. I have perused the query and the response provided thereto. On consideration I find that the respondent has adequately addressed the query by providing the information available with him. Further I note that the appellant has not made any specific submission against the response provided by the respondent. In view of the same no interference of this forum is warranted at this stage. 11. Query numbers 7 and 8 The appellant vide query numbers 7 and 8 sought the following information 7. Why all the complaints made against this TM with SCORES have been closed without taking any action against the TM and without any Redressal of the complaint filed by the client 8. Why the Complainant consent is not taken before closing the complaint on sided by the ISC of NSE. 12. The respondent in response to the queries informed that if an investor complainant is not satisfied with the redressal of his complaint he can appeal against the resolution in SCORES or at Exchange. The respondent also provided the link for accessing the grievance mechanism at NSE. 13. On perusal of the queries it appears that the same are in the nature of seeking clarification opinion from the respondent regarding procedure followed for disposal of complaints. 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. 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...”. In view of the said observations the respondent did not have an obligation to provide such clarification opinion under the RTI Act. 14. Notwithstanding the above I note that the respondent has informed regarding action that can be taken by an investor complainant if he is not satisfied with the redressal of his complaint. I find that the queries have been adequately addressed. Accordingly I do not find any deficiency in the response. Appeal No. 43621 15. Further on perusal of the appeal it appears that the appellant has grievance regarding the activities of the TM and handling of complaints on the SCORES portal. I note that the Hon’ble CIC in the matter of Sh. Triveni Prasad Bahuguna vs. LIC of India Lucknow 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 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 04 2021 ANAND BAIWAR APPELLATE AUTHORITY UNDER THE RTI ACT SECURITIES AND EXCHANGE BOARD OF INDIA

The prejudice caused even by a single day’s infringement of intellectual property is, in principle, incalculable: The High Court of Delhi

Damages are entirely insufficient as a panacea for the holder of a valid patent which is infringed by another. Intellectual property has its own sanctity. A seller cannot be allowed to flood the market with a product that has been patented by someone else in lieu of finishing the leftover stock and damage the rights of the plaintiff. The aforesaid has been established by the Delhi High Court in the case of Willowood Chemicals Pvt Ltd v. Indo-Swiss Chemicals Ltd & Anr. [CS(COMM) 474/2020] which was decided by a single judge bench comprising Justice Jayant Nath on 18th June 2021. The facts of the case are as follows. Grievance of the plaintiff, in the present suits is that despite the plaintiff having been granted the patent IN 004 and thereafter the plaintiff having issued notices to the defendants from desisting to infringe the patent and cease to manufacture and sell the product, the defendants continued to manufacture and sell the products infringing plaintiff’s rights in the suit patent. Consequently, an ex-parte ad-interim injunction was granted in favour of the plaintiff and against the defendants, restraining the defendants, their Directors, Group Companies, Associates, assignees, licensees, franchisees, agents, servants, distributors and dealers from manufacturing, selling, offering to sell, using, exporting, importing, directly or indirectly dealing in fungicidal composition which is the subject matter of IN 004 thereby amounting to infringement of the plaintiff’s right, till the next date of hearing. This application was filed by the defendants seeking permission to sell the existing stock of the subject matter product. It was the stand of the defendants that till the application of the plaintiff under Order 39 Rules 1 and 2 CPC and the defendants’ application under Order 39 Rule 4 CPC are adjudicated upon, the defendants may be permitted to dispose of the existing stock. The learned counsel for the defendant contended that just because patent was registered does not give it validity. He relied upon the case of Ten XC Wireless Inc & Anr. v. Mobi Antenna Technologies (SHENZHEN) Co.Ltd, 2011 SCC OnLine Del 4648 to reiterate the above submissions. It was also contended by them that the local commissioner did not visit the factories of the defendants where the full records were present.

J IN THE HIGH COURT OF DELHI AT NEW DELHI Judgment Reserved on: 02.06.2021 Judgment Pronounced on: 18.06.2021 CS(COMM) 474 2020 WILLOWOOD CHEMICALS PVT LTD Through Mr.Hemant Singh Ms.Mamta Jha Mr.Ankit Arvind and Ms.Mamta Bhadu Advs. ..... Plaintiff INDO SWISS CHEMICALS LTD & ANR. Defendants Through Mr.Akhil Sibal Sr.Adv. with Mr.Ajay Amitabh Suman Mr.Nikhil Chawla and Ms.Shriya Misra Advs. HON BLE MR. JUSTICE JAYANT NATH JAYANT NATH J.IA No.6331 2021 This application is filed by the defendants seeking permission to sell the existing stock of the subject matter product as stated in this application. It is pleaded that on 23.10.2020 this court passed an ex parte the defendants their directors manufacturing selling offering to sell using exporting importing directly or indirectly dealing in fungicidal composition which is the subject matter of IN 004 thereby amounting to infringement of the plaintiff’s right. The said interim order continues to operate. It is pleaded that this order is liable to be vacated on various grounds raised by the defendants in their application IA. 6331 2021 in CS(COMM) 474 2020 Digitally SignedBy:NIRMLA TIWARISigning Date:18.06.202110:53:26Signature Not Verified under Order 39 Rule 4 CPC. It is further stated that by a common order dated 28.04.2021 passed by the Division Bench of this court in FAO(OS)(COMM) 38 2021 and other connected appeals the appeals filed by the defendants were disposed of with liberty to the defendants to pursue the remedy seeking permission to sell the subject matter product before this court. Hence the present application. It is further pleaded that the defendants stopped manufacturing and selling the subject matter product from the date of execution of the local commission which was carried out pursuant to the order of this court dated 23.10.2020. A detailed chart is given in the application of the amount of the product that was manufactured prior to the injunction order stating that some of the stock is about to expire as the product has a shelf life of two years. Further the product is sold in the paddy season and if the defendants miss the relevant time the same cannot be sold as shelf life would expire. This would result in huge financial loss to the defendants. As per the chart filed with the application the defendants claim to have a pending stock of 13 622 litres valued at Rs.27 74 509. The total stock including that of the defendants in other two connected suits is said to be 63 931 liters. It is the stand of the defendants that till the application of the plaintiff under Order 39 Rules 1 and 2 CPC and the defendants’ application under Order 39 Rule 4 CPC are adjudicated upon the defendants may be permitted to dispose of the existing stock. The plaintiff has strongly opposed the present application. In reply the following pleas have been raised to oppose this application: The plaintiff issued a legal notice on 18.05.2019 to the defendants before grant of the patent to which no reply was received. The defendants IA. 6331 2021 in CS(COMM) 474 2020 Digitally SignedBy:NIRMLA TIWARISigning Date:18.06.202110:53:26Signature Not Verified have ignored the legal notice and had gone ahead and manufactured the said goods. Further a pre grant opposition to the patent was filed by Haryana Pesticides Manufactures’ Association of which the defendant is also a member. The said opposition was rejected on 20.07.2020. Despite the said facts the defendant continued to manufacture the infringing product with impunity at its own risk. It is further pleaded that the defendants have sold 2 48 255 liters of infringing product for a value of Rs.16 97 95 804 since April 2020 preceding the grant of the injunction order dated 23.10.2020 passed by this court. Hence it is pleaded that the defendants have taken the risk of manufacturing the infringing product despite being aware that the same infringes the suit patent and is objected to by the plaintiff. The defendants cannot now complain and seek relief on any ground of equity. It is further pleaded that any further violation of the rights of the plaintiff would be in violation of section 48 of the Patent Act. It is pointed out that this court has already taken a prima facie view about the infringement committed by the defendants while issuing interim injunction dated 23.10.2020. It is pleaded that the defendants have caused irreparable damage to the plaintiff as they have sold infringing product worth Rs.16 97 95 804 in the period 2020. The figures of 2019 are not available and have not been disclosed by the defendants. The defendants cannot be permitted to continue to violate the rights of the plaintiff. I have heard senior counsel appearing defendants applicants and learned counsel for the plaintiff. is pleaded by IA. 6331 2021 in CS(COMM) 474 2020 Digitally SignedBy:NIRMLA TIWARISigning Date:18.06.202110:53:26Signature Not Verified defendants applicants that they have stock of about 63000 liters which are worth at Rs.1.29 crore at sale price of approximately Rs.3 crores. It is stated that the defendants applicants commenced production of the product in question in 2019. The post grant opposition in question that is referred to by the plaintiff was dismissed on Learned senior counsel for the defendants applicants further states that they are willing to give a bank guarantee for a sum of Rs.50 lakhs if so directed by this court which may be subject to the further orders of this 20.07.2020. court. 10. Learned counsel for the plaintiff has pleaded as follows: It is reiterated that products worth Rs.16 97 95 804 have already been sold by the defendants which have caused damage to the rights of the plaintiff. It is reiterated that despite knowing about the objection of the plaintiff to the production by the defendants which was in violation of the patent of the plaintiff the defendants took the risk and continued manufacturing the infringing product. The defendants are entitled to no relief in equity. is also placed on the report of commissioner who was appointed pursuant to the order of this court dated 23.10.2020 to visit the premises of the defendants. It is pleaded that quantity of stock available with the defendants was suppressed and hidden deliberately by the defendants from the learned local commissioner. The conduct of the defendants itself justifies dismissal of the present application. Further reliance is placed on the judgment of a Co ordinate Bench of this court in the case of FMC Corporation vs. Best Crop Science LLP & IA. 6331 2021 in CS(COMM) 474 2020 Digitally SignedBy:NIRMLA TIWARISigning Date:18.06.202110:53:26Signature Not Verified Anr. passed on 19.05.2021 in IA No.5801 2021 in CS(COMM) 69 2021 to plead that no relief can be granted to the defendants as sought for. 11. Learned senior counsel for the defendants applicants in rejoinder pleaded as follows: It is pleaded that just because patent was registered does not give it validity. Reliance is placed on a judgment of a Co ordinate Bench of this court in Ten XC Wireless Inc & Anr. v. Mobi Antenna Technologies SHENZHEN) Co.Ltd 2011 SCC OnLine Del 4648 to reiterate the above submissions. Hence it is pleaded that there is no reasons why the defendants be not permitted to sell the pending stock. Regarding the contention of the plaintiff that records were hidden from the local commissioner it is pleaded that the local commissioner did not visit the factories of the defendants where the full records were there. It is reiterated that the defendant is a substantial producer in the market and is subject to GST. All supporting documents are intact. Further it is pleaded that a certificate of chartered accountant regarding the availability of the stock has been placed on record and the same cannot be doubted. iii) Reliance is also placed on an order of a Co ordinate Bench of this court in the case of Sulphur Mills Limited vs Dharmaj Crop Guard Limited Anr passed on 20.12.2020 in IA No.15244 2018 in CS(COMM) 1225 2018 whereby the court allowed the defendant therein to sell the offending product subject to furnishing bank guarantee of Rs.50 lakhs. 12. On 23.10.2020 this court passed the following order: 6. Case of the plaintiff is that the plaintiff had filed an application for grant of patent on 31st December 2013 in IA. 6331 2021 in CS(COMM) 474 2020 Digitally SignedBy:NIRMLA TIWARISigning Date:18.06.202110:53:26Signature Not Verified inventive synergistic 5%+Validamycin 2.5%’. The said application for patent was subjected to pre grant opposition on 11th January 2019 by Haryana Pesticides Manufacturers’ Association of which the defendant Safex Chemical India Ltd. is a member. The said pre grant opposition was rejected on 20th July 2019 and on the same day plaintiff was granted the suit patent being India patent No. 342004of the Indian Patent Act whereafter the plaintiff issued notices to the defendants on 6th August 2020 asking them to cease and desist from infringing the suit patent and CS(COMM) Nos.474 2020 475 2020 & 476 2020 discontinue with their activities of manufacturing marketing and selling the impugned products which infringed the suit patent IN 004. 7. As per the plaintiff the plaintiff’s suit patent IN 004 is a fungicidal composition novel and Validamycin wherein Hexaconazole is present in an amount of 2.50 5.00% and Validamycin is present in an amount of 1.50 3.00% and is manufactured by the plaintiff under the brand ‘VALXTRA’. While rejecting the pre grant opposition to the plaintiff’s suit patent the Controller of Patents held that the pleas of the objector in relation to product being obvious anticipated or disclosed by the prior arts had no merit. 8. Grievance of the plaintiff in the present suits is that despite the plaintiff having been granted the patent IN 004 and thereafter the plaintiff having issued notices to the defendants from desisting to infringe the patent and cease to manufacture and sell the product the defendants continue to manufacture and sell the products infringing plaintiff s rights in the suit patent. The defendant No.1 Indo Swiss Chemicals Ltd. in CS COMM) 474 2020 is selling the infringing product under the brand name ‘SPONSOR’ and the defendant Safex Chemicals India Ltd. in CS 475 22020 is manufacturing and selling the impugned infringing product under the brand name ‘RUNNER’. The defendant No.1 Smith N Smith Chemicals compounds Hexaconazole IA. 6331 2021 in CS(COMM) 474 2020 Digitally SignedBy:NIRMLA TIWARISigning Date:18.06.202110:53:26Signature Not Verified Ltd. in CS 476 2020 is marketing the said product under the brand name ‘Super BOSS’. 9. Considering the fact that the plaintiff’s suit patent has been subjected to pre grant opposition by the Haryana Pesticides Association of which the defendant in CS475 2020 is a member and the manufacturers CS(COMM) Nos.474 2020 475 2020 & 476 2020 that is defendant No.2 in CS 474 2020 and CS 476 2020 are the subsidiaries of Safex Chemicals India Ltd. the defendant in CS 475 2020 and that they are well aware of the rights of the plaintiff this Court finds that the plaintiff has made out a prima facie case in its favour and in case no ex parte ad interim injunction is granted the plaintiff would suffer an irreparable loss. Balance of convenience also lies in favour of the plaintiff. 10. Consequently an ex parte ad interim injunction is granted in favour of the plaintiff and against the defendants restraining the defendants their Directors Group Companies Associates assignees licensees franchisees agents servants distributors and dealers from manufacturing selling offering to sell using exporting importing directly or indirectly dealing in fungicidal composition which is the subject matter of IN 004 thereby amounting to infringement of the plaintiff’s right till the next date of hearing.” 13. Hence the court while passing the said order concluded taking into account that the plaintiff’s suit patent had been subjected to pre grant opposition by the Haryana Pesticides Manufacturers’ Association of which the defendant in CS 475 2020 was a member. Further the manufacturers that is defendant No.2 in CS 474 2020 and CS COMM) 476 2020 are the subsidiaries of Safex Chemicals India Pvt. Ltd. the defendant in CS475 2020 that they were aware of the rights of the plaintiff. IA. 6331 2021 in CS(COMM) 474 2020 Digitally SignedBy:NIRMLA TIWARISigning Date:18.06.202110:53:26Signature Not Verified 14. Arguments on the applications under Order 39 Rules 1 and 2 and under Order 39 Rule 4 CPC are continuing. 15. The question is can the aforesaid interim order of this court dated 23.10.2020 be modified to permit the defendants to sell their stock which is as per market price worth about Rs.3 crores which allegedly was manufactured by the defendants prior to the interim order passed by this court. It is the claim of the defendants that the expiry period of the said product is only two years and some of it would expire in 2021. It is also claimed that the season for use of the pesticides is in vogue and hence the urgency. application. In my opinion no grounds are made out to allow the present 17. The reasons why I come to the above conclusion are as follows: Firstly the defendants have already sold infringing products worth Rs.16.97 crores in the year 2020. They have taken this step despite the knowledge that the pre grant opposition was dismissed on 20.07.2020. It would hardly be appropriate to allow the defendants to further flood the market with stocks worth Rs.3 crores as is sought to be done by the present application. Introducing such a large stock in the market will surely damage the rights of the plaintiff. In this context reference may be had to the judgment of a Co ordinate Bench of this court in FMC Corporation vs. Best Crop Science LLP & Anr.(supra). This court held as follows: “12. CTPR points out Mr.Subramanium is an agricultural insecticide which is specifically used during the kharif season which is due to come to an end in July 2021. If therefore the defendant is not permitted to manufacture or sell its CTPR IA. 6331 2021 in CS(COMM) 474 2020 Digitally SignedBy:NIRMLA TIWARISigning Date:18.06.202110:53:26Signature Not Verified product it would lose its entire business for this year and would be denied the right to exploit the IN 978 patent even after it has 16. Mr. Sai Deepak has further adverted at length to the course of hearings in the present proceedings in an effort in submitting that the plaintiffs have been guilty of unduly protracting the proceedings by filing misconceived applications. He submits that even at the stage of rejoinder the plaintiffs have delayed the matter thereby subjecting the defendants to needless to exhibit greater prejudice. Mr. Sai Deepak professes than Mr. Subramanium by undertaking on instructions to furnish a bank guarantee for ₹ 5 crores even though the damages computed in the plaint are only to the tune of ₹ 2 crores. Mr. Sai Deepak has also placed reliance on Section 144 of the CPC whereunder the plaintiffs could always seek restitution at a later stage. He submits that no further justification exists to restrain the defendants from exercising their legitimate rights by exploiting the genus patent IN 978 and releasing their CTPR products in the market. 22. It is not and indeed it cannot be disputed that were these applications to be allowed nothing substantial would survive for consideration in IA 2084 2021 and IA 15352 2019 filed in these suits under Order XXXIX of the CPC. Once allegedly infringing products are in the market there can obviously be no stay against the infringement and even if any stay were to be granted the exercise would be fundamentally chimerical in nature. It is also a well settled position in law that damages are entirely insufficient as panacea for the holder of a valid patent which is infringed by another. Intellectual property has its own sanctity. The prejudice caused even by a single day’s infringement of intellectual property is in principle incalculable. It is fundamentally incongruous therefore to suggest that even while the applications for injunction preferred by the plaintiff in the suits under Order XXXIX of the CPC are being heard by this Court and are in fact at the stage IA. 6331 2021 in CS(COMM) 474 2020 Digitally SignedBy:NIRMLA TIWARISigning Date:18.06.202110:53:26Signature Not Verified of rejoinder the defendants should be allowed to launch the allegedly infringing CTPR products. 24. I posed a specific query to Mr. Sai Deepak as to how if this Court were to find that there was prima facie infringement of the plaintiff’s suit patent by the defendants and that therefore a prima facie case for grant of the relief in IA 2084 2021 and IA 15352 2019 filed by the plaintiff under Order XXXIX of the CPC existed any meaningful order could be passed if the defendants were to be allowed to release the allegedly infringing CTPR products in the market in the interregnum. Despite attempting to answer the query with the considerable legal acumen at his command I am constrained to observe that no satisfactory response was forthcoming. Rather Mr. Sai Deepak with characteristic candour acknowledged that it was not his case that damages were adequate recompense for a plaintiff who had suffered infringement of its intellectual property. Once this position is admitted there can be no reasonable justification for permitting the defendants even while the arguments in the plaintiff’s applications under Order XXXIX of the CPC are at the stage of rejoinder to allow the defendants to release the allegedly infringing CTPR products in the market thereby effectively rendering the applications under Order XXXIX of the CPC infructuous. 25. In view thereof I am of the opinion that no case for grant of the prayer for permitting the defendants to release their allegedly infringing CTPR products in the market can be said to exist at this stage.” iii) Hence this court had clearly noted that damages are entirely insufficient as a panacea for the holder of a valid patent which is infringed by another. Intellectual property has its own sanctity. In the present case as noted above this court while granting an interim order has recorded a prima facie satisfaction. The defendants cannot be permitted to flood the market in the manner as is being sought and damage the rights of the plaintiff. IA. 6331 2021 in CS(COMM) 474 2020 Digitally SignedBy:NIRMLA TIWARISigning Date:18.06.202110:53:26Signature Not Verified Further the report of the Local Commissioner in CS 475 2020 titled ‘Willowood Chemicals Private Limited vs. Safex Chemical India Limited’does not make a very happy reading. No inventory was found in the premises which was said to be the head office of the defendants. It was claimed that there were no stock registers available as the same are maintained in the factories of the defendant. It was confirmed that the goods with ‘Hexaconazole 5%+Validamycin 2.5%’ have been sold since 2019 but the record could not be provided as it is not retrievable at that moment. Record was provided to the local commissioner for the period 01.04.2020 to 29.10.2020. However when the Local Commissioner was about to leave the premises the local Commissioner was asked to return the copies of the sales statement provided by the defendants which has already been signed by the local commissioner with respect to the brands ‘RUNNER’ ‘SUPER BOSS’ and ‘SPONSOR’. The local Commissioner was only permitted to take photographs of the said sales statement. There is no proper explanation why the sales figures for the year 2019 were not provided and why the sales figures for the period 01.04.2020 to 29.10.2020 were asked to be returned. The conduct of the defendants does not warrant seeking equity from this I also cannot help noticing that a perusal of the chart filed by the defendants in the present application regarding existing stock shows that lot of production of the impugned product took place also after 20.07.2020 the pre grant opposition filed by the Haryana Pesticides Manufacturers’ Association was dismissed and the patent was granted. The production that has continued thereafter was obviously at their own risk that IA. 6331 2021 in CS(COMM) 474 2020 Digitally SignedBy:NIRMLA TIWARISigning Date:18.06.202110:53:26Signature Not Verified the defendants undertook. Defendants cannot be permitted to now turn around and claim equity as is sought. 18. There is no merit in the present application. The same is dismissed. JUNE 18 2021 v JAYANT NATH J. IA. 6331 2021 in CS(COMM) 474 2020 Digitally SignedBy:NIRMLA TIWARISigning Date:18.06.202110:53:26Signature Not Verified

Conviction for heinous offence should not be sole grounds to reject parole: High Court of Himachal Pradesh

Parole refers to a conditional freedom which a prison inmate may be granted for a short period of time where he has to live up to certain responsibilities and will generally be supervised by a parole officer. A bench consisting of Justice Tarlok Singh Chauhan and Justice Chander Bhusan Barowalia of the High Court of Himachal Pradesh passed a judgement in the case of Yashpal v State of Himachal Pradesh [CWP No. 4964 of 2020] on 4th June 2021 which dealt with the grounds on which parole could be granted to a prisoner. The petitioner, Yashpal was undergoing rigorous life imprisonment after being convicted under Sections 302, 201, 120-B and 34 of the Indian Penal Code for murder, tampering with evidence and criminal conspiracy. The respondents strongly opposed parole on the grounds that the petitioner’s crimes were heinous and very serious in nature. The court noted that the reason behind the sentence was reformation of the convict and not punishment, so a prisoner being allowed parole for the purpose of visiting his family and maintaining social ties was indeed a valid reason for parole or furlough. It was also stated that parole was not the right of any prisoner, but a privilege available to him upon fulfilling certain conditions.  Upon analysing past judgements of the Supreme Court of India and other High Courts, the High Court of Himachal Pradesh adjudged that being convicted of a serious and heinous crime in itself could not be sole grounds to reject the parole and that the main reason to reject parole was if the prisoner showed no signs of reformation or was still a threat to society.

Hig h C o urt of H.P on 06 06 CIS IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA. CWP No. 49620 Decided on: 04.06.2021Yashpal @ Jaspal @ Mintu …PetitionerVersus State of Himachal Pradesh and others …Respondents_____________________________________________________________Coram:Hon’ble Mr. Justice Tarlok Singh Chauhan Judge.Hon’ble Mr. Chander Bhusan Barowalia Judge.Whether approved for reporting 1 NoFor the Petitioner : Mr. Malay Kaushal Advocate.For the Respondents: Mr. Ashok Sharma A.G. with Mr. Shiv PalManhans Addl. A.G. Mr. J. S. Guleria andMr. Bhupinder Thakur Dy. A.Gs. for therespondents State.(Through Video Conferencing).Tarlok Singh Chauhan JudgeThe request made by the petitioner for releasing himon parole has been turned down by the respondents constraining him to file the instant petition for the grant offollowing substantive reliefs: i) That this Hon’ble Court may kindly be pleased to issuethe writ of mandamus whereby the respondents moreparticularly respondent No.2 may kindly be directed torelease the petitioner on parole.1 Whether reporters of the local papers may be allowed to see the judgment yes Hig h C o urt of H.P on 06 06 CIS 2ii) That in the alternative the Hon’ble Court may kindly bepleased to issue a writ of mandamus whereby therespondents more particularly respondents No. 4 and 5 may kindly be directed to submit the verification reportafresh pertaining to the petitioner’s request applicationfor release on parole strictly in terms of the prescribedRules as framed under the Himachal Pradesh GoodConduct PrisonersAct 1968 byaddressing the factual aspect relating to the grounds onwhich the application has been preferred.2.The respondents have opposed the petition by filingreply wherein it has been submitted that the petitioner isundergoing rigorous life imprisonment in Lala Lajpat Rai Districtand Open Air Correctional Home Dharamshala District Kangra H.P. in connection with case bearing FIR No. 210 2014 registeredat Police Station Indora District Kangra H.P. under Sections302 201 120 B and 34 IPC and due to the non recommendationof the District Magistrate Moga on the ground that there isapprehension of breach of law and order and the other party hasshowed apprehension of danger to his life in case the petitioneris released on parole.3.Now the moot question is whether the request forgrant of parole can be rejected only on the ground that thepetitioner has been convicted for a serious and heinous offence.4.It is more than settled that the grant of remission orparole is not a right vested with the prisoner. It is a privilegeavailable to the prisoner on fulfilling certain conditions. This is a Hig h C o urt of H.P on 06 06 CIS 3discretionary power which has to be exercised by the authoritiesconferred with such powers under the relevant rules regulations.The Court cannot exercise these powers though once thepowers are exercised the Court may hold that the exercise ofpowers is not in accordance with rules. 5.The Hon’ble Supreme Court has considered in detailthe nature object purpose and parameters for grant of parolesubject to which parole can be granted in Asfaq versus Stateof Rajasthan and others 15 SCC 55 wherein it wasobserved as under:“14. Furlough on the other hand is a brief release fromthe prison. It is conditional and is given in case of longterm imprisonment. The period of sentence spent onfurlough by the prisoners need not be undergone by himas is done in the case of parole. Furlough is granted as agood conduct remission. 15. A convict literally speaking must remain in jail forthe period of sentence or for rest of his life in case he is alife convict. It is in this context that his release from jailfor a short period has to be considered as an opportunityafforded to him not only to solve his personal and familyproblems but also to maintain his links with society.Convicts too must breathe fresh air for at least some timeprovided they maintain good conduct consistently duringincarceration and show a tendency to reform themselvesand become good citizens. Thus redemption andrehabilitation of such prisoners for good of societies mustreceive due weightage while they are undergoingsentence of imprisonment. Hig h C o urt of H.P on 06 06 CIS 416. This Court through various pronouncements has laiddown the differences between parole and furlough few ofwhich are as under:(i) Both parole and furlough are conditional release.(ii) Parole can be granted in case of short termimprisonment whereas in furlough it is granted in caseof long term imprisonment.(iii) Duration of parole extends to one month whereasin the case of furlough it extends to fourteen daysmaximum.(iv) Parole is granted by Divisional Commissioner andfurlough is granted by the Deputy Inspector General ofPrisons.(v) For parole specific reason is required whereasfurlough is meant for breaking the monotony ofimprisonment.(vi) The term of imprisonment is not included in thecomputation of the term of parole whereas it is viceversa in furlough.(vii) Parole can be granted number of times whereasthere is limitation in the case of furlough.(viii) Since furlough is not granted for any particularreason it can be denied in the interest of the society.{See State of Maharashtra and Another v. SureshPandurang Darvakar4 SCC 776 and State ofHaryana and Others v. Mohinder Singh 3 SCC394.17. From the aforesaid discussion it follows that amongstthe various grounds on which parole can be granted themost important ground which stands out is that aprisoner should be allowed to maintain family and socialties. For this purpose he has to come out for some timeso that he is able to maintain his family and socialcontact. This reason finds justification in one of theobjectives behind sentence and punishment namely reformation of the convict. The theory of criminology which is largely accepted underlines that the mainobjectives which a State intends to achieve by punishing Hig h C o urt of H.P on 06 06 CIS 5the culprit are: deterrence prevention retribution andreformation. When we recognise reformation as one ofthe objectives it provides justification for letting of eventhe life convicts for short periods on parole in order toafford opportunities to such convicts not only to solvetheir personal and family problems but also to maintaintheir links with the society. Another objective which thistheory underlines is that even such convicts have right tobreathe fresh air al beit for periods. These gestures onthe part of the State along with other measures go along way for redemption and rehabilitation of suchprisoners. They are ultimately aimed for the good of thesociety and therefore are in public interest.18. The provisions of parole and furlough thus providefor a humanistic approach towards those lodged in jails.Main purpose of such provisions is to afford to them anopportunity to solve their personal and family problemsand to enable them to maintain their links with society.Even citizens of this country have a vested interest inpreparing offenders for successful re entry into society.Those who leave prison without strong networks ofsupport without employment prospects without afundamental knowledge of the communities to which theywill return and without resources stand a significantlyhigher chance of failure. When offenders revert tocriminal activity upon release they frequently do sobecause they lack hope of merging into society asaccepted citizens. Furloughs or parole can help prepareoffenders for success.19. Having noted the aforesaid public purpose in grantingparole or furlough ingrained in the reformation theory ofsentencing other competing public interest has also tobe kept in mind while deciding as to whether in aparticular case parole or furlough is to be granted or not. Hig h C o urt of H.P on 06 06 CIS 6This public interest also demands that those who arehabitual offenders and may have the tendency tocommit the crime again after their release on parole orhave the tendency to become threat to the law and orderof the society should not be released on parole. Thisaspect takes care of other objectives of sentencing namely deterrence and prevention. This side of the coinis the experience that great number of crimes arecommitted by the offenders who have been put back inthe street after conviction. Therefore while deciding as towhether a particular prisoner deserves to be released onparole or not the aforesaid aspects have also to be keptin mind. To put it tersely the authorities are supposed toaddress the question as to whether the convict is such aperson who has the tendency to commit such a crime orhe is showing tendency to reform himself to become agood citizen. 20. Thus not all people in prison are appropriate for grantof furlough or parole. Obviously society must isolatethose who show patterns of preying upon victims. Yetadministrators ought to encourage those offenders whodemonstrate a commitment to reconcile with society andwhose behaviour shows that aspire to live as law abidingcitizens. Thus parole program should be used as a tool toshape such adjustments.21. To sum up in introducing penal reforms the Statethat runs the administration on behalf of the society andfor the benefit of the society at large cannot be unmindfulof safeguarding the legitimate rights of the citizens inregard to their security in the matters of life and liberty. Itis for this reason that in introducing such reforms theauthorities cannot be oblivious of the obligation to thesociety to render it immune from those who are prone tocriminal tendencies and have proved their susceptibility Hig h C o urt of H.P on 06 06 CIS 7to indulge in criminal activities by being found guiltyof having perpetrated a criminal act. One of thediscernible purposes of imposing the penalty ofimprisonment is to render the society immune from thecriminal for a specified period. It is therefore understandable that while meting out humane treatmentto the convicts care has to be taken to ensure thatkindness to the convicts does not result in cruelty to thesociety. Naturally enough the authorities would beanxious to ensure that the convict who is released onfurlough does not seize the opportunity to commitanother crime when he is at large for the time beingunder the furlough leave granted to him by way of ameasure of penal reform.22. Another vital aspect that needs to be discussed is asto whether there can be any presumption that a personwho is convicted of serious or heinous crime is to be ipsofacto treated as a hardened criminal. Hardened criminalwould be a person for whom it has become a habit or wayof life and such a person would necessarily tend tocommit crimes again and again. Obviously if a personhas committed a serious offence for which he isconvicted but at the same time it is also found that it isthe only crime he has committed he cannot becategorized as a hardened criminal. In his caseconsideration should be as to whether he is showing thesigns to reform himself and become a good citizen orthere are circumstances which would indicate that he hasa tendency to commit the crime again or that he wouldbe a threat to the society. Mere nature of the offencecommitted by him should not be a factor to deny theparole outrightly. Wherever a person convicted hassuffered incarceration for a long time he can be grantedtemporary parole irrespective of the nature of offence for Hig h C o urt of H.P on 06 06 CIS 8which he was sentenced. We may hasten to put a riderhere viz. in those cases where a person has beenconvicted for committing a serious office the competentauthority while examining such cases can be welladvised to have stricter standards in mind while judgingtheir cases on the parameters of god conduct habitualoffender or while judging whether he could be consideredhighly dangerous or prejudicial to the public peace andtranquility etc.23. There can be no cavil in saying that a society thatbelieves in the worth of the individuals can have thequality of its belief judged at least in part by the qualityof its prisons and services and recourse made available tothe prisoners. Being in a civilized society organized withlaw and a system as such it is essential to ensure forevery citizen a reasonably dignified life. If a personcommits any crime it does not mean that by committinga crime he ceases to be a human being and that he canbe deprived of those aspects of life which constitutehuman dignity. For a prisoner all fundamental rights arean enforceable reality though restricted by the fact ofimprisonment. {See Sunil Batrav. State3 SCC 488 Maneka Gandhi v. Union of India(1978) 1 SCC 248 and Charles Sobraj v. SuperintendentCentral Jai Tihar New Delhi 4 SCC 104.24. It is also to be kept in mind that by the time anapplication for parole is moved by a prisoner he wouldhave spent some time in the jail. During this period various reformatory methods must have been applied.We can take judicial note of this fact having regard tosuch reformation facilities available in modern jails. Onewould know by this time as to whether there is a habit ofrelapsing into crime in spite of having administeredcorrectional treatment. This habit known as “recidivism” Hig h C o urt of H.P on 06 06 CIS 9reflects the fact that the correctional therapy has notbrought in the mind of the criminal. It also shows thatcriminal is hardcore who is beyond correctional therapy. Ifthe correctional therapy has not made in itself in aparticular case such a case can be rejected on theaforesaid ground i.e. on its merits.” 6. It is evidently clear from the aforesaid judgment thatthe Hon’ble Supreme Court itself emphasized on the aspect ofrehabilitation continuity of life and constructive hopes forconvicts and prisoners and for the reformation even while theyare undergoing incarceration. 7.Judged in light of the aforesaid exposition of law theonly ground taken by the respondents to reject the request ofparole is that the petitioner has been convicted for a serious andheinous offence and nothing more cannot itself be a ground fordenying the petitioner parole in accordance with the provisionsof H.P. Good Conduct PrisonersAct 1968.8.Before parting it needs to be observed that as perthe instructions imparted by the District Magistrate Moga therecommendation of the parole of the petitioner has beenrejected on the ground that there is apprehension of breach oflaw and order and the other party has showed apprehension ofdanger to his life in case the petitioner is released on parole.Even otherwise such questions have already been consideredand answered in the judgment referred to here in above whichclearly provides that it is only cases where there is some Hig h C o urt of H.P on 06 06 CIS 10material before the Court parole should be extended by taking ahumanistic approach so as to afford the convict an opportunityto solve his personal and family problems and enable him tomaintain his links with the society.9.Apart from the above we may at this stage takenote of a recent judgment of Hon’ble Supreme Court in casetitled as Shor Versus State of Uttar Pradesh and Anr. inWrit PetitionNo. 520 decided on August 05 2020 wherein the only ground for opposing release of thepetitioner therein on probation was that he had been convictedfor grave and serious offences and in case he is released therewould be a chance that he may repeat the offences which wouldsend a negative message against the justice system in thesociety. The Hon’ble Supreme Court has also held as under:“Pursuant to our order dated 30.10.2017 an order dated22.01.2018 has been passed in which it is recorded thatthough the petitioner has undergone 28 years 08 monthsand 21 days without remissionhaving undergone imprisonment of 37 years01 month and 18 days yet premature release cannot begiven in the facts of this case as the prisoner along with20 co accused committed the murder of 11 persons withdeadly weapons and injured others.This being the case the order states “ premature releaseof this kind of prisoner would send a negative messageagainst the justice system in the society”. It was thenalso mentioned that Senior Superintendent of Police and Hig h C o urt of H.P on 06 06 CIS 11the District Magistrate have confirmed that the prisoner isnot incapacitated from committing crime. Section 2 of the United Provinces Prisoners Release on Probation Act 1938states:“2. Power of Government to release by licence onconditions imposed by them. Notwithstanding anythingcontained in Section 401 of the Code of CriminalProcedure 1898where a person isconfined in prison under a sentence of imprisonmentand it appears to the State Government from hisantecedents and his conduct in the prison that he islikely to abstain from crime and lead a peaceable life ifhe is released from prison the State Government mayby licence permit him to be released on condition thathe be placed under the supervision or authority of aGovernment Officer or of a person professing the samereligion as the prisoner or such secular institution orsuch society belonging to the same religion as theprisoner as may be recognized by the StateGovernment for this purpose provided such otherperson institution or society is willing to take charge ofhim.” It is clear that under this Section what has to be seen bythe State Government isantecedentsconduct inthe prison andthe person if released is likely toabstain from crime and lead a peaceable life. If havingregard to these factors the person is released the StateGovernment may do so on conditions stated in theSection.A reading of the order dated 22.01.2018 shows that theJoint Secretary Government of U.P. has failed to apply hismind to the conditions of Section 2 of the U.P. Act. Merelyrepeating the fact that the crime is heinous and thatrelease of such a person would send a negative message Hig h C o urt of H.P on 06 06 CIS 12against the justice system in the society are factors dehors Section 2. Conduct in prison has not been referred toat all and the Senior Superintendent of Police and theDistrict Magistrate confirming that the prisoner is not“incapacitated” from committing the crime is nottantamount to stating that he is likely to abstain fromcrime and lead a peaceable life if released from prison. 10.The issue in question is otherwise squarely coveredby the judgment rendered by a Co ordinate Bench of this Courtin CMP No. 39720 in CWP No. 29319 titled‘Mrs. Har Dei versus State of Himachal Pradesh & others’ decided on 03.06.2020 and the judgment passed by this Benchin CWP No. 4120 titled Mrs. Kavita Thakur versusState of H.P. and others decided on 25.06.2020 CWP No.5218 titled Jagat Ram Versus State of HimachalPradesh and others decided on 26.06.2012 and CWP No.6620 titled Sajid versus State of HimachalPradesh and others decided on 29.06.2020.11.Similar reiteration of law can also be found in thejudgments rendered by Division Bench of this Court in CWP No.16620 titled as Paramjit Singh @ Pamma vs. Stateof H. P. & Ors. decided on 07.08.2020 and CWP No. 1497 of2020 titled as Anil Kumar vs. State of H. P. & Ors. decidedon 07.10.2020.12. In such circumstances we are left with no otheroption but to allow the present petition. Accordingly the present Hig h C o urt of H.P on 06 06 CIS 13petition is allowed and the respondents are directed to releasethe petitioner on parole for a period of 28 days after takingrequisite personal and surety bonds. 13. However before parting it is clarified that in casethe convict violates or breaches any condition of parole order orcreate law and order problem then it shall be a factor to cancelthe parole so granted by this Court and shall also be a relevantfactor for considering the future request of the convict made inthis regard.14.The writ petition is disposed of as aforesaid leavingthe parties to bear their own costs. Pending application(s) if any also stand disposed of.Judge(Chander Bhusan Barowalia) 4th June 2021 Judge

Extension of Time to Submit Resolution Plan cannot be extended on grounds of Pandemic when Online Facilities are Available: National Company Law Appellate Tribunal, Principal Bench, New Delhi

With the availability of abundant remote working technology, whether the Covid-19 pandemic would be tenable as grounds for grant of extension for submission of Resolution Plan, was a question considered by the NATIONAL COMPANY LAW APPELLATE TRIBUNAL, PRINCIPAL BENCH, NEW DELHI, before a bench consisting of Justice Anant Bijay Singh, Member (Judicial); Ms. Shreesha Merla, Member (Technical), in the matter of CRPL Infra Private Limited vs. Anil Agarwal, Resolution Professional and Ors. [COMPANY APPEAL (AT) (INSOLVENCY) No. 259 of 2021], on 17.01.22. The facts of the case were that the present appeal challenged the Impugned Order dated 02.02.2021, passed by the Learned Adjudicating Authority (National Company Law Tribunal, Kolkata Bench) under Section 61(1) of the Insolvency and Bankruptcy Code, 2016. By the Impugned Order, the Learned Adjudicating Authority has dismissed the application filed by the appellant herein against the Resolution Professional and the Members of Committee of Creditors (CoC) praying to set aside the resolution passed at the 12th CoC Meeting held on 10.09.2020, on the ground that the CoC had rejected the Applicant’s request for extension of time to submit the Resolution Plan and to consider the Resolution Plan proposed to be submitted by the appellant herein. The Learned Counsel for the Appellants, vehemently contended that during the CoC Meeting on 03.09.2020, all the Resolution Applicants agreed for adjournment to file the revised Resolution Plan. On 08.09.2020, the RP sent an email conveying that the 10th COC Meeting would take place on 10.09.2020, without stating the agenda and giving only two days’ time which is not in conformity with Section 19 of the Code. It was also argued that the Resolution Professional was aware that the appellant was going to revise their offer to around Rs.55 Crs. and would become the highest bidder. It was argued that the appellant was not given any opportunity though no harm would have been caused had 10 to 15 days’ time been given to the appellant. It was further contended that the appellant’s submitted reasons for extension were valid, and that the delay of 60 days in pronouncement of judgement was an unjust waste of valuable time. The insertion of Regulation 40C by the Insolvency and Bankruptcy Board of India’s notification dated 29.03.2020, was cited in order to assert that the Government, various legislations and Courts across the Country have adopted a sympathetic approach and have duly extend timelines which were unable to be met as a result of the Pandemic Covid-19. The Learned Counsel for the Respondents, contended that the Resolution Professional, in consonance with the CoC Members extended the time for submission of the Resolution Plan four times i.e., 01.04.2020 till 31.07.2020 (120 days). It was also noted that the 12th CoC Meeting was held on 10.09.2020, wherein the Resolution Professional brought to the notice of the CoC that an email was received from the appellant seeking extension of time, but the same was refused. A higher bid amount received was declared as H1 Bidder with a revised bid for Rs.43 Crs. The H1 Bidder had written to the Resolution Professional on 30.07.2020 and on 28.08.2020 that the extension in timeline might lead to their withdrawal from the Resolution Process of the ‘Corporate Debtor’ and that the funds earmarked for taking over the ‘Corporate Debtor’ may be deployed in some other Project. It was put forth that the timelines were published on 18.02.2020 through Form-G and the appellant had given declaration that they will abide by the timelines and the provisions of RFRT. After the Members of the COC conveyed to the appellant that extension could not be granted, the appellant decided to exit the Meeting and their open bidding process was conducted wherein H1 Company was declared the Bidder with Rs.49 Crs. Subsequently, payment was made in clearance of the government debts as well as to financial creditors. Placing reliance on precedents, it was asserted that the Respondent had taken control over the ownership and management of the ‘Corporate Debtor Company’, and that the Plan had been implemented. It was further asserted that Regulation 40-C is applicable only till the end of the period of lockdown. The National Company Law Appellate Tribunal, Principal Bench, New Delhi, took into account the documentary evidence as well as the submissions and arguments, and placed reliance on several precedents, in order to hold that Sub-Section (3) of Section 30 of the Code provides that the Resolution Professional shall present the Resolution Plans, which conform to the requirement of Section 30, before the CoC for approval. After considering the feasibility and viability, as stipulated under sub-Section (4) of Section 30, the CoC may approve the Resolution Plan by a vote not less than 66%.  It was observed in the instant case, if CoC has approved with 66% majority as provided under Section 12(2) of the Code and has decided not to extend the time to the appellant herein on the ground that several extensions have already been given, the Resolution Professional cannot take any contrary decision, thereby rendering the appellant’s challenge untenable. It was further noted that additionally, the appellant had not chosen to exercise their choice of participating in the open bidding process and chose to exit the Meeting and even accepted the refund of the EMD amount. It was held that it would defeat the scope and objective of the Insolvency and Bankruptcy Code, 2016, if the clock is turned back. Thus, it was held that the present appeal failed.

National Company Law Appellate Tribunal Principal Bench New Delhi COMPANY APPEAL(INSOLVENCY) No. 2521 Arising out of Order dated 02nd February 2021 passed by National Company Law Tribunal Kolkata Bench Kolkata in I.A. No. 1010 KB 2020 in C.P.No. 1444 KB 2018). IN THE MATTER OF: CRPL Infra Private Limited 121 Chitranjan Avenue Opp. Mohammed Ali Park Kolkata 700073Though its Director Mr.. Rajesh Agarwal. Email: crystalcal@rediff.com ...Appellant 1. Shri Anil Agarwal Resolution Professional Transafe Services Limited Balmer Lawrie House6th Floor 21 N.S. Road Kolkata 700001 Email: transafe@aaainsolvency.com 2. Canara BankKaveri House 132 1 M.G. Road Barabazar Kolkata 700007 Though its Branch Manager. Email: samb.kolkata@syndicatebank.co.in 3. Axis Bank Limited Structured Assets Group East 1 Shakespeare Sarani 4th Floor A.C. Market Building Kolkata 700071 Through its Branch Manager. Email: Renosh.iacob@axisbank.com Prasun.Bhattacharya@axisbank.com 4. HDFC Bank Ltd. Tower B 4th Floor Peninsulla Business Park Ganpatrao Kadam Marg ...Respondent No. 1 ...Respondent No. 2 ...Respondent No. 3 2 Dwan Mills Compound Lower ParelMumbai 400013 Through its Branch Manager. Email: Manish.Nyati@hdfcbank.com 5. The Karur Vyasya Bank Ltd. Kolkata Shakespeare Sarani Branch Ground Floor S.B. Towers 37 Shakespeare Sarani Kolkata West Bengal 700017 Through its Branch Manager. Email: shakespeare@kvbmail.com 6. Bank of India Kolkata Large Corporate Branch 5 B.T.M. Sarani Kolkata 700001 Through its Branch Manager. Email: LCB.kolkata@bankofindia.co.in 7. Balmer Lawrie and Company Limited 3rd Floor 21 Netaji Subhash Road Kolkata West Bengal 700001 Through its Company Secretary. Email: choudhary.dinesh@balmerlawrie.com 8. Om Logistics Ltd. 130 Transport Centre Punjabi Bagh New Delhi 110035 Through its Company Secretary. Email: ashishmathur@omlogistics.co.in omgroup@omlogistics.co.in ...Respondent No. 4 ...Respondent No. 5 ...Respondent No. 6 ...Respondent No. 7 ...Respondent No. 8 Mr. Rajender Singhvi Advocates. Mr. Anil Agarwal RP in person. Mr. Joy Saha Sr. Advocate along with Mr. Arun Kumar Gupta RP) Advocates for R 1. Mr. R K Sanghi Sr. Advocate for R 1 & R 8. Mr. Shivang Rawat Advocate for R 2 to R 6. Mr. Abhinav Srivastava & Mr. Nirmal Prasad Advocates forR 2 to R 6. PCA) Mr.. Nipun Gautam Company Appeal(Insolvency) No. 2521 3 J U D G E M E N T Challenge in this Appeal namely Company Appeal(Insolvency) No. 259 of 2021 is to the Impugned Order dated 02.02.2021 passed by the Learned Adjudicating Authority in I.A. No. 1010 KB 2020 in C.P. No. 1444 KB 2018 under Section 61(1) of the Insolvency and Bankruptcy Code 2016 and the Members of Committee of Creditorspraying to set aside the resolution passed at the 12th COC Meeting held on 10.09.2020 on the ground that the CoC had rejected the Applicant’s request for extension of time to submit the Resolution Plan and to consider the Resolution Plan proposed to be submitted by the Applicant Appellant 2. While dismissing the I.A. the Adjudicating Authority has observed as ―18. This is a case where the CIRP had commenced on 21.11.2019 the first invitation to EoI was published on 18.01.2020. The last date of submission of resolution plan had been extended four times at the instance of prospective resolution applicants including the Applicant herein. Upon receiving an email from the RP the resolution applicants including the Applicant herein had submitted their revised resolution plans before the eleventh CoC meeting was held on 19. In the said meeting upon request from the Applicant herein an opportunity to make revised bids Company Appeal(Insolvency) No. 2521 4 the Applicant decided not four opportunities were granted during the twelfth CoC meeting to be held on 10.09.2020 was granted. However the Applicant herein wide email dated 08.09.2020 sought further extension of time for submission of revised resolution plan. This request for further extension was not entertained by the CoC its twelfth meeting however the CoC has offered the Applicant to continue to be a part of the ongoing process so that it may have an opportunity at a later stage. The Applicant sought 15 minutes time for discussion and upon discussion participate in the open bidding process and exited the meeting. Therefore the CoC went on to approve the resolution plan submitted by Om Logistics Ltd. i.e. Respondent No. 8 herein in its fourteenth CoC meeting held on 17.10.2020. 20. From the submissions made on behalf of all the parties and the documents available on record it is submission of resolution plan vide dates 16.04.2020 30.05.2020 29.06.2020 31.07.2020 and opportunities were granted resolution plan vide 19.08.2020 and 03.09.2020 to the Applicant herein. Despite several opportunities being granted the Applicant herein has failed to submit its revised resolution plan. 21. The Applicant s submission that the resolution plan could not be finalised due to lockdown and due the authorised representative being either infected or exposed to Covid 19 on various dates is also not very tenable since by the September 2020 remote working technologies were abundantly available most of the proceedings had moved online and the board meetings could also have been held online during the extended time already granted by the CoC. 22. All the resolution applicants including the Applicant herein were given equal opportunity to submit their resolution plans and revised resolution plans in fact the time was even extended upon the Applicant s request. The Applicant herein was treated at par with others and opportunity to participate in the meetings was given to them. In our considered opinion neither the decision of the CoC nor of the RP was unreasonable or arbitrary. Therefore Adjudicating Authority is neither inclined towards its directors other to submit Company Appeal(Insolvency) No. 2521 5 quashing and setting aside the resolution passed at the twelfth CoC meeting of the Corporate Debtor held on 10.09.2020 to the extent that it rejects the Applicant s request for extension of time to submit its resolution plan nor inclined towards directing the RP and the CoC to consider the resolution plan proposed to be submitted by the Applicant.‖ Submissions of the Learned Counsel appearing on behalf of the  Learned Counsel for the Appellant vehemently contended that during the CoC Meeting on 03.09.2020 all the Resolution Applicants agreed for adjournment to file the revised Resolution Plan. On 08.09.2020 the RP sent an email conveying that the 10th COC Meeting would take place on 10.09.2020 without stating the agenda and giving only two days time which is not in conformity with Section 19 of the Code.  On 08.09.2020 itself the Appellant addressed an email to the RP seeking 10 15 days extra time to submit the revised Resolution Plan but the RP on 10.09.2020 had conveyed to the Appellant that the COC has refused to extend the time. Even the Minutes of the Meeting were not supplied on the ground that it is a confidential document.  The RP was aware that the Appellant was going to revise their offer to around Rs.55 Crs. and would become the highest bidder.  On 10.09.2020 H8 was declared as H1 and the CoC passed the resolution on 04.11.2020 taking 53 days to approve the Plan. But the Appellant was not given any opportunity though no harm would have been caused had 10 to 15 days time been given to the Appellant. Company Appeal(Insolvency) No. 2521 6  The I.A. preferred by the Appellant herein was heard by the Adjudicating Authority on 02.10.2020 but the Judgement was pronounced only 60 days later whereby valuable time was lost.  The Learned Counsel drew our attention to Annexure 11 which is an email dated 08.09.2020 sent by the Appellant seeking time for the following reasons: o Despite talking all steps as may be necessary in order to comply with the timeline of 10th September 2020 we have been unable to finalize and formalize our Resolution Plan in view of the lockdown that was imposed across the Country due to COVID 19. As a result of the Pandemic we had very limited access to our office and all the documents necessary to prepare our Resolution Plan. As a result of this delay we have lost a considerable amount of time o Our Director Mr. Naresh Agarwal has been unwell and has in fact been diagnosed with COVID 19. A copy of the medical reports in this respect are enclosed. As a result he was unable to assist in preparation of the Resolution Plan. Mr. Agarwal was a critical member of our team and was in fact spearheading this assignment. In his absence and without his leadership our team has been struggling to formalize and finalize the Resolution Plan. Further Mr. Rajesh Agarwal one of the key promoters of the Resolution Applicant is under home quarantine due to his recent exposure to a covid 19 positive patient. Our General Manager Accounts Mr. Ved Byas another key member of the whole transaction is also found to be Covid 19 positive and is under home isolation. We are confident that all these key members will be in a condition to resume office within a period of 14 days from the date of this letter post which our team will endeavor to expeditiously formalize and finalize the Resolution Plan o Company Appeal(Insolvency) No. 2521 7 o Our Government various legislations and Courts across the Country have adopted a sympathetic approach and have duly extend timelines which were unable to be met as a result of the Pandemic Covid 19. In fact as you are aware the Insolvency and Bankruptcy Board of India vide notification dated 29th March 2020 inserted Regulation 40C which states as below: ―40C. Special provision time line. Notwithstanding the timelines contained in these regulations but subject to the provisions in the Code the period of lockdown imposed by the Central Government in the wake of COVID19 outbreak shall not be counted for the purposes of the time line for any activity that could not be completed due to such lockdown in relation to a corporate insolvency resolution process.‖ Submissions of the Learned Counsel appearing on behalf of the Respondent No. 1 Resolution ProfessionalLimited. CRPL Infra Private LimitedKolkata of PRA Company Appeal(Insolvency) No. 2521 8  R8 proposed a higher bid amount and was declared as H1 Bidder with a revised bid for Rs.43 Crs.  The 12th CoC Meeting was held on 10.09.2020 wherein the RP brought to the notice of the CoC that an email was received from the Appellant seeking extension of time but the same was refused.  The H1 Bidder had written to the RP on 30.07.2020 and on 28.08.2020 that the extension in timeline might lead to their withdrawal from the Resolution Process of the ‘Corporate Debtor’ and that the funds earmarked for taking over the ‘Corporate Debtor’ may be deployed in some other Project.  The timelines were published on 18.02.2020 through Form G and the Appellant had given declaration that they will abide by the timelines and the provisions of RFRT.  After the Members of the COC conveyed to the Appellant that extension could not be granted the Appellant decided to exit the Meeting and their open bidding process was conducted wherein H1 Company was declared the Bidder with Rs.49 Crs.  The EMD amount was returned to the Appellant. An application was preferred by the Appellant in September 2020 but the same was not pursued by them before the Adjudicating Authority though it was sitting regularly.  After the approval of the Resolution Plan the RP conveyed the first Meeting of the Monitoring Committee and three new Board of Directors were appointed. Further as per the terms of the Resolution Plan on 16.04.2021 Rs.49 Crs. were received from H1 out of which Company Appeal(Insolvency) No. 2521 9 Rs.47.17 Crs. payment was made to all the ‘Secured Financial Creditors’. The Government and statutory dues were also paid.  The ‘Financial Creditors’ namely Axis Bank Canara Bank HDFC Bank and Bank of India issued NOC and release their security  R 8 has taken control over the ownership and management of the ‘Corporate Debtor Company’. The Plan has been implemented. The RP in support of their case relied on the following Judgements: ‗Arcelor Mittal India Private Limited‘ Vs. ‗Satish Kumar Gupta‘ 2019) 2 SCC 1. ‗Committee of Creditors of Essar Steel India Limited‘ Vs. ‗Satish Kumar Gupta‘ 2019 SCC OnLine SC 1478 Para 54. ‗K Sashidhar‘ Vs. ‗Indian Overseas Bank & Ors.‘ 2019 SCC OnLine SC 257 Para 52 55 57 58 & 64. ‗Maharashtra Seamless Limited‘ Vs. ‗Padmanabhan‘ Civil Appeal ‗Swiss Ribbons Pvt. Ltd. & Anr.‘ Vs. ‗Union of India‘ 2019 SCC No. 42418 Para 28. OnLine SC 73 Para 82 84. Submissions of the Learned Counsel appearing on behalf of the Respondent No. 8 Successful Resolution Applicant:  The Resolution Plan has already been implemented and all the old Directors of the Company have resigned and the new Directors were appointed. Bankers have released their charges on the assets of their Company Appeal(Insolvency) No. 2521 10  The Successful Resolution Applicant has invested huge amounts on Purchase of Equipment Repair of Machinery Revival of Plant at  The Hon’ble Supreme Court has time and again held that commercial wisdom of the CoC cannot be overturned.  Though the Appellant referred to the email dated 08.09.2020 stating that one Mr. Naresh Agarwal one of the directors of the Appellant was tested Covid positive. The other authorised person Mr. Murali Lal Agarwal or Mr. Rajesh Agarwal who has filed this Appeal could have acted on behalf of the Appellant Company.  Regulation 40 C is applicable only till the end of the period of lockdown. As per the provisions of the Regulations for Resolution Plan RFRP) all prospective Resolution Applicants have agreed to abide by the decision of the CoC under clause 1.14.7 of the RFRP as it has been stated that no extension of time shall be given to the Resolution Applicant for submission of Resolution Plan. I.A. 599 of 2021 seeking condonation of delay in filing the Appeal is condoned vide Order dated 09.08.2021. The material on record shows that the last date for submission of the Resolution Plan was extended five times:  On 01.04.2020  16.04.2020  30.05.2020 Company Appeal(Insolvency) No. 2521  29.06.2020  and finally till 30.07.2020 11 It is the case of the Appellant that RP had given only two days time i.e. the email was addressed to them on 08.09.2020 and the 10th CoC Meeting was convened on 10.09.2020 and that the fixing of the date within two days is not in conformity with Section 19 of the Code and there are no reasons for the urgency stated in the email. The documentary evidence on record shows that the 12th COC Meeting was held on 10.09.2020 whereby the RP brought to the notice of the COC Members regarding the request of the Appellant in the email dated 08.09.2020 seeking extension till 25.09.2020 for submission of the revised Resolution Plan. Further extension of date was declined by the Members of the COC. As regarding the urgency which is submitted by the Appellant it is a well settled proposition that IBC is a time bound process and any extension of time has to be done strictly under the provisions of Section 12(2) of the Code which reads as follows: 12. Time limit for completion of insolvency resolution process. …..(2) The resolution professional shall file an application to the Adjudicating Authority to extend the period of the corporate insolvency resolution process beyond one hundred and eighty days if instructed to do so by a resolution passed at a meeting of the committee of creditors by a vote ofper cent. of the voting shares. Sub Section of Section 30 of the Code provides that the RP shall present the Resolution Plans which conform to the requirement of Section 30 before the CoC for approval. After considering the feasibility and viability as stipulated under sub Section of Section 30 the CoC may approve the Resolution Plan by a vote not less than 66%. The Hon’ble Company Appeal(Insolvency) No. 2521 Supreme Court in ‘Ebix Singapore Private Limited’ Vs. ‘Committee of 12 Creditors of Educomp Solutions Limited & Anr.’ 2021 SCC OnLine SC 707 in para 142 discussed the importance of adherence to timelines and it is relevant to reproduce the observations: 142 As noted above Section 12 of the IBC stipulates the timeline within which the CIRP is to be completed. The RP on the instructions of the CoC may make an application for extension of the CIRP. Regulation 40A of the CIRP Regulations provides a detailed model timeline for CIRP which accounts for all the procedural eventualities that are permitted by the statute and the regulations. Regulation 40A is extracted below: ―40 A. Model time line for corporate insolvency presents a model timeline of corporate insolvency resolution process on the assumption that the interim resolution professional is appointed on the date of commencement of the process and the time available is hundred and eighty days: Section Regulation Description of Section 16(1) Commencement of CIRP and appointment of IRP Regulation 6(1) inviting claims Within 3 Days of Appointment of IRP 6(2)(c) and 12Submission of Regulation 12(2) of claims Days from For 14 Appointment of Up to 90th day Company Appeal(Insolvency) No. 2521 Regulation 13(1) 13 Verification of claims received under Regulation Verification of claims received under Regulation of AR Report certifying constitution of CoC b) Regulation 16 A Regulation 17(1) 22 Regulation 19(2) 1st meeting the CoC Section 22(2) Section 16(5) Regulation 17(3) to by appoint RP the CoC IRP performs the functions of RP till the RP is appointed. Regulation 27 30 A of application Within 7 days from the receipt of the claim Within 2 days from verification of claims received under Regulation 12(1) Within 7 days of filing of the report certifying constitution of the CoC but with five days In the first meeting of the On approval by the AA If RP is not appointed by 40th day of Within 7 days of appointment of RP but not later than 47th day of Before issue of Company Appeal(Insolvency) No. 2521 14 CoC to dispose of the application Filing application of withdrawal if approved by CoC with 90% majority voting by RP to AA RP to form an preferential and other transactions RP to make a determination on preferential and other transactions RP to file applications to AA for appropriate relief Submission of IM to Regulation 35 A Regulation 36Regulation 36 A Publish Form G Invitation of EoI Submission of EoI At least 15 Provisional List of RAs by RP Submission of provisional list Final List of RAs by Company Appeal(Insolvency) No. 2521 Within 7 days of its receipt or 7 days constitution of CoC whichever is later. Within 3 days of approval by Within 75 days of the days of days of Within 2 weeks of appointment of RP but not later than 54th day of Within 75 days days from issue of EoIWithin 10 days from the last day of receipt of EoI For 5 days from the date of provisional list Within 10 days of the receipt of Regulation 36 B 15 Issue of RFRP including Evaluation Matrix and IM Resolution Plans Regulation 39(4) Section 31(1) Submission of CoC approved Resolution Plan to AA Approval of Resolution plan by Within 5 days of the issue of the provisional At least 30 days from issue of RFRP Assume 30 As soon as approved by the CoC AA: Adjudicating Authority AR: Authorised Representative CIRP: Corporate Resolution Process CoC: Committee of Creditors EoI: Expression of Memorandum Professional RA: Resolution Applicant RP: Resolution Professional RFRP: Request Resolution Plan.‖ Interest 10. The Minutes of the 12th COC Meeting established that the CoC offered to the Appellant to continue to be a part of the ongoing process so that it may have an opportunity at any later stage. The Appellant had sought 15 minutes time for discussion and thereafter decided not to participate in the open bidding process and exited the Meeting. Thereafter the CoC went on to approve the Resolution Plan submitted by M s. Om Logistics Ltd. R 8. We find force in the contention of the Learned Counsels for the Respondent that if one of the Directors of the Appellant Company Mr. Naresh Agarwal had tested Covid positive there are no substantial reasons given for any of the other five Directors not to have represented their matter. Company Appeal(Insolvency) No. 2521 11. Going a little bit more in detail the material on record shows that the 16 financial bid submitted by the Appellant as on 31.07.2020 and the revised bid submitted on 02.09.2020 read as follows: 5 Workman & Employee Total Financial Bid CIRP Cost unpaid if any Secured Financial Creditor Unrelated Operational Creditor Unsecured Financial Creditor Plan as on Revised Plan as on 02.09.2020 It is seen from the aforenoted table that even 10 days prior to the 12th Meeting of the CoC the revised Plan was Rs.29 Crs. The Hon’ble Supreme Court in ‘CoC of Essar Steel India Ltd.’ Vs. ‘Satish Gupta & Ors.’SCC OnLine SC 1478 held as follows: After a resolution plan is approved by the requisite majority of the Committee of Creditors the aforesaid plan must then pass muster of the Adjudicating Authority under Section 31(1) of the Code. The Adjudicating Authority‘s jurisdiction is circumscribed by Section 30(2) of the Code. In this context the decision of this court in K. Sashidhar is of great relevance 45. Indubitably the inquiry in such an appeal would be limited to the power exercisable by the resolution professional under Section 30(2) of the I&B Code or at best by the adjudicating authority under Section 31(2) read with 31(1) of the I&B Code. No other inquiry would be permissible. Further the jurisdiction bestowed upon the appellate authority is also expressly circumscribed. It can examine the challenge only in relation to the grounds specified in Section 61(3) of the I&B Code which is limited to matters ―other than‖ enquiry into the autonomy or commercial wisdom of the dissenting financial creditors. Thus the prescribed authorities NCLT NCLAT) have been endowed with limited jurisdiction as specified in the I&B Code and not to act as a court of equity or exercise plenary Company Appeal(Insolvency) No. 2521 17 48. Thus it is clear that the limited judicial review available which can in no circumstance trespass upon a business decision of the majority of the Committee of Creditors has to be within the four corners of Section 30(2) of the Code insofar as the Adjudicating Authority is concerned and Section 32 read with Section 61(3) of the Code insofar as the Appellate Tribunal is concerned the parameters of such review having been clearly laid down in K. SashidharIn a catena of Judgements the Hon’ble Apex Court has laid down that the provisions investing jurisdiction and authority in the NCLT has not made the commercial decision exercised by the CoC of not approving the Resolution Plan or rejecting the same justiciable. So in the instant case if CoC has approved with 66% majority as provided under Section 12(2) of the Code and has decided not to extend the time to the Appellant herein on the ground that several extensions have already been given the RP cannot take any contrary decision. Therefore the contention of the Learned Counsel for the Appellant that the RP has not given sufficient advance time for the meeting and has acted contrary to provisions of IBC is untenable. 14. Additionally the Appellant had not chosen to exercise their choice of participating in the open bidding process and chose to exit the Meeting and even accepted the refund of the EMD amount. Having regard to the fact that the Resolution Plan is already implemented there is a change in the directorship new shares have been allotted the concerned Banks ‘Financial Creditor’ have released the charge on the security and have given their NOC are of the considered view that it would defeat the scope and objective of the Code if the clock is turned back. Hence we are of the considered view that Company Appeal(Insolvency) No. 2521 the ratio of the Hon’ble Apex Court in ‘Ghanshyam Mishra and Sons 18 Private Limited’ Vs. ‘Edelweiss Asset Reconstruction Company Limited Ors.’ 166 SCL 237 and also in ‘Ebix Singapore Private Limited’ Vs. ‘Committee of Creditors of Educomp Solutions Limited & Anr.’ 2021 SCC OnLine SC 707 is squarely applicable to the facts of this 15. For all the aforenoted reasons this Appeal fails and is accordingly dismissed. No Order as to Costs. 16. The Registry is directed to upload the Judgement on the website of this Tribunal and send the copy of this Judgement to the Learned Adjudicating Authority Justice Anant Bijay Singh] MemberMs. Shreesha Merla] MemberNEW DELHI 17th January 2022 Company Appeal(Insolvency) No. 2521

The motive of the appellant to do away with the victim has not been established nor was it established that they had inimical relations: High court of Sikkim  

Petitioner seek a direction to the respondent to recall of witness power to be invoked to meet the ends of justice for strong and valid reasons with cautions and circumspection, and the same issue was held in the judgement passed by a single bench judge Hon’ble Meenakshi Madan Rai, J. In the matter Subash Thapa versus  State of Sikkim [Crl. A. No.04 of 2018] dealt with an issue mentioned above. The instant matter pivots around the death of the victim, one Purna Kumar Gurung, aged about 34 years, working as a Lab Attendant under the Human Resource Development Department, in a school at Khecheopalri, West Sikkim. He is alleged to have been murdered by the appellant on the intervening night of 16-04-2016 and 17-04-2016 on a road half a kilometre away from his residence situated at 13th Mile, Tingling, West Sikkim. That, the evidence of P.W.36 and P.W.37 alleged to have heard the extra-judicial confession of the appellant are unreliable, as P.W.37 made a concerted bid to improve his statements during the trial, leading to inconsistencies in the Prosecution case besides which he had a political rivalry with the appellant during the Panchayat elections. The court perused the facts and arguments presented in the case In the end result, we find that the Prosecution has not only failed to establish the last seen together theory, but also the motive of the appellant for committing the crime. On pain of repetition, it is reiterated that the seizure of the articles allegedly based on Exhibit 5 is fraught with inconsistencies. In the absence of cogent, consistent and plausible evidence furnished by the Prosecution, there is every possibility of a false implication of the appellant.

THE HIGH COURT OF SIKKIM : GANGTOK Criminal Appeal Jurisdiction) DATED : 14th December 2021 DIVISION BENCH : THE HON’BLE MR. JUSTICE BISWANATH SOMADDER CHIEF JUSTICE THE HON’BLE MRS. JUSTICE MEENAKSHI MADAN RAI JUDGE Crl.A. No.018 Appellant Subash Thapa versus Respondent State of Sikkim Appeal under Section 374(2) of the Code of Criminal Procedure 1973 Appearance Mr. Tashi Rapten Barfungpa Advocate for the appellant. Dr. Doma T. Bhutia Public Prosecutor with Mr. S. K. Chettri Additional Public Prosecutor for the respondent. JUDGMENT Meenakshi Madan Rai J. The instant matter pivots around the death of the victim one Purna Kumar Gurung aged about 34 years working as a Lab Attendant under the Human Resource Development Department in a school at Khecheopalri West Sikkim. He is alleged to have been murdered by the appellant on the intervening night of 16 04 2016 and 17 04 2016 on a road half a kilometer away from his residence situated at 13th Mile Thingling West Sikkim. The appellant was charged under Sections 302 392 and 427 of the Indian Penal Code 1860 only from the appellant‟s residence was said to be adequate ground not only to prove robbery but also murder. However only P.W.2 deposed that the deceased was in possession of a bundle of currency notes uncorroborated by other witnesses who were assembled at the Hotel where they were playing cards. P.W.2 however was not made a witness to the recovery of the money or for identification of the currency notes. The ownership of the currency notes is not proved as no forensic tests were conducted to verify this aspect. The money recovered was in the denomination of Rs.1 000 Crl.A. No.018 3 Subash Thapa vs. State of Sikkim Rupees one thousand) only whereas P.W.3 the victim‟s mother deposed that she had handed over currency notes to the victim in the denomination of Rs.500 only and Rs.1 000 only. None of the currency notes alleged to have been seized from the appellant had blood stains. That the evidence of P.W.14 and P.W.19 reveals that the Police seized M.O.V wallet of the deceased from the accident site containing Rs.11 000 only and a gold ring. If robbery was the motive it is unfathomable as to why the appellant would not have taken the money in the victim‟s wallet and his jewellery. Motive is unproved as the appellant was financially stable as established by the evidence of P.W.19 who deposed that the appellant a Contractor had encashed two bills amounting to Rs.5 00 000 only and Rs.4 42 000 only some time before his arrest negating any requirement for commission of robbery. Hence this stance of the Prosecution cannot be countenanced. That in Tarseem Kumar vs. The Delhi Administration1 the Hon‟ble Supreme Court has held that in a case of circumstantial evidence motive for committing crime assumes importance which has not been established in the instant case. Strength was also drawn on this aspect from the ratio of State of Rajasthan vs. Hakam Singh2. That the Disclosure Statement of the appellant Exhibit 5 reflects that the statement was recorded on 18 04 2016 recovery of incriminating articles viz. M.O.VII Rs.71 000 in Rs.1 000 denomination) M.O.VIII blood stained 1 AIR 1994 SC 2585 2 15 SCC 171 Crl.A. No.018 4 Subash Thapa vs. State of Sikkim shoes M.O.IX Jeans of the appellant and M.O.X gray coloured jumper were made in the presence of P.W.15 and P.W.16 on 17 04 2016 prior in time to the recording of Exhibit 5 thereby demolishing the Prosecution case of recovery of these articles on disclosure. P.W.14 has corroborated the evidence of P.Ws 15 and 16 with regard to the date of seizure of the articles being 17 04 2016 and not 18 04 2016 as asserted by the Prosecution. That P.W.15 and P.W.16 are also stock witnesses for the Investigating OfficerP.W.43 both having been witnesses in S.T. Case No.10 2015 and J.J. Case No.01 2016 in which P.W.43 was the I.O. Even if the Prosecution case with regard to the Disclosures in Exhibit 5 is to be believed the appellant allegedly stated therein that he had washed the insoles of the shoes worn by him at the time of the offence. Contrarily P.W.15 has deposed that a pair of blood stained shoes with insoles were seized by the Police fortifying the allegation that P.W.15 is a stock witness and thereby unreliable. That the Court should be wary while considering the evidence of such interested witness as held in State of U.P. vs. Arun Kumar Gupta3 thus Exhibit 5 deserves to be discarded in view of the anomalies. The evidence of P.W.5 a Police personnel subordinate to the I.O. reveals that on 17 04 2016 after forwarding the dead body to Gangtok for post mortem he along with P.W.43 the I.O. went to the house of the appellant obtained the keys from the appellant‟s father and brought a few clothes belonging to the appellant to the Police Station. His statement thus further buttresses the evidence of P.W.14 and the fact that the clothes of the appellant were seized in his absence prior in 3 2 SCC 202 Crl.A. No.018 5 Subash Thapa vs. State of Sikkim time to the Disclosure Statement. P.W.27 a witness declared hostile by the Prosecution did not see the appellant and the victim going together on the motorcycle after their game of cards. Another witness P.W.38 stated that he had not even seen the appellant at the game of cards according to him P.W.2 P.W.27 and P.W.28 left the game together neither had he seen any motorcycle parked outside the Hotel where they had all gathered to play cards. The evidence of these witnesses are contrary to the evidence of P.W.2 with regard to the departure of the victim and the appellant. That the evidence of P.W.36 and P.W.37 alleged to have heard the extra judicial confession of the appellant are unreliable as P.W.37 made a concerted bid to improve his statements during the trial leading to inconsistencies in the Prosecution case besides which he had political rivalry with the appellant during the Panchayat elections. That the delay in forwarding the blood sample of the deceased for forensic testing sans reasons raises doubts about the Prosecution case as the incident took place on the intervening night of 16 04 2016 and 17 04 2016 while the sample was forwarded on 08 05 2016. Succour was drawn on this count from the observation in Arun Kumar Gupta supra). That as no finger prints were lifted from the place of occurrence or from any of the material objects seized by the Police the complicity of the appellant has not been proved. Although attempts were made to tarnish the character of the appellant by the I.O. P.W.43 by alleging he had been terminated from service due to unruly behavior this is not substantiated by proof. The evidence of P.W.42 categorically indicates that the appellant was at Crl.A. No.018 6 Subash Thapa vs. State of Sikkim another location at 10 10.30 pm. of 16 04 2016 and not with the victim and that the victim and the appellant did not bear animosity towards each other. The „Shungdi’with which the appellant is alleged to have dragged the dead body although allegedly seized was not exhibited by the Prosecution. iv) It was next urged that during post mortem P.W.39 Dr. O.T. Lepcha the Medico Legal Consultant found that the abdomen of the victim smelled of fermented alcohol hence intoxication being the cause of the accident cannot be ruled out. The alleged weapon of offence M.O.I a stone was not shown to P.W.39 to determine the cause of injuries found on the victim. On this aspect reliance was placed on Ishwar Singh vs. State of U.P.4. That the Prosecution had attempted to establish that the appellant also rode pillion with the victim on the bike to a further distance instead of alighting on reaching his home and then committed the offence devoid of evidence. The blood group of both the victim and the appellant was admittedly „AB‟ but no effort was made during investigation to conduct further scientific tests to establish beyond doubt that the blood stains on M.O.I was that of the deceased. That suspicion however grave cannot take the place of proof as held by the Hon‟ble Supreme Court in Rajiv Singh vs. State of Bihar and Another5. That it is established law that if two views are possible on the evidence adduced in the case one pointing to the guilt and the other to the innocence of the accused the view favourable to the accused should be accepted. On this count reliance was placed on 4 4 SCC 355 5 16 SCC 369 Crl.A. No.018 7 Subash Thapa vs. State of Sikkim Suchand Pal vs. Phani Pal and Another6 and State of Rajasthan vs. Naresh alias Ram Naresh7. That the learned trial Court has rejected the evidence of the Defence Witnesses while failing to appreciate that it is the bounden duty of the Prosecution to prove its case beyond all reasonable doubt and not for the defence to establish innocence. Reliance was placed on State of Haryana vs. Ram Singh8. That in view of all arguments put forth and the mandate of law supra the Judgment of the learned trial Court be set aside and the appellant acquitted of the offences charged with. Countering the arguments of learned counsel for the appellant learned Public Prosecutor contended that the four circumstances relied on by the Prosecution to prove its case was the Last Seen Theory Motive recovery of money and non explanation by the appellant of how he came to be in possession of Rs.71 000 only. That last seen theory has been established by P.W.2 duly corroborated by P.W.37 and P.W.1. P.W.1 saw the deceased and the appellant entering the Hotel. P.W.2 and P.W.37 saw them going out together. That the evidence of P.W.2 a Police personnel should not be discounted merely on account of his profession. On this count reliance was placed on Kashmiri Lal vs. State of Haryana9. P.W.33 had also seen the appellant and the deceased in a vehicle returning from the wedding at 14th Mile. That the death being the result of an accident is ruled out by the injuries apparent on the back of the head of the 6 11 SCC 527 7 9 SCC 368 8 2 SCC 426 9 6 SCC 595 Crl.A. No.018 8 Subash Thapa vs. State of Sikkim deceased as an accident would have caused only frontal injuries added to which P.W.26 the Motor Vehicle Inspector deposed that there was no mechanical defect in the motorcycle. The dead body was found 49 feet below the road thus if the death was due to accident there was no reason either for blood to be found on the road or on the stone M.O.I the weapon of offence. The recovery of cash from the deceased has been established by the evidence of P.W.15 P.W.16 and P.W.43 and P.W.3 has proved that she had handed over money to her son the victim on the relevant day. The money was for paying P.W.4 who in turn had deposed that the deceased had told him that he would pay Rs.80 000 only as an advance for the landed property purchased from him but he failed to turn up at his house. That the appellant made a Disclosure Statement Exhibit 5 without coercion as proved by P.W.15 and P.W.16 and P.W.43 the I.O. Motive has been established by the fact that the deceased had refused to give the appellant a sum of Rs.5 000 Rupees five thousand) only on his request when gambling and the humiliation of the refusal and awareness of the victim‟s possession of a large sum of money led to the offence. Drawing the attention of this Court to the decision in Paramjeet Singh alias Pamma vs. State of Uttarakhand10 it was next urged that motive is for the purpose of supplying a link in the chain of circumstantial evidence but its absence cannot be a ground to reject the Prosecution case. That PWs 15 and 16 cannot be referred to as stock witnesses merely because they are witnesses in two other matters where P.W.43 was the I.O. This is a result of people not wanting to 10 10 SCC 439 Crl.A. No.018 9 Subash Thapa vs. State of Sikkim be embroiled in any criminal disputes but in no way renders their evidence weak reliance was placed on Sri Bhagwan vs. State of Uttar Pradesh11. It was contended that minor discrepancies and infirmities in the Prosecution evidence is not a ground to reject the Prosecution case in its entirety as the evidence has to be considered as a whole in order to assess the truth. Reliance was placed on the ratio of State of Uttar Pradesh vs. Krishna Master and Others12. Inviting the attention of this Court to the decision in State of M.P. through CBI and Others vs. Paltan Mallah and Others13 it was canvassed that evidence obtained under illegal search is not completely excluded unless it has caused serious prejudice to the accused and the discretion lies with the Court to accept or reject such evidence. That since the doctrine of last seen together has been proved the burden of proof shifts to the accused however the appellant has failed to shed light on his role or his possession of Rs.71 000 only reliance was placed on Pattu Rajan vs. State of Tamil Nadu14 to drive home this point. That merely because P.W.27 and P.W.28 turned hostile their evidence cannot be rejected in totality evidence which is otherwise acceptable can be relied upon. Strength was drawn from the ratio in Khujji @ Surendra Tiwari vs. State of Madhya Pradesh15. Having heard the rival submissions of learned counsel for the parties in extenso perused the entire records of the learned trial Court including the impugned Judgment and Order on Sentence and the citations made at the Bar this Court is to determine whether the Prosecution on the edifice of circumstantial 11 12 SCC 137 12 12 SCC 324 13 3 SCC 169 14 4 SCC 771 15 3 SCC 627 Crl.A. No.018 10 Subash Thapa vs. State of Sikkim evidence has proved its case beyond a reasonable doubt thereby rendering the impugned Judgment of the learned trial Court unassailable. In order to gauge this circumstance it is necessary to briefly delve into the facts of the case. The Prosecution case is that on 17 04 2016 at 0830 hours Exhibit 13 an FIR was lodged by P.W.36 at the Gyalshing Police Station at 7 a.m. informing that in the morning he received a call from P.W.7 stating that the deceased had met with an accident and his motorcycle was lying below the road but the victim was not seen there. The Complainant reached the spot and found the victim lying face downwards. On close inspection of the victim he suspected that he had been murdered and hence lodged the FIR seeking necessary action. On the basis of the Exhibit 13 Gyalshing P.S. Case No.22 2016 dated 17 04 2016 under Section 302 of the IPC was registered against unknown persons and taken up for investigation by the I.O. P.W.43 the Station House Officer of the Gyalshing P.S. On completion of the investigation prima facie case under Sections 341 302 392 427 of the IPC was made out against the appellant and charge sheet submitted accordingly. On the appellant‟s plea of “not guilty” to the charges framed against him by the learned trial Court under Sections 302 392 and 427 of the IPC the Prosecution embarked on examining 43 witnesses including the I.O. of the case. On closure of Prosecution evidence the appellant was examined under Section 313 Criminal Procedure Code 1973 and his responses recorded. He sought to and was permitted to examine 6 persons as his witnesses being D.W.1 to D.W.6. The learned trial Crl.A. No.018 11 Subash Thapa vs. State of Sikkim Court on consideration of oral documentary and material evidence pronounced the impugned Judgment of conviction and Order on Sentence. While reaching its conclusion of guilt of the appellant under the various offences he was charged with the learned trial Court observed that proof of possession of cash with the victim was given by P.W.3 and chose to disbelieve that the victim had adequate means of income. That the appellant made no effort to explain his possession of the recovered cash although he had the opportunity to do so when examined under Section 313 Cr.P.C. While discussing the forensic evidence put forth by the Prosecution and the evidence of P.W.25 the learned trial Court concluded that the appellant did not explain how his shoes insoles came to have blood stains. He had taken the plea that the Police had rubbed “his blood on his shoes” and clothes but never explained how or when the Police obtained his blood. While discussing the last seen theory the learned trial Court found the evidence of P.W.2 credible and trustworthy. The Court was loathe to accept the statement of P.W.27 that he along with P.W.28 and P.W.2 left the Hotel together and reasoned that it was not corroborated by P.W.28 P.W.38 or P.W.2. That P.W.2 had also clearly testified that the appellant had lost while gambling and requested the deceased for a loan which the deceased refused lending motive to the crime. The evidence of the Motor Vehicle Inspector P.W.26 was considered and the learned trial Court concluded that it was highly improbable that the victim would have died as a result of an accident and nothing in the evidence of P.W.2 P.W.27 P.W.28 and Crl.A. No.018 12 Subash Thapa vs. State of Sikkim P.W.38 suggested remotely that the appellant was so intoxicated to have lost control of his motorbike. The medical evidence of P.W.39 who opined that the cause of death was intracranial haemorrhage with fracture of skull as a result of blunt force was believed to have been a result of the assault by the appellant. The evidence of P.W.5 to the extent that the appellant tried to escape from the Police vehicle was found to be another incriminating circumstance against the appellant. The extra judicial confession of the appellant as deposed by P.W.36 and P.W.37 was found plausible while the Disclosure Statement Exhibit 5 was believed to have been made by the appellant before P.W.15 and P.W.16 at the Gyalshing P.S. of his own freewill. The seizures made pursuant to Exhibit 5 were given due consideration and accepted as the truth. The evidence of the Defence Witness were disregarded in totality and after recording its observations the assailed Judgment was pronounced. Circumstantial evidence is legal evidence but when the Prosecution relies upon circumstantial evidence as is the case here the circumstances must be so convincing that no other conclusion can be arrived at than the guilt of the accused which must adequate to convict the accused. In Hanumant Govind Nargundkar and Another vs. State of Madhya Pradesh16 while considering a case based on circumstantial evidence the Hon‟ble Supreme Court held as follows “[10] . .…. It is well to remember that in cases where the circumstances from which the conclusion of guilt is to circumstantial nature is of a 16 AIR 1952 SC 343 Crl.A. No.018 13 Subash Thapa vs. State of Sikkim be drawn should in the first instance be fully established and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again the circumstances should be of a conclusive nature and pendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused. …..” The Supreme Court in Sharad Birdhichand Sarda vs. State of Maharashtra17 expounded that the five golden principles which constitute the panchsheel of the proof of a case based on circumstantial evidence as The circumstances from which the conclusion of guilt is to be drawn must or should be and not merely “may be” fully established The facts so established should be consistent with the hypothesis of the guilt of the accused that is to say they should not be explainable on any other hypothesis except that the accused is guilty The circumstances should be of a conclusive nature and tendency They should exclude every possible hypothesis except the one to be proved and There should be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. On the anvil of these well settled parameters the evidence in the instant matter is to be examined to assess whether they fulfil the above principles. The first link in the chain of circumstantial evidence would undoubtedly have to be the last seen together theory. In Bodhraj alias Bodha and Others vs. State of Jammu and Kashmir18 the Supreme Court held that the last seen theory comes into play 17 4 SCC 116 18 8 SCC 45 Crl.A. No.018 14 Subash Thapa vs. State of Sikkim where the time gap between the point of time when the accused and deceased were seen last alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of crime becomes impossible. Only on this circumstance being proved can the Prosecution link the other circumstances to it and thereby the offence to the appellant. On this aspect the evidence of P.W.2 a Police personnel posted at the Yuksom Police Out Post at the relevant time is to be examined. As per P.W.2 the deceased had called him to the Hotel after his duty hours. He along with the deceased P.W.28 P.W.27 and P.W.38 and the appellant played cards and he noticed that the deceased was in possession of some amount of money in the denomination of Rs.1 000 In light of the above evidence of the witnesses furnished by the Prosecution it is questionable as to why more weight was attached to the evidence of P.W.2 by the learned trial Court when other witnesses have not corroborated his evidence and when specific timings of the event are missing from his evidence as against the evidence of P.W.27 and P.W.38 who vouch for the fact that they all dispersed from the Hotel at 6.30 p.m. The I.O. in his evidence has stated that the game of cards gave over at 2200 hours which is contrary to the evidence of P.W.27 P.W.28 Crl.A. No.018 16 Subash Thapa vs. State of Sikkim P.W.38 and P.W.6 one of the Hotel owners according to whom her Hotel closed down at 7 p.m. The evidence of P.W.2 that he reached the Hotel at 7.30 p.m. to 8 p.m. therefore falls flat considering that the Hotel owner claimed that her Hotel closed down at 7 p.m. Although Learned Public Prosecutor had contended that P.W.1 had seen the appellant and the deceased at her Hotel thereby buttressing the last seen theory under cross examination P.W.1 stated that she did not see the appellant on the relevant day at her Hotel. She also stated that the deceased had „allegedly‟ come to her Hotel at around 4.30 p.m. To compound the confusion P.W.5 added that “ ….. during the investigation it was found that during the day the deceased had last been seen with the accused on the motorbike”. In light of the anomalies with regard to the time of closure of the Hotel the time when P.W.2 reached there and the consistent contradictory evidence of the time of dispersal of the gathering added to the contradictory evidence of P.W.2 with that of P.W.27 28 and 38 the evidence of P.W.2 having last seen the deceased and the appellant together on the motorbike cannot be countenanced. Hence the cogent and consistent evidence essential to establish the last seen theory in the Prosecution case is glaringly lacking. Besides P.W.2 no other person assembled at the Hotel and gambling there had seen the victim in possession of a large sum of money. It is these anomalies and conflicting evidence that make the testimony of P.W.2 untenable and unworthy of reliance and not the fact that he is a Police personnel. Beneficially it may also be stated that it is no more res integra that it is not prudent for the Court to base its conviction solely on the basis of the last seen theory. Crl.A. No.018 17 Subash Thapa vs. State of Sikkim Next on the basis of Exhibit 5 the Disclosure Statement of the appellant under Section 27 of Indian Evidence Act 1872 allegedly made in the presence of PWs 15 and 16 M.O.VII cash amounting to Rs.71 000 only was recovered vide Exhibit 6 dated 18 04 2016 from the place allegedly shown by the appellant. Vide Exhibit 7 dated 17 04 2016 signed by PWs 15 and 16 on 18 04 2016 M.O.VIII M.O.XXVI M.O.IX and M.O.Xwere seized allegedly. But can these recoveries link the crime to the appellant In our considered opinion it would not be so in view of the contradictions that emerges in the Prosecution evidence with regard to Exhibit 5. Before discussing this aspect of the Prosecution case we may briefly examine what Section 27 of the Evidence Act entails. The provision of Section 27 of the Evidence Act is extracted below for easy reference “27. How much of information received from accused may be proved.─Provided that when any fact is deposed to as discovered in consequence of information received from a person accused of any offence in the custody of a police officer so much of such information whether it amounts to a confession or not as relates distinctly to the fact thereby discovered may be proved.” Section 27 is by way of a proviso to Sections 25 and 26 of the Evidence Act by which a statement made in police custody which distinctly relates to the fact discovered is admissible in evidence against the accused. The conditions prescribed in Section 27 enabling admissibility of the statement of the accused made to Crl.A. No.018 18 Subash Thapa vs. State of Sikkim the police are enumerated in Pulukuri Kottaya and Others vs. Emperor19 which still rules the roost with regard to the interpretation of Section 27 of the Evident Act as follows “[10]. Section 27 which is not artistically worded provides an exception to the prohibition imposed by the preceding section and enables certain statements made by a person in police custody to be proved. The condition necessary to bring the section into operation is that the discovery of a fact in consequence of information received from a person accused of any offence in the custody of a police officer must be deposed to and there upon so much of the information as relates distinctly to the fact thereby discovered may be proved. The section seems to be based on the view that if a fact is actually discovered in consequence of information given some guarantee is afforded thereby that the information was true and accordingly can be safely allowed to be given in evidence but clearly the extent of the information admissible must depend on the exact nature of to which such fact discovered information is required to relate. Normally the section is brought into operation when a person in police custody produces from some place of concealment some object such as a dead body a weapon or ornaments said to be connected with the crime of which the informant is accused. ..” The phrase “distinctly relates to the fact discovered” in Section 27 of the Evidence Act is the foundational aspect of this provision. This phrase refers to that part of the information supplied by the accused which is the driver and immediate cause of the discovery. If a fact is actually discovered in consequence of information given by the accused it affords some guarantee of the truth of that part of the information which was the clear immediate and proximate cause of the discovery. iii) Bearing in mind the principles so enunciated we now examine Exhibit 5 recorded by the I.O. in the presence of two witnesses P.W.15 and P.W.16. In his Disclosure the appellant claims to have washed the insoles of the shoes M.O.VIII and washed the white jumper worn by him on the night of the incident 19 AIR 1947 PC 67 Crl.A. No.018 19 Subash Thapa vs. State of Sikkim which he could show the witness. P.W.43 has strangely however recovered a blood stained white Jumper and blood stained insoles allegedly in pursuance to the appellant‟s disclosure vide Exhibit 7. M.O.X a gray Jumper was not even one of the articles seized on the basis of Exhibit 5 as deposed by P.W.15. The appellant is alleged to have revealed in Exhibit 5 that the shoes M.O.VIII were kept separately and the washed insoles kept elsewhere but the Prosecution evidence indicates that the shoes were seized with the insoles in contradiction to the Disclosure Statement thereby making the recovery suspect. iv) P.W.15 and P.W.16 under cross examination admitted that articles under Exhibit 7 dated 17 04 2016 were seized on the same date i.e. 17 04 2016 at 1515 hours and recovery of the money was also made on the same date vide Exhibit 6. The Disclosure Statement Exhibit 5 was recorded on 18 04 2016 hence it emerges that recovery of articles reflected in Exhibit 7 were made prior to the disclosure which is an incongruous proposition and razes the Prosecution case to the ground. The learned Public Prosecutor sought to brush aside these anomalies as minor discrepancies however these discrepancies strike at the root of the Prosecution case since their attempt is to link the crime to the appellant on the anvil of Exhibit 5. In such a circumstance the investigation is required to be faultless. Apart from violation of the legal provision the seizures being inconsistent with the statement in Exhibit 5 are therefore prone to be viewed with suspicion. The evidence of P.W.5 fortifies the statement of P.W.15 and P.W.16 and lends further doubt to the seizures of even having been made in the presence of P.W.15 and P.W.16. According to Crl.A. No.018 20 Subash Thapa vs. State of Sikkim P.W.5 the victim‟s body was forwarded to Gangtok for post mortem while he was at the place of occurrence. This statement obtains credence from Exhibit 3 the Medico Legal Autopsy Report of the victim which records that the body was received by the STNM Hospital Gangtok on 17 04 2016 at 6.45 p.m. After forwarding the body he along with P.W.43 went to the house of the appellant for investigation after getting the keys from the father of the appellant which were returned only on the next day. They brought a few clothes of the appellant from his house and came to the Police Station. His evidence thus leads to the conclusion that he accompanied P.W.43 to the house of the appellant on 17 04 2016 itself. P.W.5 surprisingly is not even a witness to the articles seized vide Exhibit 7 and the I.O. has not explained this circumstance in his testimony nor has he disclosed as to what became of the clothes taken by him when P.W.5 had accompanied him to the appellant‟s house. It would be profitable to notice at this point that in Question No.9 put to the appellant in his Section 313 Cr.P.C. statement he has shed light on how the blood stains came on his washed clothes. The Question and Answers are extracted hereinbelow for convenience “Q. No.9 PW 15 has further stated that on the same day the police also seized a pair of blood stained shoes a jeans pant and a gray coloured jumper from your room in his presence vide Exhibit 7. What have you to say Ans: These clothes and the money was taken by the Police on 17.4.2016 from my house and brought to the Police Station. Thereafter they again rubbed blood on my clean clothes and later went and placed the clothes and money in my house in various places. On 18.4.2016 the Police then took me to my house and the money was taken out by the Police and my Crl.A. No.018 21 Subash Thapa vs. State of Sikkim clothes were also taken out by the Police from Tikjuk P.S.” Learned Public Prosecutor while relying on Paltan Mallah supra) had contended that evidence obtained under illegal search is not completely excluded unless it has caused serious prejudice to the accused. The facts and circumstances in the said case are distinguishable from the one at hand. In Paltan Mallahthe Prosecution had conducted search of the residence of A1 and recovered certain articles however the recovery was not based on Section 27 of the Evidence Act. Once the Prosecution bases its case on Section 27 of the Evidence Act then necessarily the procedure laid down therein must be followed to the hilt as the liberty of an individual is at stake. vi) P.W.25 the Junior Scientific Officer examined the Material Objects i.e. one white coloured Jumper M.O.XXVI one blue coloured Jeans pant M.O.IX one brown coloured V shaped M.O.X blood sample of victim M.O.XXVII and blood sample of the accused M.O.XXX. As providence would have the blood sample of both the appellant and the deceased belonged to the blood group „AB‟. Despite the similarity in the blood group of the victim and the deceased no effort was made during investigation to establish by further scientific evidence as to whose blood was found on the clothes and shoes of the appellant. Blood was not detected on the brown V shaped vest white Jumper and Jeans. Pausing here it requires to be reiterated that even forensic tests did not detect blood on these articles but the I.O. contrarily has recorded in Exhibit 7 that the articles were blood stained. It is relevant to recapitulate that the appellant in Exhibit 5 had stated Crl.A. No.018 22 Subash Thapa vs. State of Sikkim that the insoles of his shoes were washed but strangely appears to have contained blood stains when forwarded for forensic test. It is not the Prosecution case that there were blood stained foot prints at the site of the crime or on the road where the alleged incident took place. Thus even the forensic evidence is of no assistance to the Prosecution case. vii) P.W.3 has stated that on the date of the accident she handed over Rs.1 00 000 only to the victim. Recovery of cash amounting to Rs.71 000 only was made by the Police from the place of concealment as disclosed by the appellant but no finger prints were lifted from the currency notes to establish ownership of the currency notes followed by robbery and thereby change in ownership. No investigation ensued to prove the fate of the remaining Rs.29 000 only out of the said Rs.1 00 000 only. The added anomaly is that P.W.3 had evidently handed over Rs.1 00 000 Rupees one lakh) only in denominations of Rs.500 only but recovery was of denominations in Rs.1 000 Rupees one thousand) only. The vehement argument of the learned Public Prosecutor that the burden was cast on the appellant to establish how he came to be in possession of Rs.71 000 Rupees seventy one thousand) only in our considered opinion is against all established legal tenets as the reverse burden under Section 106 of the Evidence Act would fall into place only once the Prosecution succeeds in establishing by plausible evidence its allegations against the appellant. The Prosecution as can be seen from the discussions above has failed to discharge its obligation. Crl.A. No.018 23 Subash Thapa vs. State of Sikkim The motive of the appellant to do away with the victim has not been established nor was it established that they had inimical relations. As pointed out by learned counsel for the appellant if greed was the factor that motivated him then it needs to be mulled over as to why a sum of Rs.11 000 only said to be found in the victim‟s possession at the place of occurrence as also his gold ring were not taken by the appellant. viii) P.W.39 the Doctor who examined the victim has merely opined that the approximate time since death was 12 to 24 hours and the cause of death to the best of his knowledge and belief was due to intracranial haemorrhage with profuse loss of blood with fracture of skull as a result of blunt force trauma. No opinion was expressed on how the blunt force trauma was inflicted on the victim. An expert deposing before the Court plays a crucial role as the entire purpose of opinion evidence is to aid the Court in forming its opinion on questions concerning science medical aspects etc. Here P.W.39 was not able to opine as to whether the death was homicidal or accidental and he was disadvantaged by not having been shown M.O.I the alleged weapon of offence. The wounds on the person of the victim and the fracture of his skull could well have been the consequence of having been struck by a stoneor due to a fall from the height of the road but the Prosecution case cannot be based on conjectures. ix) Investigation has failed to explain as to how the ligature markappeared over the neck of the deceased detected by P.W.39 was inflicted. P.W.39 has opined as follows “11. Ligature mark placed over the neck and running backwards situated just over Crl.A. No.018 24 Subash Thapa vs. State of Sikkim and above the thyroid. The left ligature is placed 3.9 cm below left ear and right ligature is placed 3.8 cm below right ear. The ligature encircles the neck and does not extend upwards. Multiple small ligature marks each measuring 0.5 cm and is placed within the broad ligature mark of 5 cm. The ligature mark excludes possibility of hanging.” He however was not shown any article which could have caused the ligature mark neither has any such object been exhibited by the Prosecution before the learned trial Court to explain the mark. 12(i). So far as extra judicial confession of the appellant to P.W.37 is concerned in his evidence in chief P.W.37 stated that the appellant narrated to him in the Nepali language which roughly translated into English reads as follows I pushed the bike from behind and it toppled over. After that I took a stone and hit him and killed him. To make it appear like an accident I made it look like the bike had fallen down took the money and came home. Under cross examination it was elicited from him that this statement supra finds no place in his Section 161 Cr.P.C. statement recorded by the I.O. during the course of investigation. P.W.37 also sought to clarify that although the „wife‟ of the appellant was not present when his statement was being recorded her presence had been wrongly mentioned when in fact it was the „uncle‟ of the appellant who was present. The witness sought to rectify this error. In light of the above contradictions it would be a risky proposition to rely on the deposition of this witness as his evidence before the Court appears to be an effort to improve the Prosecution case by insertion of concocted statements which had earlier not been made by him. According to P.W.36 the appellant had told him that he had returned home with the victim and that now he would be dragged into the matter but he had also added Crl.A. No.018 25 Subash Thapa vs. State of Sikkim that after they returned together he had gone home while the victim had proceeded ahead towards 13th Mile. If that be the case then the statement of the appellant made to the witness must be appreciated in its entirety and the Prosecution cannot pick and choose sentences which suit them and discard the portions unsavoury to the Prosecution. Although the learned trial Court observed that the accident could not have occurred in view of the absence of mechanical failure of the bike however the fact that the appellant was speeding and went off the road also cannot be discounted these are therefore only conjectures and surmises not evidence. The Motor Vehicle Inspector P.W.26 was not in a position to state whether the victim was speeding or not. Moreover finger prints were not lifted by the I.O. from the motorbike to substantiate the Prosecution version that the appellant was riding pillion when the victim was driving at the time of the incident. The statements of P.W.5 and P.W.43 that the appellant attempted to escape from the custody of the Police have to be taken with a pinch of salt as records reveal that no such effort was made by him during the entire intervening night after the alleged incident although he was allegedly in possession of the stolen amount of Rs.71 000 only and could well have made good his escape. iv) That having been said the delay in forwarding the blood sample of the victim to P.W.25 the Junior Scientific Officer stationed at Ranipool East District of Sikkim on 08 05 2016 when the incident had occurred on the intervening night of 16 04 2016 Crl.A. No.018 26 Subash Thapa vs. State of Sikkim and 17 04 2016 has not been explained by the Prosecution and adds to the doubts about the authenticity of the Prosecution case. Despite there being strong suspicion against the appellant with regard to him having a hand in the death of the appellant suspicion however strong cannot replace certainty. Moral conviction cannot be resorted to in a criminal case as the golden rule is proof of case beyond a reasonable doubt. In the end result we find that the Prosecution has not only failed to establish the last seen together theory but also the motive of the appellant for committing the crime. On pain of repetition it is reiterated that the seizure of the articles allegedly based on Exhibit 5 is fraught with inconsistencies. In the absence of cogent consistent and plausible evidence furnished by the Prosecution there is every possibility of a false implication of the appellant. Consequently the conviction and sentence imposed on the appellant vide the impugned Judgment and Order on Sentence of the Learned Trial Court are set aside. The appellant is acquitted of the charge under Sections 302 392 and 427 of the IPC. Appeal allowed. Appellant be released from custody forthwith unless required to be detained in connection with any other case. Fine if any deposited by the appellant in terms of the impugned Order on Sentence be reimbursed to him. No order as to costs. Crl.A. No.018 27 Subash Thapa vs. State of Sikkim 20. Copy of this Judgment be transmitted to the learned trial Court for information along with its records and a copy be sent forthwith to the Jail Authorities as also e mailed. ( Biswanath Somadder ) Judge Chief Justice 14 12 2021 14 12 2021 Approved for reporting : Yes ds

Relevant date for determining the foreign exchange rate applicable to an arbitral award : High Court of Delhi

The exchange rate as applicable on the date when the petition of challenge to an arbitral award is dismissed, will be the relevant date for ascertaining the exchange rate applicable for determining the INR equivalent to the amounts awarded in foreign currency. This was held in VOITH HYDRO LTDA & ORS v. NTPC LIMITED[OMP (ENF.) (COMM.) 64/2018] in the High Court of Delhi by single bench consisting of HON’BLE JUSTICE VIBHU BAKHRU. Facts of the case are that an arbitral award was passed in the context of dispute between the parties in connection with an agreement for execution of a Hydro Electric Project. Compensation was awarded in favor of petitioner with interest. Respondent filed petition under S.34 and a SLP to set aside the Award, both of which were dismissed. Learned  Counsel appearing for decree holder submitted that NTPC had paid an amount the shortfall of ₹12,09,16,391.27 which was primarily due two reasons, incorrect reliance on the exchange rate, NTPC erroneously deducted tax deducted at source(TDS) and was also liable to pay charges incurred by them for extending the Bank Guarantees. Counsel for decree debtor contended the award amount was correctly paid. Voilth was required to open Escrow Account and obtain specific approval from RBI which they delayed. The exchange rate was consented and accepted in Indian currency in Escrow Account. Payment of TDS and any extra charges will be unfair. The High Court referred to the precedent laid down in Forasol v. Oil and Natural Gas Commission, wherein the Supreme Court had held that, “The exchange rate prevalent on the date on which the decree is passed would be the applicable exchange rate. It further clarified that if the decree is challenged in an appeal and such appeal is decided wholly or in part, the exchange rate prevailing on the date on which the decree or order is passed, would be applicable. Insofar as the arbitral awards are concerned, the date on which the challenge to the arbitral award is finally rejected, would be the date for determining the foreign exchange applicable to an award made in foreign currency.” Court also referred to the decision of the Supreme Court in All India Reporter Ltd. v. Ramchandra D. Datar wherein it was held,“when amounts becomes part of a judgment-debt, they lose their original character and assume the character of a judgment debt. Once such an amount assumes the character of judgment debt, the decree passed by the civil court must be executed subject only to the deductions and adjustments permissible under the Code of Civil Procedure.”

IN THE HIGH COURT OF DELHI AT NEW DELHI Judgment delivered on: 19.03.2021 OMP (COMM.) 64 2018 & IA No. 5231 2018 EA 960 2019 EA 194 2020 EA 196 2020 EA 988 2020 & EA VOITH HYDRO LTDA & ORS. .... Decree Holders NTPC LIMITED .... Judgment Debtor Advocates who appeared in this case: For the Decree Holders : Mr Ciccu Mukhopadhaya Senior Advocate with Mr Omar Ahmad Mr Ishan Gaur Mr Vikram Shah Mr Amol Gupta and Ms Simran Khorana Advocates. For the Judgment Debtor: Ms Pinky Anand Senior Advocate with Ms Sangeeta Bharti Mr Ashish Kumar and Ms Saudamini Sharma Advocates. HON’BLE MR JUSTICE VIBHU BAKHRU VIBHU BAKHRU J By this order this Court shall dispose of the application filed by the Decree Holders Ex. Appl. 988 2020 whereby the Decree Holders have inter alia sought directions against the Judgment Debtor to pay a sum of ₹21 17 72 890.83 . According to Voith the OMP(COMM.) 64 2018 said sum remains to be paid by NTPC to discharge the Arbitral Award dated 23.08.2016 which is sought to be enforced under Section 36 of the Arbitration and Conciliation Act 1996. In addition Voith also prays that directions be issued to NTPC to forthwith pay it ₹2 88 31 380 which is the cost incurred by Voith to extend the Bank Guarantees furnished to NTPC. The Award was passed in the context of disputes that had arisen between the parties in connection with an agreement for execution of a Hydro Electric Project to be constructed on the river Bhagirathi known as Loharinag Pala Hydro Electric Power Project(2 362 164.00) 10 688 455.95 3 341 171.32 153 495 177.90 OMP(COMM.) 64 2018 The Arbitral Tribunal awarded pre award interest at the rate of 2.5% per annum compounded annually on the amount of USD 10 688 455.95 and EUR 3 341 171.32 from 08.05.2013 till the date of the Award. The Arbitral Tribunal also awarded pre award interest at the rate 8.5% per annum compounded annually on the amount of INR 153 495 177 90 from 08.05.2013 till the date of the Award. The Arbitral Tribunal also awarded post award interest from the date of the Award till the date of payment at the same rates. NTPC was further directed to return all Advance Bank Guarantees furnished by Voith. NTPC challenged the aforesaid Award under Section 34 of the A&C Act in OMP16 2017 which was dismissed by this Court on 02.07.2019. In compliance with the order dated 06.02.2017 passed by this Court in OMP 16 2017 Voith had extended the Bank Guarantees furnished by it to the Judgment Debtor against the advance received by them during the term of the contract. Concededly the said advance was adjusted in determining the amounts awarded. The details of the said Bank Guaranteesare set out below: Guarantee No. Bank Date of Expiry date GO191148450 ANZ Bank USD 1 528 614 EUR 900 961 16 February OMP(COMM.) 64 2018 GO191128450 ANZ Bank GO191158450 ANZ Bank GO191138450 ANZ Bank 203 828 127 EUR 280 121 USD 1 528 614 EUR 900 961 16 February 16 February 203 828 127 EUR 280 121 16 February The Advance BGs were valid till 16.02.2020. In the proceedings pertaining to NTPC’s challenge to the Award OMP(COMM) 16 2017 a statement was made on behalf of NTPC stating that it was willing to release 75% of the awarded amount against an Unconditional Bank Guarantee in view of the Circular issued by Niti Aayogfurnished by BNP Paribas whereby it guaranteed a sum of ₹9 86 74 263.87 EUR 24 70 794.28 USD 85 67 414.33 and GBP 76 798.13 16 3017) a Coordinate Bench OMP(COMM.) 64 2018 of this Court by orders dated 10.12.2019 and 17.10.2019 passed in EX. APPL.960 2019 directed NTPC todeposit the set of the Bank Guarantees which were issued during the performance of the contract as well as the Niti Aayog BG anddeposit the balance 25% of the awarded amount alongwith upto date interest with the Registrar General of this Court. The Judgement Debtor challenged the aforesaid order in EFA (COMM) 21 2019. But the Division Bench of this Court dismissed the said appeal by an order dated 17.12.2019. 07.02.2020. Thereafter in part compliance with the orders of this Court NTPC depositedboth set of Bank Guarantees on 06.01.2020 and 05.02.2020 anda Demand Draft for a sum of ₹54 42 72 662 on 10. NTPC preferred an appeal being FAO No. 329 2019 against the decision of this Court dismissing NTPC’s application for setting aside the Award O.M.P.16 3017 under Section 34 of the A&C Act. The said appeal was dismissed by the Division Bench of this Court by an order dated 02.03.2020. NTPC challenged the said order before the Hon’ble Supreme Court by filing a Special Leave Petition SLP(C) No. 7312 2020. The said SLP was dismissed by the Supreme Court by an order dated 22.09.2020. 11. Whilst NTPC was availing of its remedies against the Arbitral Award it insisted that the Bank Guaranteesbe extended. OMP(COMM.) 64 2018 It is Voith’s case that the amount paid by NTPC falls short of the amount payable by it for discharge of the Arbitral Award. 13. Voith has filed a chart indicating the calculation of the amount payable today of ₹3 92 89 836. Out of which ₹2 58 55 348 was deducted while making remittance made under the Niti Aayog Circular and ₹1 34 34 488 was deducted on 07.02.2020 while making a deposit of the 25% balance of the awarded amount. 15. He relied upon the decision of the Supreme Court in All India Reporter Ltd. vs. Ramchandra D. Datar AIR 1961 SC 943 and decisions of the High Court of Bombay in Islamic Investment Co. vs. OMP(COMM.) 64 2018 Union of India 2002Mah LJ 555 Sino Ocean Limited vs. Salvi Chemicals Industries Ltd. SCC OnLine Bom 9401 and DSL Enterprises Pvt. Ltd vs. Maharashtra State Electricity Distribution Co. Ltd Execution Application No. 422 of 2018 decided on 13 March 2018 in support of his contention that a deduction on account of TDS could not be made on payments in discharge of judgement debt. 16. He also submitted that interest had accrued on the shortfall amount of ₹12 09 16 391.37 and thus the applicable interest on this amount which was due on 15.09.2017 till 17.10.2019 amounts to ₹2 24 57 027.11. 17. He submitted that against the balance amount which was due to be paid by NTPC in accordance with the order of this Court dated 17.10.2019 it had deposited only ₹56 42 71 662 on 06.01.2020 18. He submitted that the amount due to Voith on 17.10.2019 was ₹74 86 34 859.42. A detailed calculation of the balance amount is set out as below: September 2017 Remaining 25% amount as on 15 INR 16 38 25 209.56 EUR 15 71 300.52 USD 37 37 271.86 GBP OMP(COMM.) 64 2018 Interest on this remaining 25% INR 3 04 26 207.19 EUR 83 052.31 USD 1 97 536.42 GBP 1 287.86 Shortfall in the payment under ₹ 12 09 16 391.27 Interest on the Shortfall under the ₹ 2 24 57 027.11 Niti Aayog Office Memorandum TOTAL AMOUNT IN INR ₹ 74 86 34 859.42 EXCHANGE RATE AS ON In addition to the above Mr Mukhopadhaya further submitted that NTPC was also liable to pay Bank Guarantee Charges incurred by Voith for extending the Bank Guarantees. He submitted that in terms of the Award the said Advance BGs were to be released. However Voith was compelled to keep the Bank Guarantees alive and therefore Voith ought to be reimbursed for the cost incurred by it in doing so. OMP(COMM.) 64 2018 20. Ms Pinky Anand learned senior counsel appearing for NTPC countered the aforesaid submission. She submitted that NTPC had correctly calculated 75% of the awarded amount and had paid the same. She submitted that in terms of the Niti Aayog Circular Voith was required to open an Escrow Account and since the awarded amount was in multiple currencies Voith was required to obtain specific approvals from the Reserve Bank of India(COMM.) 64 2018 petitioner acknowledged the receipt of the remittances and requested NTPC to issue a consent letter to enable withdrawal of amounts from the escrow account. A draft of the said consent letter which was forwarded by Voith to NTPC also indicated the exchange rate applied for computing the amount deposited by NTPC. 22. She further submitted that insofar as the TDS is concerned the same was deducted as Voith had agreed to receive the payments in Indian currency. She stated that directions to pay the TDS amount would unfairly prejudice NTPC as it would amount to requiring NTPC to pay the said amount twice. She submitted that it is not disputed that the amounts were to be paid to foreign companies but Voith had consciously opened the Escrow Account and accepted that the money be paid in Indian currency. 23. Lastly she submitted that NTPC cannot be called upon to pay the cost of the Bank Guarantees. She submitted that the Advance Bank Guarantees were given by Voith to NTPC in terms of the contractual provisions and against advances made by NTPC. The said Bank Guarantees had been kept alive in view of NTPC’s challenge to the Award. The Award did not contemplate payment of any charges for the bank guarantees till the same were returned. She submitted that the charges for the Niti Aayog BG would necessarily have to be borne by Voith as it had volunteered to furnish the said guarantees to avail the benefit of the Niti Aayog Circular. She submitted that in terms of the Niti Aayog Circular Voith was required to furnish the Bank Guarantees against which 75% of the awarded amount could be OMP(COMM.) 64 2018 released. She stated that Voith complied with the said condition by also accounting for the Advance BGs and furnished the Niti Aayog BG for the remaining amount. She contended circumstances the Advance BGs were essentially kept alive to secure NTPC against the amount disbursed in terms of the Niti Aayog Circular. Thus Voith was not entitled for reimbursement of any cost for the said Bank Guarantee. Reasons and Conclusion 24. As is apparent from the above the following three principal questions fall for consideration before this Court: i) Whether there is any binding agreement between the parties whereby they have agreed that the amounts awarded in foreign currency would be computed at the exchange rate as prevalent on 15.09.2017 If not the exchange rate to be applied for discharge of the amounts awarded in foreign currency. ii) Whether it was open for NTPC to deduct TDS on the awarded amounts and whether the deduction of the said amount and deposit of the same with the Income Tax Authorities constitutes a discharge of the amounts awarded iii) Whether Voith is entitled to charges for extending the Bank to the aforesaid extent Guarantees as claimed OMP(COMM.) 64 2018 Re: Exchange Rate 25. The question as to which is the exchange rate applicable for determining the amounts payable in Indian currency in execution of an award made in foreign currencies is no longer res integra. Concededly the said issue is covered by the decision of the Supreme Court in Forasol v. Oil and Natural Gas Commission: 1984SCC 263 as followed by the Supreme Court in Renusagar Power Co. Ltd. v. General Electric Co. Ltd.: 1994 SuppSCC 644. In Forasol v. Oil and Natural Gas Commission the Supreme Court had held that the exchange rate prevalent on the date on which the decree is passed would be the applicable exchange rate. It further clarified that if the decree is challenged in an appeal and such appeal is decided wholly or in part the exchange rate prevailing on the date on which the decree or order is passed would be applicable. Insofar as the arbitral awards are concerned the date on which the challenge to the arbitral award is finally rejected would be the date for determining the foreign exchange applicable to an award made in foreign currency. In Furest Day Lawson Limited v. Jindal Exports Limited:194 DLT 439 and Progetto Grano S.P.A. v. Shri Lal Mahal Limited: Ex.P. No. 52 2012 decided on 29.05.2014 this Court had considered the date on which the Special Leave Petition against the order rejecting objections to recognition and enforcement of a foreign award was dismissed as the relevant date for determining the exchange rate to be applied for enforcing the awards made in foreign currency. OMP(COMM.) 64 2018 27. Ms Anand did not dispute the above. She however rested NTPC’s case on the ground that the parties had arrived at a settlement and Voith was bound by the same. According to NTPC the parties had agreed that 15.09.2017 would be the cut off date for determining the exchange rate. Ms Anand relied on the Minutes of the Meeting dated 11.09.2017 and Voith’s letter dated 16.11.2018 in support of her contention that the parties had agreed to the exchange rate as prevailing on 15.09.2017. The said contention is unmerited. A plain reading of the Minutes of the Meeting dated 11.09.2017 indicates that it does not record any agreement regarding the applicable exchange rate. The said minutes relate to the amounts that were required to be released in terms of the Office Memorandum of Niti Aayog dated 05.09.2016issued on 24.11.2016 for release of the payments in terms of Niti Aayog’s Circular also makes it amply clear that the payments released under the said Circular would be without prejudice to the rights to the Departments PSUs. Furthermore the same would be required to be secured by bank guarantees and in the event the OMP(COMM.) 64 2018 departments PSUs prevail in their challenge to the arbitral award the amount disbursed would be liable to be recovered with interest. 29. Thus in the present case the exchange rate as applicable on the date when the NTPC’s Special Leave Petition was dismissed by the Supreme Court that is 22.09.2020 will be the relevant date for ascertaining the exchange rate applicable for determining the INR equivalent to the amounts awarded in foreign currency. However according to Voith as part payment had been received on 06.11.2018 the exchange rate applicable on that date may be considered for determining the awarded amounts paid by NTPC. Since the value of foreign currencies as on 22.09.2020 was higher than on 06.11.2018 this Court considers it apposite to bind Voith to its concession in this regard. In view of the above the exchange rate as applicable on 06.09.2018 would be considered relevant for the amounts released on 06.11.2018 being the part payment released by NTPC in terms of the Niti Aayog Circular and the exchange rate as applicable on 22.09.2020 would be considered for discharging the remaining amount awarded in foreign currency. Re: TDS 31. The next question to be addressed is whether NTPC is entitled to credit for the TDS deducted from the payments made to Voith. OMP(COMM.) 64 2018 32. Mr Mukhopadhaya had referred to the decision of the Supreme Court in All India Reporter Ltd. v. Ramchandra D. Datarwherein the Supreme Court had held that once a claim in that case a claim for compensation to an employee for wrongful termination of an employment is decreed “the claim assumes the character of a judgment debt by a Civil Court and must be executed subject to deductions and adjustments permissible under the Code of Civil Procedure”. The Court further observed as under: “The rule that the decree must be executed according to its tenor may be modified by a statutory provision. But there is nothing in the Income Tax Act which supports the plea that in respect of the amount payable under a judgment debt of the nature sought to be enforced the debtor is entitled to deduct income tax which may become due and payable by the judgment creditor on the plea that the cause of action on which the decree was passed was the contract of employment and a part of the claim decreed represented amount due to the employee as salary or damages in lieu of salary”. In Islamic Investment Company v. Union of India and Anr.: supra) the Bombay High Court following the decision in All India Reporter Ltd. v. Ramchandra D. Datar rejected the contention that the Judgment Debtor must be allowed to deduct TDS on the interest payable to a non resident. The Court observed that: “when such amounts becomes part of a judgment debt they lose their original character and assume the character of a judgment debt. Once such an OMP(COMM.) 64 2018 amount assumes the character of judgment debt the decree passed by the civil court must be executed subject only to the deductions and adjustments permissible under the Code of Civil Procedure”. 34. The Court further observed that there was no provision under the Income Tax Act or under the Code of Civil Procedure 1908 where an amount of interest payable under a decree would be subject to TDS. In Glencore International AG v. Dalmia Cement Limited: Ex. P. 75 2015 dated 31.07.2019 this Court inter alia referred to the following decisions: i) All India Reporter v. Ramachandra D. Datar 2 SCR High Court. ii) V.K. Dewan v. DDA Execution Petition No. 194 2005 Delhi iii) Sino Ocean Limited v. Salvi Chemical Industries Limite Chamber Summons No. 76 2013 in Execution Application Lodg.) No. 263 2012. iv) American Home Products Corporation v. MAC Laboratories Pvt. Ltd. and Anr. 1 SCC 465. v) Islamic Investment Company v. Union of Indiaand Anr. 2002BOMCR 685. vi) S.S. Miranda Ltd. v. Shyam Bahadur Singh 154 ITR 849. OMP(COMM.) 64 2018 After referring to the aforesaid decision this Court observed as “I may however note that these judgments do enunciate the principle which is that once a claim merges into a decree of the Court it transcends into a judgment debt and therefore only those adjustments and deductions can be made which are permissible under the Code of Civil Procedure 1908. The judgments encapsulate the theme that a decree should be executed according to its tenor unless modified by a statute such as the 1962 Act.” 37. Ms Anand also did not dispute that TDS was not liable to be deducted on judgment debts. However she contended that the payments had been made in Indian currency and therefore were subjected to TDS and that the same had been accepted by Voith without any protest. 38. Mr Mukhopadhaya submitted that Decree Holder nos. 2 and 3 state that they are not assessees under the Income Tax Act 1961 and are not required to file their Income Tax return in India. He also contended that Decree Holder nos. 2 and 3 are not liable to pay any tax in India. This Court is not required to examine whether Decree Holder nos. 2 and 3 are liable to pay tax in India. However it is clear that tax was not required to be deducted at source since the payments made by NTPC were in discharge of the Award or as ad hoc payments under a mechanism evolved under the Niti Aayog Circular. 39. The contention that Voith had agreed to such deduction is also unmerited. Decree Holder no.1 had accepted the said payments not only on its behalf but also on behalf of other Decree Holders and OMP(COMM.) 64 2018 therefore this Court finds it difficult to accept that the Decree Holder no.1 had accepted and agreed to NTPC deducting tax at source. However there is merit in the contention that Voith knew as way back in 2018 that NTPC had deducted TDS and it does not appear that Voith had raised any objection to the same at the material time. 40. This Court is of the view that failure of Voith to object at the material time would not amount to accepting deduction and deposit of TDS as payment towards the awarded amount. It is relevant to note that NTPC had deducted TDS in two tranches. It had deducted ₹2 58 55 348 and had deposited the same on 07.12.2018. This amount was deducted at the time of remission of money in terms of the Niti Aayog Circular. The second tranche of ₹1 34 488 was deducted by NTPC while depositing the balance amount. Out of the aforesaid amount ₹1 10 84 032 was deducted on account of the principal amount and ₹23 50 456 on account of interest. The said TDS was deposited on 07.01.2020. During the course of arguments Mr Mukhopadhaya submitted that a sum of ₹1 06 42 438 could be absorbed by Decree Holder No.1 against the TDS of ₹2 58 55 138 deducted and deposited by NTPC. He further stated that a further sum of ₹55 29 831 could be absorbed by Decree Holder No.1 out of the sum of ₹1 34 488 deducted and deposited by NTPC on 07.01.2020. OMP(COMM.) 64 2018 In view of the above this Court considers it apposite to direct that NTPC be credited to the extent of TDS amounting to ₹1 61 72 269 against TDS deducted and deposited by NTPC. The said amount would be considered as discharged by NTPC on the dates when these amounts were deposited to the credit of Decree Holder No.1. Insofar as the remaining amount of TDS is concerned NTPC is entitled to apply to the Income Tax Authorities for refund of the same. It is further directed that the Income Tax Authorities shall process NTPC’s request for refunding of the TDS incorrectly deposited on the strength of this order. Re: Bank Guarantee Charges 44. The third question to be addressed is whether Voith is entitled to cost allegedly incurred by it for extending the bank guarantees Arbitration BGs and Niti Aayog BGs). Insofar as the Advance BGs are concerned the same had been extended in terms of the orders passed by this Court pending consideration of NTPC’s challenge the Arbitral Award. Indisputably NTPC’s challenge to the Arbitral Award cannot be stated to be insubstantial. In the circumstances this Court does not consider it apposite to entertain Voith’s prayer for such charges. It is also relevant to mention that Voith had voluntarily furnished Bank Guarantees for release of the part of the awarded amount in terms of the Niti Aayog Circular. The Niti Aayog Circular does not provide OMP(COMM.) 64 2018 for payment of any charges for furnishing Bank Guarantees. Voith had elected to receive payments in terms of the Niti Aayog Circular and therefore this Court does not consider it apposite to accede to its prayer for Bank Guarantee Charges which were incurred by Voith for furnishing the Bank Guarantees against payments in terms of the Niti Aayog Circular. It was also pointed out that NTPC had released the payment under the Niti Aayog Circular while accepting the Advance BGs to cover part of the amount so released. It was submitted that in this view the Advance BGs should also be considered as Bank Guarantees furnished in terms of the Niti Aayog Circular. This contention is merited. In any view of the matter as stated above given the facts and circumstances of the case this Court does not consider it apposite to accede to the prayers for reimbursement of bank charges. The prayer made by Voith in this regard is rejected. In addition to the questions as discussed above NTPC had also raised an objection regarding the calculation of the shortfall as claimed by Voith. It was submitted that Voith has also calculated interest on the interest component by adjusting the advances against the amount due against the interest awarded. According to NTPC Voith had added the advances which were directed to be adjusted under the Arbitral Award to the amount awarded. It had calculated the interest on the resultant amount by considering the same as the awarded amount. It had thereafter adjusted the advance from the said amounts. OMP(COMM.) 64 2018 In this regard this Court considers it necessary to clarify that the calculations for discharge of the amount would be in accordance with the tabular statement in the Arbitral Award setting out the amounts awarded in different currencies. It is seen that the Arbitral Tribunal had deducted the advances and had computed the total amount payable after such deduction. Thus the total amount as awarded after deduction of the advances would necessarily have to be considered as the awarded amount and the amounts paid by NTPC would be adjusted against the awarded amounts and the interest thereon. The amounts paid by NTPC are required to be first appropriated towards interest and the remaining against principal. 49. NTPC shall recompute the shortfall payable by NTPC and shall pay the shortfall as computed. 50. The parties shall file their respective calculations made in view of the above within a period of one week from today. 51. List on 26.03.2021 for reconciliation of the amount and for consideration of any further issues that arises in connection with the aforesaid calculations. MARCH 19 2021 VIBHU BAKHRU J OMP(COMM.) 64 2018

Criminal revision petition challenging the impugned order  dismissed as the order does not call for revisional jurisdiction – Jharkhand high court

Criminal revision petition challenging the impugned order  dismissed as the order does not call for revisional jurisdiction – Jharkhand high court A criminal revision petition was filed by the petitioner challenging the impugned order passed under section 125 CRPC and directed the petitioner to give maintenance to opposite parties the petition was heard and dismissed by a single judge bench of HON’BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY in the case of Kaleshwar Rabani versus The State of Jharkhand and Ors  Cr. Rev. No. 641 of 2014. The learned counsel on behalf of the petitioners submits that the impugned order passed under Section 125 of the Code of Criminal Procedure is fit to be set aside as the order of maintenance was decided based on petitioner conviction under section 498A of the Indian penal code and Section 4 of the Dowry Prohibition Act and an appeal is also pending against the matter of conviction and during the pendency of present petition the said appeal against the judgment of conviction is set aside by the appellate court as marriage in the matter could not be proved. the marriage could not be proved in the criminal case the impugned order based out on the matter of conviction is also fit to be set aside. The learned counsel appearing on behalf of the respondents submits that the impugned order was passed not only on considering the conviction of the petitioner in the criminal case for the offenses under Section 498A of the Indian Penal Code and Section 4 of Dowry Prohibition Act, but also the evidence the opposite party in her cross-examination in which the fact was made clear that she was forcefully married to the petitioner and she denied the marriage. this shows that the marriage was performed by force. the counsel also submitted that merely because the petitioner has been acquitted in the criminal case, the same will not amount to erasing the other materials on record regarding the marriage between the parties. The counsel submits that the impugned order is neither illegal, nor perverse, nor suffers from any material irregularity calling for any interference in revisional jurisdiction. The court hearing both sides is of the view that the marital status between the petitioner and the Opposite Party No.2, which is not found valid in a criminal case, has no concern in the present matter as the dispute regarding marital status and there is enough evidence which shows the prima-facie finding of marriage between the petitioner and the Opposite Party No.2 and there is sufficient material on record to maintain the impugned order of maintenance hence, the court does not find any illegality in the order and no need for revisional jurisdiction and the criminal revision petition in the matter is dismissed.

IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr. Rev. No. 6414 Kaleshwar Rabani @ Kauleshwar Rabani S o Late Jitu Ram Rabani resident of Village Gola P.O. & P.S. Gola District 1. The State of Jharkhand 2. Geeta Devi W o Kauleshwar Rabani D o Late Bal Kichun Rabani at present resident of Village Basariya P.O. & P.S. Keredari District Hazaribag Versus … … 3. Bharti Kumari D o Kauleshwar Rabani resident of Village Basariya P.O. & P.S. Keredari District Hazaribag … Opposite Parties CORAM: HON BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY : Mr. Lalan Kumar Singh Advocate For the Petitioner For the Opp. Party State : Ms. Lily Sahay A.P.P. For Opp. Party No.2 & 3 : Mr. Shailendra Jit Advocate 09 24.01.2022 Heard Mr. Lalan Kumar Singh learned counsel appearing on behalf of the petitioner. 2. Heard Mr. Shailendra Jit learned counsel appearing on behalf of the Opposite Party Nos.2 and 3 and Ms. Lily Sahay learned counsel appearing on behalf of the State. This criminal revision application has been filed against the order dated 15.05.2014 passed by the learned Principal Judge Family Court Hazaribag in M. Case No. 08 2009 under Section 125 of Cr.P.C. on an application filed by Opposite Party Nos.2 and 3 whereby and whereunder the petitioner has been directed to pay Rs.3 000 per month to the Opposite Party No.2 Geeta Devi and Rs.1 000 per month to the Opposite Party No.3 Bharti Kumari as maintenance allowance from the date of filing of the application i.e. 27.01.2009. Arguments on behalf of the petitioner Learned counsel for the petitioner submitted that the impugned order passed under Section 125 of the Code of Criminal Procedure is fit to be set aside inasmuch as the order of maintenance was passed on the basis of conviction of the petitioner for the offences under Section 498A of the Indian Penal Code and Section 4 of the Dowry Prohibition Act and against the said order of conviction an appeal was pending. But during the pendency of the present petition the said appeal has been decided and the judgment of conviction under Section 498A of the Indian Penal Code and Section 4 of Dowry Prohibition Act has been set aside by the appellate court as the marriage itself could not be proved. He submitted that once the marriage could not be proved in the criminal case the impugned order being based on the conviction in the criminal case is also fit to be set aside. Thus it is proved beyond doubt that the petitioner is not the husband of the Opposite Party No.2 and therefore the impugned order of maintenance treating the petitioner as husband of the Opposite Party No.2 is perverse and is fit to be set aside. Arguments on behalf of the Opposite Parties The learned counsel appearing on behalf of the Opposite Party Nos.2 & 3 on the other hand opposed the prayer and submitted that the impugned order was passed not only by considering the conviction of the petitioner in the criminal case for the offences under Section 498A of the Indian Penal Code and Section 4 of Dowry Prohibition Act but also considering the evidence of the applicant i.e. the Opposite Party No.2 and her cross examination. He submitted that during cross examination it was put to the applicant that she was forcibly wedded to the petitioner in the temple under pressure of the police personnel from thana which she denied. She was also cross examined by putting a question that the Satpati was also not performed which she again denied. The learned counsel submitted that the trend of cross examination of the applicant itself indicates that the petitioner was questioning the marriage by cross examination on the point that the marriage was performed by force and or the rituals of the marriage were not completed. The learned counsel for the private opposite parties further submitted that the evidence of the applicant Opposite Party No.2 has been supported by the other witnesses produced by her. 7. He also submitted that it is not in dispute that the applicant was initially married to the elder brother of the petitioner in the year 1991 and when the elder brother expired second marriage of the applicant was performed with the petitioner her brother in law in the year 1999. Out of the first marriage of the applicant one girl child was born and out of her second marriage with the petitioner another girl child was born. He submitted that at the stage of passing order under Section 125 of Code of Criminal Procedure only prima facie finding is required to be recorded regarding marriage and therefore acquittal of the petitioner in the criminal case where the marriage could not be proved has no bearing in the present matter. He submitted that the only remedy which could be available to the petitioner is to file a civil suit regarding marriage declaration of his marital status vis à vis applicant. He submitted that the impugned order has been passed on the basis of two distinct materials i.e. conviction of the petitioner under Section 498A of the Indian Penal Code and Section 4 of Dowry Prohibition Act and also upon the appreciation of evidences which had come during the proceedings under Section 125 of Code of Criminal Procedure. He submitted that merely because of the fact that the petitioner has been acquitted in the criminal case the same will not amount to erasing the other materials on record regarding the marriage between the parties. He submitted that acquittal of the petitioner in the criminal case has no bearing in the present matter as the impugned order of maintenance is sustainable on the basis of other materials available on record which have been duly appreciated by the learned court below while passing the impugned order and accordingly the impugned order is neither illegal nor perverse nor suffers from any material irregularity calling for any interference in revisional jurisdiction. The learned counsel also submitted that after the order of maintenance passed by the learned court below no amount has been paid to the Opposite Party No.2 and she as well as her daughter has been deprived of the maintenance amount. The learned counsel appearing on behalf of the Opposite Party State also opposed the prayer and submitted that the impugned order does not call for any interference. Rejoinder arguments on behalf of the petitioner In response the learned counsel for the petitioner submitted that he is also ready for D.N.A. test to find out as to whether the second daughter of the applicant Opposite Party No.2 is the daughter of the petitioner or not. Findings of this Court 11. After hearing the learned counsel for the parties and going through the impugned judgment and the materials on record this Court finds that Maintenance Petition No.009 was filed by the two applicants namely Geeta Devi and her daughter namely Bharti Kumari under Section 125 of Code of Criminal Procedure stating that Geeta Devi is the legally married wife of the present petitioner and the marriage was solemnized in the year 1999 at Durga Mandir Gola as per Hindu Customs. Thereafter she went to her matrimonial home lived with the present petitioner as husband and wife at Village Gola District Hazaribagh and out of the wedlock a daughter namely Bharti Kumari was born. The daughter is living with her mother Geeta Devi. The further case of the applicant Geeta Devi was that she was first married with Niranjan Rabani the elder brother of the present petitioner and a daughter namely Arti Kumari was born who is residing at Gola. After death of Niranjan Rabani with consent of all the family members second marriage of the applicant Geeta Devi was solemnized with the present petitioner. Further case was that the petitioner and his family members demanded Rs.30 000 and one motorcycle from the mother and brother of the applicant Geeta Devi. The father of the applicant Geeta Devi had died earlier. On account of non fulfillment of the demand she was tortured and consequently she was forced to go to her mother’s house. Ultimately the applicant Geeta Devi instituted a criminal case against the present petitioner and his family members which was numbered as T.R. No. 475 of 2008 G.R. No. 35205 and all the accused persons were convicted by the court of the learned S.D.J.M. Hazaribag on 08.09.2008 for the offences under Section 498A of the Indian Penal Code and Section 4 of Dowry Prohibition Act. The applicant Geeta Devi and her daughter having no source of income are unable to maintain themselves and consequently the application for maintenance was filed. The applicants claimed maintenance of Rs. 5 000 per month for Geeta Devi and Rs.2 000 per month for Bharti Kumari. 12. The present petitioner appeared and filed his show cause stating that the applicant Geeta Devi is not his legally married wife and she is the widow of his elder brother namely Niranjan Rabani. He further stated that as per the evidence of the applicant in the court of the learned S.D.J.M. Hazaribag in Gola P.S. Case No. 1105 G.R. No. 35205 the applicant Geeta Devi was earlier married in the year 1998 to his elder brother Niranjan Rabani who died in the year 2001. He further stated that no marriage was solemnized between him and the applicant. He further stated that an appeal being Criminal Appeal No. 160 of 2008 has been filed before the court of the learned District & Sessions Judge Hazaribag against the judgment of the learned S.D.J.M. Hazaribag and the matter is subjudice. The petitioner further stated that he is a poor labour and he is somehow maintaining himself and his three brothers and is living in a small house. 13. Altogether three witnesses were examined from the side of the applicant Geeta Devi and she examined herself as P.W. 1 and fully supported her case. In her cross examination she denied the suggestion that she was forcefully wedded with the present petitioner by the persons posted at the local police station. She further denied the suggestion that only exchange of garlands had taken place. She further stated that the petitioner is working as mason in Gola and she is living at her mother’s house and the present petitioner is not maintaining her. She again denied the suggestion that she was forcefully wedded with the petitioner. The learned court below while scrutinizing the evidence of the applicant Geeta Devi examined as P.W. 1 was of the view that the trend of the cross examination of the applicant indicates that the petitioner has accepted his marriage with the Opposite Party No.2 and she has fully supported her 14. P.W. 2 Ram Awtar Ram stated that both the parties are known to him and the Opposite Party No.2 was married with the petitioner as per Hindu rites and customs in Durga Mandir near Gola police station and after the marriage she stayed in her matrimonial house for some days and a daughter was born out of the wedlock. Subsequently demand of dowry was made and after assaulting her she was ousted from her matrimonial house and then in the criminal case the petitioner and his family members were convicted. He further stated that the Opposite Party No.2 was earlier married with the elder brother of the petitioner and after his death her marriage was performed with the petitioner. He also supported the fact that the petitioner is working as mason and is also a contractor and also does agriculture works and his income is Rs.14 000 but he is not maintaining the applicants. The learned court below was of the view that P.W. 2 has supported the facts of solemnization of marriage between the petitioner and the Opposite Party No.2 and she is living in her parental house and the petitioner is not maintaining her and the petitioner has sufficient source of income and that P.W. 2 has also fully supported the evidence of the Opposite Party No.2. 15. P.W. 3 Rajesh Ram deposed that he knows both the parties and has fully supported all the facts of the case of the applicants as stated by P.W. 2. 16. So far as the petitioner is concerned he examined altogether three witnesses and he himself examined as D.W. 1. he stated that the Opposite Party No.2 was married to his elder brother and out of the wedlock one daughter namely Arti Kumari aged 17 years was born and he has been looking after her. He further stated that after death of his elder brother the Opposite Party No.2 started living at her parental house. He denied his marriage with the Opposite Party No.2 and also denied any matrimonial relationship with her. In cross examination he stated that in the year 2005 he and his brothers were convicted for offence under Section 498A of the Indian Penal Code and also under the Dowry Prohibition Act. He further stated that as per his knowledge the Opposite Party No.2 has only one daughter and not two and if she has any other daughter he has no knowledge about it and stated that he has no knowledge as to whether there is a second applicant namely Bharti Kumari in the case. 17. The learned court below considered the evidence of D.W. 1 and observed that he had given suggestion to the Opposite Party No.2 regarding forceful marriage at the instance of the persons at police station which she had denied and the petitioner has also denied having any knowledge about the fact that there is a second applicant in the present case who has claimed to be the daughter of the Opposite Party No.2. The learned court below found that the petitioner himself stated that the elder daughter of the Opposite Party No.2 is staying with him but the elder daughter has not been examined as a witness in the case and accordingly the petitioner is suppressing the true facts of the case. 18. The D.W. 2 Naresh Ram Rabani stated that the elder brother of the petitioner expired in the year 1995 with whom the Opposite Party No.2 was married. Upon scrutinizing the evidence of D.W. 2 the learned court below found that D.W. 2 is the younger brother of the present petitioner and stays with him and he is not an independent witness. 19. D.W. 3 Suresh Munda stated that Niranjan Rabani was married with the Opposite Party No.2 in the year 1991 and Niranjan died in the year 1995 and thereafter the Opposite Party No.2 went to her parental house. He further stated that the elder daughter namely Arti is being looked after by the present petitioner. In cross examination he stated that he has no idea as to whether the Opposite Party No.2 was married with the petitioner in temple. He also expressed his ignorance as to whether the Opposite Party No.2 lived with the petitioner even after the death of Niranjan and she has another daughter namely Bharti Kumari from the petitioner. The learned court below found that D.W. 3 has not denied about the marriage between the petitioner and the Opposite Party No.2 nor he has denied the birth of the second child of the Opposite Party No.2 from the present petitioner but has expressed his ignorance about this fact. 20. The learned court below referred to the fact that the petitioner and his family members were convicted for the offences under Section 498A of the Indian Penal Code and Section 4 of Dowry Prohibition Act and also referred to the statements of the petitioner under Section 313 Cr.P.C. in the criminal case wherein he had not denied the factum of marriage between the petitioner and the Opposite Party No.2. The learned court below also considered the pendency of the appeal against the judgment of conviction being Criminal Appeal No. 1608 and considered the order dated 18.12.2013 passed in Criminal Appeal No. 160 of 2008 which indicated that the criminal appeal was pending. The learned court below ultimately considered the specific stand of the petitioner taken in the present maintenance case and the trend of cross examination of the Opposite Party No.2 in the present case who has been examined as P.W. 1 which was suggestive of the fact that the petitioner claimed that he was forcefully married to the Opposite Party No.2 but such forceful marriage was denied by the Opposite Party No.2 and the specific case of the Opposite Party No.2 was that she was legally married. The learned court below ultimately held that the applicant Opposite Party No.2 is the legally married wife of the petitioner and one daughter i.e. Applicant No.2 Opposite Party No.3 was born out of wedlock and in spite of having sufficient income the petitioner is not maintaining the applicants and passed the order accordingly. 21. The specific case of the petitioner before this Court is that in the criminal case against which appeal was pending before the learned appellate court the judgment has been rendered on 29.04.2015 wherein the appellate court held that the prosecution has not been able to prove the marriage and consequently there was no scope of demand of dowry and torture and P.Ws. 1 to 5 were declared hostile by the prosecution. Therefore the appellate court in the criminal case was of the view that the prosecution has failed to prove the charges against the appellants therein beyond all reasonable doubts and the judgment of conviction was set aside. 22. The learned counsel for the petitioner has specifically argued that once the judgment of conviction in the criminal case under Section 498A of the Indian Penal Code and Section 4 of Dowry Prohibition Act has been set aside by the learned appellate court which according to the petitioner was the sole basis for passing the order under Section 125 of Code of Criminal Procedure the impugned order passed under Section 125 of Cr.P.C. is fit to be set aside. 23. This Court finds that the learned court below did not base its findings solely on the ground of conviction of the petitioner and his family members for offences under Section 498A of the Indian Penal Code and Section 4 of Dowry Prohibition Act in the criminal case but also appreciated the materials on record including the trend of cross examination of P.W. 1 i.e. the Applicant No.1in the present case as well as the cross examination of the D.W. 1 the present petitioner and also the evidence of the other witnesses. Accordingly even if the acquittal of the petitioner for offences under Section 498A of the Indian Penal Code and Section 4 of Dowry Prohibition Act is taken into consideration the same being not the sole material for grant of maintenance this fact by itself is not sufficient to set aside the impugned order granting maintenance. This court finds that the impugned order of maintenance is still sustainable on account of the other materials on record which have been duly discussed and considered by the learned court below. 24. This Court further finds that apart from the fact that the conviction under Section 498A of the Indian Penal Code and Section 4 of Dowry Prohibition Act has been set aside no other point regarding the finding of the learned court below based on the other materials on record has been challenged by the petitioner during the course of arguments. 25. This Court is of the view that the marital status between the petitioner and the Opposite Party No.2 which has been disbelieved in a criminal case has no bearing in the present matter as the dispute regarding marital status is to be decided in a properly instituted suit and there is enough material on record to come to a prima facie finding of marriage between the petitioner and the Opposite Party No.2. It further appears from the record that the Opposite Party No.2 had taken a specific stand regarding the marriage having been performed in Durga Mandir at Gola and the petitioner while cross examining the Opposite Party No.2 in the present case had cross examined her on the point of marriage having been forcefully performed under the force of the officers of the thana. Thus the trend of cross examination of the Opposite Party No.2 does not indicate complete denial of performance of some ceremony connection with the marriage. Further the petitioner in his evidence is completely silent regarding the existence of the Opposite Party No.3 who has been claimed to be the daughter of the present petitioner and Opposite Party No.2. 26. Considering these aspects of the matter the impugned order does not become perverse only on account of acquittal of the petitioner and his other family members in the criminal case where the marriage could not be proved beyond all reasonable doubts. There are sufficient other materials on record to sustain the impugned order of maintenance. In view of the aforesaid findings the impugned order does not call for any interference in revisional jurisdiction of this court in absence of any perversity illegality or material irregularity. Accordingly this criminal revision application is hereby dismissed. 28. Consequently the petitioner is directed to pay the total current maintenance allowance @ Rs.4 000 per month Rs.3 000 + Rs.1 000 ) to the Opposite Party No.2 w.e.f. February 2022 by 10th calendar day of every succeeding month. The petitioner further directed to pay accumulated arrears of maintenance allowance right from the date of filing of the maintenance case in installments of Rs.10 000 per month along with the current monthly installments to the Opposite Party No.2 till full payment of the total arrear amount accrued till date. On account of non compliance of the aforesaid directions the opposite parties no. 2 and 3 will be entitled to recover the entire arrears and current 12 maintenance amount through the process of law and also take all measures against the petitioner as permissible under law. Interim order if any stands vacated. 30. Pending interlocutory application if any is closed. 31. Let the Lower Court Records be sent back to the learned court below. 32. Let a copy of this order be communicated to the learned court below through ‘FAX email’. Anubha Rawat Choudhary J.)

The probationer is allowed to continue his work only, if there is vacancy and the work is found to be satisfactory: Madhya Pradesh High Court

If the probationer is able to resume after the two-year duration has expired, automatic certification cannot be asserted as a matter of right because, according to the Rules, the confirmation request will be passed only if there is a vacancy and the job is considered to be acceptable, such are the prerequisites or preconditions for confirmation. The judgment was passed by The High of Court Madhya Pradesh in the case of Sinnam Singh vs. State of MP and Ors. [WRIT PETITION 21814 of 2018] by a Single bench consisting of Hon’ble Shri Justice Gurpal Singh Ahluwalia. The facts of the case are the petitioner was appointed on probation of two years. One of the conditions of the appointment order was that in the light of Rule 12 of the Madhya Pradesh Government Servants the services of the petitioner can be discontinued by giving one month’s notice or one month’s advance salary. He remained absent from his duties and did not submit his joining thereafter, petitioner under Article 226 of the Constitution of India has filed a petition thereby putting the services of the petitioner to an end under Regulation 59 of the Madhya Pradesh Police Regulations. The learned Counsel for the petitioner argued that since the father of the petitioner was of old age and had fallen sick which was in the knowledge of the Department, yet the services of the petitioner were put to an end. It is further submitted that the original period of probation was for two years and according to Regulation 59 of Madhya Pradesh Police Regulations, the period of probation can be extended by a further period of six months two times. Therefore, it has to be presumed that the petitioner was confirmed in the service and accordingly, his services could not have been terminated without holding a Departmental Enquiry. The learned Counsel for the respondent submitted that in the impugned order, were assigned for no reason, therefore, it was a discontinuation simpliciter without any allegation/stigma. Only in the memo of appeal, as the petitioner had raised a question of absence of reasons, therefore, in order to consider the grounds raised in the appeal, the Appellate Authority has considered the previous conduct of the petitioner, which cannot be said to be stigmatic in nature. It is further submitted that there is no provision of law that provides that if the order of extension of probation is not passed after completion of the probation period, then an employee shall be treated to be confirmed in the service The court relied on the judgment of The Supreme Court in the case of Registrar, High Court of Gujarat vs. C.G. Sharma, “it was  held that even if the period of two years of probation expires and the probationer is allowed to continue after a period of two years, automatic confirmation cannot be claimed as a matter of right because, in terms of the Rules, the confirmation order can be passed only if there is a vacancy and the work is found to be satisfactory, which are the prerequisites or preconditions for confirmation.”

THE HIGH COURT OF MADHYA PRADESH 1 WP 218118 Sinnam Singh vs. State of MP and Ors. Gwalior Dated :23 03 2021 Shri Prashant Sharma Counsel for the petitioner. Shri Varun Kaushik Govt. Advocate for the respondents This petition under Article 226 of the Constitution of India has been filed against the order dated 02 01 2018 passed by Commandant 2nd Battalion SAF Gwalior thereby putting the services of the petitioner to an end under Regulation 59 of the Madhya Pradesh Police Regulations. 2) Against the said order the petitioner had preferred an appeal which has been dismissed by order dated 09 04 2018 passed by Inspector General of Police SAF Gwalior Range Gwalior. Thereafter the petitioner preferred a mercy appeal which too has been dismissed by the respondents by the impugned order dated 30 08 2018. It is the case of the petitioner that an advertisement was issued in the year 2014 for recruitment on the post of Constable and after due medical and character verification the petitioner was granted appointment by appointment order dated 01 01 2014 Annexure P4). The petitioner was appointed on probation of two years. One of the conditions of the appointment order was that in the light of Rule 12 of the Madhya Pradesh Government Servants THE HIGH COURT OF MADHYA PRADESH 2 WP 218118 Sinnam Singh vs. State of MP and Ors. Temporary and Quasi permanent Service) Rules 1960the services of the petitioner can be discontinued by giving one month s notice or one month s advance salary in lieu thereof. It is submitted that on account of sickness of the father of the petitioner he remained absent from his duties w.e.f 15 04 2017 and did not submit his joining thereafter. Therefore the services of the petitioner were discontinued by order dated 02 01 2018 as per the provisions of Regulation 59 of the Madhya Pradesh Police Regulations. It is the case of the petitioner that since the father of the petitioner was of old age and had fallen sick which was in the knowledge of the Department yet the services of the petitioner were put to an end. The petitioner preferred an appeal along with medical documents of the sickness of the father of the petitioner but the same was not taken into consideration and the appeal was rejected. The copy of the medical certificates of the sickness of the father of the petitioner have been filed as Annexure P5. Thereafter the mercy appeal has also been dismissed. It is submitted by the Counsel for the petitioner that in the impugned order dated 02 01 2018 the respondent No.4 did not disclose the reasons for putting the services of the petitioner to an THE HIGH COURT OF MADHYA PRADESH 3 WP 218118 Sinnam Singh vs. State of MP and Ors. end but in the appeal it was specifically mentioned that the petitioner was in habit of remaining on unauthorized absence and on one occasion one minor penalty was also imposed. Multiple opportunities were given to the petitioner to improve his conduct but he did not improve. The petitioner had remained on unauthorized absence for 102 days from his Training Institute and when he was sent back to his original Unit then again he remained on unauthorized absence for 54 days and accordingly it was held that from 15 04 2017 the petitioner remained on unauthorized absence till passing of the impugned order dated 02 01 2018. It is submitted that the reason assigned by the Appellate Authority is stigmatic in nature and therefore a Departmental Enquiry should have been conducted against the petitioner. It is further submitted that the original period of probation was for two years and according to Regulation 59 of Madhya Pradesh Police Regulations the period of probation can be extended by further period of six months for two times. It is submitted that since the petitioner was appointed in the year 2014 and although no specific order was issued thereby confirming him in service but as the probation period of the petitioner was not extended after completion of his three years therefore it has to be presumed that the THE HIGH COURT OF MADHYA PRADESH 4 WP 218118 Sinnam Singh vs. State of MP and Ors. petitioner was confirmed in the service and accordingly his services could not have been terminated without holding a 5) Per contra the petition is vehemently opposed by the Counsel for the State. It is submitted that in the impugned order dated 02 01 2018 no reasons were assigned therefore it was a discontinuation simplictor without any allegation stigma. Only in the memo of appeal as the petitioner had raised a question of absence of reasons therefore in order to consider the grounds raised in the appeal the Appellate Authority has considered the previous conduct of the petitioner which cannot be said to be stigmatic in nature. It is further submitted that there is no provision of law which provides that if order of extension of probation is not passed after completion of probation period then an employee shall be treated to be confirmed in the service Heard the learned Counsel for the parties. So far as the factual aspects are concerned it has not disputed by the petitioner that he remained on unauthorized absence for a period of 102 days in the Training Institute. When he was sent back he also did not attend in his Unit for a period of 54 days and from 15 04 2017 till passing of the impugned order dated 02 01 2018 the petitioner was on unauthorized absence THE HIGH COURT OF MADHYA PRADESH 5 WP 218118 Sinnam Singh vs. State of MP and Ors. The only explanation which he has given for his unauthorized absence is that the father of the petitioner was sick. The petitioner has filed the medical certificates purportedly issued by Medical OfficerThe counsel for the petitioner could not point out any provision of law which provides that in case if the probation period is not extended after the period of three yearsfrom the date of appointment then the petitioner has to be treated as a confirmed employee. 10) The Supreme Court in the case of Tarsem Lal Verma vs Union of India and Others reported in 9 SCC 243 has held that mere expiry of one year beyond the original two year period of probation would not result in automatic confirmation. 11) The Supreme Court in the case of Registrar High Court of Gujarat vs. C.G. Sharma reported in1 SCC 132 has held that even if the period of two years of probation expires and the probationer is allowed to continue after a period of two years automatic confirmation cannot be claimed as a matter of right because in terms of the Rules the confirmation order can be passed only if there is vacancy and the work is found to be satisfactory which are the prerequisites or preconditions for 12) The Supreme Court in the case of C. V. Satheeshchandran vs. General Manager UCO Bank and Others reported in THE HIGH COURT OF MADHYA PRADESH 7 WP 218118 Sinnam Singh vs. State of MP and Ors. 2008) 2 SCC 653 has held that expiry of the probation period does not necessarily mean confirmation and at the end expiry of the period of probation normally an order confirming the officer is required to be passed and if no such order is passed he shall be deemed to have continued on probation unless the terms of appointment or the relevant rules governing the service conditions provide otherwise. 13) Under these circumstances it would be appropriate to consider the Service Rules governing the service conditions of the employees of the State Government. Rule 8 of Madhya Pradesh Civil Services Rules 1961A person appointed to a service or post by direct recruitment shall ordinarily be placed on probation for such period as may be 2) The appointing authority may for sufficient reasons extend the period of probation by a further period not exceeding one year 3) A probationer shall undergo such training and pass such departmental examination during the period of his probation as may be 4) The services of a probationer may be terminated during the period of probation if in the opinion of the appointing authority he is not likely to shape into a suitable Government servant 5) The services of a probationer who has not passed the departmental examination or who is found unsuitable for the service or post may be THE HIGH COURT OF MADHYA PRADESH 8 WP 218118 Sinnam Singh vs. State of MP and Ors. terminated at the end of the period of his probation 6) On the successful completion of probation: and passing of the prescribed departmental examination if any the probationer shall if there is a permanent post available be confirmed in the service or post to which he has been appointed either a certificate shall be issued in his favour by the appointing authority to the effect that the probationer would have been confirmed but for the non availability of the permanent post and that as soon as a permanent post becomes available he will be 7) A probationer who has neither been confirmed nor a certificate issued in his favour under sub rulenor discharged from service under sub ruleshall be deemed to have been appointed as a temporary Government servant with effect from the date of expiry of probation and his conditions of service shall be governed by the Madhya Pradesh Government Servants Rules 1960 Rule 2(d) and Rule 12 of Rules 1960 read as under: In these rules unless there is anything repugnant in the subject or context d) "Temporary service" means officiating or substantive service in a temporary post and officiating service in a permanent post under State Government and also includes the period of leave with allowance taken while on temporary service and complete years of approved war service which have been counted for fixation of pay and seniority 12.(a) Subject to any provision contained in the order of appointment or in any agreement between the Government and the temporary Government servant who is not in quasi permanent service shall be liable to termination at any time by notice in writing given either by the Government servant to the appointing authority or by the appointing authority to the THE HIGH COURT OF MADHYA PRADESH 9 WP 218118 Sinnam Singh vs. State of MP and Ors. Provided that the services of any such Government servant may be terminated forthwith and on such termination the Government servant shall be entitled to claim a sum equivalent to the amount of his pay plus allowances for the period of the notice at the same rates at which he was drawing them immediately before such termination or as the case may be for the period by which such notice falls short of one month Provided further that the payment of allowances shall be subject to the conditions under which such allowances are admissible b) The period of such notice shall be one month unless otherwise agreed between the Government and the Government servant. Rules 8(7) of the Rules 1961 provides that a Probationer who has neither been confirmed nor a certificate issued in his favour under sub rulenor discharged from service under sub rule(4) shall be deemed to have been appointed as a temporary Government servant with effect from the date of expiry of probation and his conditions of service shall be governed by the Rules 1960. 16) From the plain reading of Rule 12 of the Rules 1960 it is clear that the services of a temporary Government employee are liable to be terminated at any time by notice in writing given either by the Government servant to the appointing authority or by the appointing authority to the Government servant. Provided that the services of any Government servant may be terminated forthwith and on such termination the Government servant shall THE HIGH COURT OF MADHYA PRADESH 10 WP 218118 Sinnam Singh vs. State of MP and Ors. be entitled to claim a sum equivalent to the amount of his pay plus allowances for the period of the notice at the same rates at which he was drawing them immediately before such termination or as the case may be for the period by which such notice falls short of one month. Thus it is clear that the services of temporary employee can be terminated by issuing one month s notice or by making payment of one month s advance salary in lieu of notice. If the order dated 02 01 2018 is tested in the light of Rule 12 of the Rules 1960 then it is clear that neither one month s notice has been given nor one month s salary in advance has been paid in lieu of the notice as required under Rule 12 of the Rules 1960. As per Rule 12(b) of the Rules 1960 the period of notice shall be one month notice unless otherwise agreed between the Government and Government servant. Now the next question for consideration is as to whether the order dated 02 01 2018 is bad in law in absence of one month s notice or advance salary of one month or not Rule 12 of the Rules 1960 provides that in case of immediate termination an employee can claim a sum equivalent to the amount of his pay of one month. The use of words “ is entitled to claim clearly indicates that the instant termination THE HIGH COURT OF MADHYA PRADESH 11 WP 218118 Sinnam Singh vs. State of MP and Ors. without one month s salary would be an irregularity and can be rectified by directing the respondents to pay one month s salary in lieu of one month s notice. Under these circumstances this Court is of the considered opinion that the impugned order dated 02 01 2018of the Rules 1960. Let one month s salary be paid to the petitioner within a period of three months from today. With aforesaid observations this petition is finally (G.S. Ahluwalia Judge

Evidence and not inference required to prove abetment – SC

In the case of Gurcharan Singh Vs State of Punjab [Criminal Appeal No 40 of 2011], Supreme Court held that the act of abetment by the person charged with it, must be proved and established by the prosecution before he could be convicted under Section 306 IPC. The appellant was married to Shinder Kaur and they had a son and a daughter, when the wife committed suicide. The complainant in the present matter was the father of the deceased who claimed that the deceased was harassed by the appellant due to less dowry. The post mortem report disclosed that death was due to consumption of aluminium phosphide. The appellant along with his parents was charged under sections 304B and 498A read with section 34 of the IPC. The learned Trial Court while declaring that there is insufficient material to convict anyone under section 304B & 498A IPC, it was of the opinion that although no charge of abetment was framed against the appellant, he can be convicted for abetting suicide of his wife, under section 306 IPC. Accordingly, the High Court upheld the Trial Court’s view that deceased was pushed to commit suicide by the circumstances and the atmosphere in the matrimonial home. Following which the present appeal has been filed before the Supreme Court. The Appellant contended that the inference without any evidence of vitiating circumstances in the matrimonial home purportedly created by the appellant, is nothing but an inference and conviction cannot be sustained on that basis alone. The Counsel further submitted that the appellant has already undergone sentence for about two years. The respondent claimed that the deceased was beaten and was sent to her parental home to bring cash for purchase of a plot. As the parents were unable to pay the demanded sum, the deceased was driven to commit suicide in her matrimonial home on the very day, when her father dropped her back. The court observed that, “As in all crimes, mens rea has to be established. To prove the offence of abetment, as specified under Sec 107 of the IPC, the state of mind to commit a particular crime must be visible, to determine the culpability. In order to prove mens rea, there has to be something on record to establish or show that the appellant herein had a guilty mind and in furtherance of that state of mind, abetted the suicide of the deceased. The ingredient of mens rea cannot be assumed to be ostensibly present but has to be visible and conspicuous.” While dealing with a case of abetment of suicide in Amalendu Pal alias Jhantu vs. State of West Bengal (2010) 1 SCC 707 parameters of Section 306 IPC were explained as – “Thus, this Court has consistently taken the view that before holding an accused guilty of an offence under Section 306 IPC, the court must scrupulously examine the facts and circumstances of the case and also assess the evidence adduced before it in order to find out whether the cruelty and harassment meted out to the victim had left the victim with no other alternative but to put an end to her life. It is also to be borne in mind that in cases of alleged abetment of suicide there must be proof of direct or indirect acts of incitement to the commission of suicide.” The court further referred the case of Mangat Ram Vs. State of Haryana (2014) 12 SCC 595 where it was observed, “A woman may attempt to commit suicide due to various reasons, such as, depression, financial difficulties, disappointment in love, tired of domestic worries, acute or chronic ailments and so on and need not be due to abetment. The reasoning of the High Court that no prudent man will commit suicide unless abetted to do so by someone else, is a perverse reasoning.” The court held that, “we have no hesitation in declaring that the Trial Court and the High Court erred in concluding that the deceased was driven to commit suicide, by the circumstances or atmosphere in the matrimonial home. This is nothing more than an inference, without any material support.”

IN THE CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.40 OF 2011 The State of Punjab JUDGMENT Hrishikesh Roy J This Appeal challenges the judgment and order dated 4.3.2010 of the High Court of Punjab and Haryana whereunder the Criminal Appeal No. 408 SB of 1999 of the convicted appellant was dismissed and the judgment of conviction under section 306 of the Indian Penal Code 1860and the consequential sentence of 4 years RI and fine of Rs. 5000 imposed by the Learned Additional Sessions Judge Barnala was upheld. The appellant along with his parents was charged under sections 304B and 498A read with section 34 of the IPC. The learned Trial Court ordered acquittal of the appellant’s parents Dulla Singh and Karnail Kaur However even while declaring that there is insufficient material to convict anyone under section 304B & 498A IPC the trial Court opined that although no charge of abetment was framed against the husband Gurcharan Singh he can be convicted for abetting suicide of his wife under section 306 IPC The criminal process was set in motion with registration of FIR No. 177 dated 13.8.1997 at P.S Kotwali Barnala under section 304B 34 IPC and under section 498A IPC. The case was registered on the basis of statement made by Jail Singh father of Shinder Kaur(deceased). The appellant was married to Shinder Kaur and they had a sonand a daughterwhen the mother committed suicide on 12.8.1997. According to the prosecution case Shinder Kaur was harassed after marriage for insufficient dowry. A few days prior to the occurrence Shinder Kaur was beaten and was turned out from her matrimonial home by the accused to bring Rs.20 000 from her parents for purchase of a plot. Then the Complainant had escorted back his daughter to her matrimonial home by pleading with the accused that he was unable to meet their cash demand. On 13.8.1997 the father received a message that Shinder Kaur had died in her matrimonial house. On hearing this the Complainant Jail Singh along with his wife Surjit Kaur and Chand Singh brother of Surjit Kaur) rushed to Barnala and saw the dead body of Shinder Kaur in the matrimonial home who had died at about 5 P.M. on 12.8.1997. Since it was an unnatural death the Complainant alleged that either the accused had caused the death of his daughter by giving her some poisonous substance or she had ingested such substance due to harassment by the accused. The post mortem report disclosed that death was due to consumption of aluminium phosphide. The husband and the parents in law of the deceased were charged and after the case was committed on 28.10.1997 the trial commenced before the Court of Additional Sessions Judge Barnala. 5. Adverting to the evidence of Jail Singh(PW2) Chand Singh(PW3) and Surjit Kaur(PW4) who were the father maternal uncle and mother of the deceased respectively the Court proceeded to determine whether the unnatural death was the result of Dowry demand. The witnesses testified that Rs. 20 000 was demanded by the accused from the deceased’s family as they wanted to purchase a plot and since this demand could not be met Shinder Kaur committed suicide. The evidence of PW2 the father of the deceased shows that “cash loan” of 20 000 was asked. It is also seen from the evidence that the appellant Gurcharan Singh is the only son of his parents and they are the owner of a big house with a vegetable garden. The appellant and his father were drivers with Punjab police. What is also of relevance is that during delivery time the deceased was admitted in the hospital for 10 12 days in November 1996 and her medical treatment was arranged by the husband and the father in law. No evidence of any dispute relating to dowry demand or maltreatment of the deceased during three years of marriage was seen. On this basis the Trial Court concluded even if Rs. 20 000 was asked for purchase of plot three years after marriage and few days later the unnatural death takes place the death cannot be related to demand of dowry The Trial Court then posed a question to itself as to why a young lady with two small children would commit suicide unless she has been pushed to do so by the circumstances in the matrimonial home. It was then observed that the expectation of a married woman will be love and affection and financial security at the hands of her husband and if her hopes are frustrated by the act or by wilful negligence of the husband it would constitute abetment within the meaning of section 107 IPC warranting conviction under section 306 IPC With such reasoning the Trial Court concluded that Shinder Kaur committed suicide when her hopes were frustrated by the act of her husband or alternatively by his wilful neglect. Thus the Court itself was uncertain on the nature of the act to be attributed to the appellant. Moreover even while noting that no direct evidence of cruelty against the husband and the in laws is available the learned Court assumed that section 306 IPC can be applied against the appellant With such conjecture while acquitting all three accused of the charged crime under section 304B and 498A of IPC the husband was convicted under section 306 IPC. In the resultant Criminal Appeal the appellant contended that the conviction cannot be justified unless evidence disclosed some positive act or conduct of the accused which might have compelled the deceased to commit suicide. On the plea of cordial relationship of the deceased with her husband the appellate Judge conjectured that if such be the situation the family members of the deceased would not have deposed against the husband. The suggestion that the deceased accidentally consumed pesticide kept for the vegetable garden was brushed aside by the learned Judge. Accordingly the High Court endorsed the Trial Court’s view that deceased was pushed to commit suicide by the circumstances and the atmosphere in the matrimonial home. The appeal was accordingly dismissed by the impugned judgment leading to the present appeal For the appellant the learned Counsel Mr R K Kapoor focused on the findings of the Trial Court that there is no direct evidence of cruelty towards the deceased by the husband or parents in law. It is then submitted that there is nothing to conclude that the husband had wilfully neglected his wife or had frustrated her to bring the case within the ambit of abetment. The Counsel argues that the court’s conclusion is entirely based on conjectures and not upon any substantial evidence. Since no evidence of dowry harassment was found and the demand of Rs 20 000 was ruled out as the cause for suicide the learned Counsel submits that both Courts erred in concluding that the deceased was pushed to commit suicide on account of the circumstances or atmosphere created by the appellant. The contrary evidence of care and attention of the deceased by her husband and in laws is highlighted by the appellant’s lawyer to argue that in the matrimonial home the deceased was treated well. In any case the degree of love and affection expected of a husband cannot be measured to base the conviction of abetment. Accordingly it is contended that the inference without any evidence of vitiating circumstances in the matrimonial home purportedly created by the appellant is nothing but an inference and conviction cannot be sustained on that basis alone. The Counsel then points out that both children born to the deceased are residing with the appellant and this would also indicate that appellant is a caring and responsible person. The Counsel further submits that the appellant has already undergone sentence for about two years On the other hand Ms Jaspreet Gogia learned counsel for the State of Punjab refers to the evidence of Jail Singh(PW2) and Surjit Kaurthe parents of deceased who stated that a week before the incident the deceased was beaten and was sent to her parental home to bring cash for purchase of a plot. As the parents were unable to pay the demanded sum the deceased was driven to commit suicide in her matrimonial home on the very day when her father dropped her back. The Counsel then argues that if not for the circumstances or atmosphere in the matrimonial home why should a young mother of two children commit suicide by consuming pesticide 10. The submissions of the learned Counsel have been considered. In order to give the finding of abetment under section 107 IPC the accused should instigate a person either by act of omission or commission and only then a case of abetment is made out. In the present case however there is no direct evidence of cruelty against the husband or the in laws. There is nothing on record to show which particular hope or expectation of the deceased was frustrated by the husband Evidence is also lacking on wilful neglect of the appellant which led to the suicidal death. Whereas contrary evidence is available to suggest that care and treatment was given to the deceased in the matrimonial home and in the hospital and during the three years of marriage there was no instance of maltreatment attributable to dowry demand. The demand of Rs 20 000 for purchase of a plot after three years of marriage was ruled out by the trial Court as the possible cause for the suicidal death. In any case PW2 stated that this sum was a “cash loan” asked for buying the plot. Thus a loan may have been sought by the accused which could not be given. But there is nothing to show that the deceased was harassed on this count in the matrimonial home. In the face of such material it is difficult to conclude that Shinder Kaur was pushed to commit suicide by the circumstances or atmosphere created by the appellant. 11. Insofar as the possible reason for a young married lady with two minor children committing suicide in the absence of evidence conjectures cannot be drawn that she was pushed to take her life by the circumstances and atmosphere in the matrimonial home. What might have been the level of expectation of the deceased from her husband and in laws and the degree of her frustration if any is not found through any evidence on record More significantly wilful negligence by the husband could not be shown by the prosecution 12. It must also be noted that both children born to deceased are being brought up by the appellant’s family ever since the death of the mother on 12.8.1997. The maternal grandparents even while pointing fingers against the accused never raised any issue on their grandchildren being brought up in the home where their daughter died an unnatural death 13. Section 107 IPC defines “abetment” and in this case the following part of the section will bear consideration: “107. Abetment of a thing A person abets the doing of a thing who First Instigates any person to do that thing or Thirdly Intentionally aids by any act or illegal omission the doing of that 14. The definition quoted above makes it clear that whenever a person instigates or intentionally aids by any act or illegal omission the doing of a thing a person can be said to have abetted in doing that thing 15. As in all crimes mens rea has to be established To prove the offence of abetment as specified under Sec 107 of the IPC the state of mind to commit a particular crime must be visible to determine the culpability. In order to prove mens rea there has to be something on record to establish or show that the appellant herein had a guilty mind and in furtherance of that state of mind abetted the suicide of the deceased. The ingredient of mens rea cannot be assumed to be ostensibly present but has to be visible and conspicuous. However what transpires in the present matter is that both the Trial Court as well as the High Court never examined whether appellant had the mens rea for the crime he is held to have committed. The conviction of Appellant by the Trial Court as well as the High Court on the theory that the woman with two young kids might have committed suicide possibly because of the harassment faced by her in the matrimonial house is not at all borne out by the evidence in the case. Testimonies of the PWs do not show that the wife was unhappy because of the appellant and she was forced to take such a step on his account 16. The necessary ingredients for the offence under section 306 IPC was considered in the case SS Chheena Vs. Vijay Kumar Mahajan1 where explaining the concept of abetment Justice Dalveer Bhandari wrote as under: “25. Abetment involves a mental process of instigating a person or intentionally aiding a 112 SCC 190 person in doing of a thing. Without a positive act on the part of the accused to instigate or aid in committing suicide conviction cannot be sustained. The intention of the legislature and the ratio of the cases decided by this Court is clear that in order to convict a person under Section 306 IPC there has to be a clear mens rea to commit the offence. It also requires an active act or direct act which led the deceased to commit suicide seeing no option and that act must have been intended to push the deceased into such a position that he committed suicide.” 17. While dealing with a case of abetment of suicide in Amalendu Pal alias Jhantu vs. State of West Bengal2 Dr. Justice M.K. Sharma writing for the Division Bench explained the parameters of Section 306 IPC in the following terms “12. Thus this Court has consistently taken the view that before holding an accused guilty of an offence under Section 306 IPC the court must scrupulously examine the facts and circumstances of the case and also assess the evidence adduced before it in order to find out whether the cruelty and harassment meted out to the victim had left the victim with no other alternative but to put an end to her life. It is also to be borne in mind that in cases of alleged abetment of suicide there must be proof of direct or indirect acts of incitement to the commission of suicide Merely on the allegation of harassment without there being any positive action proximate to the 21 SCC 707 time of occurrence on the part of the accused which led or compelled the person to commit suicide conviction in terms of Section 306 IPC is not sustainable 13. In order to bring a case within the purview of Section 306 IPC there must be a case of suicide and in the commission of the said offence the person who is said to have abetted the commission of suicide must have played an active role by an act of instigation or by doing certain act to facilitate the commission of suicide. Therefore the act of abetment by the person charged with the said offence must be proved and established by the prosecution before he could be convicted under Section 306 IPC 18. In the case Mangat Ram Vs. State of Haryana3 which again was a case of wife’s unnatural death speaking for the Division Bench Justice K.S.P. Radhakrishnanan rightly observed as under: “24. We find it difficult to comprehend the reasoning of the High Court that “no prudent man is to commit suicide unless abetted to do so”. A woman may attempt to commit suicide due to various reasons such as depression financial difficulties disappointment in love tired of domestic worries acute or chronic ailments and so on and need not be due to abetment. The reasoning of the High Court that no prudent man will commit suicide unless abetted to do so by someone else is a perverse 312 SCC 595 19. Proceeding with the above understanding of the law and applying the ratios to the facts in the present case what is apparent is that no overt act or illegal omission is seen from the appellant’s side in taking due care of his deceased wife. The evidence also does not indicate that the deceased faced persistent harassment from her husband. Nothing to this effect is testified by the parents or any of the other prosecution witnesses. The Trial Court and the High Court speculated on the unnatural death and without any evidence concluded only through conjectures that the appellant is guilty of abetting the suicide of his 20. In such circumstances we have no hesitation in declaring that the Trial Court and the High Court erred in concluding that the deceased was driven to commit suicide by the circumstances or atmosphere in the matrimonial home. This is nothing more than an inference without any material support. Therefore the same cannot be the basis for sustaining conviction of the appellant under section 306 of the IPC. 21. In view of the foregoing we are persuaded to conclude that the decisions under challenge cannot be legally sustained. Consequently interfering with the impugned judgment of the High Court and the Trial Court the appellant’s conviction under Section 306 IPC is set aside and quashed. The appeal is accordingly [N.V. RAMANA [SURYA KANT [HRISHIKESH ROY OCTOBER 1 2020 Page 1

To Claim Maintenance – “Relationship in the Nature of Marriage” Need to be Proved: High Court of Shimla

Certain tests are required to be done while claiming maintenance that under what circumstances relationship will fall under the category of Relationship in the nature of Marriage. This remarkable judgement was passed by Shimla High court in the case of Param Jeet Singh v. Kiran Bala & another [CMPMO No. 295 of 2019] by the Hon’ble Mr. Justice Sandeep Sharma. The petition  was filed by petitioner under Section 482 of Cr.P.C., read with Article 227 of the Constitution of India for quashing and setting aside the order passed in Lok Adalat.The complaint under Section 12 of the Domestic Violence Act was filed by respondent No.1 against the petitioner, seeking therein maintenance for domestic violence, but then both entered into the compromise, The petitioner said that he will pay sum of Rs. 4000/- as monthly maintenance and Rs.1500/- as rent to the respondent. After five years of passing of aforesaid order, petitioner approached Court, seeking to quash the order on the ground that respondent No.1 was already married to respondent No.2 she could not have claimed any maintenance from him on account of Domestic Violence Act. The petitioner wanted to carve out a case that since respondent No.1 was already married with respondent No.2 at the time of passing of order, he is not liable to pay any maintenance but respondent No.1 was not his legally wedded. The court opinioned that, “on record that marriage inter se petitioner and respondent No.1 was solemnized as per Hindu Custom and Rites and they had been living as husband and wife at the time of filing petition under the Domestic Violence Act, grounds as raised in the petition at hand for quashing and setting aside the order dated 6.12.2014 cannot be made basis to set aside the order of maintenance passed by the Lok Adalat. Section 2(f) of the Act, defines “domestic relationship”, domestic relationship means a relationship between two persons who live or have, at any point of time, lived together in a shared household, when they are related by consanguinity, marriage, or through a relationship in the nature of marriage.” The Hon’ble Apex Court in case Indra Sharma vs. V.K.V.Sarma, AIR 2014 had laid down certain guidelines for testing under what circumstances, a live-in relationship will fall within the expression “relationship in the nature of marriage” under Section 2(f) of the DV Act. The court further stated that, “petitioner has been not able to dispute that he as well as respondent No.1 after their marriage had been living together as husband and wife and during this period, they also shared household. In the proceedings under Section 12 of the Act, petitioner never raised the ground with regard to earlier marriage of respondent No.1 with respondent No.2, rather he admitted that respondent No.1 to be his legally wedded wife.” The petition was dismissed and impugned order dated 6.12.2014 passed by the Court below is upheld stating that, “The petitioner falls within the definition of expression “relationship in the nature of marriage” under Section 2(f) of the Act and she has been subjected to domestic violence as defined under section 12 of the Act.”

Hig h C o urt of H.P on 17 03 HCHP IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA CMPMO No. 2919 Date of Decision: 15.03.2021 ______________________________________________________________ Param Jeet Singh …..Petitioner Versus Kiran Bala & another …..Respondents Hon’ble Mr. Justice Sandeep Sharma Judge. Whether approved for reporting 1 Yes. For the Petitioner : Mr. Dalip. K. Sharma Advocate. For the Respondent: Mr. Sudhir Thakur Senior Advocate with Mr. Karun Negi Advocate. Sandeep Sharma Judgewas filed by respondent No.1 against the petitioner seeking therein maintenance on account of domestic violence but it appears that before said proceedings could be taken to its logical end both the petitioner and respondent No.1 entered into the compromise as a consequence of which matter came to be finally listed before the Lok Adalat. On 6.12.2014 petitioner Param Jeet Singh made a statement before the Lok Adalat that he will pay sum of Rs. 4000 as monthly maintenance and Rs.1500 as rent to the respondent Kiran Bala. In the aforesaid background Presiding Officer Lok Adalat allowed the petition having been filed by respondent No.1and directed the petitioner to pay sum of Rs.4000 and Rs. 1500 respectively on account of monthly maintenance and rent. Order dated 6.12.2014 further reveals that at the time of passing of aforesaid order petitioner also paid sum of Hig h C o urt of H.P on 17 03 HCHP 3 Rs. 4000 in cash and stated before the court below that rent of Rs. 1500 would be paid by him to the house owner and in future he would pay Rs. 5500 to respondent No.1 per month. After five years of passing of aforesaid order petitioner has approached this Court in the instant proceedings seeking therein quashment of order dated 6.12.2014 on the ground that since at the time of passing of order dated 6.12.2014 respondent No.1 was already married to respondent No.2 Sudhir Sharma she could not have claimed any maintenance from him on account of Domestic Violence Act. 4. However having carefully perused the provisions contained under Domestic Violence Act this Court finds no merit in the aforesaid contention of the petitioner. Though the petitioner has made an attempt to carve out a case that since respondent No.1 was already married with respondent No.2 at the time of passing of order dated 6.12.2014 he is not liable to pay any maintenance in terms of order dated 6.12.2014 but it is none of his case that on 6.12.2014 respondent No.1 was not his legally wedded wife rather material available on record clearly reveals that factum with regard to marriage interse petitioner and respondent No.1 stands duly admitted by the petitioner. Material available on Hig h C o urt of H.P on 17 03 HCHP 4 record further reveals that after filing of proceedings in Domestic Violence Act petitioner filed a petition under Section 12 of the Hindu Marriage Act praying therein for annulment of marriage wherein he specifically took a stand that since respondent No.1 solemnized marriage with him during subsistence of her earlier marriage marriage solemnized interse him and respondent No.1 be declared as null and void. Material available on record further reveals that prior to filing of aforesaid petition for annulment of marriage petitioner had filed petition for divorce but same was withdrawn. If the petition for divorce as well as annulment are read in entirety it clearly suggests that factum with regard to subsistence of earlier marriage interse respondent No.1 and respondent No.2 was very much in the knowledge of the petitioner and as such after five years of passing of order dated 6.12.2014 he cannot be permitted to rake up that issue again especially when he himself while admitting respondent No.1 to be his legally wedded wife offered Rs.4000 as monthly maintenance and Rs. 1500 as rent. 5. Otherwise also once factum with regard o marriage interse petitioner and respondent No.1 stands admitted relief as granted by the Lok Adalat directing the petitioner to pay Hig h C o urt of H.P on 17 03 HCHP 5 maintenance cannot be interfered with on the ground that at the time of passing of order dated 6.12.2014 respondent No.1 was legally wedded wife of respondent No.2. Once it stands duly established on record that marriage interse petitioner and respondent No.1 was solemnized as per Hindu Custom and Rites and they had been living as husband and wife at the time of filing petition under the Domestic Violence Act grounds as raised in the petition at hand for quashing and setting aside the order dated 6.12.2014 cannot be made basis to set aside the order of maintenance passed by the Lok Adalat. 6. Section 2(f) of the Act defines “domestic relationship” domestic relationship means a relationship between two persons who live or have at any point of time lived together in a shared household when they are related by consanguinity marriage or through a relationship in the nature of marriage adoption or are family members living together as a joint family. 7. Though in the case at hand petitioner has attempted to raise a ground that the marriage interse him and respondent No.1 is not valid marriage as it was solemnized during the subsistence of earlier marriage of respondent No.1 but such argument submission may not of any help to the petitioner to come out of Hig h C o urt of H.P on 17 03 HCHP 6 order dated 6.12.2014 passed by the Lok Adalat in Domestic Violence proceedings. Factum with regard to marriage interse petitioner and respondent No.1 stands duly admitted by the petitioner in his pleadings. Otherwise also it is not in dispute that petitioner as well as respondent No.1 after their marriage had been living together as husband and wife and as such it can be safely inferred that there was a domestic relationship interse them. While claiming maintenance under Section 12 of the Domestic Violence Act respondent No.1 was only under obligation to prove domestic relationship interse her and the petitioner. 8. Hon’ble Apex Court in case titled Indra Sharma vs. V.K.V.Sarma AIR 2014 Supreme Court Caseshas laid down certain guidelines for testing under what circumstances a live in relationship will fall within the expression “relationship in the nature of marriage” under Section 2(f) of the DV Act. At this stage it would be profitable to reproduce para 55 of the judgment herein: 55. We may on the basis of above discussion cull out some guidelines for testing under what circumstances a live in relationship will fall within the expression “relationship in the nature of marriage” under Section 2(f) of the DV Act. The guidelines of course are not exhaustive but will definitely give some insight to such relationships. 1) Duration of period of relationship Hig h C o urt of H.P on 17 03 HCHP 7 Section 2(f) of the DV Act has used the expression “at any point of time” which means a reasonable period of time to maintain and continue a relationship which may vary from case to case depending upon the fact situation.Shared household The expression has been defined under Section 2(s) of the DV Act and hence need no further elaboration.Pooling of Resources and Financial Arrangements Supporting each other or any one of them financially sharing bank accounts acquiring immovable properties in joint names or in the name of the woman long term investments in business shares in separate and joint names so as to have a long standing relationship may be a guiding factor.Domestic Arrangements Entrusting the responsibility especially on the woman to run the home do the household activities like cleaning cooking maintaining or upkeeping the house etc. is an indication of a relationship in the nature of marriage.Sexual Relationship Marriage like relationship refers to sexual relationship not just for pleasure but for emotional and intimate relationship for procreation of children so as to give emotional support companionship and also material affection caring etc. Children Having children is a strong indication of a relationship in the nature of marriage. Parties therefore intend to have a long standing relationship. Sharing the Hig h C o urt of H.P on 17 03 HCHP 8 responsibility for bringing up and supporting them is also a strong indication.Socialization in Public Holding out to the public and socializing with friends relations and others as if they are husband and wife is a strong circumstance to hold the relationship is in the nature of marriage.Intention and conduct of the parties Common intention of parties as to what their relationship is to be and to involve and as to their respective roles and responsibilities primarily determines the nature of that relationship. 9. In the case at hand petitioner has been not able to dispute that he as well as respondent No.1 after their marriage had been living together as husband and wife and during this period they also shared household. Since till the passing of impugned order dated 6.12.2014 petitioner had been accepting respondent No.1 to be his legally wedded wife ground raised in the instant petition for setting aside the impugned order deserves outright rejection being totally devoid of merit. In the proceedings under Section 12 of the Act petitioner never raised the ground with regard to earlier marriage of respondent No.1 with respondent No.2 rather he admitted that respondent No.1 to be his legally wedded wife and as such it can be safely inferred presumed that both the petitioner and respondent No.1 socialized in the Public Hig h C o urt of H.P on 17 03 HCHP 9 holding out to the public relations and others that they are legally wedded husband and wife. Similarly it is also not in dispute that after their marriage both petitioner and respondent No.1 developed intimate relationship for procreation of children and to give emotional support to each other. 10. “Whether respondent No.1 solemnized marriage with the petitioner during subsistence of her earlier marriage with respondent No.2 is was not a question required to be gone into the proceedings under Section 12 of the Domestic Violence Act rather in that case complainant with a view to claim maintenance is was only required to prove that her relationship with the petitioner falls within the definition of expression “relationship in the nature of marriage” under Section 2(f) of the Act and she has been subjected to domestic violence as defined under section 12 of the Act. 11. In the case at hand for the reasons stated hereinabove respondent No.1 has successfully proved that she had been living with the petitioner as his legally wedded wife and as such no fault if any can be found with the impugned order dated 6.12.2014 which otherwise came to be passed with the consent of the petitioner. Hig h C o urt of H.P on 17 03 HCHP 10 12. Consequently in view of the above the present petition is dismissed and impugned order dated 6.12.2014 passed by the Court below is upheld. Pending applications if any stands disposed of. Interim order if any is also vacated. Judge 15th March 2021

Ardeshir H. Bhiwandiwala V/s. The State Of Bombay

The test is just as it was in the bottled beer case. You must look at what is the finished article The appellant was convicted of an offence under s. 92 of the Factories Act, 1948, for working a salt works without obtaining a licence. The salt works extended over an area of about 250 acres’ The only buildings on this land were temporary shelters for the resident labour and for an office ; at some places ,there where pucca platforms for fixing the water pump where required to pump water from the sea. The appellant contended (i) that the salt works was not a factory as defined in s. 2(m) of the Act, (ii) that the word ” premises ” in the definition of factory did not include open land, and (iii) that in converting sea water into salt the appellant was not carrying on any manufacturing process as defined in s. 2(k). ISSUE BEFORE THE COURT: Whether the Salt Works come within the definition of the word ” factory ” under cl. (m) of s. 2 of the Act? RATIO OF THE COURTThe court opined that It is clear that the word ” premises ” is a; generic term meaning open land or land with buildings or buildings alone. The expression” premises including precincts”, clearly indicates that in the context of the definition of the word ” factory “, premises meant only buildings as buildings alone can have precints and there can be no precincts of any open land. This expression “premises including precincts” does not necessarily mean that the premises must always have precincts. Even buildings need not have any precincts. The word “including ” is not a term restricting the meaning of the word ” premises ” but is a term which enlarges the scope of the word ” premises “. The only conclusion that the word ” premises ” must be restricted to mean buildings and be not taken to cover open land as well.Further, s. 85 empowers the State Government to declare that all or any of the provisions of the Act shall apply to any place wherein a manufacturing ’process is carried on with or without the aid of power or is so ordinarily carried on notwithstanding certain matters mentioned in the section. The word “place” is again a general word which is applicable to both open land and to buildings and its use in this section indicates that the Act can be applied to works carrying on a manufacturing process on open land. There is thus internal evidence in the Act itself to show that the word “premises ” is not to be confined in its meaning to buildings alone.The Parliament specifically enacted with respect to the places which were to be controlled by the respective Factory Acts and that it was therefore that it was said that if the legislature had intended to apply the Factory Act to the slate quarries, it would have extended the Act to them. As the various Factories and Mills which were covered by the Factory Act of 1833 were such which could function only in buildings, the conception grew that nothing would come within the expression ” factory ” unless it had a building and unless the Factory Act definitely provided for the application of the Act to it.It is clear therefore that labourers are employed for (i) admitting sea water to the reservoirs by working sluice gates, sometimes at night also, or the pump; (ii) filling crystallizing beds; (iii) watching the density of brine in the crystallizing beds; (iv) seeing that the density does not exceed certain limits and that salts other than sodium chloride (common salt) are not formed; (v) scraping and collecting salt crystals (vi) grading the salt crystals by ” sieving ” and (vii) putting salt into gunny bags. It follows that it is due to human agency, aided by natural forces, that salt is extracted from sea water. The, processes carried out in the Salt Works and described above, come within the definition of ” manufacturing process ” inasmuch as salt can be said to have been manufactured from sea water by the process of treatment and adaptation of sea water into salt. The sea water, a non-commercial article, has been adapted to salt, a commercial article. We are therefore of opinion that the process of converting sea water into salt carried on on the appellant’s Salt Works comes within the definition of manufacturing process ” in el. (k) of s. 2 of the Act. inasmuch as salt was manufactured from sea water by a process of treatment and adaptation. By this process sea water, a non-commercial article, was converted into a different thing salt, a commercial article. The court opined that It is clear that the word ” premises ” is a; generic term meaning open land or land with buildings or buildings alone. The expression” premises including precincts”, clearly indicates that in the context of the definition of the word ” factory “, premises meant only buildings as buildings alone can have precints and there can be no precincts of any open land. This expression “premises including precincts” does not necessarily mean that the premises must always have precincts. Even buildings need not have any precincts. The word “including ” is not a term restricting the meaning of the word ” premises ” but is a term which enlarges the scope of the word ” premises “. The only conclusion that the word ” premises ” must be restricted to mean buildings and be not taken to cover open land as well. Further, s. 85 empowers the State Government to declare that all or any of the provisions of the Act shall apply to any place wherein a manufacturing ’process is carried on with or without the aid of power or is so ordinarily carried on notwithstanding certain matters mentioned in the section. The word “place” is again a general word which is applicable to both open land and to buildings and its use in this section indicates that the Act can be applied to works carrying on a manufacturing process on open land. There is thus internal evidence in the Act itself to show that the word “premises ” is not to be confined in its meaning to buildings alone. The Parliament specifically enacted with respect to the places which were to be controlled by the respective Factory Acts and that it was therefore that it was said that if the legislature had intended to apply the Factory Act to the slate quarries, it would have extended the Act to them. As the various Factories and Mills which were covered by the Factory Act of 1833 were such which could function only in buildings, the conception grew that nothing would come within the expression ” factory ” unless it had a building and unless the Factory Act definitely provided for the application of the Act to it. It is clear therefore that labourers are employed for (i) admitting sea water to the reservoirs by working sluice gates, sometimes at night also, or the pump; (ii) filling crystallizing beds; (iii) watching the density of brine in the crystallizing beds; (iv) seeing that the density does not exceed certain limits and that salts other than sodium chloride (common salt) are not formed; (v) scraping and collecting salt crystals (vi) grading the salt crystals by ” sieving ” and (vii) putting salt into gunny bags. It follows that it is due to human agency, aided by natural forces, that salt is extracted from sea water. The, processes carried out in the Salt Works and described above, come within the definition of ” manufacturing process ” inasmuch as salt can be said to have been manufactured from sea water by the process of treatment and adaptation of sea water into salt. The sea water, a non-commercial article, has been adapted to salt, a commercial article. We are therefore of opinion that the process of converting sea water into salt carried on on the appellant’s Salt Works comes within the definition of manufacturing process ” in el. (k) of s. 2 of the Act. inasmuch as salt was manufactured from sea water by a process of treatment and adaptation. By this process sea water, a non-commercial article, was converted into a different thing salt, a commercial article. DECISION HELD BY COURT: The appellant’s Salt Works do come within the definition the appellant’s Salt Works do come within the definition  of the word ’,factory” and that the appellant has been rightly convicted of the offence of working the factory without obtaining a licence. Appeal dismissed.

ARDESHIR H. BHIWANDIWALA Vs THE STATE OF BOMBAY DATE OF JUDGMENT DAYAL RAGHUBAR DAYAL RAGHUBAR IMAM SYED JAFFER KAPUR J.L GUPTA K.C. DAS AYYANGAR N. RAJAGOPALA 1962 AIR 29 1962 SCR 592 CITATOR INFO R 1967 SC1364 ss. 2(k) and m) 92 The appellant was convicted of an offence under s. 92 of the Factories Act 1948 for working a salt works without obtaining a licence. The salt works extended over an area of about 250 acres’ The only buildings on this land were temporary shelters for the resident labour and for an office at some places there where pucca platforms for fixing the water pump where required to pump water from the sea. The appellant contend ed that the salt works was not a factory as defined in s. 2(m) of the Act that the word " premises " in the definition of factory did not include open land and of s. 2 inasmuch as salt was manufactured from sea water by a process of treatment and adaptation. By this process sea water a non commercial article was converted into a different thing salt a Kent v. Astley L.R.5 Q. B. 19 Redgrave v. Lee 1874) 9 Q. B. 363 and Nash v. Hollinshead 1 K.B 700 distinguished Sedgwick v. Watney Combe Reid & Co. Ltd.A.C. 446 Grove v. Lloyds British Testing Co. Ltd.A.C. 466 Kaye v. Burrows & Ors. and Hines v. Eastern Counties Farmers’ Co operative Association Ltd.A.C. 477 The State of Kerala v. V. M. Patel Cr. App. NO. 42 of 1959 decided on 12 10 1960 In re: Chinniah Manager Sangu Soap Works A.I.R. 1957 Mad. 755. Paterson v. Hunt 101 L.T.R. 571 Law v. Graham 2 K.B. 327 Hoare v Truman Hanbury Buxton & CO.86 L.T.R. 417 and McNicol v. Pinch 2 K.B. 352 referred to CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 32 of Appeal from the judgment and order dated October 7 and 10 1955 of the Bombay High Court in Criminal Appeal No. 817 of Porus A. Mehta R. Ganapathy Iyer and G. Gopalakrishnan for N. S. Bindra R. H. Dhebar and T. M. Sen for the 1961. January 27. The Judgment of the Court was delivered RAGHUBAR DAYAL J. This is an appeal by special Rag leave by Ardeshir H. Bhiwandiwala against the order of the High Court of Bombay allowing an appeal by the State against the acquittal of the appellant of an offence under s. 92 of the Factories Act 1948 hereinafter called the Act for his working the Wadia Mahal Salt Works situate at Wadala Bombay without obtaining a licence under s. 6 of the said Act read with r. 4 of the rules framed under the Act The main question for determination in this appeal is whether these Salt Works come within the definition of the word " factory " under cl.of s. 2 of the Act. The answer to this question depends on the meaning of the word premises " in the definition of the word "factory " and on the determination whether what is done at this Salt Works in connection with the conversion of sea water into crystals of salt comes within the definition of the expression manufacturing process " in cl.of s. 2 of the Act The Salt Works extend over an area of about two hundred and fifty acres. Some of the other salt works however have even larger areas. The only buildings on this land consist of temporary shelters constructed for the resident labour and for an office. At a few places pucca platforms exist for fixing the water pump when required to pump water from the sea. When not required this pump is kept in the office. With the exception of the constructions already mentioned the entire area of the Salt Works is open. On the sea side it has bunds in order to prevent sea water flooding the salt pans Clauseof s. 2 of the Act reads factory’ means any premises including the precincts thereof whereon ten or more workers are working or were working on any day of the preceding twelve months and in any part of which a manufacturing process is being carried on with the aid of power or is ordinarily so carried on or whereon twenty or more workers are working or were working on any day of the preceding twelve months and in any part of which a manufacturing process is being carried on without the aid of power or is ordinarily so carried on 595 but does not include a mine subject to the operation of the Mines Act 1952 or a railway running shed The relevant portion of the definition of " manufacturing process " in cl.of s. 2 reads " manufacturing process’ means any process for(i) making altering repairing ornamenting finishing packing oiling washing cleaning breaking up demolishing or otherwise treating or adapting any article or substance with a view to its use sale transport delivery or disposal or pumping oil water or sewage or It is contended for the appellant that the expres. sion premises" in the definition of the word "factory" means buildings " and that "mere open land " is not covered by the word " premises " and as there are no buildings except temporary sheds on the Salt Works the Salt Works cannot be said to be a " factory ". We do not agree with this contention. The word "premises " has now come to refer to either land or buildings or to both depending on the context. The meanings of the word " premises " in various lexicons and dictionaries are given below a) Wharton’s Law Lexicon " Premises " is often used as meaning " land or houses Cochran’s Law Lexicon IV Edition: Premises " means " houses or lands Black H.C. Law Dictionary IV Edition " Premises " as used in the estates means lands and tenements an estate land and buildings thereon the subject matter of the conveyance a distinct and definite locality and may mean a room especially building or other definite area Earl Jowitt Dictionary of English Law Premises............ from this use of the word " premises " has gradually acquired the popular sense of land or buildings Originally it was only used in this sense by laymen and it was never so used in well drawn instruments but it is now 596 frequently found in instruments and in Acts of Parliament as meaning land or houses e.g. the Public Health Act 1875 s. 4 where "premises" includes messuages buildings lands easements tenements and hereditaments of any tenure Ballentine J.A. Law Dictionary with Pronunciation II Edition " Premises " as applied to land Webster’s New International Dictionary defines the word as follows: The property conveyed in a deed hence in general a piece of land or real estate sometimes especially in fire insurance papers a building or buildings on land the premises insured It is therefore clear that the word " premises " is a generic term meaning open land or land with buildings or The expression" premises including precincts" it has been urged clearly indicates that in the context of the definition of the word " factory " premises meant only buildings as buildings alone can have precints and there can be no precincts of any open land. This expression premises including precincts" does not necessarily mean that the premises must always have precincts. Even buildings need not have any precincts. The word " including " is not a term restricting the meaning of the word " premises " but is a term which enlarges the scope of the word " premises We are therefore of opinion that even this contention is not sound and does not lead to the only conclusion that the word premises " must be restricted to mean buildings and be not taken to cover open land as well Sub cl. of el.of s. 7 of the Act requires the occupier of a factory to mention in the written notice to be sent to the Chief Inspector before his occupying or using any premises as a factory the name and address of the owner of the premises or building including the precincts thereof referred to in s. 93. This sufficiently indicates that the word " premises " is not restricted in scope to buildings alone. of course the building referred to in this clause building which is referred to in s. 93 of the Act Sub s.of s. 93 reads " Where in any premises separate buildings are leased to different occupier % for use as separate factories the owner of the premises shall be responsible for the provision and maintenance of common facilities and services such as approach roads drainage water supply lighting and sanitation This again makes it clear that " premises " refer to an entire area which may have within it several separate Further s. 85 empowers the State Government to declare that all or any of the provisions of the Act shall apply to any place wherein a manufacturing ’process is carried on with or without the aid of power or is so ordinarily carried on notwithstanding certain matters mentioned in the section The word " place" is again a general word which is applicable to both open land and to buildings and its use in this section indicates that the Act can be applied to works carrying on a manufacturing process on open land There is thus internal evidence in the Act itself to show that the word " premises " is not to be confined in its meaning to buildings alone The High Court has rightly pointed out that the Act is for the welfare of the workers and deals with matters connected with the health safety welfare working hours of the workers employment of young persons and leave to be granted to workers and that therefore the legislature could not have intended to discriminate between the workers who are engaged in a manufacturing process in a building and those who ’are engaged in such a process on open land It is contended for the appellant that the various provisions of the Act cannot be applicable to salt works where the process of converting sea water into salt is carried on in the open. This is true as regards some of the provisions but then there is nothing in the Act which makes it uniformly compulsory for every occupier of a factory to comply with every requirement of the Act An occupier is to with such provisions of the Act which apply to the factory he is working. It is admitted that the workers have at times to work at night that some women workers are employed that workers have to take rest that they have to take food at about mid day that they do require drinking water and that first aid ’things are kept in the office room. It may be that the occupier has made adequate arrangements for such purposes but this does not mean that the provisions of the Act concerning such amenities shall not be applicable to salt works. Further the Act has sufficient provisions empowering the State to exempt the occupiers from complying with certain I provisions as a Section 6 of the Act empowers the State Government to make rules requiring the previous permission in writing of the State Government or the Chief Inspector to be obtained for the site on which the factory is to be situated and for the construction or extension of any factory or class or description of factories. This provision of the Act together with the relevant rules framed in that connection does not mean that every factory must have a building and that necessary permission for its construction or extension is to be obtained. Of course every factory must have a site and previous permission of the State Government or the Chief Inspector may be necessary before the site is to be used for the purposes of a factory Further there is nothing in the definition of manufacturing process " which would make it necessary that this process be carried on in a building. This definition really deals with the nature of the work done and not with where that work is to be done. The work can be done both in the building or in Lastly learned counsel for the appellant relied on certain cases which are detailed below In Kent v. Astleyit was held that a slate quarry a large open space extending over an area of 400 acres the works of which were carried on in the open 1) L.R. 5 Q.B. 19 air the only buildings being sheds was not a "factory within the meaning of 30 & 31 Viet. c. 103 s. 3 sub s. 7. Cockburn C.J. said at page 23 " Therefore if this work had been carried on within a building I think that it would have fallen within the scope of the statute and that the justices’ ought to have convicted.......... and I do not think that in using the word I premises’ the legislature intended to include sheds erected in the quarry merely as a protection against the weather they are only accessories to the quarry and the quarrying processes and the legislature has not yet declared that open air works shall be within the scope of the Factory Acts...... But except in cases which have been specially provided for it has not as yet included works carried on in the open air because they are less exposed to the evils incident to manufactures carried on in buildings Mellor J. said at page 24 " The legislature has from time to time extended the Factory Acts to different trades and businesses. Numerous slate quarries exist and a large number of persons are employed in them: if the legislature intended to apply the Factory Acts to them it would have been done by special enactment Hannen J. said " I agree with my Brother Mellor that if the legislature had intended to apply the Factory Acts to quarries they would have been expressly mentioned and this omission leads strongly to the conclusion that it was not intended to interfere with persons employed in quarries It is not clear from these observations alone why the slate quarries where work was carried on in the open air and not in building was not held to be "a factory" on that account This is however apparent when one considers that the Factory Act of 1833 was enacted to regulate the labour of children and young persons in the mills and factories of the United Kingdom and applied only to cotton woollen worsted hemp flax tow linen or silk mill or factory wherein steam or water or any other mechanical power was used to propel or work the machinery in such mill or factory. The other subsequent Acts simply extended the scope of the Factory Act of 1833. The Act of 1844 was to amend the law relating to labour in factories and provided by s. LXXIII that "the Factory Act as amended by this Act and this Act would be construed together as one Act. The relevant portion of the definition of the word " factory " in this "The word I factory’ notwithstanding any Provision or Exemption in the Factory Act shall be taken to mean all Buildings and Premises situated within any part of the United Kingdom of Great Britain and Ireland wherein or within the Close or Curtilage of which Steam Water or any other mechanical Power shall be used to move or work any Machinery employed in preparing manufacturing or finishing or in any Process incident to the Manufacture of Cotton. Wool Hair Silk Flax Hemp Jute or Tow either separately or mixed together or mixed with any other Material or any Fabric made thereof This indicates that is premises " need not consist of buildings and that they mean something different from The Act of 1850 was for the regulation of the employment of children in factories and provided that that Act would be construed together with the previous Acts as one Act There is nothing particular in the Factory Act of 1856 to The Act of 1860 dealt with the employment of women young persons and children in bleaching works and dyeing works under the regulations of the Factories Act s. VII which defines the words " Bleaching Works " and " Dyeing Works reads with regard to its relevant portion thus " In the Construction of this Act the words Bleaching Works’ and Dyeing Works’ shall be understood respectively to mean any Building Buildings or Premises in which Females Young Persons and Children or any of them are employed and in One or more of which Buildings or Premises any Process previous to packing is carried on... " Section IX gives the exemptions and its relevant portion is Nothing in this Act contained shall extend or apply to or to any Premises either open inclosed ’ or covered used or to be used bona fide exclusively for the purposes of This makes it clear that " Premises " can consist of open The 1867 Act is described as " Factory Acts Extension Act 1867 " and according to s. 3 " factory means: 7. Any premises whether adjoining or separate in the same occupation situate in the same City Town Parish or Place and constituting One Trade Establishment in on or within the Precincts of which Fifty or more Persons are employed in any manufacturing Process It is clear from the series of legislation up to the decision in Kent’s case that the Parliament specifically enacted with respect to the places which were to be controlled by the respective Factory Acts and that it was therefore that it was said that if the legislature had intended to apply the Factory Act to the slate quarries it would have extended the Act to them. As the various Factories and Mills which were covered by the Factory Act of 1833 were such which could function only in buildings the conception grew that nothing would come within the expression " factory " unless it had a building and unless the Factory Act definitely provided for the application of the Act to it The next case relied on is Redgrave v. Lee(1869) L.R. 5 Q.B. 19. (1874) 9 Q.B. 363 3) 1 K.B. 700 mill for grinding meal intended to be used for food for stock on the farm and not for sale was held to be not a factory in view of the fact that the meal which was ground was not intended for the purpose of sale but was meant only for feeding the stock from the farm. It was also observed that the consequences of holding a farm to be a factory would really produce a ludicrous result ". It is on the basis of this observation that the trial Court in the present case held that the application of the provisions of the Act to the Salt Works would lead to " ludicrous results We have already stated that such is not the result of the application of the relevant provisions of the Factories Act to the Salt Works There is nothing useful for the present case for our purpose in Weston v. London County Counciland in Wood v. London County Councilspecifically provides in sub s.of s. 151 that " premises shall not be excluded from the definition of a factory by reason only that they are open air premises ". Various clauses of sub s.of s. 151 define " factory " to mean " any premises in which certain type of work is carried on by way of trade or for purposes of gain. " These provisions support the interpretation we are putting on the word " premises " in cl.of s. 2 of We therefore hold that the Salt Works would come within the meaning of the expression " premises " in the definition of the word " factory " and would be a factory if the work carried on there comes within the definition of manufacturing process The second contention for the appellant is that the process of converting sea water into salt does not amount to ’manufacturing process " as no process for making altering packing cleaning or otherwise treating or adapting any article or substance with a view to its use sale transport delivery or disposal is carried on. It is also urged that no other process mentioned in cl.of s. 2 is carried on in the Salt Works that it is just the force of gravity and the solar energy which 1)1 K.B. 608. [1941] 2 K.B. 232 do the necessary work for the occupiers of the Salt Works to convert sea water into salt and that no human agency is employed in such conversion. This contention found favour with the trial Court. The High Court however did not agree with it and stated "In our opinion it is a travesty of language to say that although 47 workmen are working on these works salt is made without the assistance of human agency............ Now in this case there is no doubt that the workmen employed on these salt works are dealing with the sea water in a particular manner and but for the dealing with it in that manner salt as made on these works would not be made We agree with the High Court that the conversion of sea water into salt is not due merely to natural forces but is due to human efforts aided by natural forces. The sea water in the sea never becomes salt merely on account of the play of sun’s rays on it. The natural force of gravity is utilised for carrying sea water from the sea to the reservoirs thence to the tapavanis and from there to the crystallizing pans which are specially prepared by thumping the mud and making the layer of tile ground hard and water tight. The solar energy is utilised in evaporating the water in the brine. The human agency is employed for other processes carried on in the Salt Works The process of making salt is described in the letter dated July 12 1949 included in Exhibit 1 from the President Salt Merchants and Shilotires Association Bombay to the Secretary Department of Industry and Supply Government of India New Delhi thus "A salt work mainly consists of an open marshy area surrounded by mud embankment the height of which is above the highest tide water mark in that locality to prevent inundation. In this embankment sluice gates are provided with suitable places to take in and discharge the sea water and the waste water respectively. The inner enclosed area is divided into compartments for the storage of sea brine of different densities. When the salt is formed it is stored on the platform by the laborers engaged in the manufacture It is then weighed bagged and 604 carried to Railway Station or to a port of shipment For said production the sea water is taken into the Reservoirs at high water tide twice during a month. The high tides take place on about nine or ten days in a month five days during day time and four times at night. Some of the labourers are detained for this work but they are also not required to be present the whole time when the evaporation is going on. Once the brine is let into the crystallising beds its surface is not to be disturbed for four or five days. After this the labourer has to be careful to see that the density does not exceed a certain limit and that the other kinds of salt contained in the brine are not deposited thus contaminating the sodium chloride already formed. This they learn by experience Sifting and storing then begins. The labourer has also to refill the crystallizing beds with fresh brine. Thus the labourers work is intermittent and not continuous for any fixed hours It is clear therefore that labourers are employed for filling crystallizing beds watching the density of brine in the crystallizing beds seeing that the density does not exceed certain limits and that salts other than sodium chloride are not formed scraping and collecting salt crystalsgrading the salt crystals by sieving " andputting salt into gunny bags It follows that it is due to human agency aided by natural forces that salt is extracted from sea water. The processes carried out in the Salt Works and described above come within the definition of " manufacturing process inasmuch as salt can be said to have been manufactured from sea water by the process of treatment and adaptation of sea water into salt. The sea water a non commercial article has been adapted to salt a commercial article The observations in Sedgwick v. Watney Combe Reid Company Limited(1) at page 463 support the 1) A.C. 446 view that the process undergone at the Salt Works is the process of treatment ’of sea water for the purpose of converting it into salt. The hereditament the subject of controversy in the case was used in connection with the manufacture of " bottled beer " by the respondent. Brewed beer which was not in a drinkable condition and therefore not saleable as draught’ beer was brought to the premises in tank wagons and pumped into large tanks. Carbonic acid gas was put into it. It was then filtered and put into bottles which were corked and labelled. The bottles were then packed and removed for delivery. The question for decision was whether the hereditament was occupied and used for the purpose of distributive wholesale business. In that connection it was said " But the point is whether the treatment that the beer undergoes in these premises is a mere prelude to distribution. I am clearly of opinion that it is not. The finished article that is being prepared for distribution is bottled beer. It undergoes treatment a treatment which changes its quality and makes it from an unpotable and unmarketable article into a potable and marketable one In the present case in the Salt Works the finished article is " salt ". It does not enter the Salt Works as " salt It enters as brine which under the process carried out changes its quality and becomes salt a marketable article The observations in Grove v. Lloyds British Testing Co Ltd.(1) at page 467 support the view that the conversion of sea water into salt amounts to adapting it for sale. It is stated there I think ’ adapting for sale’ points clearly to something being done to the article in question which in some way makes it in itself a little different from what it was In Kaye v. Burrows & Others and Hines v. Eastern Counties Farmers’ Co operative Association Ltd.it was said at " The test is just as it was in the bottled beer case. You must look at what is the finished article’ [1931] A.C. 466 [1931 A.C. 477 606 to be turned out. If that finished article is only put into the condition of a finished article by the processes to which it has been subjected in the hereditament then the processes will fall within the expression altering or adaptation for sale’ In both the cases of the rags and the seeds the finished article is different from the article in bulk which enters the hereditament and that is in our opinion an adaptation for sale In The State of Kerala v. V. M. Patelthis Court held the treatment of pepper and ginger to be a " manufacturing process " where the work which was carried on in the premises of the firm was described thus It consisted of winnowing cleaning washing and drying pepper on concrete floor. A similar process was also being applied to ginger which was dipped in lime and laid out to dry in a warehouse on the premises The case reported as In re: Chinniah Manager Sangu Soap Works is of no help to the appellant as there nothing definite was held about the process carried out to be a manufacturing process or not and what was stated was in connection with the word I( manufacture" in general and not with reference to " manufacturing process Similarly the case reported as Paterson v. Hunt is not of much help. It simply held that mere sorting of rags will not amount to adapting for sale. In this case reference was made to it being held in Law v. Grahamthat washing the bottles before the beer was put into them was not adapting the beer or adapting the bottles or adapting the bottled beer for the purpose of sale and in Hoare v. Truman Hanbury Buxton & Co.that it was a case of adapting for sale when gas was used to force carbonic acid at high pressure into the beer for charging it with the acid and mixing it and so aerating the beer. The case is 1) Crl.App. NO. 459. decided on October 12 1960 2) A.I.R. 1957 Mad. 755 3) 101 L.T.R. 571 4) 2 K.B. 327.86 L.T.R. 417 5)86 L.T.R. 417 distinguishable as sorting of rags brought about no change in particular rags sorted out. They were just separated from other things with which they were mixed and therefore the rags were in no way adapted to some different article This cannot be said in connection with the conversion of sea water into salt The decisions in McNicol v. PinchState v. Chrestien Mica Industries Ltd.and G. R. Kulkarni v. The Statepage 361 We are therefore of opinion that the process of converting sea water into salt carried on on the appellant’s Salt Works comes within the definition of manufacturing process " in el.of s. 2 of the Act Reference was made to the expression of opinion by the Chief Inspector of Factories in his letter to the Deputy Salt Commissioner Bombay in support of the appellant’s contention that salt works as such do not come within the definition of the word " factory ". It was stated in this letter that originally salt pans were considered to be amenable to the Factories Act and as such salt pan occupiers were informed to get the pans registered and licensed However as some doubt was felt the question was re examined and it had been found that salt pans would not be factories except where they were equipped with a building 1)2 K.B. 352. [1956] Pat. 660 3) I.L.R.M. P. 13 in connection with the manufacture of salt. The Deputy Commissioner for Salt was not satisfied with this view and in his reply dated September 13 1952 stated after referring to the provisions of cl.of s. 2 of the Act that " by premises is meant building and its adjuncts ". No further correspondence between these authorities has been brought on the record and we do not know what had been the final view taken by the authorities in this connection Further such a view expressed by any authority is of no help in deciding the questions before us It may also be mentioned that the representation made by the President of the Salt Merchants and Shilotires Association on July 12 1949 to the Secretary to Government of India Department of Industries & Supply did not raise the contention that the salt works did not come within the definition of the word " factory " and merely represented that the provisions of the Act be not applied to the salt works in view of the matters mentioned in that representation. Even the reply by the appellant’s firm to the Inspector of Factories dated April 9 1952 did not state that the salt works did not come within the definition of the word " factory " and simply stated that the provisions of the Indian Factories Act were considered redundant for which their Bombay Salt Association had already made a suitable representation to the Government of India. It was for the first time in the written statement filed by the appellant in the trial Court that it was contended that the Salt Works would not come within the word factory " in the Act. Omission of the accused or the Association of salt merchants to contend at an earlier stage that the salt works do not come within the definition of the word " factory " is also not of any relevance for our considering the questions before us. We have made reference to it only in view of the reference made by the appellants to an opinion expressed by the Chief Inspector of Factories in his letter to the Deputy Salt Commissioner dated September 13 1952 In view of the above we are of opinion that the appellant’s Salt Works do come within the definition of the word ’ factory" and that the appellant has been rightly convicted of the offence of working the factory without obtaining a licence. We therefore dismiss the

No doctor can assure life to his patient but can only attempt to treat his patient to the best of his ability: Supreme Court of India.

The patient was in a critical condition and he could not survive even after surgery, keeping that in mind the blame cannot be passed on to the Hospital and the Doctor who had provided all possible treatment within their means and capacity to diagnose the patient of this illness. The family may not have coped with the loss of their loved one, but the Hospital and the Doctor cannot be blamed as they had provided the requisite care at all given times. This was observed by Hon’ble Hemant Gupta, J in the matter of Bombay Hospital and Research Medical Centre vs. Asha Jaiswal & Ors. – [Civil Appeal No. 1658 of 2010]. The present appeals are directed against an order passed by the NCDRC against the appellants directing to pay a sum of Rs. 14,18,491/- along with interest @ 9% p.a. from the date of filing of the complaint till the date of payment. The complaint was filed before the Commission by the legal heirs of the deceased, alleging medical negligence on the part of the Hospital and the Doctor in treating the patient. The grievance of the complainant against the appellants was that the doctor had not examined the patient properly after surgery. Further, the patient was made to stand in queue for the DSA test on account of the DSA machine being out of order. It was alleged that the Hospital had delayed treatment by 12 hours due to unavailability of operation theatres and that the doctor had not attended the patient properly and left him in the care of inexperienced doctors. The Learned Commission had commented adversely against the Doctor that he had not seen or attended the patient for several days and had not even indicated the name of any super specialist in his field to look after the patient in his absence. The Commission mentioned that the Doctor had observed at the first instance within a couple of days of admission at the Hospital that there was an impending gangrene and that the other doctors did not take a timely decision for amputation of legs. The Commission relied upon judgment in Whitehouse vs. Jordan & Anr. to apply the principle of res ipsa loquitor. Learned counsel for the appellants herein have argued that the Doctor cannot be held negligent in providing medical care as there are both legal and factual errors in the findings recorded by the Commission. The patient was in critical condition when the Doctor was consulted and surgery was thereafter performed within two days. The non-working of the DSA machine and consequent delay in performing the test cannot be said to be negligence on the part of the Doctor or the Hospital, since any machine can become non-functional because of innumerable factors beyond the human control. Non-availability of emergency operation theatres is not a valid ground to hold the Hospital negligent in any manner. It is a case where the patient was in serious condition of impending gangrene even before admission to the Hospital but even after surgery and re-exploration, if the patient did not survive, the fault cannot be fastened on the doctors as a case of medical negligence. It is too much to expect from a doctor to remain on the bed side of the patient throughout his stay in the hospital which was being expected by the complainant here. A doctor is only expected to provide reasonable care which is not proved to be lacking in any manner in the present case. Supreme court after perusing the facts and arguments presented, held that – “As discussed above, the sole basis of finding the appellants negligent was res ipsa loquitor which would not be applicable herein keeping in view the treatment record produced by the Hospital. The patient was in a critical condition and if he could not survive even after surgery, the blame cannot be passed on to the Doctors who provided all possible treatment within their means and capacity. If operation theatres were occupied at the time when the operation of the patient was contemplated, it cannot be said that there is a negligence on the part of the Hospital. A team of specialist doctors was available and also have attended to the patient but unfortunately nature had the last word and the patient breathed his last. No doctor can assure life to his patient but can only attempt to treat his patient to the best of his ability which was being done in the present case. Therefore, we find that the findings recorded by the Commission holding the Hospital and the Doctor guilty of medical negligence are not sustainable in law. Consequently, the present appeals are allowed.” By virtue of an interim order passed by this Court, a sum of Rs. 5 lakhs was disbursed to the complainant. The said amount was ordered to be treated as ex gratia payment to the complainant and was not to be recovered back by either the Hospital or the Doctor.

IN THE CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 1658 OF 2010 W I T H CIVIL APPEAL NO. 2322 OF 2010 BOMBAY HOSPITAL & MEDICAL RESEARCH ASHA JAISWAL & ORS JUDGMENT HEMANT GUPTA J The present appeals are directed against an order passed by the National Consumer Disputes Redressal Commission1 on 06.01.2010 against the appellants i.e. Bombay Hospital & Medical Research Centre2 and Dr. C. Anand Somaya3 directing to pay a sum of Rs 14 18 491 along with interest @ 9% p.a. from the date of filing of the complaint till the date of payment. 1 For short the ‘Commission’ 2 For short the ‘Hospital’ 3 For short the ‘Doctor’ The complaint was filed before the Commission by the legal heirs4 of the deceased patient Dinesh Jaiswal5 alleging medical negligence on the part of the Hospital and the Doctor in treating the patient The patient was admitted to the Hospital on 22.04.1998 and breathed his last on 12.06.1998. The Hospital charged a sum of Rs 4 08 800 for the treatment of the patient during the period of his admission in the Hospital. The said amount is included in and is part of the amount of compensation awarded against the appellants The patient was taking treatment since 1990 for having difficulties in walking due to the pain and discomfort in legs. For his complaint of inability to walk a Colour Doppler Test was conducted on 13.04.1998 at Khemuka X Ray & Ultrasound Clinic Nagpur which detected the following “Aneurismal dilatation of the lower abdominal aorta just above bifurcation is seen. The aneurism measures 5.4 x 2.6 in its maximum dimensions Irregular thrombus is seen within the aneurism on colour Prostate is normal in echo pattern and measures 4 x 3 x 3cms. Prostatic capsule is intact. Urinary bladder is normal in capacity and contour. Post void residual urine is not Impression: Mild hepatomegaly with aneurism of lower abdominal aorta just above the bifurcation.” Dr. K.G. Deshpande Memorial Center Nagpur was consulted by the 4 For short the ‘Complainant’ 5 For short the ‘patient’ patient on 15.04.1998 and Dr. Deshpande diagnosed the following “A case of Abd Aortic Aneurysum Involvement on left side with Left PVBand surgery after noticing the following physical conditions “A 42 years old male with aorta pain left lower limb and right leg below knee. Gradual Claudication BP 100 80 Ischaemic changes both lower limbs. Seen with impending Both legs left muscles are tested The Doctor after examining the patient recorded that there were ischemic changes in both lower limbs and also noted an impending gangrene. Subsequent to the pre operative preparations surgery was conducted on 23.04.1998 by a team of surgeons including Dr Partha and Dr. Bindra led by the appellant Doctor. The operation notes read as thus “On inspection there was a huge aneurysum on the latral aspect on left side arising infra renal It was densely adherent to the surrounding structure. The aneurysum was directed out. The tape was passed around the left Renal artery vein for retraction. A tape was passed around the aorta just below the renal artery and above the aneurysum. Both the common iliac arteries were exposed Tapes were passed around both the iliac arteries After achieving proper exposure slinging around all the vessels. The aorta was iron clamped just infra renally. The aneurysum opened out. The aorta transected and both illiacs transected.was sutured in place. The short main limb to the aorta using continuous prolure and both the limbs of the graft were sutured to the common iliacs end to end anastomosis on right side. After checking the flow in the graft after suture the upper end the lower anastomosis On the left side the side of the graft was sutured the end of the common iliac. The limb of the graft further brought down through a tunnel to the femoral artery and the end of the graft sutured to the side of the femoral artery After achieving proper haemostasis and checking the Intra operatively the abdomen closed using drainage tubes The patient was later shifted to recovery room on ventilator with stable vital signs.” It is the case of the complainant that on 24.4.1998 at about 4 am that is the night after surgery the nurse who was attending the patient observed that the pulsation of the patient had become feeble and body temperature was low and the lower limbs had gone cold. The relatives were informed at about 7 a.m. that the patient was unconscious legs were cold with no pulsation. The complainant further alleged that the nurse had informed the Doctor at 4 am but he came only at 9.30 a.m. The patient upon assessment by the Doctor was directed to get second DSA test but DSA machine was out of order. Hence the Doctor advised angiography but the patient was made to wait for both DSA test as well as for angiography. One Dr. B.K. Goyal examined the patient and reported that the patient had probably developed block of abdominal aorta. The angiography conducted at 12.30 pm on 24.4.1998 showed a blockat the graft due to which the blood supply to the lower limbs had totally stopped. The complainant contended that the earlier surgery was not performed correctly and there was negligence in conducting the same. A decision was taken to re explore the earlier surgery done at about 3:30 pm but since all the four operation theatres were occupied he could only be taken to the operation theatre for re grafting at 5.30 p.m. As there was no pulsation in the graft and there was clot in the graft extending into both limbs of the graft a fresh graft was sutured and the patient was shifted to recovery room and put on ventilator It was contended by the Hospital that the patient was in the care of qualified doctors such as Dr. Nemish Shah Dr. J. A. Pachore Dr. A.L Kripalani Dr. Partha Dr. H.S. Bindra and many others throughout his course of admission and no stone was left unturned to ascertain the complications and treat the same. Various specialist doctors were treating the patient and medicines treatment was timely regulated and changed as and when required on a daily basis. Regular daily dialysis dressing of wounds etc. were also done. However unfortunately despite the best efforts of the qualified doctors the patient did not respond to the treatment and passed away on The complainant in the complaint enumerated the facts suggesting negligence and deficiency of service on the part of the appellants The averments made by the complainant and the corresponding reply by the Doctor is extracted hereinunder In all cases of grafting the patient is kept under close observation to find out whether blood is flowing normally. In case there is stoppage or lack of flow immediate action is taken to control the situation because lack of blood is certain to rupture and deaden the muscles. The tissues cannot survive without blood flow But in this case after the patient was taken to recovery room he was “16. Without prejudice to the above and with reference to para 34 of the complaint under reply I deny the allegations made therein are false With further reference to the said para it is substantially correct to state that in all cases of grafting patient is kept under closer observations to find out whether blood is flowing normally. In case there is stoppage or lack of flow immediate action is taken to control not examined by any doctor. The attending nurse observed at 4.30 a.m. on 24.4.98 that lower limbs had become cold and did inform the doctors. The doctors were called in writing at 8 a.m. but Dr Somaya came at 9.30 a.m. This time gap was enough to rupture the muscles. The process is irreversible. It cannot be corrected Timely medical care could have saved the life of the complainant 35. That in spite of the critical condition of the complainant on 24.4.98 he was made to stand in queue for DSA test for more than 3 hours. This delay further worsened the condition of the complaint it appears that Bombay Hospital had no medical ethics the situation because lack of blood is certain to rupture and deaden the muscles. I say and submit that even while treating the said deceased utmost care was taken by the opp party in post operative period. In this connection I say and submit that patient was kept in Cardio Vascular Incentive Care Unit CVICU which is considered to be finest in India. The patient was continuously monitored by efficient and trained nursing staff and was also monitored for 24 hours by resident doctor. With further reference to the said para I deny that at about 4.30 a.m. on 24 4 1998 the attending nurse observed that lower limbs had become cold as alleged or at all. I deny that doctors were summoned and that I came to the said unit only at 9.30 a.m. as alleged or at all I deny that because of the so called delay on my part complications took place in the case of the said deceased as alleged or at all. I say and submit that received immediately after message from the resident doctor attached to the opp. party no.1 attended the said patient at about 9.00 a.m. and not at 9.30 a.m. as sought to be suggested by the 17. With reference to paras 35 and 36 of the complaint under reply I deny that in spite of critical condition of the complainant on 24.4.1998 he was deliberately made to stand in queue for DSA test for more than 3 hours. I deny that the said delay was deliberate and due to the said delay the condition of 36. The situation turned darker because after waiting for 3 hours the complainant was informed that the machine was dis functional the said patient further worsened as alleged or at all. I say and submit that to the best to my knowledge immediately I suggested DSA test on 24.4.1998 the staff of the opp party no.1 took the said deceased for DSA test but unfortunately during the relevant time the equipment was not functioning properly and as soon as the defects were located the said test was conducted to enable the opp parties to give further treatment to the said deceased. I say and submit that on perusal of the case papers on record it is crystal clear that the best possible treatment and due care was given to the said deceased under circumstances. I say and submit that during the relevant time the condition of the said deceased was critical and therefore it was not possible to shift the said patient to any other hospital in nearby vicinity for any test including DSA. It is also significant to note here that during the relevant time DSA test machinery was available only in Jaslok Hospital Hinduja Hospital and Breach Candy Hospital. However it was not possible to shift the said patient for the said test considering the patient condition. In any event I dispute the allegations made by the complainant as the complainant’s failed to substantiate the said allegations by producing any independent material on that behalf Besides this the said allegations are not based or supported on the basis of the independent expert’s opinion 37. That on the same day at 12.30 p.m.1 Weekly Law Reports 246 had DSA machines at the relevant time. The Hospital in its affidavit had inter alia mentioned that the DSA test is not a bed side test The patient has to be carefully shifted to the cardiac cauterization department where the DSA machine was installed. The patient hence had to be stabilized before he was shifted to DSA department. Since the patient was put on ventilator and on several support medications it was not possible to immediately undergo the DSA test. But when the patient was taken for DSA test the machine developed certain technical problem. Since the DSA machine was not working angiography was thought to be the best possible test and was thus conducted. The Hospital had specialized staff in all branches of medicine and the medical assistance as was required from time to time including nephrology orthopedics etc was provided to the patient. It was argued that the professional competence of Doctor has not been doubted even by the Commission but two factors have been taken against the Doctor for holding him negligent first that he did not visit the patient soon after the surgery till 9 9.30 a.m. on the next day to verify the blood flow after the surgery and second he did not visit the patient from 29.4.1998 to 9.5.1998 when he was in Mumbai and from 9.5.1998 to 7.6.1998 when he went abroad for attending medical 17. We do not find that the basis of finding the Doctor negligent in providing medical care is sustainable as there are both legal and factual errors in the findings recorded by the Commission. 18. Dr. K.G. Deshpande had referred the patient to the Doctor on 15.4.1998 with advice of urgent surgical repair of Aneurysum. The patient had taken another six days to consult Doctor at Mumbai and it was only on 21.4.1998 that the patient was examined by the Doctor and was advised immediate Aneurysmectomy in view of the impending gangrene. Therefore gangrene was not found to be impending after few days of admission to the Hospital but even before the patient was admitted. The patient was in critical condition when the Doctor was consulted on 21.4.1998 and surgery was thereafter performed within two days Further the non working of the DSA machine and consequent delay in performing the test cannot be said to be negligence on the part of the Doctor or the Hospital. The DSA machine is a large expensive and complicated machine which unfortunately developed certain technical problem at the time when patient had to be tested. Any machine can become non functional because of innumerable factors beyond the human control as the machines involve various mechanical electrical and electronic components. The DSA test was conducted in the Hospital on 22.4.1998 and hence DSA machine cannot be said to be dysfunctional for a long time. The alternative process to determine the blood flow was carried out by angiography and the decision for re exploration was taken at 12.30 p.m. No fault can be attached to the Hospital if the operation theatres were occupied when the patient was taken for surgery. Operation theatres cannot be presumed to be available at all times. Therefore non availability of an emergency operation theatre during the period when surgeries were being performed on other patients is not a valid ground to hold the Hospital negligent in any manner The re exploration of operative notes dated 24.4.1998 shows that a fresh graft was sutured in place after establishing the flow. The patient was then put on ventilator and shifted to recovery room. On 25.4.1998 a note by Dr. Bindra indicated that the patient was seen by Dr. Shruti. It was noted that there was no movement in both the legs but had pin prick sensation and below mid thigh sensation was present on the lower limbs. Further legs were warm till the ankles and the feet were cold. On 27.4.1998 Dr. H.S. Bindra had sought consultation from Dr. Khadilkar giving case history that limbs were warm and that the patient had pain in the lumber region and was also feeling tightness in both the lower limbs. Dr. Khadilkar noted his impressions that it was very likely lower spinal cord conus syndrome and thereafter advised MRI of the lower cervical spine and till then to continue with the medicine pentosiflin and lomodex and for muscle ischemia high CK and Myoglobulin. Dr. Khadilkar suggested the same treatment to continue on 28.4.98. On 29.4.1998 Dr. Khadilkar had reported the sensory level dropped to upper 1 3rd of the thigh and that there was no power in limbs. No changes were however seen in the MRI report. It was also reported that probably myonecrosis was playing more significant role in the weakness. The patient was put on dialysis thereafter. The patient was examined by Dr. Kripalani or his unit from 1.5.1998 and thereafter for many days till 23.5.1998. The dialysis was being conducted in the meantime as well. The patient was being monitored by Dr. Bindra throughout. Subsequently the patient was referred to Dr. Amarapurkar on 12.5.1998 when it was noted that Ischemic Injury to liver needed no treatment on 13.5.1998. The patient was then referred to Dr. Amin for enternal nuirisim on It was further noted on 18.05.1998 from Colour Flow Imaging of limb arteries that both common femoral superficial femoral and popliteal arteries were patent. The flow in both posterior tibial arteries was of low velocity and of venous type suggesting refilled flow. Dr Pachore also examined the patient on 27.5.1998 and observed that the patient had wet gangrene below knee and was thus advised amputation. On 29.5.1998 the patient was operated for amputation below the knee at the level of tibial tuberosity for treatment of wet gangrene and the Bilateral Guillatine Amputation was carried out On 30.05.1998 it was noted that the acute renal failure was improving. Further septicemia was diagnosed on 30.05.1998. Later on 12.06.1998 the patient was put on ventilator and he subsequently passed away at 9.30 pm due to septicemic shock It is to be noted that it is not the case of the complainant that Doctor was not possessed of requisite skill in carrying out the operation. In fact the patient was referred to him by Dr. Deshpande keeping in view the expertise of the Doctor in vascular surgery There is no proof that there was any negligence in performing the surgery on 23.4.1998 or in the process of re exploration on 24.4.1998. The allegation is of failure of the Doctor to take the follow up action after surgery on 23.4.1998 a delayed decision to amputate the leg subsequent to re exploration on 24.4.1998 and the alleged undue foreign visit of the Doctor. In respect to such contention of the Doctor being on a foreign visit it is well known a medical professional has to upgrade himself with the latest development in his field which may require him to attend conferences held both in and outside the country. Mere fact that the Doctor had gone abroad cannot lead to an inference of medical negligence as the patient was admitted in a hospital having specialists in multi faculties. Two doctors from the unit of the Doctor namely Dr. Bindra and Dr. Partha both post graduates were present to attend to the patient. Moreover as per the stand of the Hospital and the Doctor the patient was kept in Cardio Vascular Intensive Care Unit after the surgery and was continuously being monitored by qualified post graduate doctors including Dr. Nemish Shah Head of Cardio Vascular Surgery. The patient was even attended by other specialist doctors as well which is evident from the brief summary of treatment given to the patient. The experts in the other fields have been consulted from time to time and the treatment was modulated accordingly. In spite of the treatment if the patient had not survived the doctors cannot be blamed as even the doctors with the best of their abilities cannot prevent the inevitable. The blood was flowing properly soon after the surgery but later the formation of clot was confirmed after the angiography test was conducted at 12.30 p.m. An immediate decision was taken for re exploration at 3.30 p.m. The allegation of delay in treatment after the surgery seems to be baseless as the patient was being administered antibiotics like Metrogyl 400 and Piperacillin Injection which are used for treatment in gangrene. Dr. Kripalani in his affidavit denied the allegation leveled by the complainant. Dr Kripalani had treated patient continuously including carrying out the dialysis. In respect of the allegation that doctors failed to amputate legs on time efforts were being made to save the limbs as amputation is considered as the last resort. The amputation was done as per the advice of Dr. Pachore. In the present era of super specialization one doctor is not a solution for all problems of a patient. Each problem is dealt with by an expert in the concerned field and that is what is apparent from the medical record. The stand of the complainant is that since surgery was performed by a doctor he alone would be responsible for different aspects of the treatment required and given to the patient. However it is an incorrect assumption to be made. It is a case where the patient was in serious condition impending gangrene even before admission to the Hospital but even after surgery and re exploration if the patient does not survive the fault cannot be fastened on the doctors as a case of medical negligence It is too much to expect from a doctor to remain on the bed side of the patient throughout his stay in the hospital which was being expected by the complainant here. A doctor is expected to provide reasonable care which is not proved to be lacking in any manner in the present case The sole basis of finding of negligence against the Hospital is of res ipsa loquitor. It is to be noted that res ipsa loquitor is a rule of evidence. This Court in a judgment reported as Syad Akbar v State of Karnataka7 explained the principle in a criminal trial as “19. As a rule mere proof that an event has happened or an accident has occurred the cause of which is unknown is not evidence of negligence. But the peculiar circumstances con stituting the event or accident in a particular case may themselves proclaim in concordant clear and unambiguous voices the negligence of somebody as the cause of the event or accident. It is to such cases that the maxim res ipsa lo quitur may apply if the cause of the accident is unknown and no reasonable explanation as to the cause is coming forth from the defendant. To emphasise the point it may be reiter ated that in such cases the event or accident must be of a kind which does not happen in the ordinary course of things if those who have the management and control use due care But according to some decisions satisfaction of this condi tion alone is not sufficient for res ipsa to come into play and it has to be further satisfied that the event which caused the accident was within the defendant s control. The reason for this second requirement is that where the defendant has con trol of the thing which caused the injury he is in a better po sition than the plaintiff to explain how the accident occurred Instances of such special kind of accidents which “tell their own story” of being offsprings of negligence are furnished by cases such as where a motor vehicle mounts or projects over a pavement and hurts somebody there or travelling in the ve hicle one car ramming another from behind or even a head on collision on the wrong side of the road.1 All ER 392 399] Cream v. Smith8 AER 349] Rich ley v. Faull1 WLR 1454 :3 All ER 109 20. Thus for the application of the maxim res ipsa loquitur “no less important a requirement is that the res must not only bespeak negligence but pin it on the defendant” 26. From the above conspectus two lines of approach in re gard to the application and effect of the maxim res ipsa lo quitur are discernible. According to the first where the maxim applies it operates as an exception to the general 71 SCC 30 rule that the burden of proof of the alleged negligence is in the first instance on the plaintiff. In this view if the nature of an accident is such that the mere happening of it is evidence of negligence such as where a motor vehicle without appar ent cause leaves the highway or overturns or in fair visibility runs into an obstacle or brushes the branches of an over hanging tree resulting in injury or where there is a duty on the defendant to exercise care and the circumstances in which the injury complained of happened are such that with the exercise of the requisite care no risk would in the ordinary course ensue the burden shifts or is in the first instance on the defendant to disprove his liability. Such shifting or casting of the burden on the defendant is on account of a presump tion of law and fact arising against the defendant from the constituent circumstances of the accident itself which be speak negligence of the defendant. This is the view taken in several decisions of English courts. 22 LJ 442] Moore v.R. Fox & Sons1 QB 596 :1 All ER 182] . Also see paras 70 79 and 80 of Halsbury s Laws of England Third Edn. Vol. 28 and the rulings mentioned in the footnotes thereunder 27. According to the other line of approach res ipsa loquitur is not a special rule of substantive law that functionally it is only an aid in the evaluation of evidence “an application of the general method of inferring one or more facts in issue from circumstances proved in evidence”. In this view the maxim res ipsa loquitur does not require the raising of any presumption of law which must shift the onus on the defen dant. It only when applied appropriately allows the drawing of a permissive inference of fact as distinguished from a mandatory presumption properly so called having regard to the totality of the circumstances and probabilities of the case. Res ipsa is only a means of estimating logical probabil ity from the circumstances of the accident. Looked at from this angle the phrase24 TLR 548] ) only means “that there is in the circumstances of the particular case some evidence which viewed not as a matter of conjecture but of reasonable argument makes it more probable that there was some negligence upon the facts as shown and undisputed than that the occurrence took place without negligence .... It means that the circumstances are so to speak eloquent of the negligence of somebody who brought about the state of things which is complained of.” 28. Recently a three Judge Bench in a judgment reported as Iffco Tokio General Insurance Company Limited v. Pearl Beverages Lim ited8 approved the aforesaid judgment in a case of medical negli gence being examined by the consumer fora. It was held as under “86. Thus it is used in cases of tort and where the facts with out anything more clearly and unerringly point to negligence The principle of res ipsa loquitur as such appears to be inap posite when what is in question is whether driver was under the influence of alcohol. It may be another matter that though the principle as such is inapplicable the manner in which the accident occurred may along with other circum stances point to the driver being under the influence of alco In Martin F. D Souza v. Mohd. Ishfaq9 this court observed that the doctor cannot be held liable for medical negligence by applying the doctrine of res ipsa loquitur for the reason that a patient has not favourably responded to a treatment given by a doctor or a surgery has failed. There is a tendency to blame the doctor when a patient dies or suffers some mishap. This is an intolerant conduct of the family members to not accept the death in such cases. The in creased cases of manhandling of medical professionals who worked day and night without their comfort has been very well seen in this pandemic. This Court held as under: 87 SCC 704 9(2009) 3 SCC 1 “40. Simply because a patient has not favourably responded to a treatment given by a doctor or a surgery has failed the doctor cannot be held straightaway liable for medical negligence by applying the doctrine of res ipsa loquitur. No sensible professional would intentionally commit an act or omission which would result in harm or injury to the patient since the professional reputation of the professional would be at stake. A single failure may cost him dear in his lapse 42. When a patient dies or suffers some mishap there is a tendency to blame the doctor for this. Things have gone wrong and therefore somebody must be punished for it However it is well known that even the best professionals what to say of the average professional sometimes have failures. A lawyer cannot win every case in his professional career but surely he cannot be penalised for losing a case provided he appeared in it and made his submissions.” In case of medical negligence this Court in a celebrated judgment reported as Jacob Mathew v. State of Punjab and Anr.10 held that simple lack of care an error of judgment or an accident is not a proof of negligence on the part of a medical professional. The Court held as under We sum up our conclusions as under 1) Negligence is the breach of a duty caused by omission to do something which a reasonable man guided by those considerations which ordinarily regulate the conduct of hu man affairs would do or doing something which a prudent and reasonable man would not do. The definition of negli gence as given in Law of Torts Ratanlal & Dhirajlalreferred to hereinabove holds good Negligence becomes actionable on account of injury result 106 SCC 1 ing from the act or omission amounting to negligence at tributable to the person sued. The essential components of negligence are three: “duty” “breach” and “resulting dam 2) Negligence in the context of the medical profession nec essarily calls for a treatment with a difference. To infer rash ness or negligence on the part of a professional in particu lar a doctor additional considerations apply. A case of occu pational negligence is different from one of professional negligence. A simple lack of care an error of judgment or an accident is not proof of negligence on the part of a med ical professional. So long as a doctor follows a practice ac ceptable to the medical profession of that day he cannot be held liable for negligence merely because a better alter native course or method of treatment was also available or simply because a more skilled doctor would not have cho sen to follow or resort to that practice or procedure which the accused followed. When it comes to the failure of taking precautions what has to be seen is whether those precau tions were taken which the ordinary experience of men has found to be sufficient a failure to use special or extraordi nary precautions which might have prevented the particular happening cannot be the standard for judging the alleged negligence. So also the standard of care while assessing the practice as adopted is judged in the light of knowledge available at the time of the incident and not at the date of trial. Similarly when the charge of negligence arises out of failure to use some particular equipment the charge would fail if the equipment was not generally available at that par ticular timeat which it is suggested it should have been used 4) The test for determining medical negligence as laid down in Bolam case1 WLR 582 : 2 All ER 118WLR at p. 586holds good in its ap plicability in India Res ipsa loquitur is only a rule of evidence and operates in the domain of civil law specially in cases of torts and helps in determining the onus of proof in actions relating to negligence. It cannot be pressed in service for determin ing per se the liability for negligence within the domain of criminal law. Res ipsa loquitur has if at all a limited applica tion in trial on a charge of criminal negligence.” In another judgment reported as Arun Kumar Manglik v. Chirayu Health and Medicare Private Limited and Anr.11 this Court held that the standard of care as enunciated in Bolam case must evolve in consonance with its subsequent interpretation by English and Indian Courts. The threshold to prove unreasonableness is set with due regard to the risks associated with medical treatment and the conditions under which medical professionals’ function. The Court held as under “45. In the practice of medicine there could be varying approaches to treatment. There can be a genuine difference of opinion. However while adopting a course of treatment the medical professional must ensure that it is not unreasonable. The threshold to prove unreasonableness is set with due regard to the risks associated with medical treatment and the conditions under which medical professionals function. This is to avoid a situation where doctors resort to “defensive medicine” to avoid claims of negligence often to the detriment of the patient. Hence in a specific case where unreasonableness in professional conduct has been proven with regard to the circumstances of that case a professional cannot escape liability for medical evidence merely by relying on a body of 117 SCC 401 In C.P. SreekumarMSv. S. Ramanujam12 this Court held that the Commission ought not to presume that the alle gations in the complaint are inviolable truth even though they re mained unsupported by any evidence. This Court held as under “37. We find from a reading of the order of the Commission that it proceeded on the basis that whatever had been al leged in the complaint by the respondent was in fact the in violable truth even though it remained unsupported by any evidence. As already observed in Jacob Mathew case1369] the onus to prove medical negligence lies largely on the claimant and that this onus can be discharged by leading cogent evidence. A mere aver ment in a complaint which is denied by the other side can by no stretch of imagination be said to be evidence by which the case of the complainant can be said to be proved It is the obligation of the complainant to provide the facta probanda as well as the facta probantia.” In another judgment reported as Kusum Sharma and Others v Batra Hospital and Medical Research Centre and Others13 a complaint was filed attributing medical negligence to a doctor who performed the surgery but while performing surgery the tumour was found to be malignant. The patient died later on after prolonged treatment in different hospitals. This Court held as under “47. Medical science has conferred great benefits on mankind but these benefits are attended by considerable risks. Every surgical operation is attended by risks. We cannot take the benefits without taking risks. Every advancement in technique is also attended by risks 127 SCC 130 133 SCC 480 72. The ratio of Bolam case1 WLR 582 :2 All ER 118] is that it is enough for the defendant to show that the standard of care and the skill attained was that of the ordinary competent medical practitioner exercising an ordinary degree of professional skill. The fact that the respondent charged with negligence acted in accordance with the general and approved practice is enough to clear him of the charge. Two things are pertinent to be noted. Firstly the standard of care when assessing the practice as adopted is judged in the light of knowledge available at the timeand not at the date of trial. Secondly when the charge of negligence arises out of failure to use some particular equipment the charge would fail if the equipment was not generally available at that point of time on which it is suggested as should have been used 78. It is a matter of common knowledge that after happening of some unfortunate event there is a marked tendency to look for a human factor to blame for an untoward event a tendency which is closely linked with the desire to punish Things have gone wrong and therefore somebody must be found to answer for it. A professional deserves total protec tion. The Penal Code 1860 has taken care to ensure that people who act in good faith should not be punished. Sec tions 88 92 and 370 of the Penal Code give adequate protec tion to the professionals and particularly medical profession 34. Recently this Court in a judgment reported as Dr. Harish Kumar Khurana v. Joginder Singh & Others14 held that hospital and the doctors are required to exercise sufficient care in treating the pa tient in all circumstances. However in an unfortunate case death may occur. It is necessary that sufficient material or medical evi dence should be available before the adjudicating authority to arrive 14SCC Online SC 673 at the conclusion that death is due to medical negligence. Every death of a patient cannot on the face of it be considered to be medi cal negligence. The Court held as under “11. .. Ordinarily an accident means an unintended and unforeseen injurious occurrence something that does not occur in the usual course of events or that could not be rea sonably anticipated. The learned counsel has also referred to the decision in Martin F.D Souza v. Mohd. Ishfaq 3 SCC 1 wherein it is stated that simply because the patient has not favourably responded to a treatment given by doc tor or a surgery has failed the doctor cannot be held straight away liable for medical negligence by applying the doctrine of Res Ipsa Loquitor. It is further observed therein that sometimes despite best efforts the treatment of a doc tor fails and the same does not mean that the doctor or the surgeon must be held guilty of medical negligence unless there is some strong evidence to suggest that the doctor is 14. Having noted the decisions relied upon by the learned counsel for the parties it is clear that in every case where the treatment is not successful or the patient dies during surgery it cannot be automatically assumed that the medi cal professional was negligent. To indicate negligence there should be material available on record or else appropriate medical evidence should be tendered. The negligence al leged should be so glaring in which event the principle of res ipsa loquitur could be made applicable and not based on perception. In the instant case apart from the allegations made by the claimants before the NCDRC both in the com plaint and in the affidavit filed in the proceedings there is no other medical evidence tendered by the complainant to indicate negligence on the part of the doctors who on their own behalf had explained their position relating to the medi cal process in their affidavit to explain there was no negli It may be mentioned here that the complainant had led no evidence of experts to prove the alleged medical negligence except their own affidavits. The experts could have proved if any of the doctors in the Hospital providing treatment to the patient were deficient or negligent in service. A perusal of the medical record produced does not show any omission in the manner of treatment. The experts of different specialities and super specialities of medicine were available to treat and guide the course of treatment of the patient The doctors are expected to take reasonable care but none of the professionals can assure that the patient would overcome the surgical procedures. Dr. Kripalani has been attributed to have informed the complainant that the patient’s legs were not working but Dr. Kripalani denied all the averments by filing of an affidavit. As discussed above the sole basis of finding the appellants negligent was res ipsa loquitor which would not be applicable herein keeping in view the treatment record produced by the Hospital and or the Doctor. There was never a stage when the patient was left unattended. The patient was in a critical condition and if he could not survive even after surgery the blame cannot be passed on to the Hospital and the Doctor who provided all possible treatment within their means and capacity. The DSA test was conducted by the Hospital itself on 22.4.1998. However since it became dysfunctional on 24.4.1998 and considering the critical condition of the patient an alternative angiography test was advised and conducted and the re exploration was thus planned. It is only a matter of chance that all the four operation theatres of the Hospital were occupied when the patient was to undergo surgery We do not find that the expectation of the patient to have an emergency operation theatre is reasonable as the hospital can provide only as many operation theatres as the patient load warrants. If the operation theatres were occupied at the time when the operation of the patient was contemplated it cannot be said that there is a negligence on the part of the Hospital. A team of specialist doctors was available and also have attended to the patient but unfortunately nature had the last word and the patient breathed his last. The family may not have coped with the loss of their loved one but the Hospital and the Doctor cannot be blamed as they provided the requisite care at all given times. No doctor can assure life to his patient but can only attempt to treat his patient to the best of his ability which was being done in the present case as well. Therefore we find that the findings recorded by the Commission holding the Hospital and the Doctor guilty of medical negligence are not sustainable in law. Consequently the present appeals are allowed. The order passed by the Commission is set aside and the complaint is dismissed By virtue of an interim order passed by this Court on 8.3.2010 a sum of Rs. 5 lakhs was disbursed to the complainant. The said amount is ordered to be treated as ex gratia payment to the complainant and not to be recovered back by either the Hospital or NEW DELHI NOVEMBER 30 2021

Motor-cycle taxis are a form of contract carriages and must be granted permit: Karnataka High Court

Motor vehicle taxis that provide transport services for hire or reward are well within the definition of “contract carriage” under the Motor Vehicles Act. A single-judge bench comprising of Justice BV Nagarathna while adjudicating the matter in Ani Technologies Pvt Ltd. V. State of Karnataka & Ors. [WRIT APPEAL No.4010/2019 (MV)] dealt with the legality of two-wheeler motor vehicles functioning as taxis for a mutual reward. The petitioners in the above case sought a writ of mandamus from the Court in order to take necessary action to permit the registration of bike taxis so as to use them as transport vehicles. The petitioners also prayed for appropriate permits to be granted in respect of contract carriage permits as per the provisions of the Motor Vehicles Act, 1988, Central Motor Vehicles Rules, 1989, and Karnataka Motor Vehicles Rules, 1989. The respondents i.e., the State, were not accepting applications of the petitioners to seek the necessary permits. The petitioner also pointed out the importance, especially in times of a pandemic to include new forms of urban mobility such as e-rickshaws and bike-sharing in order to reduce delays and embrace digital technology online. The respondents stated that there were no rules that had been framed to permit motorcycle taxis as such and thus no permit could be granted to the petitioners. Upon considering the provisions of the Motor Vehicles Act; the Court stated that a motorcycle could be used for hire to carry one passenger as a pillion. Even as per the Central Government Notification such a motorcycle used for hire would, prima facie, come within the definition of contract carriage as defined under sub-section (7) of Section 2 of the MV Act, 1988, wherein a “contract carriage” means “a motor vehicle which carries a passenger or passengers for hire or reward and is engaged under a contract, whether express or implied, for the use of such vehicle as a whole for the carriage of passengers mentioned therein and entered into by a person with a holder of a permit in relation to such vehicle or any person authorized by him in this behalf on a fixed or an agreed rate or sum.” The Court further held that the definition of contract carriage is an inclusive definition rather than an exhaustive one. The very fact that one passenger could be carried on pillion in a motorcycle taxi makes it fall under the purview of “contract carriage.”

1 IN THE HIGH COURT OF KARNATAKA BENGALURU DATED THIS THE 05TH DAY OF APRIL 2021 THE HON’BLE MRS. JUSTICE B.V.NAGARATHNA THE HON’BLE MS. JUSTICE J.M.KHAZI WRIT APPEAL No.4010 2019STATE OF KARNATAKA THROUGH ITS SECRETARY VIDHANA SOUDHA BENGALURU 560 001. ADDITIONAL TRANSPORT COMMISSIONER AND SECRETARY STATE TRANSPORT AUTHORITY BANGALORE 1ST FLOOR TTMC BUILDING A BLOCK SHANTHINAGAR BANGALORE 560 027. THE COMMISSIONER ROAD TRANSPORT DEPARTMENT AND STATE TRANSPORT AUTHORITY 1ST FLOOR TTMC BUILDING A BLOCK SHANTINAGAR BANGALORE 560 027. WWW.LIVELAW.IN 2 KARNATAKA STATE TRANSPORT AUTHORITY THROUGH ITS SECRETARY 1ST FLOOR TTMC BUILDING A BLOCK SHANTINAGAR BANGALORE 560 027. UNION OF INDIA THROUGH PRINCIPAL SECRETARY THE MINISTRY OF ROAD TRANSPORT AND HIGHWAYS TRANSPORT BHAWAN I PARLIAMENT STREET NEW DELHI 110 001. ROPPEN TRANSPORTATION SERVICES PVT. LTD. REG. OFFICE AT: 3RD FLOOR SAI PRITHVI ARCADE MEGHA HILLS SRI RAMA COLONY MADHAPUR HYDERABAD TELAGANA 500 081. ALSO AT: 148. 5TH MAIN ROAD RAJIV GANDHI NAGAR SECTOR 7 HSR LAYOUT BENGALURU KARNATAKA 560 102. THROUGH ITS DIRECTOR MR. PAVAN KUMAR GUNTUPALLI. ... RESPONDENTS BY SMT. SHWETHA KRISHNAPPA AGA FOR R 1 TO R 4 SRI. MADANAN PILLAI R. CGC FOR R 5 SAHANA DEVANATHAN ADVOCATE FOR SRI LOMESH NIDUMURI ADVOCATE FOR R 6) THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF THE KARNATAKA HIGH COURT ACT PRAYING TO a) PASS AN ORDER SETTING ASIDE THE FINAL ORDER DATED 12 09 2019 PASSED BY THE LEARNED SINGLE JUDGE OF THIS HON’BLE COURT IN WRIT PETITION NO.14485 2019 INSOFAR AS IT ERRONEOUSLY RECORDS THAT ALL THE GRIEVANCES OF THE APPELLANT WERE REDRESSED AND ETC. THIS APPEAL COMING ON FOR PRELIMINARY HEARING THIS DAY NAGARATHNA J. DELIVERED THE FOLLOWING: JUDGMENT Being aggrieved by the order of the learned single Judge dated 12 09 2019 passed in W.P.No.14485 2019 WWW.LIVELAW.IN 3 and order dated 14 11 2019 passed in R.P.No.516 2019 the petitioner has filed this appeal. 2. We have heard learned senior counsel for the writ petitioner appellant learned Additional Government Advocate for respondent Nos.1 to 4 learned Central Government Counsel for respondent No.5 and learned counsel for respondent No.6. Learned senior counsel appearing for the petitioner appellant herein drew our attention to the prayers sought in the writ petition. They read as under: Wherefore it is respectfully prayed that this Hon ble Court may graciously be pleased to: a) To issue a writ in the nature of mandamus or any other appropriate writ order or direction to the Respondent Nos.1 to 4 to take all action necessary to permit registration of bike taxies as transport vehicles and grant of appropriate Contract Carriage permits in terms of the Motor Vehicles Act 1988 Central Motor Vehicles Rules 1989 and Karnataka Motor Vehicles Rules 1989 Or in the Alternative: WWW.LIVELAW.IN 4 b) To issue a writ in the nature of mandamus or any other appropriate writ order or direction to the Respondent Nos.1 to 4 to sanction and implement a framework for bike taxis in view of S.O. 1248(E) dated 05.11.2004 annexed as ANNEXURE A issued by the Central Government whereby Motor cycle used for hire to carry one passenger on pillion..." has been added as a category of Transport vehicle c) To issue in the nature of mandamus or any other appropriate writ order or direction directing the Respondent Nos.1 to 4 to ensure that no motorcycles which are registered for personal use and not for use as transport vehicles are allowed to be operated as taxies in any form or manner d) Pass any other or further order as this Hon ble Court may be deem fit and proper in the facts and circumstances of the case." Appellant s appellant had filed the writ petition seeking a direction to respondent Nos.1 to 4 to take steps to issue necessary permits for running the business of bike taxis as transport vehicles and to grant appropriate permits in respect of contract carriage permits in respect of contract carriage WWW.LIVELAW.IN 5 permits as per the provisions of the Motor Vehicles Act 1988 Central Motor Vehicles Rules 1989 and Karnataka Motor Vehicles Rules 1989of the MV Act 1988 which defines contract carriage which is an inclusive definition and the power of the Central and State Government to control transport vehicles which also includes a contract carriage and the provisions dealing with application for contract carriage permit namely Section 73 of the MV Act 1988 the grant of contract carriage permit as per Section WWW.LIVELAW.IN 6 74 the conditions under which they may be granted as well as the waiver of conditions. That in the instant case permission is being sought for running a motorcycle taxi being a transport vehicle as per Annexure A Notification dated 05 11 2004 as the appellant is seeking permission to run a motorcycle contract carriage permit. In this context learned senior counsel drew our attention to Annexure G which is a letter dated 02 03 2019 addressed to the Transport Minister State of Karnataka with a copy to the Transport Commissioner and Chairman State Transport Authority Bengaluru. He submitted that there has been no response to the said request made by the appellant. Learned senior counsel submitted that the appellant would make one more application in accordance with the provisions of the MV Act 1988 and the applicable Rules for seeking a contract carriage permit in respect of motorcycle used for hire to carry one passenger on pillion on hire as per Entry under the column Transport Vehicles vide Notification dated 05 11 2004 which reads as under: "NOTIFICATIONS UNDER THE MOTOR VEHICLES ACT Under Section 41(4) Specification of Types of Motor Vehicles S.O.1248(E) dated 5 11 2004. In exercise of the powers conferred by sub section of section 41 of the Motor Vehicles Act 1988and in supersession of the notification of the Government of India in the erstwhile Ministry of Surface Transport No.S.O. 451(E) dated the 19th June 1992 the Central Government hereby specifies the types of motor vehicles as mentioned in column 1 and 2 of the Table below for the purposes of said sub sectionWWW.LIVELAW.IN 10 Non Transport Vehicles cycle with or personal use. ii)Mopeds and motorized exceeding 25cc). iii)Invalid carriage. iv)Three wheeled vehicles for personal use. v)Motor car. vi)Fork lift. fitted with equipment‟s like rig generator and power Tillers. x)Private service vehicle registered in the name of declared to be used by him solely for personal. xi)Camper van or trailer for private use. xii)Tow trucks Breakdown Van and Recovery Vehicles. Transport Vehicles i)Motor cycle with side car for carrying goods. ii)Motor cycle with trailer to carry goods iii)Motor cycle used for hire to carry one passenger on pillion and motorized cycle rickshaw for goods or passengers on hire. iv)Luxury cabs. Three wheeled vehicles for transport of vi)Goods carrier trucks or tankers or mail carriersxv)Animal ambulances. xvii)Cash vans. tenders snorked ladders auxiliary trailers and fire fighting xix)Articulated vehicles. 13. Therefore a motorcycle could be used for hire to carry one passenger as a pillion. Even as per the Central Government Notification such a motorcycle used for hire would prima facie come within the definition of contract carriage as defined under sub section of Section 2 of the MV Act 1988 wherein a "contract carriage" means a motor vehicle which carries a passenger or passengers for hire or reward and is engaged under a contract whether express or implied for the use of such vehicle as a whole for the carriage of passengers mentioned therein and entered into by a person with a holder of a permit in relation to such vehicle or any person authorized by him in this behalf on a fixed or an agreed rate or sum. The definition of contract carriage is an WWW.LIVELAW.IN 12 inclusive definition which includes a maxi cab and a motor cab notwithstanding that separate fares are charged for its passengers. The definition of contract carriage is an inclusive definition and not an exhaustive one which would include even a motorcycle taxi which is to be used for hire or reward on which a passenger could be carried on pillion as it is categorized as a transport vehicle by issuance of notification by the Central Government under the provisions of the MV Act 1988. In this regard reference could also be made to sub section of Section 2 of the Act which defines a ‘motor vehicle’ or ‘vehicle’ which means mechanically propelled vehicle adapted for use upon roads which includes a Chassis and sub sectionof Section 2 which defines a ‘motorcycle’ which means a two wheeled motor vehicle inclusive of any detachable side car having an extra wheel attached to the motor vehicle. Insofar as contract carriages are concerned as per Chapter V of the MV Act 1988 necessity for permits is envisaged and Sections 73 and 74 deal with the application for contract carriage permit and the grant of contract carriage permit subject to certain terms and conditions WWW.LIVELAW.IN 13 stipulated therein. In fact there is also a scheme for renting motor cabs which is envisaged under Section 75 of the Act. In the instant case the permit sought is with regard to renting of motor cabs or motorcycles taxi service for hire or reward and therefore we find that the applications to be made by the appellant or any other entity similarly situated for seeking such a permission ought to be considered by respondent Nos.1 to 4 having regard to the aforesaid provisions as well as in accordance with law. 16. At this stage learned senior counsel for the appellant submits that the appellant would make an application within a period of two weeks from today. If such an application is made respondent Nos.1 to 4 shall consider the same in accordance with law within a period of two months from today. In the result the appeal is disposed of by modifying the order dated 12 09 2019 passed in the writ petition as well as the order dated WWW.LIVELAW.IN 14 14 11 2019 Parties to bear their respective costs. Sd JUDGE Sd JUDGE

Accused will not be kept in custody merely because the complainant was allegedly getting threatening calls from him: High Court of Delhi

Having made threatening phone calls to the complainant or a co-accused person absconding are not valid grounds to deny bail to an accused person whose offence is bailable. This was held by a single member bench of the High Court of Delhi consisting of Justice Subramonium Prasad in the case of Nikhil Bhattal v The State [Bail Application. 1520/2021] on 22nd July 2021. The complaint was filed by Rishab Jain who owns a marble and tiles business in New Delhi. The petitioner, Nikhil Bhattal placed an order with the complainant for tiles to renovate his house and insisted that the complainant visit the house to determine the specifics. Upon visiting the petitioner’s house, the petitioner’s girlfriend Ishu offered the complainant soft drink which made him dizzy and lead to him passing out soon after. As the complainant was slowly regaining consciousness, he was shocked to see Ishu rubbing his private parts. The complainant left the room he woke up in and narrated the incident to the petitioner who made a show of rage and anger. It is alleged that the petitioner started demanding a mobile phone, a television set and Rs. 2 lakhs from the complainant and threatened that if these demands were not met, he would file a rape charge against the complainant. The petitioner and his girlfriend allegedly called the petitioner over 25 times to threaten him and the complainant also produced various voice recordings of their demands. An FIR was filed by the complainant on 10th April 2021 at South Rohini Police Station under Sections 328, 389 and 34 of the Indian Penal code for poisoning and for putting person in fear of accusation with the intention of extortion. The petitioner was arrested on 11th April 2021 but his girlfriend who is a co-accused is still absconding. The petitioner filed this petition before the High Court of Delhi under Section 439 of Cr.P.C. for grant of bail. The medical report indicated that the complainant had been intoxicated, however without delving into the merits of the case, it was established that the offences which the petitioner was accused of were bailable in nature. The petitioner also contended that he had been in custofy since 11th April 2021 despite not being convicted. However the counsel appearing for the complainant contended that the complainant was receiving threatening phone calls and that releasing the petitioner would compromise on the complainant’s safety.

IN THE HIGH COURT OF DELHI AT NEW DELHI BAIL APPLN.1520 2021 Date of decision: 22nd JULY 2021 IN THE MATTER OF: NIKHIL BHATTAL THE STATE ..... Petitioner Through Mr. Viraj Datar Senior Advocate with Mr. Krishanu Adhikary ..... Respondent Through Ms. Kusum Dhalla APP for the State Mr. Rahul Chandlok Advocate for the complainant. HON BLE MR. JUSTICE SUBRAMONIUM PRASAD SUBRAMONIUM PRASAD J. This petition filed under Section 439 Cr.P.C. is for grant of regular bail to the petitioner in FIR No.118 2021 dated 10.04.2021 registered at Police Station South Rohini for offences punishable under Sections 328 389 and 34 IPC. The brief facts leading to this bail application are as follows: a) A complaint was filed by one Rishab Jain stating that has a business of marble and tiles and he runs a Shop at B 81 Marble market Mangolpur Kalan opposite Indian Bank New Delhi. He stated that the petitioner herein came to his shop and asked for some good quality marble stones tiles for renovation of his residence and he insisted that the complainant must visit his house. It is stated that when the complainant visited the house of the BAIL APPLN. 1520 2021 petitioner. The petitioner the complainant to his girlfriend lshu @ Bobby who lives with the petitioner. It is stated that the said Ishu @ Bobby offered soft drink to the complainant. It is stated that after consuming the drink the complainant started feeling dizzy. It is stated that the petitioner asked the complainant to take rest and he left the room. It is stated that after the petitioner left the room the said Ishu @ Bobby came close to the complainant and started rubbing his head and thereafter the complainant became unconscious. It is stated that when the complainant regained consciousness he was shocked to see that Ishu @ Bobby was rubbing his private part. It is stated that the complainant went outside the room and when the petitioner came back the complainant narrated the incident to him. It is stated that the petitioner got furious and broke the phone of his girlfriend. It is stated in the complaint that the petitioner started demanding a mobile phone a TV and Rs.2 00 000 in cash from the complainant and threatened him that if his demands are not met his girlfriend would file a case of rape against the complainant. It is stated that after the incident the petitioner called the complainant for money more than 25 times. The complainant also produced various voice recordings in which the petitioner and his girlfriend are demanding money from the complainant and threatening him that if their demands are not met a case of rape would be filed against the complainant. On the complaint FIR No.118 2021 dated 10.04.2021 was registered at Police Station South Rohini for offences punishable under Sections 328 389 and 34 IPC. BAIL APPLN. 1520 2021 It is pertinent to mention here that the petitioner and his girlfriend Ishu @ Bobby also filed a complaint against the complainant herein being FIR No.119 2021 dated 10.04.2021 for offences under sections 376 506 IPC. c) The petitioner was arrested on 11.04.2021. d) The petitioner filed an application for bail being Bail application No.1280 2021 before the learned Sessions Judge North West District Rohini Courts which was rejected vide order dated e) A second application for bail was filed by the petitioner on 23.04.2021 which was rejected by the learned Sessions Judge North West District Rohini Courts vide order dated 28.04.2021 on the ground that the investigation of the case is at a nascent stage and the possibility of the petitioner threatening the complainant cannot be f) The petitioner has thereafter approached this Court by filing ruled out. the instant bail application. Notice was issued on 10.05.2021. Status Report has been filed. The Status Report indicates that the voice sample of the petitioner was obtained after taking the permission of the Court and the same has been sent to Forensic Science Laboratory. The Status Report also indicates that opinion regarding intoxication of the complainant was obtained from the Medical Superintendent of Bhagawan Mahavir Hospital by giving a notice under Section 91 Cr.P.C. During the Course of hearing on 14.07.2021 Ms. Kusum Dhalla learned APP states that the charge sheet has been filed. BAIL APPLN. 1520 2021 Heard Mr. Viraj Datar learned Senior Counsel for the petitioner Mr. Rahul Chandlok learned counsel for the complainant and Ms. Kusum Dhalla learned APP for the State and perused the material on record. 6. Mr. Viraj Datar learned Senior Counsel appearing for the petitioner states that the petitioner is in custody since 11.04.2021. He states that since the charge sheet has been filed therefore there is no necessity of keeping the petitioner in custody and the petitioner be released on bail. Per contra Mr. Rahul Chandlok learned counsel for the complainant submits that the complainant has been receiving threatening phone calls. He further states that the co accused is still at large and therefore bail ought not be granted to the petitioner. 8. Ms. Kusum Dhalla learned APP for the State also opposes the bail by stating that the co accused is still at large. The petitioner is accused of offences punishable under Sections 328 389 and 34 IPC. An offence under Section 389 IPC is a bailable offence. The Status Report reveals that the voice sample of the petitioner has been sent to the Forensic Science Laboratory. The Status Report also indicates that opinion regarding intoxication of the complainant was obtained from the Medical Superintendent of Bhagawan Mahavir Hospital where the complainant was admitted on 04.04.2021 by giving a notice under Section 91 Cr.P.C. There is nothing more required to be recovered from the petitioner. Just because the complainant is alleging that he is getting threatening calls it will not be appropriate to keep the accused in custody and the Court can lay down conditions to ensure that the complainant is not harassed. There is nothing to show that till the co accused is not arrested the petitioner has to be kept in custody. In view of the above this Court is BAIL APPLN. 1520 2021 inclined to grant bail to the petitioner on the following conditions: a) The petitioner shall furnish a personal bond in the sum of ₹1 00 000 with one surety of the like amount who should be a relative of the petitioner to the satisfaction of the Trial Court. b) The complainant is a resident of C 57 Ahinsa Vihar Secor 9 Rohini New Delhi and the petitioner resides at House No. A 31 2nd Floor Pocket 0 Sector 2 Rohini North West Delhi 110085. The petitioner is directed not to enter Sector 09 Rohini till the c) The petitioner shall not leave NCT of Delhi without prior examination of the complainant. permission of this Court. d) 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. e) The petitioner is directed to give all his mobile numbers to the Investigating Officer and keep them operational at all times. f) The petitioner has given his address in the memo of parties and shall continue to reside in the same address. In case there is any change in the address the petitioner is directed to intimate the same to the IO. g) The petitioner shall not directly or indirectly tamper with evidence or try to influence the witnesses. h) Violation of any of these conditions will result in the cancellation of the bail given to the petitioner. It is made clear and needless to state that the observations made in this order are only for the purpose of grant of bail and cannot be taken into BAIL APPLN. 1520 2021 JULY 22 2021 11. Accordingly the bail application is disposed of along with the consideration in the trial. pending applications if any. SUBRAMONIUM PRASAD J. BAIL APPLN. 1520 2021

Evidence will be functional only if you plead: Supreme Court

The Hon’ble Supreme Court reiterated it’s stance on the fact that if a pleading has not been made by the party, no amount of evidence produced later in a civil suit will help. The bench consisting of Justices Ashok Bhushan, R. Subhash Reddy and MR Shah held the above mentioned in the matter of Biraji @ Brijraji vs. Surya Pratap [C.A.Nos.4883-4884 of 2017]. The plaintiff questioned the deed of adoption that his father. The plaintiff contended that the adoption was not carried out as per required formalities. He even went on to allege that the father was not present during that ceremony and pleaded the court to summon his father’s leave application of the Rajput Regiment Centre Fatehgarh. The Trial Court as well as the High Court opined that firstly, no such pleading was made by the Plaintiff and secondly, the application was filed by the plaintiff at a much later stage. The plaintiff thus appealed to the Supreme Court.  The court held that  “In the adoption deed itself, the ceremony which had taken place on 14.11.2001 was mentioned, hence it was within the knowledge of the appellants plaintiffs even on the date of filing of the suit. In the absence of any pleading in the suit filed by the appellants, at belated stage, after evidence is closed, the appellants have filed the application to summon the record relating to leave/service of Ramesh Chander Singh on 14.11.2001 from the Rajput Regiment Centre Fatehgarh.” There was an order from the High Court stating that “for expeditious disposal of the suit and the application which was filed belatedly is rightly dismissed by the Trial Court and confirmed by the Revisional Court and High Court. It is also pertinent to mention, subsequent to dismissal of the application in Application No. 97-C, for summoning the leave/service record of defendant No.2, from his place of working that is Rajput Regiment Centre Fatehgarh, by the Trial Court on the ground that there was no such pleading in the suit, the appellants herein have filed application for amendment of the plaint in an Application No. 103-A, which was dismissed by the Trial Court and said order was confirmed by the District Judge, Gazipur in Civil Revision No. 58 of 2013 by order dated 03.05.2013. The said order has become final”. Also “Though the first application for summoning the record in Application was dismissed by the Trial Court, the appellants have filed similar application again for the very same relief, which is also rightly rejected by the Trial Court.” The court stated that “It is clear from the conduct of the appellants, that in spite of directions from the High Court, for expeditious disposal of the suit, appellants plaintiffs were trying to protract the litigation”.

C.A.Nos.4883 48817 IN THE CIVIL APPELLATE JURISDICTION CIVIL APPEAL NOS.4883 4884 OF 2017 Biraji @ Brijraji & Anr. ...Appellant(s Surya Pratap & Ors ...Respondent(s JUDGMENT R.SUBHASH REDDY J. These civil appeals are filed by the plaintiffs in the Original Suit No. 107 2010 pending on the file of Civil Judge Saidpur Gazipur aggrieved by the order dated 12.07.2013 passed in Writ Petition Nos. 37415 2013 and 37416 of The writ petition in W.P.(C) No. 37415 2013 filed before High Court of Judicature at Allahabad was directed against the order dated 22.02.2013 C.A.Nos.4883 48817 passed by the Trial Court on an Application No. 97 C in O.S. No. 107 2010 and the order of the Revisional Court dated 02.07.2013 passed in Revision No 85 2013 passed by the District Judge Gazipur. W.P C) No. 37416 2013 was filed against the order dated 10.05.2013 in the same suit passed on Application No. 109 C as confirmed by the Revisional Court in Civil Revision No.82 2013 vide order dated The appellants herein are plaintiffs in the suit in O.S. No. 107 2010 filed on the file of Civil Judge Saidpur. In the said suit the appellants have questioned the adoption deed executed by late Sudama Singh who was father of the first plaintiff executed in favor of defendant no.1 registered before Sub Registrar Jakhaniya District Gazipur. Further consequential injunction orders are sought to restrain the defendant herein from interfering in the peaceful possession of the appellants plaintiffs with the property as mentioned in the plaint. It is an undisputed fact that the evidence is closed and the matter was coming up for arguments in the above said suit and when the matter C.A.Nos.4883 48817 was listed for final arguments at that stage the appellants have filed an Application No. 97 C to summon the record regarding the leaves of Ramesh Chander Singh from Rajput Regiment Centre Fatehgarh The said Ramesh Chander Singh is the father of first respondent who is arrayed as second defendant in the suit. Third defendant is the mother of first defendant who claims he is the adopted son of late Sudama Singh. It is the case of the plaintiff that there was no adoption by following the necessary formalities and the claim of adoption is false and incorrect. In the suit filed they have questioned the registered adoption deed registered before the Sub Registrar. On the ground that the second respondent Ramesh Chander Singh was not present during the adoption ceremony and he was on duty on the date of alleged adoption ceremony the aforesaid application was filed in Application No.97 C for summoning the 2001 leave records of defendant No.2 Ramesh Chander Singh from Rajput Regiment Centre Fatehgarh. The said application was opposed by filing objections by the respondents. The Trial Court mainly on the ground that there was no such pleading C.A.Nos.4883 48817 in the plaint and also on the ground that such application was filed at the belated stage dismissed the said application by order dated 22.02.2013. Almost with similar prayer as sought in Application No. 97 C another application was filed in Application No.109 C and the said application is also dismissed by the Trial Court vide order dated Questioning the aforesaid two orders that is the order dated 22.02.2013 passed in Application No 97 C and a subsequent order dated 10.05.2013 passed in Application No. 109 C the plaintiffs have carried the matter by way of revision petitions before the District Court which are ended in dismissal and aggrieved by the same the petitioners have filed writ petitions before the High Court in W.P.(C) Nos 37415 2013 and 37416 2013 which are dismissed by separate orders vide orders dated 12.07.2013 We have heard Sri S.D. Singh learned counsel appearing for the appellants and Sri Santosh Kumar Tripathi learned counsel appearing for the C.A.Nos.4883 48817 Having heard the learned counsels on both sides we have perused the impugned orders and other material placed on record. The suit in Original Suit No. 107 2010 is filed for cancellation of registered adoption deed and for consequential injunction orders. In the adoption deed itself the ceremony which had taken place on 14.11.2001 was mentioned hence it was within the knowledge of the appellants plaintiffs even on the date of filing of the suit. In the absence of any pleading in the suit filed by the appellants at belated stage after evidence is closed the appellants have filed the application to summon the record relating to leave service of Ramesh Chander Singh on 14.11.2001 from the Rajput Regiment Centre Fatehgarh. It is fairly well settled that in absence of pleading any amount of evidence will not help the party. When the adoption ceremony which had taken place on 14.11.2001 is mentioned in the registered adoption deed which was questioned in the suit there is absolutely no reason for not raising specific plea in the suit and to file application at belated stage to summon the record to prove that the second respondent Ramesh Chander Singh was on duty C.A.Nos.4883 48817 as on 14.11.2001. There was an order from the High Court for expeditious disposal of the suit and the application which was filed belatedly is rightly dismissed by the Trial Court and confirmed by the Revisional Court and High Court. It is also pertinent to mention subsequent to dismissal of the application in Application No. 97 C for summoning the leave service record of defendant No.2 from his place of working that is Rajput Regiment Centre Fatehgarh by the Trial Court on the ground that there was no such pleading in the suit the appellants herein have filed application for amendment of the plaint in an Application No. 103 A which was dismissed by the Trial Court and said order was confirmed by the District Judge Gazipur in Civil Revision No. 58 of 2013 by order dated 03.05.2013 The said order has become final. Though the first application for summoning the record in Application No.97 C was dismissed by the Trial Court the appellants have filed similar application again in Application No. 109 C for the very same relief which is also rightly rejected by the Trial Court. C.A.Nos.4883 48817 In our view the reasons recorded in the orders passed by the Trial Court as confirmed by the Revisional Court and High Court are valid and are in accordance with the settled principles of law. It is clear from the conduct of the appellants that in spite of directions from the High Court for expeditious disposal of the suit appellants plaintiffs were trying to protract the litigation. 10. For the aforesaid reasons we do not find any merit in these appeals and the same are accordingly dismissed with no order as to costs (ASHOK BHUSHAN J (R.SUBHASH REDDY J (M.R.SHAH J NEW DELHI NOVEMBER 03 2020

Private institution eligible to be grand aid from the State government: Cuttack High Court

The Government of Orissa in school and Mass Educational Department have issued a clarification that all pending applications under the scheme of an aided educational institution (fully aided under the direct control of government due to death of invalid on or after 1990) shall be scrutinized by the existing screening committee for consideration of appointment under the scheme held by Hon’ble Justice Biswanath Rath in the matters of Sarajini Jena v. State of Orisha and Ors. [ W.P.(C) No. 21320 of 2021]. The background of the case involves that the petitioner husband was working as a Graduate teacher. It was claimed that the employee died in harness leaving behind the petitioner as a widow and two minor children. After the untimely death, the family members receive a setback since the petitioner husband was the sole bread-earner of his family.  The premise is that husband of the petitioner was working in an aided educational institution by way of a block grant. Petitioner submitted an application for appointment under the Rehabilitation Assistance Scheme but the application for rehabilitation assistance appointment at the instance of the petitioner was not accepted. The application was accepted only after the decision of the court through Ritanjali Giri @Paul, there is a creation of a right in favour of the person already involving block grant schools required to be treated like that of the employees in the aided educational institution. Section 3(b) of the Orissa Educational Act, 1969 defines the Aided Educational Institutions as “Private educational institution which is eligible to and is receiving grand-in-aid from the state government and includes an educational institution which has been notified by the state government to receive grant-in-aid”. The Head Master of the school forwarded the application of the petitioner to the District Education Officer with all required documents. The school where the husband of the petitioner was serving come within the meaning of a fully aided educational institution.   The Hon’ble Court observed that no distinction between the aided and government institution considering the nature of duty discharged by person involves both categories. In considering the nature of the service involved, the petitioner being an employee in the aided institution should be treated at par with the employee of the government establishment. Also, once the benefit is granted to the particular person the same benefit should be extended to all such people standing on a similar footing. Therefore, the Writ petition stand is allowed and no costs.  

IN THE HIGH COURT OF ORISSA AT CUTTACK Sarajini Jena W.P.(C) No.213221 Mr. Sidheswar Mallik versus State of Odisha and Ors. Opposite Parties Mr. D. Mohapatra Standing Counsel for S. & M.E. JUSTICE BISWANATH RATH Date of Hearing and Judgment:15.09.2021 This writ petition involves a direction to the opposite parties to provide employment to the petitioner on consideration of her application under rehabilitation assistance scheme following the ratio decided in the case of Ritanjali Giri @ Paul Vrs. State of Odisha & Ors. reported in 2016 ILR CUT 1162. Background involving the case is that petitioner’s husband late Gangadhar Jena was working as a trained graduate teacher in 03. 1. Heard learned counsel for the parties. 2 Sarath Biswal Vidyapitha Andalsingh under Kanas Block in the district of Puri. It is claimed that while the husband was continuing in his above capacity died in harness on 29.04.2011 leaving behind the petitioner as widow and two minor children. It is in the premises that husband of the petitioner was working in an aided educational institution by way of block grant. Petitioner submitted application for appointment under the Rehabilitation Assistance Scheme but however the application for rehabilitation assistance appointment at the instance of the petitioner was not accepted. It is only after decision of this Court came through Ritanjali Giri @ Paulthere is creation of a right in favour of the persons already involving block grant schools required to be treated like that of the employees in the aided educational institutions. It is after coming to know this legal position petitioner appointment under rehabilitation assistance scheme following decision vide Ritanjali Giri @ Paul by submitting another application on 25.06.2020. It is also claimed that in the meantime the Head Master of the School forwarded the application of the petitioner to the District Education Officer Puri with all required documents vide his letter dated 25.06.2020. It is alleged even though an evaluation is made of all the applications received in the office of the District 3 Education Officer Puri wherein petitioner was found to have secured 80% of the maximum marks highest amongst all candidates considered but however while depriving the petitioner one Prasant Kumar Mangraj’s case was considered for appointment in disposal of W.P.(C) No.132821. Mr. Mallik learned counsel for the petitioner in the above backdrop of the matter and for the petitioner’s case getting support through Ritanjali Giri @ Paul as well as the decision in W.P.(C) No.13289 of 2021 claimed for allowing the writ petition and issuing appropriate direction to the competent authority for providing appointment to the petitioner. Mr.Mohapatra learned counsel appearing for the State Department opposed the move of the petitioner on the premises that there being no final decision involving the petitioner it should be treated as a pending case no writ is entertainable at this stage. Mr. further also contended the meantime correspondences extending benefit of Rehabilitation Assistance Appointment to Aided Institutions having been recalled. The claim of the petitioner does not deserve any merit. Mr.Mohapatra therefore objected entertaining of the writ petition for having no merit otherwise. 4 Considering the rival contentions of the parties this Court finds undisputedly the application for Rehabilitation Assistance Appointment at the instance of the petitioner is still pending this Court in disposal of W.P.(C) No.27634 of 2020 decided on 13.9.2021 already came to hold that pending applications shall be considered in the light of the provision under Orissa Civil Services Rehabilitation Assistance Rules) 1990 and amended Rule 2016. This Apart in deciding Ritanjali Giri @ Paul this Court also observed there should not be any distinction between the aided and government institution taking into account the nature of duty discharged by persons involving both categories. Further in disposal of W.P.(C) No.27634 of 2020 this Court taking into consideration several judgments of Hon’ble apex Court has also come to hold that for the nature of service involved petitioner being an employee in aided institution should be treated at par with the employee of the government establishment. It is also observed therein that once benefit is granted to a particular person the same benefit has to be extended to all such persons standing in similar footing. It is in the circumstance but however taking this case to be a pending case as the application of the petitioner for appointment is still pending final decision this Court in disposal of the writ petition directs the 5 opposite party nos.2 and 3 to take final decision on the pending application of the petitioner but however keeping in view the ratio decided in Ritanjali Giri @ Paulas well as the judgment of this Court dated 13.09.2021 passed in W.P.(C) No.276320 by undertaking the entire exercise within a period of three months and also keeping in view if similar benefits have been granted to Prasant Kumar Mangaraj on the basis of disposal of W.P.(C) No.13289 of The writ petition thus stands disposed of. .. …. ... ….. BISWANATH RATH J. Orissa High Court Cuttack. Dated the 15thday of September 2021 uks PA

“Appellant files appeal after approximately eight months after the last date permissible under the RTI Act.”: SEBI, Part 3.

Further, such examination or investigation may or may not establish the suspected violations or lead to enforcement actions. Maintaining confidentiality of investigation is important since reports of an investigation may result in unwarranted speculation or concern in the market or may affect evidence collection during the investigation or may result in unnecessary harm to third parties. Further, the respondent informed that if any regulatory action is initiated by SEBI pursuant to the examination/analysis, the same would be available on the website of SEBI. In view of these observation, Appellant Autbority agreed with the response that SEBI will not be able to confirm/ deny existence of examination in the present matter. It was noted that the respondent also denied the requested information by invoking the provisions of sections 8(1)(d) of the RTI Act. In this regard, Mr Baiwar was of the opinion that SEBI, being the regulatory authority for the securities market, gets various references/documents from market participants and the information contained in those documents may contain information in the nature of commercial confidence, disclosure of which may adversely impact the competitive position of the concerned entities. Having regard to the aforesaid, it was found that the disclosure of the requested information may cause irreparable damage to the reputation of that entity and may also affect its competitive position and therefore, the same is exempted from disclosure under section 8(1)(d) of the RTI Act. Accordingly, it does not find any deficiency in the response. Upon a perusal of the query number 3, it was noted that the same is vague. Further, it is difficult to ascertain what exact information has been sought by the appellant. Mr Baiwar 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, it was noted 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 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, it was found that the respondent is not obliged to provide a response where the information sought is vague and not specific. Accordingly, no deficiency was found in the response.

Appeal No. 43621 BEFORE THE APPELLATE AUTHORITY Under the Right to Information Act 2005) SECURITIES AND EXCHANGE BOARD OF INDIA Appeal No. 43621 Aarti Harshad Patil CPIO SEBI Mumbai The appellant had filed an application dated September 12 2020 under the Right to Information Act 2005 of the RTI Act an aggrieved person may prefer the first appeal within thirty days from the receipt of the response from the CPIO of the concerned public authority. In the instant case the impugned response from the respondent is dated October 05 2020. The appellant therefore should have filed the first appeal on or before expiry of thirty days from the date of receipt of the said response. As noted above the appellant has filed this first appeal on July 13 2021 i.e. approximately eight months after the last date permissible under the RTI Act. In this appeal the appellant has neither requested for condonation of delay nor made any submission regarding the reason for the delay. In the absence of any reason that prevented the appellant from filing the first appeal in time I consider this appeal as time barred and hence liable to be dismissed. 3. Notwithstanding the above observation I consider the appeal on merit. I have carefully considered the application the response and the appeal and find that the matter can be decided based on the material 4. Queries in the application The appellant vide her application dated September 12 2020 sought the available on record following information: 1. How many investors have filed complaint against Anugrah Stock & Broking Pvt Ltd and status thereof. 2. Record of all communication between Anugrah Stock & Broking Pvt Ltd and SEBI NSE and BSE 3. Any other matter which is of importance in the matter of Anugrah Stock & Broking Pvt Ltd Appeal No. 43621 4. As per circular SEBI HO MIRSD DPIEA CIR P 2020 115 dated 1st Jul 2020 What is the status of implementation in Anugrah Stock & Broking Pvt Ltd case. The respondent in response to the query number 1 informed the number of complaints received by SEBI against Anugrah Stock Broking Pvt Ltd. during the period from April 01 2020 to September 15 2020. With respect to query numbers 2 and 4 the respondent informed that SEBI will not be able to confirm deny the existence or otherwise of any examination communication notes in the matter for which information has been sought by the appellant. The respondent also informed that the requested information is exempted under Section 8(1)(d) of the RTI Act. However it was informed that NSE is conducting forensic audit and based on the findings if any SEBI may take appropriate action as deemed fit. Further any such proceedings for action is conducted confidentially because of their sensitive nature. It was also informed that pursuant to examination analysis if any regulatory action is taken by SEBI the same would be available in the public domain on the SEBI website. With respect to query number 3 the respondent observed that the query is vague and not specific and accordingly cannot be construed as seeking “information” as defined under section 2(f) of the RTI Act. 6. Ground of appeal The appellant has filed the appeal on the ground that access to the requested information was refused. The appellant in her appeal reiterated the queries raised in her application. 7. Query number 1 I have perused the query and I find that the respondent has provided the information regarding number of complaints received by SEBI against Anugrah Stock & Broking Pvt Ltd. On perusal of the appeal I note that the appellant has not made any specific submission against the response provided by the respondent. In this regard I note that the Hon’ble High Court of Delhi in the matter of Ms Vandana Mittal v. CIC and Others7244 2009] held that if no ground for interference in the impugned response is made out in the appeal such appeal is liable to be rejected. In view of these observations I find that no interference is warranted at this stage. 8. Query numbers 2 and 4 I note that the appellant had sought record of all communication between Anugrah Stock & Broking Pvt Ltd and SEBI NSE and BSE. The appellant also sought status of implementation of SEBI Circular dated July 01 2020 with respect to the case of Anugrah Stock & Broking Pvt Ltd. On consideration I note that a response neither confirming nor denying existence of examination communication notes is justified where disclosure of existence of examination or otherwise would itself amount to disclosure of exempted information. It is understood that SEBI receives alerts and references from various sources and these may or may not result in further action by SEBI such as examination or investigation. Further such examination or investigation may or may not Appeal No. 43621 establish the suspected violations or lead to enforcement actions. Maintaining confidentiality of investigation is important since reports of an investigation may result in unwarranted speculation or concern in the market or may affect evidence collection during the investigation or may result in unnecessary harm to third parties. Further the respondent informed that if any regulatory action is initiated by SEBI pursuant to the examination analysis the same would be available on the website of SEBI. In view of these observation I agree with the response that SEBI will not be able to confirm deny existence of examination in the present matter. I note that the respondent also denied the requested information by invoking the provisions of sections 8(1)(d) of the RTI Act. In this regard I am of the opinion that SEBI being the regulatory authority for the securities market gets various references documents from market participants and the information contained in those documents may contain information in the nature of commercial confidence disclosure of which may adversely impact the competitive position of the concerned entities. Having regard to the aforesaid I find that the disclosure of the requested information may cause irreparable damage to the reputation of that entity and may also affect its competitive position and therefore the same is exempted from disclosure under section 8(1)(d) of the RTI Act. Accordingly I do not find any deficiency in the response. 10. Query number 3 Upon a perusal of the query I note that the same is vague. Further it is difficult to ascertain what exact 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 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. Accordingly I do not find any deficiency in the response. 11. 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. Appeal No. 43621 Place: Mumbai Date: August 09 2021 ANAND BAIWAR APPELLATE AUTHORITY UNDER THE RTI ACT SECURITIES AND EXCHANGE BOARD OF INDIA

The scope of application under Order 7 Rule 11 of the CPC is limited only to the extent whether in terms of averments made in the plaint and the documents filed along with the plaint, the suit is maintainable or not : Delhi High Court

The remedy under Order 7 Rule 11 is an independent and special remedy, wherein the court is empowered to summarily dismiss a suit at the threshold, without proceeding to record evidence, and conducting a trial, on the basis of the evidence adduced, if it is satisfied that the action should be terminated on any of the grounds contained in this provision. This was held in the judgment passed by a single bench judge comprising HON’BLE MR. JUSTICE AMIT BANSAL, in the matter PRAVESH DHAWAN & ORS V. JATIN DHAWAN ( CM(M) 556/2021), dealt with an issue where the petitioner filed against the order dated 28th July, 2020 passed by the learned District Judge, New Delhi whereby the application filed by the petitioners under Order 7 Rule 11 of the Civil Procedure Code (CPC), 1908 had been dismissed. Plaintiff in the suit was that there was a family settlement dated 28th January, 2012 that was executed between the parties to deal with the various properties as mentioned therein and that the petitioners/defendants did not abide by the terms of the said family settlement, which resulted in the respondent/plaintiff filing the suit from which the present petition arises. The following reliefs were sought in suit, (i) Declaration of ownership rights in terms of the aforesaid family settlement; (ii). declaration that the gift deeds 2009 executed by the petitioner in favour of petitioners No. 2 and 3 are null and void; and (iii) Injunction against petitioners from creating third party interest in respect of the suit property. It is submitted that the Trial Court has misapplied the provisions of law to the facts of the present case and hence, the order of the Trial Court is erroneous and should be set aside. Attention of the Court has been drawn to the terms of the family settlement to contend that the said document indeed creates rights and interest in the property and therefore, is required to be compulsorily registered. Since the suit is based on this unregistered document, the suit was not maintainable. It is further contended that the present suit was barred under Order 2 Rule 2 of the Civil Procedure Code as the reliefs sought in the said suit should have been claimed in the earlier injunction suit filed on behalf of the plaintiff No. 1 against the petitioners.

IN THE HIGH COURT OF DELHI AT NEW DELHI Date of decision: 26th August 2021 CM(M) 556 2021 PRAVESH DHAWAN & ORS. Through: Mr. Peeyoosh Kalra Mr. Sudhindra Tripathi Mr. Garvil Singh and Mr.Rohan Kapoor Advocates Petitioners JATIN DHAWAN Through: Ms. Padma Priya Advocate Respondent HON BLE MR. JUSTICE AMIT BANSAL VIA VIDEO CONFERENCING] AMIT BANSAL J.CM No. 28120 2021(for exemption) Allowed subject to all just exceptions. The application is disposed of. CM(M) 556 2021 and CM No.28119 2021The present petition under Article 227 of the Constitution of India impugns the order dated 28th July 2020 passed by the learned District Judge 03 South East Saket Courts New Delhi in CS 210822 2016 whereby the application filed by the petitioners defendants under Order 7 Rule 11 of the Civil Procedure Code1908 has been dismissed. The case pleaded by the respondent plaintiff in the suit was that there was a family settlement dated 28th January 2012 that was executed between the parties to deal with the various properties as mentioned therein and that CM(M)556 2021 the petitioners defendants did not abide by the terms of the said family settlement which resulted in the respondent plaintiff filing the suit from which the present petition arises. The following reliefs were sought in suit i) Declaration of ownership rights in terms of the aforesaid family settlement Injunction against petitioners from creating third party interest in respect of the suit property. The said suit was contested by the petitioners defendants by filing the written statement claiming that the properties in question were self acquired properties of the petitioner No.1 and accordingly the gift deeds executed in favour of petitioners No.2 and 3 are valid. An application under Order 7 Rule 11 of the CPC was filed on behalf of the petitioners claiming that the above said suit was not maintainable by raising the following three grounds: i) The family settlement dated 28th January 2012 was not registered and therefore no rights are created under the same. Accordingly the suit which is entirely based on the said family settlement is not ii) The above said suit is barred under Order 2 Rule 2 of the CPC as the plaintiff No. 1 had filed a previous suit of injunction against the petitioners defendants and the reliefs claimed in the present suit could have been claimed in the said earlier suit. iii) That the above said suit was barred under Section 34 of the Specific Relief Act 1963 as the respondent plaintiff was not in CM(M)556 2021 possession of the suit property and the claim of possession has not been made in the above said suit. The above three contentions raised by the petitioners defendants were rejected by the impugned order dated 28th July 2020. The same grounds as raised before the Trial Court in support of the Order 7 Rule 11 application have been made before this Court by the learned counsel appearing on behalf of the petitioners. It is submitted that the Trial Court has misapplied the provisions of law to the facts of the present case and hence the order of the Trial Court is erroneous and should be set aside. Attention of the Court has been drawn to the terms of the family settlement to contend that the said document indeed creates rights and interest in the property and therefore is required to be compulsorily registered. Since the suit is based on this unregistered document the suit was not maintainable. It is further contended that the present suit was barred under Order 2 Rule 2 of the Civil Procedure Code as the reliefs sought in the said suit should have been claimed in the earlier injunction suit filed on behalf of the plaintiff No. 1 against the petitioners. It is contended that earlier the suit property was given on lease and the tenant was paying rent to the respondent plaintiff and therefore the respondent plaintiff could be said to be in constructive possession of the said However after tenant stopped paying rent respondent plaintiff could not be said to be in possession and therefore in view of the fact that the relief for possession has not been claimed in the suit the present suit is barred under Section 34 of the Specific Relief Act. CM(M)556 2021 Learned counsel appearing on behalf of the respondent on advance notice submits that the present petition should be dismissed as the petitioners are guilty of gross concealment of facts. It is submitted that on 7th July 2021 an application filed under Order 39 Rue 10 of the CPC by the respondent plaintiff has been allowed and in terms of the said order the petitioners have been directed to deposit a sum of Rs.82 77 612 in form of an interest bearing FDR in the name of the Court towards rent collected by them from the tenant. The matter is coming up before the Trial Court on 27th August 2021 and that is why the present petition has been filed and listed one day before the said date of hearing. It is further contended that the present petition is barred by delay and laches as the impugned order sought to be challenged in the present petition was passed as far back as on 28th July 2020. It is further submitted that detailed findings have been given by the learned Trial Court in respect of all the grounds raised by the petitioners before the Trial Court as well as in the present petition. In rejoinder counsel for the petitioner submits that a separate appeal has already been filed by the petitioners against the order dated 7th July 2021 and therefore no need was not felt to disclose the said order in the present proceedings. On delay it is submitted that delay has to be condoned on account of the order passed by the Supreme Court in Suo Moto Writ Petition No. 3 2020 dated 23rd March 2020 which has been continued on 8th March 2021 and is still in operation. I have considered the rival submissions. Undoubtedly there is an inordinate delay in filing the present petition impugning an order that was passed on 28th July 2020. No reliance can be placed on the orders passed by the Supreme Court in Suo Moto Writ Petition No. 3 2020 as the CM(M)556 2021 scope of the said orders was only to save limitation where time limit has been fixed under various statutes. In the present case the petitioners were actively contesting the suit before the Trial Court all this while and therefore it cannot be believed that they were prevented from filing the present petition earlier on account of the pandemic. There is merit in the contention of the respondent that the present petition was only filed on account of the order dated 7th July 2021 passed by the Trial Court in terms of which the petitioners were directed to deposit a sum of Rs.82 77 612 towards rent collected by them from the tenant. Since the petitioners failed to deposit the said amount and the matter was coming up before the Trial Court on 27th August 2021 just a day before the said date the present petition was got listed before this Court. It is a settled position of law that while invoking jurisdiction of the Court under Article 227 of the Constitution of India the party has to approach the Court with clean hands and without concealment of any facts. In the present case the petitioners ought to have disclosed in the present petition the order dated 7th July 2021 passed by the Trial Court even if petitioners had filed an appeal against the said order. Even in the oral submissions made on behalf of the petitioner no reference was made to the said order. 12. Even though the present petition deserves to be dismissed on the ground of concealment of facts and delay I have still considered the petition on merits as well. In respect of each of the grounds raised by the counsel for the petitioners before this Court detailed findings have been given by the Trial Court. In respect of groundtaken above on maintainability of the suit on account of non registration of the settlement deed the Trial Court has observed as under: CM(M)556 2021 “10. From the aforesaid observations of Hon ble Supreme Court of India it is clear that all the family settlement do not necessarily requires compulsory registration as per Section 17 of the Indian Registration Act and it depends upon the terms and citations of the said settlement. In the instant case the family settlement dated 28.01.2012 does not create or convey any right in any of the property but rather it is a kind of an agreement between the parties as to how the properties mentioned therein will be dealt with or their interest will be transferred from one to other member of the family. There are various clauses which indicate that further steps are required to be taken by the parties for getting the necessary transfer documents executed and registered and therefore this court is of the considered opinion that said family settlement does not itself create or convey any right title or interest in or over the suit properties and rather it is an agreement between the parties to divide the properties as per their joint wish. In this regard I find substance in the submissions of the plaintiff no.2 that the as per 17 2)of the Registration Act 1908 such document does not require registration and an agreement to sell is akin to a memorandum of settlement. The rule of estoppel can also be applied depending upon the overall evidence.” In respect of groundwith regard to objection under Order 2 Rule 2 the Trial Court has observed as under: “8. As regards the objection of Order 2 Rule 2 CPC this court finds the said argument is meritless in view of the fact that the previous suit was filed by the plaintiff no.1 only and whereas the present suit has been filed by plaintiff no.2 also. Therefore the parties were are different in both cases. Secondly the previous suit was for claiming injunction whereas in the instant case various other reliefs like declaration of ownership cancellation of gifts deeds etc. have been prayed which are completely different and based on separate causes of action. Therefore the said provision is not applicable to the present suit.” In respect of groundtaken above non maintainability of the suit under Section 34 of the Specific Relief Act the Trial Court has observed as CM(M)556 2021 “15. It is next argued that the plaintiffs or plaintiff no.2 were not in the possession of the suit property therefore the present suit is barred by Section 34 of the Specific Relief Act without seeking the consequential relief of possession. It is the admitted position that all the parties are the family members and some of them are in possession of one or the other properties whereas the other members are not in possession of other portions. It is a settled proposition of law that when there is more than one property it is not feasible to possess all the joint owners at one point of time and in law all the family members or joint owners are deemed to be de jure or constructive possession of all. Even the portion of the properties in possession of some tenant cannot be said to be in legal possession of any specific owner only. Therefore the said objection under Section 34 of the Specific Relief Act is not attracted to the present facts of case at least at this stage of the In my view all the contentions raised by the petitioners have been duly considered in the impugned order along with the detailed reasoning in support thereof. The Trial Court has rightly held that the issues raised by the petitioners have to be considered in a trial. The scope of application under Order 7 Rule 11 of the CPC is limited only to the extent whether in terms of averments made in the plaint and the documents filed along with the plaint the suit is maintainable or not. No reference is to be made to the written statement filed on behalf of the defendant. The Hon’ble Supreme Court in the recent judgment of Dahiben Vs. Arvindbhai Kalyaniji Bhanusali2020SCC 366 has detailed the scope of Order 7 Rule 11 of the CPC. Relevant portion of the said judgment is set out below: “23.2. The remedy under Order 7 Rule 11 is an independent and special remedy wherein the court is empowered to summarily dismiss a suit at the threshold without proceeding to record evidence and conducting a trial on the basis of the evidence adduced if it is satisfied that the action should be terminated on any of the grounds contained in this provision. CM(M)556 2021 23.5. The power conferred on the court to terminate a civil action is however a drastic one and the conditions enumerated in Order 7 Rule 11 are required to be strictly adhered to. 23.6. Under Order 7 Rule 11 a duty is cast on the court to determine whether the plaint discloses a cause of action by scrutinising the averments in the plaint 9 SCC 512] read in conjunction with the documents relied upon or whether the suit is barred by any law. 23.10. At this stage the pleas taken by the defendant in the written statement and application for rejection of the plaint on the merits would be irrelevant and cannot be adverted to or into consideration. 3 SCC 137]” 16. When considered in light of the above parameters there is no infirmity in the impugned order that requires interference by this Court in exercise of jurisdiction under Article 227 of the Constitution of India. 17. Dismissed with costs of Rs.20 000 AMIT BANSAL J. AUGUST 26 2021 CM(M)556 2021

The person alleged of taking huge amounts from the people in the name of giving jobs in the Civil Court granted bail: High Court Of Patna

The Petitioner was alleged for taking huge amounts from the informant in the name of giving a job in the Civil Court which turned out to be false and was done by the co-accused. The Court granted bail to the petitioner for not being involved fully in the case. The petition was disposed of on the terms and conditions by the court. The Hon’ble High Court of Patna before Justice Mr. Ahsanuddin Amanullah in the matter of Dharam Sah v. The State of Bihar[Criminal Miscellaneous No. 2279 of 2020]. The facts of the case were that the petitioner was apprehended arrest in connection with a case instituted under Sections 419, 420, 406, and 120B of the Indian Penal Code. It was alleged that the petitioner had introduced the informant to co-accused Manisha Kumari and her husband, who had taken Rs. 5 lakhs from her in the presence of the petitioner for getting her grandson a job in the Civil Court at Khagaria as co-accused Manisha Kumari was introduced as a Peshkar in the Civil Courts, Khagaria, but the said did not materialize. It was also alleged that the petitioner took add on Rs. 49,000 from them at Bank. On asking for the money back and fulfillment of the commitment the informant was beaten and abused. Learned counsel for the petitioner submitted that one daughter Putul Devi of the informant was working as a maid in the house of co-accused Manisha Kumari and Manisha Kumari lives in the same building where the petitioner is also a tenant and due to the marriage of Babita Devi’s son, who is another daughter of the informant, they had taken jewelry worth Rs. 1,15,912/- from the jewelry shop of the petitioner and still an outstanding demand of Rs. 8,912/- remains, which was not being paid due to which he has been implicated. It was submitted that even in the FIR, the allegation of giving money is to co-accused Manisha Kumari and not the petitioner. Learned counsel submitted that during investigation it has come that the informant and her two daughters are in the habit of lodging such false cases, as earlier also they had implicated another person on the charge of having established physical relationship and taking money for getting her job in the Block office. The Hon’ble High Court of Patna decided,” Having considered the facts and circumstances of the case and submissions of learned counsel for the parties, in view of the petitioner not being the person who had promised any job for the grandson of the informant as also indication that he being the owner of a jewelry shop, there was some transaction between the parties and other co-accused who were the persons and had assured the job, being granted pre-arrest bail, the Court is inclined to allow the prayer.” The bail was hence granted and the petition was disposed of in the terms mentioned in the judgment. Click Here To Read The Judgment Judgment Reviewed By Nimisha Dublish The facts of the case were that the petitioner was apprehended arrest in connection with a case instituted under Sections 419, 420, 406, and 120B of the Indian Penal Code. It was alleged that the petitioner had introduced the informant to co-accused Manisha Kumari and her husband, who had taken Rs. 5 lakhs from her in the presence of the petitioner for getting her grandson a job in the Civil Court at Khagaria as co-accused Manisha Kumari was introduced as a Peshkar in the Civil Courts, Khagaria, but the said did not materialize. It was also alleged that the petitioner took add on Rs. 49,000 from them at Bank. On asking for the money back and fulfillment of the commitment the informant was beaten and abused. Learned counsel for the petitioner submitted that one daughter Putul Devi of the informant was working as a maid in the house of co-accused Manisha Kumari and Manisha Kumari lives in the same building where the petitioner is also a tenant and due to the marriage of Babita Devi’s son, who is another daughter of the informant, they had taken jewelry worth Rs. 1,15,912/- from the jewelry shop of the petitioner and still an outstanding demand of Rs. 8,912/- remains, which was not being paid due to which he has been implicated. It was submitted that even in the FIR, the allegation of giving money is to co-accused Manisha Kumari and not the petitioner. Learned counsel submitted that during investigation it has come that the informant and her two daughters are in the habit of lodging such false cases, as earlier also they had implicated another person on the charge of having established physical relationship and taking money for getting her job in the Block office. The Hon’ble High Court of Patna decided,” Having considered the facts and circumstances of the case and submissions of learned counsel for the parties, in view of the petitioner not being the person who had promised any job for the grandson of the informant as also indication that he being the owner of a jewelry shop, there was some transaction between the parties and other co-accused who were the persons and had assured the job, being granted pre-arrest bail, the Court is inclined to allow the prayer.” The bail was hence granted and the petition was disposed of in the terms mentioned in the judgment. Click Here To Read The Judgment Judgment Reviewed By Nimisha Dublish Learned counsel for the petitioner submitted that one daughter Putul Devi of the informant was working as a maid in the house of co-accused Manisha Kumari and Manisha Kumari lives in the same building where the petitioner is also a tenant and due to the marriage of Babita Devi’s son, who is another daughter of the informant, they had taken jewelry worth Rs. 1,15,912/- from the jewelry shop of the petitioner and still an outstanding demand of Rs. 8,912/- remains, which was not being paid due to which he has been implicated. It was submitted that even in the FIR, the allegation of giving money is to co-accused Manisha Kumari and not the petitioner. Learned counsel submitted that during investigation it has come that the informant and her two daughters are in the habit of lodging such false cases, as earlier also they had implicated another person on the charge of having established physical relationship and taking money for getting her job in the Block office. The Hon’ble High Court of Patna decided,” Having considered the facts and circumstances of the case and submissions of learned counsel for the parties, in view of the petitioner not being the person who had promised any job for the grandson of the informant as also indication that he being the owner of a jewelry shop, there was some transaction between the parties and other co-accused who were the persons and had assured the job, being granted pre-arrest bail, the Court is inclined to allow the prayer.” The bail was hence granted and the petition was disposed of in the terms mentioned in the judgment. Click Here To Read The Judgment Judgment Reviewed By Nimisha Dublish Learned counsel submitted that during investigation it has come that the informant and her two daughters are in the habit of lodging such false cases, as earlier also they had implicated another person on the charge of having established physical relationship and taking money for getting her job in the Block office. The Hon’ble High Court of Patna decided,” Having considered the facts and circumstances of the case and submissions of learned counsel for the parties, in view of the petitioner not being the person who had promised any job for the grandson of the informant as also indication that he being the owner of a jewelry shop, there was some transaction between the parties and other co-accused who were the persons and had assured the job, being granted pre-arrest bail, the Court is inclined to allow the prayer.” The bail was hence granted and the petition was disposed of in the terms mentioned in the judgment. Click Here To Read The Judgment Judgment Reviewed By Nimisha Dublish The Hon’ble High Court of Patna decided,” Having considered the facts and circumstances of the case and submissions of learned counsel for the parties, in view of the petitioner not being the person who had promised any job for the grandson of the informant as also indication that he being the owner of a jewelry shop, there was some transaction between the parties and other co-accused who were the persons and had assured the job, being granted pre-arrest bail, the Court is inclined to allow the prayer.” The bail was hence granted and the petition was disposed of in the terms mentioned in the judgment.

IN THE HIGH COURT OF JUDICATURE AT PATNA CRIMINAL MISCELLANEOUS No. 22720 Arising Out of PS. Case No. 50 Year 2019 Thana BEGUSARAI TOWN District Begusarai Dharam Sah @ Dharm Sah Son of Sri Shyam Sah Male aged about 35 years Resident of Village Bishnupur Azadchowk Near Nav Yukub Durga Asthan Ward No.42 Post Mirzapur Bandaur PS Town District Begusarai at present resident of Village Chanakya Nagar PO Mirzapur Banduar Ward No.39 PS Town District Begusarai The State of Bihar ... Petitioner s ... Opposite Party s For the Petitioner s Mr. Arun Kumar with Mr. Deepak Kumar Advocates Mr. Raj Ballabh Singh APP For the State CORAM: HONOURABLE MR. JUSTICE AHSANUDDIN AMANULLAH ORAL JUDGMENT Date : 05 08 2021 The matter has been heard via video conferencing 2. Heard Mr. Arun Kumar along with Mr. Deepak Kumar learned counsel for the petitioner and Mr. Raj Ballabh Singh learned Additional Public Prosecutorfor the State 3. The petitioner apprehends arrest in connection with Town PS Case No. 50 of 2019 dated 24.01.2019 instituted under Sections 419 420 406 and 120B of the Indian Penal 4. The allegation against the petitioner is that he had introduced the informant to co accused Manisha Kumari and her Patna High Court CR. MISC. No.22720 dt.05 08 2021 husband who had taken Rs. 5 lakhs from her in the presence of the petitioner for getting her grandson a job in the Civil Court at Khagaria as co accused Manisha Kumari was introduced as a Peshkar in the Civil Courts Khagaria but the said did not materialize. It has further been alleged that the petitioner had taken her to the Corporation Bank from where Rs. 49 000 was withdrawn by her and given to him. Further allegation is that the co accused had given copy of her I Card PAN Card and Aadhar Card to the informant and when she went to ask for money she was beaten and abused 5. Learned counsel for the petitioner submitted that one daughter Putul Devi of the informant was working as a maid in the house of co accused Manisha Kumari and Manisha Kumari lives in the same building where the petitioner is also a tenant and due to marriage of Babita Devi’s son who is another daughter of the informant they had taken jewellery worth Rs 1 15 912 from the jewellery shop of the petitioner and still an outstanding demand of Rs. 8 912 remains which was not being paid due to which he has been implicated. It was submitted that even in the FIR the allegation of giving money is to co accused Manisha Kumari and not the petitioner. Learned counsel submitted that during investigation it has come that the Patna High Court CR. MISC. No.22720 dt.05 08 2021 informant and her two daughters are in the habit of lodging such false cases as earlier also they had implicated another person on the charge of having established physical relationship and taking money for getting her job in the Block office. It was submitted that there is no occasion for the petitioner to be involved in the transaction and most importantly the money paid to him was in lieu of the ornaments which was purchased from his shop by the informant side in support of which learned counsel drew the attention of the Court to copy of the bill dated 01.03.2018 which has been annexed as Annexure A to the supplementary affidavit filed on behalf of the petitioner in the name of Babita Devi who is the daughter of the informant in which the alleged Rs. 49 000 paid to the petitioner from Corporation Bank has been shown as part payment for the jewellery and still an outstanding amount of Rs. 8 912 remains. Learned counsel submitted that co accused Bhola Jha whose wife is alleged to have been clerk in the Civil Court Khagaria has been granted anticipatory bail by judgment and order dated 16.03.2021 passed in Cr. Misc. No. 316920 and the said lady Manisha Kumari has also been granted anticipatory bail by a co ordinate Bench by order dated 19.05.2021 passed in Cr. Misc. No. 314920 Patna High Court CR. MISC. No.22720 dt.05 08 2021 6. Learned APP from the case diary submitted that witnesses have supported the prosecution story. However it was submitted that it has come that there was marriage of grandson of the informant i.e. son of Babita Devi and the parties are tenants of a common landlord 7. Having considered the facts and circumstances of the case and submissions of learned counsel for the parties in view of the petitioner not being the person who had promised any job for the grandson of the informant as also indication that he being the owner of a jewellery shop there was some transaction between the parties and other co accused who were the persons and had assured the job being granted pre arrest bail the Court is inclined to allow the prayer 8. Accordingly in the event of arrest or surrender before the Court below within six weeks from today the petitioner be released on bail upon furnishing bail bonds of Rs. 25 000 twenty five thousand) with two sureties of the like amount each to the satisfaction of the learned Chief Judicial Magistrate Begusarai in Town PS Case No. 50 of 2019 subject to the conditions laid down in Section 438(2) of the Code of Criminal Procedure 1973 and further and further that one of the bailors shall be a close relative of the petitioner andthat the petitioner Patna High Court CR. MISC. No.22720 dt.05 08 2021 shall co operate with the Court and police prosecution. Failure to co operate shall lead to cancellation of his bail bonds 9. It shall also be open for the prosecution to bring any violation of the foregoing conditions of bail by the petitioner to the notice of the Court concerned which shall take immediate action on the same after giving opportunity of hearing to the 10. The petition stands disposed of in the (Ahsanuddin Amanullah J

Section 10 CPC would apply only if there is identity of the matter in issue: High Court of Delhi

Section 10 would apply only if there is identity of the matter in issue, namely, that the whole of the subject matter in both the proceedings is identical. This was held in MRS UMA HADA V.MR. SUNIL GUPTA. [CS(OS) 339/2020] in the High Court of Delhi by a single bench consisting of JUSTICE JAYANT NATH. Facts are that the plaintiff is the absolute owner of the property, the plaintiff and her husband are aged about 72 years and 78 years and are senior citizens dependent on the rental income from the suit property. The defendant was residing in the suit property as a lessee and is persistently in default of payment of rent since April 2020. The present suit for possession has been filed against the same. The counsel for the petitioner contended under similar facts and circumstances, this court rejected the plea of an oral agreement to sell as has been raised by the defendant in the present suit. The counsel for the defendant submitted that the suit filed by the defendant in the district court for permanent injunction was filed on prior to this suit in October. Thus consideration should be given to that suit which is a prior suit as the present suit was filed in November. Hence it is urged that the present suit is liable to be stayed. The court made reference to Section 10 CPC, in order to determine the claim that the filing of the said suit prior to the filing of this suit by the defendant attracts Section 10 of the CPC and entails, that the present suit to be stayed or not. The court made reference to judgment of the Apex court in National Institute of Mental Health & Neuro Sciences vs. C. Parameshwara, wherein it was observed that “The object underlying Section 10 is to prevent courts of concurrent jurisdiction from simultaneously trying two parallel suits in respect of the same matter in issue. The object underlying Section 10 is to avoid two parallel trials on the same issue by two courts and to avoid recording of conflicting findings on issues which are directly and substantially in issue in previously instituted suit. The language of Section 10 suggests that it is referable to a suit instituted in the civil court and it cannot apply to proceedings of other nature instituted under any other statute. The object of Section 10 is to prevent courts of concurrent jurisdiction from simultaneously trying two parallel suits between the same parties in respect of the same matter in issue. The fundamental test to attract Section 10 is, whether on final decision being reached in the previous suit, such decision would operate as res judicata in the subsequent suit”.

IN THE HIGH COURT OF DELHI AT NEW DELHI Reserved on: 24.03.2021 Pronounced on: 03.06.2021 CS(OS) 339 2020 MRS UMA HADA Through Mr.Muneesh Malhotra Ms.Manpreet Kaur and Mr.Aaditya Malhotra Advocates. ..... Plaintiff MR. SUNIL GUPTA Through Mr.Neeraj Malhotra Sr.Adv. with Mr.Navlendu Kumar Advs. with Defendant in person. ..... Defendant HON BLE MR. JUSTICE JAYANT NATH JAYANT NATH J.I.A Nos. 1490 2021(under Order XII Rule 6) This is an application filed by the plaintiff under Order 12 Rule 6 CPC seeking a decree as follows: “1. Pass a decree for possession of the property bearing no. W 6 19 Situated at Western Avenue Sainik Farms New Delhi 110062 to the Plaintiff as prayed in the present suit. 2. Direct the Defendant to pay arrears in rent as prayed.” The prayer in the suit reads as follows: “i. Pass Decree for delivery of possession of the property bearing W 6 19 situated at Western Avenue Sainik Farms New Delhi 110062 to the Plaintiff. CS(OS) 339 2020 the Defendant ii.. Pass Decree in favour of the Plaintiff and against the Defendant for Damages Mesne Profits calculated at Rs.12 000 per day along with interest at the rate of 18% per annum from the date of proceeding of initialization of the suit & till the date of disposal handing over of the vacant possession by the defendant. the arrear of rent @ iii. Direct Rs.14 10 000 to the Plaintiff along with 18% interest and deposit as claimed in para 9 of the present suit. iv. Pass a Decree of Permanent Injunction restraining the Defendant his legal heirs successors assignees representatives or any person related to defendant from creating any third party interest rights or title in respect of the suit property i.e. property bearing No. W 6 19 Situated at Western Avenue Sainik Farms New Delhi 110062.” to pay The case of the plaintiff is that the plaintiff is the absolute owner of the property bearing No. W 6 19 situated at Western Avenue Sainik Farms New Delhi 110062 339 2020 defendant had agreed to pay the electricity bills for the period the property was in his possession and to maintain the septic tank periodically at his costs and expenses. It is stated that by letter dated 30.07.2020 and 07.09.2020 the defendant has admitted residing in the suit property as a lessee. The defendant is persistently in default of payment of rent since April 2020 to October 2020 at the rate of Rs.2 30 000 per month with a total outstanding balance of Rs.14 10 000 . Hence the plaintiff issued a notice to the defendant by notice dated 16.09.2020 for termination of the lease under Section 106 and Section 111 a) andof the Transfer of Property Act and calling upon the defendant to vacate the property by 31.10.2020. It is stated that the pre determined liquidated damages at the rate of Rs.12 000 per day as mesne profit after termination of the lease were also sought on account of illegal and unlawful possession of the premises in terms of the lease dated 20.09.2019. A reply was received from the counsel for the defendant where an allegation has been made that there was an oral agreement to sell the suit property between the parties. Hence the present suit for possession. The defendant has filed his written statement. It is admitted in the written statement that the defendant entered into a tenancy agreement dated 25.08.2016 with the plaintiff. It is stated that during the subsistence of the lease tenancy agreement the defendant at the instance of the plaintiff entered into an oral agreement to sell the suit property in question with the plaintiff. According to the agreed terms of the oral agreement to sell the total sale consideration was mutually fixed at Rs. 2.50 crore out of which the defendant paid a sum of Rs. 1 crore as follows: Rs. 45 lakhs on 08.09.2019 against receipt. CS(OS) 339 2020 ii) Rs. 55 lakhs on 05.03.2020 against receipt. Hence it is claimed that the defendant who was earlier in possession as a lessee was now put in possession of the suit property in part performance of the agreement as a buyer. Hence it is claimed that now the plaintiff is trying to wriggle out of the said agreement. It is claimed that the balance amount of Rs.1.50 crore is ready with the defendant and he is willing to pay the same to the plaintiff even though the balance amount was to be paid by May 2022. As cause of action would arise only after May 2022 the defendant has filed a suit for injunction against the plaintiff pending in the district courts seeking liberty under Order 2 Rule 2 CPC for filing a suit for specific performance at the appropriate time. I may note that when the matter came for hearing on 09.11.2020 this court had directed the defendant to continue to pay a sum of Rs. 2.30 lakhs per month to the plaintiff on or before the 5th of every calendar month being the last agreed rent. The defendant was also restrained from creating any third party rights in the suit property till the next date of hearing. I have heard learned counsel for the plaintiff and learned senior counsel for the defendant. 10. Learned senior counsel for the defendant has urged that the suit filed by the defendant in the district court for permanent injunction was filed on 17.10.2020 which is a prior suit as the present suit was filed in November 2020. Hence it is urged that the present suit is liable to be stayed. It is further urged that even otherwise the defendant is seeking rights under Section 53A of the Transfer of property Act on account of part performance of the agreement to sell. Until the rights of the defendant are determined the CS(OS) 339 2020 present suit for possession cannot proceed further. 11. Learned counsel for the plaintiff has relied upon the judgment of a Co ordinate Bench of this court in the case of Arun Kumar Tandon vs. Akash Telecom Private Ltd. & Anr. ILR2 Del 727 to contend that under similar facts and circumstances this court rejected the plea of an oral agreement to sell as has been raised by the defendant in the present suit. I may note that in the written statement the defendant has admitted the lease deed dated 25.08.2016. He has also admitted receipt of a notice under Section 106 of the Transfer of Property Act dated 16.09.2020 terminating the lease. Both these documents have also been admitted in admission denial of documents. I may look at Order XV A of the CPC which reads as follows : “Order XV A STRIKING OFF DEFENCE IN A SUIT BY A LESSOR 1. “In any suit by a owner lessor for eviction of an unauthorised occupant lessee or for the recovery of rent and future mesne profits from him the defendant shall deposit such amount as the Court may direct on account of arrears upto the date of the order and thereafter continue to deposit in each succeeding month the rent claimed in the suit as the Court may direct. The defendant shall continue to deposit such amount till the decision of the suit unless otherwise In the event of any default in making the deposit as aforesaid the Court may subject to the provisions of sub rulestrike off the defence. 2. Before passing an order for striking off the defence the Court shall serve notice on the defendant or his advocate to CS(OS) 339 2020 show cause as to why the defence should not be struck off and the Court shall consider any such cause if shown in order to decide as to whether the defendant should be relieved from an order striking off the defence. 3. The amount deposited under this rule shall be paid to the plaintiff owner lessor or his advocate and the receipt of such amount shall not have the effect of prejudicing the claim of the plaintiff and it would not also be treated as a waiver of notice of termination.” I may note that despite the order of this court dated 09.11.2020 the defendant has not paid the rent and remains in wilful default. In view of the same the defence of the defendant is liable to be struck off under Order XV A CPC. It is ordered accordingly. In any case I have also looked into the matter on merits. I will deal with the pleas raised by the parties. The defendant admits two aspects namely execution of the lease deed dated 25.08.2016 and the service of notice dated 16.09.2020 terminating the lease deed. Defendant has taken two different defences to plead as to why he cannot be evicted from the suit property. Firstly it is claimed that the defendant has filed a separate suit for injunction which was filed prior to filing of the present suit and is pending adjudication before the concerned district court. It is stated that in view of the earlier suit filed by the defendant the present suit is liable to be dismissed. Presumably though not specifically spelt out the defendant relies upon Section 10 of CPC. Secondly reliance is placed by the defendant on Section 53A of the Transfer of Property Act to claim that the parties entered into an oral agreement to sell where part consideration was duly received by the plaintiff vide receipts dated 08.09.2019 and 05.03.2020. CS(OS) 339 2020 Hence possession of the defendant is protected. I will now deal with the said pleas raised by the defendant. According to the defendant the plaintiff agreed to sell the property situated at Sainik Farms which was on rent at Rs.2.30 lakh per month for a paltry sum of Rs.2.50 Crores. It is claimed that the defendant paid Rs.1 crore in two instalments i.e. Rs.45 lakhs on 08.09.2019 and Rs.55 lakhs on 05.03.2020 all in cash. Hence it is claimed that based on these documents the defendant who was earlier in possession as a lessee was put in possession of the suit property in part performance of the agreement to sell as a buyer. It is claimed that though the balance consideration of Rs.1.50 crores was to be paid in May 2022 the defendant is ready to make the payment forthwith and the necessary funds are available with him. As the plaintiff did not come forward to get the sale deed executed the defendant filed a civil suit before the concerned district court prior to filing of the present suit. A perusal of the plaint filed by the defendant shows that it is a suit for permanent injunction to restrain the plaintiff herein from dispossessing the defendant herein from the suit property. Relief is also sought to restrain the plaintiff herein from creating any third party interest in the suit property. The so called cash receipts allegedly executed by the plaintiff dated 08.09.2019 and 05.03.2020 have also been filed alongwith the plaint filed by the defendant. Hence it is claimed that the filing of the said suit prior to the filing of this suit by the defendant attracts Section 10 of the CPC and entails the present suit to be stayed. 17. Reference may be had to Section 10 CPC which reads as follows: “10. Stay of suit No Court shall proceed with the trial of any suit in which the matter in issue is also directly and CS(OS) 339 2020 substantially in issue in a previously instituted suit between the they or same parties or between parties under whom any of them claim litigating under the same title where such suit is pending in the same or any other Court in India having jurisdiction to grant the relief claimed or in any Court beyond the limits of India established or continued by the Central Government and having like jurisdiction or before the Supreme Court.” 18. Reference in this context may be had to the judgment of the Supreme Court in National Institute of Mental Health & Neuro Sciences vs. C. Parameshwara AIR 2005 SC 242 where the Supreme Court held as follows: “8. The object underlying Section 10 is to prevent courts of concurrent jurisdiction from simultaneously trying two parallel suits in respect of the same matter in issue. The object underlying Section 10 is to avoid two parallel trials on the same issue by two courts and to avoid recording of conflicting findings on issues which are directly and substantially in issue in previously instituted suit. The language of Section 10 suggests that it is referable to a suit instituted in the civil court and it cannot apply to proceedings of other nature instituted under any other statute. The object of Section 10 is to prevent courts of concurrent jurisdiction from simultaneously trying two parallel suits between the same parties in respect of the same matter in issue. The fundamental test to attract Section 10 is whether on final decision being reached in the previous suit such decision would operate as res judicata in the subsequent suit. Section 10 applies only in cases where the whole of the subject matter in both the suits is identical. The key words in Section 10 are “the matter in issue is directly and substantially in issue” in the previous instituted suit. The words “directly and substantially in issue” are used in contradistinction to the words “incidentally or collaterally in issue”. Therefore Section 10 would apply only if there is identity of the matter in issue in both the suits meaning thereby that the whole of the subject matter in both the proceedings is identical.” CS(OS) 339 2020 identical. 19. A perusal of the above judgment makes it quite clear that the said Section 10 would apply only if there is identity of the matter in issue namely that the whole of the subject matter in both the proceedings is 20. The suit filed by the defendant in the district court is a suit for injunction to restrain the plaintiff herein from dispossessing the defendant herein in view of the alleged agreement to sell. The said suit does not deal with the stated lease and consequences of its termination. The present suit is a suit for termination of the lease and consequent possession of the suit property. There are material differences in issues cause of action and the reliefs which are sought in the suit filed by the defendant in the district court and the present suit filed by the plaintiff. Section 10 CPC would have no application to the facts of this case. The said plea of the defendant is without 21. Regarding the reliance of the defendant on Section 53A CPC is concerned reference may be had to Section 53A the Transfer of Property Act 1882. The same reads as follows: “53A.Part Performance Where to transfer for consideration any immovable property by writing signed by him or on his behalf from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty and the transferee has in part performance of the contract taken possession of the property or any part thereof or the transferee being already in possession continues in possession in part performance of the contract and has done some act in furtherance of the contract and the transferee has performed or is willing to perform his part of the contract then notwithstanding that where there is an instrument of transfer the manner the transfer has not been completed CS(OS) 339 2020 prescribed therefor by the law for the time being in force the transferor or any person claiming under him shall be debarred from enforcing against the transferee and persons claiming under him any right in respect of the property of which the in possession other transferee has than a right expressly provided by the terms of the contract rights of a transferee for consideration who has no notice of the contract or of the part performance thereof.” this section shall affect taken or continued that nothing 22. Reference may also be had to Section 17of the Registration Act which reads as follows: “17. Documents of which registration is compulsory.— 1) .... 1 A) The documents containing contracts consideration purpose of Section 53 A of the Transfer of Property Act 1882 82) shall be registered if they have been executed on or after the commencement of the Registration and Other Related Laws Act 2001 and if such documents are not registered on or after such commencement then they shall have no effect for the purposes of the said Section 53 A.” 23. This court in the case of Arun Kumar Tandon vs. Akash Telecom Pvt. Ltd & Anr. held as follows: “6. It is absolutely clear that in order to give benefits of Section 53A of Transfer of Property Act the document relied upon must be a registered document. Any unregistered document cannot be looked into by the court and cannot be relied upon or taken into evidence in view of Sections 17(1A) read with Section 49 of the Registration Act. Thus benefit of Section 53A could have been given to the respondent if and only if the alleged Agreement to Sell cum receipt satisfied the provisions of Section 17(1)A of the Registration Act. Section 35 of the Indian Stamp Act gives a mandatory direction to the courts that CS(OS) 339 2020 no instrument chargeable with duty shall be admitted in evidence for any purpose or shall be acted upon by any public officer unless such instrument is duly stamped. Article 23 A provides that where contract is for transfer of immovable property in the nature of part performance in any Union Territory under Section 53A it attracts 90 per cent of the duty as that of a conveyance deed. Thus the alleged Agreement to Sell could not have been looked into by the court for any purpose contrary to the mandate of the statute as given in Section 35 of the Indian Stamp Act. 10. I therefore consider that the trial court could not have given benefit of Section 53A of Transfer of Property Act to respondent under any circumstances even if a suit for specific performance filed by respondent No. 2 was pending. Pendency of a suit for specific performance would not have debarred the court below from looking into the document relied upon by the respondent and the effect of the document as to whether such a document can even be looked into by the court for any purpose whatsoever. When the document itself could not be looked into the question of giving benefit to respondent on the basis of this document would not arise. It was obligatory on the court below to be aware of the law and to apply the law as it stood. Section 17(1)A of the Registration Act and Section 35 of the Indian Stamp Act were very much there on the statute book. No plea can be taken that these sections were not brought to the notice of the court. Like any other citizen of this country Judges are also supposed to know the law and apply correct law. Benefit of Section 53A could not have been given to the respondents of a document which could not be looked into. If this document is not looked into the respondents continue to be in possession unauthorisedly after expiry of the lease agreement and the respondents were liable to pay the arrears of rent and monthly rent during pendency of the suit to the petitioner as reflected by the lease agreement.” 24. Hence to seek relief under Section 53A of the Transfer of Property CS(OS) 339 2020 Act the documents relied upon to evidence an Agreement to Sell must be registered. The so called receipts which are relied upon by the defendant to claim an agreement to sell dated 08.09.2019 and 05.03.2020 are unregistered documents. The defendant cannot rely upon the same to take any advantage of Section 53A of the Transfer of Property Act. There is no merit in the said plea raised by the defendant. I may now look at some of the salient facts. The lease in question was entered into on 25.08.2016. On 20.09.2019 a new unregistered lease is said to have been executed wherein the rent was increased to Rs.2.30 lakhs per month from the original rent of Rs.2 lakhs per month. The defendant is said to be in default of rents since April 2020. I may note that the plaintiff has written several communications to the defendant including communications dated 25.06.2020 and 13.08.2020 requesting him for payment of rent. In response the defendant wrote communications on 30.07.2020 and 07.09.2020. The said communications dated 30.07.2020 and 07.09.2020 read as follows: Ms Uma Hada W o SH K P Hada R o 20 RAJA SANTOSH ROAD ALIPUR KOLKATA India 700027 Subject: Request letter to seek further time for the arrangement of the balance sum amount regarding the said residential premises. Respected Ma am I Sunil Gupta S o Shri Amar Nath Gupta Resident of W 6 19 Anupam Garden Sainik Farms New Delhi. Having physical possession of the property & as per your assurances I have CS(OS) 339 2020 been paying the charges of the occupied property even after paying the advance money and you Ms Hada assured & promised to me to adjust the advance in the monthly rental in case if any financial crisis was occurred. 1. That due to the pandemic crisis of COVID 19 across the world. The balance payment of a few months w.e.f. April 2020 to June 2020 could not be paid in time. I was going through an acute financial crisis & further suffered from health issues and I informed you telephonically and further informed Mr.Prem Sethi also. 2. That I received the letter sent by Ms Uma Hada regarding the due payment of house rent. It is further requested by you regarding the financial need of the money for your medical need . 3. That I honor the demand created by you but due to acute financial crisis and reason of ill health I totally failed to arrange any money to fulfil the need created by you regarding the balance money. However upon your constant pressure I somehow arranged a sum of Rs 2 00 000 and paid you through RTGS on 24 07 2020. 4. As 1 have already requested you earlier kindly waive off pardon the 2 months rent possession charges due to the COVID 19 pandemic. I therefore requested you to kindly consider my request and kindly give me some more. time to arrange the balance Thanks & Regards Sd Sunil Gupta” “07 09 2020 CS(OS) 339 2020 Ms UMA HADA W o SH KB HADA R o 20 RAJA SANTOSH ROAD ALIPUR KOLKATA PIN 700027 SUB: Reply to your Demand notice dated 13.08.2020 received by me on 17 08 2020 Respected Madam 1. I Dr.Sunil Gupta S o Shri Amar Nath Gupta Resident of W 6 19 Anupam Garden Sainik Farms New Delhi. I have been paying the charges of the occupied property even after paying an advance amount and you had assured & promised me to adjust the advance in the monthly rental in case if a financial crisis occurred. 2. That the contents of reply of your demand are incorrect and you have concealed many material facts in the same even you did not discuss the amount intentionally which were received by you . 3. That you are intentionally creating hindrances in my peaceful possession of property and you pressurized me with ulterior motives best known to you. 4. That the demand of monthly rent raised by you is not correct and you had not adjusted my money and repeatedly asking towards the rent of occupied premises. Even after sending reply of your demand notice sent by me on 30 07 2020 clearly reflects the complications and financial crisis due to Cov1d 19 pandemic and other health issues suffered by me from the last few years. 5. That the reply dated 13.08.2020 sent by you to me is false and the reply sent by you is illegal and you please immediately withdraw the allegations made against me regarding not to fulfil the terms and conditions of the occupied property. CS(OS) 339 2020 6. That from the said act of you Ms Hada I suffered mentally and physically and I got bothered from your sending people at my residence and calling me and my family members on our mobiles again and again. Kindly abstain yourself from bothering us in any manner. 7. That the balance payment as per your demand will be met within the stipulated time agreed between us. In view of the above I request you Ms Hada to kindly consider my request on the ground of my ill health and financial crisis due to COVID 19 pandemic all over the world as a whole and please stop sending people and calling us again and again. I will call you myself whenever a more conducive time for out meeting comes.· Thanking you Sincerely Sd Sunil Gupta” In para 7 of the plaint a clear reference is made to the above communications dated 30.07.2020 and 07.09.2020 sent by the defendant. In para 7 of the written statement the defendant does not deny having sent the said communications to the plaintiff on 30.07.2020 and 07.09.2020.These communications are sent much after the so called agreement to sell as allegedly evidenced by the alleged receipts executed by the plaintiff dated 08.09.2019 and 05.03.2020. The defendant in these communications admits that the balance payment of few months i.e. April 2020 to June 2020 could not be made on account of the COVID 19 pandemic. He also admits that due to acute financial crisis and ill health the defendant failed to arrange the money to fulfil the need regarding the balance amount. He also admits that CS(OS) 339 2020 only on the constant pressure of the plaintiff he arranged Rs. 2 lakhs which was paid on 24.07.2020. There are clear categorical admissions of the defendant made after the alleged agreement to sell admitting his status as a tenant to the property and admitting that he is in default of having made payment of monthly rent of Rs.2 lakhs per month. Further along with this application under Order XII Rule 6 CPC the plaintiff has attached her statement of bank accounts which clearly shows that the defendant has been paying rent of Rs.2.30 lakhs per month as late as July 2020 i.e. even after the alleged agreement to sell entered into on 08.09.2019 and 05.03.2020. 28. The written statement of the defendant and the documents placed on the communications sent by the defendant dated 30.07.2020 and 07.09.2020 unequivocally show that the defendant admits that he is in possession of the suit property as a tenant and is in default of payment of rents. The tenancy has been validly terminated. 29. For the purpose of the application under Order XII Rule 6 CPC I may refer to the judgment of the Division Bench of this Court in the case of Vijay Mayne vs. Satya Bhushan Kaura 142 DLT 483 where this Court held as under: “12. It is not necessary to burden this judgment by extracting from the aforesaid authoritative pronouncement as the learned Single Judge has accomplished this exercise with prudence and dexterity. Purpose would be served by summarizing the legal position which is that the purpose and objective in enacting the provision like Order 12 Rule 6 CPC is to enable the Court to pronounce the judgment on admission when the admissions are sufficient to entitle the plaintiff to get the decree inasmuch as such a provision is enacted to render speedy judgments and save the parties from going through the rigmarole of a protracted trial. CS(OS) 339 2020 The admissions can be in the pleadings or otherwise namely in documents correspondence etc. These can be oral or in writing. The admissions can even be constructive admissions and need not be specific or expressive which can be inferred from the vague and evasive denial in the written statement while answering specific pleas raised by the plaintiff. The admissions can even be inferred from the facts and circumstances of the case. No doubt for this purpose the Court has to scrutinize the pleadings in their detail and has to come to the conclusion that the admissions are unequivocal unqualified and unambiguous. In the process the Court is also required to ignore vague evasive and unspecific denials as well as inconsistent pleas taken in the written statement and replies. Even a contrary stand taken while arguing the matter would be required to be ignored.” 30. Reference may also be had to the judgment of a Coordinate Bench of this Court in the case of Usha Rani Jain & Ors. vs. Nirulas Corner House Pvt. Ltd. & Ors. ILR II DELHI 349 where the court held as follows: “18. The object of Order XII Rule 6 CPC is to enable a party to obtain a speedy judgment at least to the extent of the admissions of the defendant to which relief the plaintiff is entitled to. The rule permits the passing of the judgment at any stage without waiting for determination of other questions. It is equally settled that before a Court can act under Order 12 Rule 6 the admission must be clear unambiguous unconditional and unequivocal. Admissions in pleadings are either actual or constructive. Actual admissions consist of facts expressly admitted either in pleadings or in answer to interrogatories. In a suit for ejectment the factors which deserves to be taken into consideration in order to enable the Court to pass a decree of possession favour of the plaintiff primarily are: 1) Existence of relationship of Lesser and lessee or entry in possession of the suit property by defendant as tenant CS(OS) 339 2020 2) Determination of such relation in any of the contingencies as envisaged in Section 111 of the Transfer of Property Act.” In my view there are clear admissions on record of the defendant about the existence of landlord and tenant relationship. The facts and documents as stated above demonstrate that the agreed rental price of the premises as payable by the defendant on 31.10.2020 at the rate of Rs.2 30 000 per month are to the tune of Rs.14 10 000 . There is also clear admission on behalf of the defendant about receiving the notice of termination of the lease deed dated 16.09.2020. Therefore the plaintiff would be entitled to an appropriate decree on the admissions in view of Order 12 Rule 6 CPC. 32. Clearly the defence set up by the defendant is sham and bogus. The agreement to sell cannot be believed for the very simple reason that a prime property in South Delhi which was fetching a rent of Rs.2 30 000 per month cannot possibly be agreed to have been sold for a pittance of Rs.2.50 crores as is being claimed by the defendant. Sham defences like the present one have to be nipped in the bud. 33. The present application is allowed. CS(OS) 339 2020 Accordingly a decree is passed in favour of the plaintiff and against the defendant for possession of the suit property W 6 19 WESTERN AVENUE SAINIK FARMS NEW DELHI 110062. A decree is also passed in favour of the plaintiff and against the defendant for arrears of rent of Rs.14 10 000 . The plaintiff shall also be entitled to simple interest at the CS(OS) 339 2020 rate of 18% per annum w.e.f. the date of filing of the suit till the date of the decree. The plaintiff shall also be entitled to simple interest at the rate of 18% per annum w.e.f. the date of the decree till recovery of the amount. The suit shall continue regarding the relief of damages and mesne profits. List the suit before the Joint Registrar on 12.08.2021 for further JUNE 03 2021 rb JAYANT NATH J CS(OS) 339 2020

Failure to cooperate or being absent on two consecutive dates, without sufficient cause, shall lead to cancellation of bail bonds: Patna High Court

It shall also be open for the prosecution to bring any violation of the foregoing conditions of bail by the petitioners, to the notice of the Court concerned, which shall take immediate action on the same after giving opportunity of hearing to the petitioners. This was said in the case of Bijendra Rai v State of Bihar [CRIMINAL MISCELLANEOUS No.34711 of 2020] by Mr. Justice Ahsanuddin Amanullah in the High Court Of Judicature At Patna  The facts of the case are that there is an allegation against the petitioners and twenty other named persons that they were involved in manufacturing of countrymade liquor and supplying the same through stolen motorcycles. The petitioners apprehend arrest in connection with case instituted under Sections 414/34 of the Indian Penal Code and 30(a)(d)/41 of the Bihar Prohibition and Excise Act, 2016. Hence, the present bail application Learned counsel for the petitioners submitted that only on suspicion and confidential information about the involvement of the petitioners as also twenty others, raid was conducted and some people ran away and recovery of sixty litres of countrymade chulhai liquor has been shown. It was submitted that the petitioners have clean antecedent and further, that neither the place of recovery, which is the banks of river Ganges nor the motorcycles belong to them. Thus, learned counsel submitted that since there is no connection either with the place of recovery or the liquor seized with the petitioners, bar of Section 76(2) of the Act would not be applicable. Learned APP submitted that the police had prior information that the petitioners were also in the business of illicit liquor and on raid, 60 litres of the same has been recovered Having considered the facts and circumstances of the case and submissions of learned counsel for the parties, the Court said that “in the event of arrest or surrender before the Court below within six weeks from today, the petitioners be released on bail upon furnishing bail bonds of Rs. 25,000/- (twenty five thousand) each with two sureties of the like amount each to the satisfaction of the learned 2nd Additional Sessions Judge-cum-Special Judge, Excise, subject to the conditions laid down in Section 438(2) of the Code of Criminal Procedure, 1973 and further (i) that one of the bailors shall be a close relative of the petitioners, (ii) that the petitioners and the bailors shall execute bond with regard to good behaviour of the petitioners, and (iii) that the petitioners shall also give an undertaking to the Court that they shall not indulge in any illegal/criminal activity, act in violation of any law/statutory provisions, tamper with the evidence or influence the witnesses”.

IN THE HIGH COURT OF JUDICATURE AT PATNA CRIMINAL MISCELLANEOUS No.347120 Arising Out of PS. Case No. 69 Year 2020 Thana RAGHOPUR District Vaishali Bijendra Raiaged about 28 years son of Bashistha Rai Chunni Kumar @ Chunni Rai @ Chuni Kumar @ Chuni Raiaged about 25 years son of Late Police Rai Both resident of village Sukumarpur P.S. RaghopurDist. Vaishali ... Petitioner s The State of Bihar ... Opposite Party s For the Petitioner s For the State CORAM: HONOURABLE MR. JUSTICE AHSANUDDIN AMANULLAH Mr. Anil Kumar Advocate Mr. Bishweshwar Ram APP Date : 30 04 2021 The matter has been heard via video conferencing. 2. Heard Mr. Anil Kumar learned counsel for the petitioners and Mr. Bishweshwar Ram learned Additional Public Prosecutorfor the 3. The petitioners apprehend arrest in connection with Raghopur PS Case No. 69 of 2020 dated 17.05.2020 instituted under Sections 414 34 of the Indian Penal Code and 30(a)(d) 41 of the Bihar Prohibition and Excise Act 2016of the Act would not be applicable. 6. Learned APP submitted that the police had prior information that the petitioners were also in the business of illicit liquor and on raid 60 litres of the same has been 7. Having considered the facts and circumstances of the case and submissions of learned counsel for the parties in the event of arrest or surrender before the Court below within six weeks from today the petitioners be released on bail upon Patna High Court CR. MISC. No.347120 dt.30 04 2021 furnishing bail bonds of Rs. 25 000 PS Case No. 620 subject to the conditions laid down in Section 438(2) of the Code of Criminal Procedure 1973 and furtherthat one of the bailors shall be a close relative of the petitioners that the petitioners and the bailors shall execute bond with regard to good behaviour of the petitioners and (iii that the petitioners shall also give an undertaking to the Court that they shall not indulge in any illegal criminal activity act in violation of any law statutory provisions tamper with the evidence or influence the witnesses. Any violation of the terms and conditions of the bonds or the undertaking shall lead to cancellation of their bail bonds. The petitioners shall cooperate in the case and be present before the Court on each and every date. Failure to cooperate or being absent on two consecutive dates without sufficient cause shall also lead to cancellation of their bail bonds 8. It shall also be open for the prosecution to bring any violation of the foregoing conditions of bail by the petitioners to the notice of the Court concerned which shall Patna High Court CR. MISC. No.347120 dt.30 04 2021 take immediate action on the same after giving opportunity of hearing to the petitioners 9. The application stands disposed off in the (Ahsanuddin Amanullah J J. Alam