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No offence under Section 376 IPC can be made out, unless there was penetration to some extent: Sikkim High Court

Penetration is a key component of the offence under Section 375, which is punishable under Section 376 of the Indian Penal Code, which is completely absent in this case. Without some level of penetration, no offence under Section 376 IPC can be established. It would not bring the appellant’s crime within the four corners of Section 375 of the Penal Code if there was no penetration to any extent. The judgment was passed by The High of Court Sikkim in the case of Mikal Bhujel alias Rubeen vs the State of Sikkim. [Crl. A. No. 31 of 2018] by Single Bench consisting of Hon’ble Shri Justice Jitendra Kumar Maheshwari. The Facts of the case are that the complaint was submitted by the minor victim. she revealed that one Jeewan Bhujel of the same locality had sexually assaulted her on so many occasions. Police Station registered FIR under Section 376 of the IPC, 1860, with Section 6 of the POCSO Act. The victim gave birth to a boy child. Thereafter, the blood samples of the suspects were collected along with the blood samples of the victim as well as the newly born child and sent for DNA test. samples revealed that John is the biological father and the victim is the biological mother. Learned Counsel on behalf of the appellant, has contended that in the FIR lodged by the mother of the victim on enquiring her, the name of the appellant has not been mentioned. Therefore, initially, the offence was registered only against Jeewan Bhujel. The victim, in her statement under Section 161 Cr. P.C. implicated the appellant which is based on afterthought. It is urged in the statement of the victim under Sections 161 and 164 Cr. P.C. the allegation of rape/sexual assault has not been alleged but, in the Court statement, only the allegation of sexual assault indicating the incident has been alleged. Learned Counsel on the corollary, contends that as per the allegation alleged by the prosecutrix, the Trial Court has considered the testimony of the prosecutrix which remains withstand to the allegation and there is no cross-examination of those allegations, therefore, the testimony of the victim has been rightly relied upon. The Trial Court has rightly convicted the appellant under Section 3, i.e., penetrative sexual assault, although the charge was under Section 5, i.e., aggravated penetrative sexual assault. The Court relying on Apex Court in the case of Tarkeshwar Sahu vs. the State of Bihar. Wherein it was held that “the important ingredient of the offence under Section 375 punishable under Section 376 IPC is penetration which is altogether missing in the instant case. No offence under Section 376 IPC can be made out unless there was penetration to some extent. In the absence of penetration to any extent, it would not bring the offence of the appellant within the four corners of Section 375 of the Penal Code. Therefore, the basic ingredients for proving a charge of rape are the accomplishment of the act with force. Because of the Explanation to Section 375, mere penetration of the penis in the vagina is an offence of rape. Slightest penetration is sufficient for conviction under Section 376 IPC.”

IN THE HIGH COURT OF SIKKIM : GANGTOK Criminal Appellate Jurisdiction) Crl. A. No. 318 Mikal Bhujel alias Rubeen Son of Jeewan Bhujel alias Joh Permanent Resident of ‘CG’ ‘R’ East Sikkim. State of Sikkim. … Respondent HON’BLE MR. JUSTICE JITENDRA KUMAR MAHESHWARI CJ. For the Appellant For the Respondent Date of hearing Date of judgment Mr. B. Sharma Sr. Advocate Mr. B.N. Sharma Advocate Mr. Safal Sharma Advocate Ms. Pema Bhutia Asst. Public Prosecutor. 03.04.2021 & 05.04.2021 This appeal has been filed under Section 374 of the Code of Criminal Procedure 1973 hereinafter referred to as “Cr. P.C.” by the accused appellant Mikal Bhujel @ Rubeen challenging the judgment dated 21.08.2018 and the findings of conviction recorded in S.T.Case No.14 of 2016 by the learned Special Judge Protection of Children from Sexual Offences Act 2012 hereinafter referred to as “POCSO Act”. The sentence awarded on 22.08.2018 directing the accused to undergo 7 years Rigorous Imprisonment has also been assailed with fine of Rs.5 000 in default three months Rigorous Imprisonment. Crl. A. No. 318 Mikal Bhujel @ Rubeen vs. State of Sikkim The case of the prosecution in brief is that on 25.05.2016 at 13.30 hrs. a written complaint was submitted by the mother of the minor victim to Rhenock Police Station. It is alleged that on complaining stomach ache by the victim she consulted the Doctor and found that her minor daughter is pregnant. On enquiring with the victim she revealed that one Jeewan Bhujel @ John of the same locality had sexually assaulted her on so many occasions since the year 2014. On receiving the complaint of mother of victim Rhenock Police Station registered FIR No. 04 2016 on the same date i.e. 25.05.2016 against Jeewan Bhujel @ John under Section 376 of the Indian Penal Code 1860 hereinafter referred to as “IPC” read with Section 6 of the POCSO Act. Thereafter it was endorsed for investigation to Sub Inspector Jigme W. Bhutia. On recording the statement of the victim under Section 161 of the Cr. P.C. it transpired that the son of the accused Jeewan Bhujel namely Mikal Bhujel @ Rubeen had also sexually assaulted her on 3 to 4 occasions therefore the appellant was also made accused. Accused persons and the victim were sent for medical examination to Rhenock PHC wherefrom she was referred to STNM Hospital Gangtok for further examination. The Investigating Officer seized the birth certificate of the victim from her stepfather in the presence of two independent witnesses. Both the accused persons were arrested thereafter sketch map was prepared. The victim was found pregnant as per the report of the Doctor of STNM Hospital. The radiological report as well the forensic report regarding pregnancy has also been obtained. The statement of the victim was recorded under Section 164 of the Cr. P.C. by the Judicial Magistrate East Sikkim. The seized articles were sent to the Forensic Science Laboratory Tripura. Intimation has also been given to the Member Secretary Sikkim Commission for Protection of Child Rights. With the aforesaid prima facie material the Investigating Officer closed the investigation and filed Crl. A. No. 318 Mikal Bhujel @ Rubeen vs. State of Sikkim charge sheet against both the accused persons Jeewan Bhujel @ John and Mikal Bhujel @ Rubeenunder Section 376 of the IPC read with Section 6 of the POCSO Act. The victim gave birth to a boy child on 07.01.2017. Thereafter the blood samples of the suspects were collected along with the blood samples of the victim as well as the newly born child and sent for DNA test. The DNA report has been received on 03.05.2017. As per the said report it was found that the accused no.1 Jeewan Bhujel @ John is the biological father and the victim is the biological mother of the newly born baby (ii) and of the POCSO Act. The accused persons have abjured their guilt and demanded trial. During trial the accused Jeewan Bhujel @ John has admitted his guilt of alleged sexual assault taking defence that it was with consent while the accused appellant Mikal Bhujel @ Rubeen has taken a defence of his false implication. The prosecution has examined as many as 14 witnesses to prove the charges levelled. In defence the appellant examined himself and his wife as a defence witness. Learned Trial Court after considering the evidence recorded the finding that the allegation of commission of rape to prove the charge under Section 5 of the POCSO Act i.e. aggravated penetrative sexual assault has been proved against Jeewan Bhujel @ John accused no.1 who was convicted and sentenced under Section 6 of the POCSO Act while the Crl. A. No. 318 Mikal Bhujel @ Rubeen vs. State of Sikkim accused appellant Mikal Bhujel @ Rubeen was found guilty of charge of penetrative sexual assault under Section 3 of the POCSO Act accordingly convicted and sentenced under Section 4 of the POCSO Act as described hereinabove. It is relevant to state that the accused Jeewan Bhujel @ John has not filed any appeal against the judgment of his conviction and sentence and the present appeal has been filed by the appellant Mikal Bhujel @ Rubeen only questioning the impugned judgment. 6. Mr. B. Sharma learned Senior Counsel appearing on behalf of the appellant has contended that in the FIR lodged by the mother of the victim on enquiring her the name of the appellant has not been mentioned. Therefore initially the offence was registered only against Jeewan Bhujel @ John. The victim in her statement under Section 161 Cr. P.C. implicated the appellant which is based on afterthought. It is urged in the statement of the victim under Sections 161 and 164 Cr. P.C. the allegation of rape sexual assault has not been alleged but in the Court statement only the allegation of sexual assault indicating the incident has been alleged. The testimony of prosecutrix PW 1 and the case of prosecution cannot be relied upon in particular when the said allegation has not been supported by medical and forensic evidence collected against the appellant. It is also urged that if we see the statement of the prosecutrix under Sections 161 and 164 Cr. P.C. she said “chara garyo” to her while in the Court statement it is stated that she was sexually assaulted and it would not cause a commission of offence as per the judgment of this Court in the case of State of Sikkim vs. Sashidhar Sharma reported in SLR SIKKIM 717. It is also contended that as per DNA report the victim is the biological mother of the newly born baby boy and the co accused Jiwan Bhujel @ John is the biological father. Thus the allegation of rape as alleged did not find support from the DNA Crl. A. No. 318 Mikal Bhujel @ Rubeen vs. State of Sikkim report. It is urged that if this Court is of the opinion that the testimony of the victim is worthy to rely in such a case looking to her testimony the finding and conviction under Section 3 of the POCSO Act and the sentence under Section 4 of the POCSO Act are not tenable hardly it may be a case of Section 7 of the POCSO Act and punishment under Section 8 of the POCSO Act is specified. Therefore considering the alternative argument the finding and conviction may be set aside and the sentence may be reduced as per Section 8 of the POCSO Act. Per contra Ms. Pema Bhutia learned Assistant Public Prosecutor contends that as per the allegation alleged by the prosecutrix the Trial Court has considered the testimony of the prosecutrix which remain withstand to the allegation and there is no cross examination of those allegation therefore the testimony of the victim has been rightly relied upon. The story of commission of rape as alleged by the prosecutrix has been proved and the appellant as well as co accused both have been convicted though for separate charges believing the story of the prosecution relying the testimony of the prosecutrix. Therefore such findings do not warrant any interference. On the alternative contention it is urged that looking to the testimony of the prosecutrix the Trial Court has rightly convicted the appellant under Section 3 i.e. penetrative sexual assault although the charge was under Section 5 i.e. aggravated penetrative sexual assault. The said finding of fact is just to which interference in this appeal either on conviction or on sentence is not warranted. After hearing learned counsel for the parties and in the facts of the case while adverting the arguments so advanced the following two questions are posed for answer: Crl. A. No. 318 Mikal Bhujel @ Rubeen vs. State of Sikkim i) Whether the Trial Court committed an error in convicting the appellant relying upon the testimony of the prosecutrix warranting interference in this appeal ii) Whether the alternative argument of appellant counsel is having some force in the facts and circumstances of the case The said question can be answered on consideration of the allegation and the evidence brought to prove such allegation and the charges. As per the prosecution narration about 3 4 days after committing the rape by John Bhujel the appellant Rubeen Bhujel called the mother of the victim to send tobacco and surf buying from the shop asking the victim. It is further alleged that the appellant committed sexual assault 2 3 times. As per the testimony of the prosecutrix the mother told her that the appellant Rubeen Bhujel requested to ask her for buying some tobacco and surf from nearby shop and send to his residence. On instruction of the mother she bought tobacco and surf and reached to the residence of the appellant. He was alone at home and his family members had gone to the church. The appellant called her inside the room where he was watching Television. She had asked to sit down on the bed and the accused bolted the door. After forcibly pushing her on his bed the accused removed her apparels. The victim tried to free from the clutches of the accused but the accused prevented though she had screamed and cried for help. Thereafter the accused removed his clothes which he was wearing and committed sexual assault. On the basis of the said testimony it is clear that slight deviation from allegation was there in the Court statement with respect to committing sexual assault 2 3 times but the allegation of sexual assault is re stated by the said testimony and the said allegation remain withstand and there is no cross examine of it. Therefore the victim withstands to the allegation by her in ocular version. Crl. A. No. 318 Mikal Bhujel @ Rubeen vs. State of Sikkim The counsel for the appellant contended that the name of his client has not been mentioned in the FIR lodged by the mother of the victim and later in her statement the allegation of commission of rape has been brought against him because the appellant refused to marry the victim those possibilities of false implication may be ruled out because her statement was recorded by the Investigating Officer on the same day as of lodging the FIR in which name of appellant with the allegation has come on record. In this regard the judgment of the Hon’ble Apex Court in the case of Kirender Sarkar & Ors. vs. State of Assam reported in AIR 2009 SC 2513 is relevant. By which it is clear that FIR is not supposed to be an encyclopedia on the entire evidence and cannot contain the minutest details of the events. The plea of impleading the person afterthought must be judged having regard to the entire factual scenario in each case. In this context on lodging FIR on 25.05.2016 the statement of the prosecutrix was recorded on the same day in the presence of the mother and father of the victim in which she levelled allegation of commission of rape against the appellant also. The SHO applied to the Magistrate for recording her statement under Section 164 Cr. P.C. on 26.05.2016 however the Magistrate gave the date for recording such statement on 14.06.2016. In the said statement allegation of “chara garyo” has been alleged and in the Court statement as narrated hereinabove the allegation of sexual assault has remained withstand therefore in the opinion of this Court if the mother of the victim has not specified the name of the accused appellant in FIR it does not give any benefit because at the earliest occasion when the statement of the victim was recorded by police on the same day the allegation against the appellant has been brought by her. In view of the above the testimony of the victim remains in ocular so Crl. A. No. 318 Mikal Bhujel @ Rubeen vs. State of Sikkim far as the sexual assault made by the appellant. Therefore the allegation of sexual assault by the appellant has been proved by the prosecution beyond reasonable doubt. It is not out of place to observe that in the present case there are two accused persons Accused No.1 Jeewan Bhujel father of the appellant has sexually abused the victim first. As per DNA report the baby boy born on 07.01.2017 the child is the biological son of the victim and Jeewan Bhujel @ John. Jeewan Bhujel @ John has not filed any appeal challenging the finding of conviction. Thus it can safely be said that the testimony of the victim cannot be doubted proving the allegation of prosecution with respect to rape. The sole testimony of the victim proving allegation of commission of rape is sufficient so far as it relates against the appellant is concerned. Therefore the finding of guilt recorded by the Trial Court does not warrant interference. 12. Now reverting to the alternative argument of the appellant that as per the testimony of the prosecutrix conviction under Section 3 of the POCSO Act is not in accordance with law required to be adverted to. In the present case charge has been framed against the appellant under Section 5 of the POCSO Act alleging aggravated penetrative sexual assault. The Trial Court had not convicted the appellant for the said charge but altered it to the lesser punishment under Section 3and 4 of the POCSO Act for penetrative sexual assault. In terms of the testimony of the prosecutrix if accepted on its face the arguments advanced is that such testimony may fall within the purview of the sexual assault as specified under Section 7 to which punishment thereto under Section 8 of the POCSO Act is prescribed. Crl. A. No. 318 Mikal Bhujel @ Rubeen vs. State of Sikkim 13. The charge against the appellant was under Section 5 and therefore the relevant provision as required to be reproduced which reads as under: Aggravated penetrative sexual assault. xxxxxxx j) whoever commits penetrative sexual assault on a child which i) ii) iii) iv) physically incapacitates the child or causes the child to become mentally ill as defined under clauseof section 2 of the Mental Health Act 1987 or causes impairment of any kind so as to render the child unable to perform regular tasks temporarily or permanently in the case of female child makes the child pregnant as a consequence of sexual assault inflicts the child with Human Immunodeficiency Virus or any other life threatening disease or Infection which may either temporarily or permanently impair the child by rendering him physically incapacitated or mentally ill to perform regular tasks causes death of the child or whoever commits penetrative sexual assault on the child more than l) once or repeatedly or” 14. Section 3 of the POCSO Act deals with penetrative sexual assault which is reproduced as thus: penetrative sexual assault" if Penetrative sexual assault. A person is said to commit a) b) d) he penetrates his penis to any extent into the vagina mouth urethra or anus of a child or makes the child to do so with him or any other person or he inserts to any extent any object or a part of the body not being the penis into the vagina the urethra or anus of the child or makes the child to do so with him or any other person or he manipulates any part of the body of the child so as to cause penetration into the vagina urethra anus or any part of body of the child or makes the child to do so with him or any other person or he applies his mouth to the penis vagina anus urethra of the child or makes the child to do so to such person or any other person.” The punishment for penetrative sexual assault has been prescribed under Section 4 of the POCSO Act. 15. Section 7 of the POCSO Act deals with sexual assault which is also relevant therefore reproduced as thus: Sexual assault. Whoever with sexual intent touches the vagina penis anus or breast of the child or makes the child touch the vagina penis anus or breast of such person or any other person or does any Crl. A. No. 318 Mikal Bhujel @ Rubeen vs. State of Sikkim other act with sexual intent which involves physical contact without penetration is said to commit sexual assault.” The punishment for Section 7 has been prescribed under Section 8 of the POCSO Act. 16. On perusal of the aforesaid provisions it is clear that Section 5 applies for aggravated penetrative sexual assault but the said charge has not been found prove as per allegation and the testimony of the victim against the appellant. The Trial Court convicted for lesser charge of Section 3 and punished under Section 4 of the POCSO Act. On perusal thereto it is clear that in case a person commits a penetrative sexual assault by penetrating his penis to any extent into vagina mouth urethra or anus of a child or makes the child to do so vice a versa with him or any other person therefore by the evidence the element of penetration of penis to any extent into the vagina mouth urethra or anus is necessary. As per the testimony of the victim so far as it relates to the appellant is concerned it is said that when she entered into the room where the appellant was watching Television she was asked to sit on bed and he bolted the door. After pushing her forcibly he removed her apparels. Thereafter the accused removed his clothes that he was then wearing and committed sexual assault. As per the testimony of the Doctor or in the scientific report no evidence has been brought by the prosecution corroborating the said allegation against the appellant. Therefore looking to the said testimony the penetration of penis into vagina has not been proved except to alleging the sexual assault. In the said context if we see the aforesaid provision of Section 7 of the POCSO Act then it is clear that when a person with sexual intent does any other act which involves physical contact without penetration is said to commit sexual assault. Therefore to analyze the said testimony it is to be seen that what is the meaning of penetration of the penis. Crl. A. No. 318 Mikal Bhujel @ Rubeen vs. State of Sikkim In the above context the judgment of the Hon’ble Supreme Court in the case of Aman Kumar & Another vs. State of Haryana reported in 2004) 4 SCC 379 is relevant. The Apex Court in the said case in paragraph 7 held as thus: “7. Penetration is the sine qua non for an offence of rape. In order to constitute penetration there must be evidence clear and cogent to prove that some part of the virile member of the accused was within the labia of the pudendum of the woman no matter how littlev. High Court of Punjab and Haryana1 SCC 212 : 1979 SCC252] .] In rape cases if the gland of the male organ is covered by smegma it negatives the possibility of recent complete penetration. If the accused is not circumcised the existence of smegma around the corona gland is proof against penetration since it is rubbed off during the act. The smegma accumulates if no bath is taken within twenty four hours. The rupture of hymen is by no means necessary to constitute the offence of rape. Even a slight penetration in the vulva is sufficient to constitute the offence of rape and rupture of the hymen is not necessary. Vulva penetration with or without violence is as much rape as vaginal penetration. The statute merely requires evidence of penetration and this may occur with the hymen remaining intact. The actus reus is complete with penetration. It is well settled that the prosecutrix cannot be considered as accomplice and therefore her testimony cannot be equated with that of an accomplice in an offence of rape. In examination of genital organs state of hymen offers the most certain anatomical characteristics should be remembered before assigning any significance to the findings. The shape and the texture of the hymen is variable. This variation sometimes permits penetration without injury. This is possible because of the peculiar shape of the orifice or increased elasticity. On the other hand sometimes the hymen may be more firm less elastic and gets stretched and lacerated earlier. Thus a relatively less forceful penetration may not give rise to injuries ordinarily possible with a forceful attempt. The anatomical feature with regard to hymen which merits consideration is its anatomical situation. Next to hymen in positive importance but more than that in frequency are the injuries on labia majora. These viz. labia majora are the first to be encountered by the male organ. They are subjected to blunt forceful blows depending on the vigour and force used by the accused and counteracted by the victim. Further examination of the female for marks of injuries elsewhere on the body forms a very important piece of evidence. To constitute the offence of rape it is not necessary that there should be complete penetration of the penis with emission of semen and rupture of hymen. Partial penetration within the labia majora of the vulva or pudendum with or without emission of semen is sufficient to constitute the offence of rape as defined in the law. The depth of penetration is immaterial in an offence punishable under Section 376 IPC.” clue. While examining the hymen 18. The said judgment is based upon the judgment of State of U.P. vs. Babul Nath reported in 6 SCC 29 wherein the difference of sexual assault or indecent assault has been clarified observing that complete penetration is not essential even partial or slightest penetration Crl. A. No. 318 Mikal Bhujel @ Rubeen vs. State of Sikkim with or without emission of semen and rupture of hymen or even an attempt to penetration is sufficient as per medical jurisprudence. 19. The Apex Court in the case of Tarkeshwar Sahu vs. State of Bihar reported in 8 SCC 560 has observed and relevant portion of the judgment is reproduced as thus: “10. … The important ingredient of the offence under Section 375 punishable under Section 376 IPC is penetration which is altogether missing in the instant case. No offence under Section 376 IPC can be made out unless there was penetration to some extent. In the absence of penetration to any extent it would not bring the offence of the appellant within the four corners of Section 375 of the Penal Code. Therefore the basic ingredients for proving a charge of rape are the accomplishment of the act with force. The other important ingredient is penetration of the male organ within the labia majora or the vulva or pudenda with or without any emission of semen or even an attempt at penetration into the private part of the victim completely partially or slightly would be enough for the purpose of Section 375 and 376 IPC. ..” In order to constitute rape what Section 375 IPC requires is 13. medical evidence of penetration and this may occur and the hymen remain intact. In view of the Explanation to Section 375 mere penetration of penis in vagina is an offence of rape. Slightest penetration is sufficient for conviction under Section 376 IPC. In view of the catena of judgments of the Indian and English 21. Courts it is abundantly clear that slight degree of penetration of the penis in the vagina is sufficient to hold the accused guilty for the offence under Section 375 IPC punishable under Section 376 IPC.” 20. On perusal of the aforesaid it is clear that the basic ingredient to prove the charge of rape is the accomplishment of the act with force. The other ingredient is penetration of the male organ within the labia majora or the vulva or pudendum with or without any emission of semen or even an attempt at penetration into the private part of the victim completely partially or slightly would be enough for the purpose of Sections 375 and 376 IPC. It is not out of place to observe here that all the aforesaid judgments are interpreting the provisions of Sections 375 and 376 of the IPC. The ingredients as specified for commission of rape under Section 375to IPC is similar to Section 3 to of the POCSO Act. If Crl. A. No. 318 Mikal Bhujel @ Rubeen vs. State of Sikkim those act has been committed in any of the seven descriptions as specified in the definition of rape in Section 375 IPC with the aid of Explanation one it would amounting to committing of rape to which punishment has been prescribed in Section 376 376 (a) to 376(b) 376(c) 376(d) and 376(e). It is to observe here that in Explanation of Section 375 IPC it is clarified that “vagina” shall also include “labia majora”. But in the POCSO Act no such explanation has been given with respect to “vagina” what it includes or not. In the said context the evidence of the victim has to be seen by which the offence of Section 3 would be made out or Section 7 of the POCSO Act. 22. But prior to see the said discussion the explanation of certain words describing male or female organs and its parts is essential. ‘Penetration’ means as used in the rule that penetration only is necessary to be proved on a trial for rape is a limitation upon and qualification of the meaning of the term ‘carnal knowledge’. In limiting the ‘carnal knowledge’ mentioned in the definition of ‘rape’ to ‘penetration’ only the Legislature intended to eliminate the question of ‘emission’ in such cases. The word ‘penetrate’ would mean to access into or through pass through to 3 of POCSO Act. The ‘sexual assault’ includes rape and other forms of physical assault of a sexual nature including sodomy. Whoever with sexual intent touches the vagina penis anus or breast of the child or makes the child touch vagina penis anus or breast of such person or any other person or does any other act with sexual intent which involves physical contact without penetration is said to commit sexual assault as specified in Section 7 of the POCSO Act. The word ‘Virile’ means having male qualities pertaining Crl. A. No. 318 Mikal Bhujel @ Rubeen vs. State of Sikkim to the male sex able to procreate. With respect to female organ ‘pudendum’ means the external genital organs of a woman. ‘Labia’ are part of the female genitalia they are the major externally visible portions of the ‘vulva’. Two parts of ‘labia’ are ‘labia majora ‘labia minora immediately posterior to the external urethral orifice. Its anterior wallis related to the bladder and the uterus its posterior wall to the lower part of the rectum and the anal canal. It accommodates the penis during sexual intercourse. In the above said definitions of the male organs and female organs and to prove the allegation of penetrative sexual assault in terms of the provision of POCSO Act the penetration of penis into vagina mouth urethra or anus of a child or makes the child to do so with him or any other person is necessary. Although the explanation to the meaning of vagina has not been given in the POCSO Act as given in Section 375 of the IPC but looking to the legislative intent of the POCSO Act the same explanation may be acceptable while dealing the cases of the POCSO Act. Therefore it is concluded that for the penetrative sexual assault for the purpose of Section 3 of the POCSO Act also the penetration of penis into vagina would include all the above specified parts of the female organ and if such evidence has been brought in the testimony of the victim the charge of Section 3 would prove otherwise it would come within the purview of Section 7 of the POCSO Act. Crl. A. No. 318 Mikal Bhujel @ Rubeen vs. State of Sikkim In the above discussion and as per the testimony of the victim referred above it is clear that except of removing of wearing apparels of the victim and the removing of the apparels of the accused the allegation of sexual assault has come. The aforesaid testimony does not testify the requirement of Section 3 of the POCSO Act in the light of the above discussions. Therefore in the opinion of this Court the conviction of the appellant relying upon the sole testimony of the victim for the charge under Section 3 of the POCSO Act and the sentence so awarded stands set aside. 25. As per the testimony of the victim the sexual assault has been committed by the accused appellant with her and to such extend her testimony is in ocular and withstand to those allegations. Therefore the testimony of the victim cannot be disbelieved to such extent. Simultaneously it cannot be ignored that in her testimony the allegation of penetration of virile to the pudendum has not come. However it is only said that the appellant has sexually assaulted her. In absence of having the ingredient in the Court testimony of the victim regarding penetrative sexual assault finding of conviction for the charge under Section 3 of the POCSO Act as recorded by the Trial Court is not justified. Hence looking to the testimony of the victim and its contents the charge of Section 7 sexual assault can be found proved. Therefore the alternative argument as advanced by the counsel for the appellant is acceptable and the findings proving the charge of Section 3 of the Trial Court cannot be countenanced. With the said discussions both the questions are 26. Accordingly this appeal is hereby allowed in part. The conviction of the appellant for the charge under Section 3 and the sentence so awarded by the impugned judgment is hereby set aside. As per the discussion Crl. A. No. 318 Mikal Bhujel @ Rubeen vs. State of Sikkim made hereinabove the appellant is held guilty for the charge under Section 7 of the POCSO Act and he is directed to undergo the sentence of three years Rigorous Imprisonment with fine of Rs.5000 in default one month Rigorous Imprisonment. The judgment of the Trial Court stands modified in above terms. 27. The appellant is on bail therefore he shall surrender to the custody within a period of one month from the date of pronouncement of the judgment and shall undergo the sentence as directed hereinabove. On failure to surrender by the appellant the Trial Court shall take appropriate step to take him into custody for serving the sentence. It is needless to observe that the period of sentence already undergone by him during trial shall be set off from the sentence directed hereinabove as per Section 428 of the Cr. P.C. 28. The record of the Trial Court be sent back forthwith. J.K. MAHESHWARI ) CHIEF JUSTICE

The committee could not screen the candidates properly due to improper composition of the Board: High Court of Shimla

Due to this improper composition of the Board, the Committee could not screen candidates properly due to which it was only eleven candidates who on their own became a party. This honorable judgment was passed by the High Court of Shimla in the case of State of Himachal Pradesh and Bachittar Singh & Others Versus Suresh Kumar Sharma & Others [LPA Nos.5 of 2013 with LPA No. 59 of 2020] by The Hon’ble Mr. Justice L. Narayana Swamy, Chief Justice and The Hon’ble Mr. Justice Anoop Chitkara, Judge. The petition was filed by petitioner challenging the judgment passed by learned Single Bench of this Court, under clause 10 of the Letters Patent of High Court of Judicature at Lahore, applicable to the Himachal Pradesh High Court seeking its reversal. In both matters as per the instructions received by his counsel, later on the petitioner got employment somewhere-else, on a better footing, as such learned counsel representing him states that he is not seriously contested the petition. After the abolition of the Tribunal, the matter was transferred to this Court and re-registered. The grievance of the petitioner taken up in Original Application was that his candidature did not figure in the result of lecturer Commerce, despite the fact that he was more qualified and he had also passed the screening test and had six years teaching experience. The legal grouse of the petitioner was that in all, the Subordinate Service Selection Board had advertised 32 posts of School Cadre Lecturer (Commerce). Out of these, 15 were in General Category. The petitioner claimed to be a post graduate in commerce and thus applied for the same. The second respondent conducted the screening test, whereas, as per the results declared in the Newspaper, his name had duly figured in the list of candidates, who had cleared the screening test. After that he was asked to appear for the interview on which he could not qualify. In a nutshell, the grievance of the petitioner is that in the interview board, the Principal was from the field of economics, as such, he be not termed as subject expert and the nominee of the Director, although was from the field of commerce, but he was not designated as subject specialist. As such, due to this improper composition of the Board, the Committee could not screen him properly and did not select him.

Hig h C o urt of H.P on 06 04 HCHP 1 IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLALPA Nos.13 with LPA No. 520.Reserved on :March 03 2021.Date of Decision : April 06 2021.LPA No. 13State of Himachal Pradesh …..Appellant.VersusSuresh Kumar Sharma & Others ….Respondents.LPA No. 520.Bachittar Singh & Others ….Appellants versusSuresh Kumar Sharma & Others ….Respondents.Coram:The Hon’ble Mr. Justice L. Narayana Swamy Chief JusticeThe Hon’ble Mr. Justice Anoop Chitkara Judge.Whether approved for reporting 1 For the Appellants : Mr. Ashok Sharma A.G. with Mr. Adarsh Sharma Ms. Rita Goswami& Mr. Nand Lal Thakur Addl. A.Gs.and Mr. Yudhvir Singh Thakur Dy. A.G. for the appellant in LPA No.5of 2013.Mr. Jagdish Thakur Advocate for the appellants in LPA No. 520.For the respondents:None for respondent No.1 in both theappeals. Mr. Ashok Sharma A.G. with Mr. Adarsh Sharma Ms. Rita Goswami& Mr. Nand Lal Thakur Addl. A.Gs. and Mr. Yudhvir Singh Thakur Dy. A.G. for respondent No.2 in LPA No. 520.1Whether reporters of Local Papers may be allowed to see the judgment Hig h C o urt of H.P on 06 04 HCHP 2 Ms. Neelam Advocate vice Ms. Archna Dutt Advocate forrespondent No.2 in LPA No. 13and for respondent No.3 in LPA No. 520.Mr. Sanjeev Bhushan Senior Advocate withMr. Rajesh Kumar Advocate for respondents No.3 4 & 6 in LPA No. 13 and forrespondents No.4 5 & 7 in LPA No. 520.Mr. Devender K. Sharma Advocate for respondent No.5 in LPA No 5 of2013 and for respondent No.6 in LPA No. 520.Mr. Jagdish Thakur Advocate for respondents No.7 to 11 in LPA No. 13.Mr. Avinash Jaryal Advocate for respondents No.12 & 13 in LPA No. 13 and for respondents No.8 and 9 in LPA No. 520.Anoop Chitkara Judge .Challenging the judgment passed by learned Single Bench ofthis Court the private respondents as well as the State of HimachalPradesh have come up before this Court under clause 10 of theLetters Patent of High Court of Judicature at Lahore applicable to theHimachal Pradesh High Court seeking its reversal. Since both theLPAs are challenging the same judgment as such are being taken upand decided together. 2.In both matters the petitioner was arraigned as respondentNo.1. As per the instructions received by his counsel later on thepetitioner got employment somewhere else on a better footing as Hig h C o urt of H.P on 06 04 HCHP 3 such learned counsel representing him states that he is not seriouslycontested the petition. 3.Aggrieved by the inclusion of those persons as experts whoaccording to the petitioner respondent No.1 could not have been thepetitioner respondent No.1 challenged the same by filing originalapplication before the erstwhile Administrative Tribunal. After theabolition of the Tribunal the matter was transferred to this Court andre registered as CWP(T) No.83108. The grievance of thepetitioner taken up in Original Application was that his candidaturedid not figure in the result of lecturerCommerce despite the fact that he was more qualified and he has also passedthe screening test and had six years teaching experience. 4.The legal grouse of the petitioner was that in all the SubordinateService Selection Board had advertised 32 posts of School CadreLecturerof the Administrative Tribunal Rulesseeking impleadment on the ground that in the original applicationthe selection of the entire category had been challenged due toabsence of expert as such they were necessary party. After that theywere arraigned as respondents 3 to 13. During the pendency of theOriginal Application the Government abolished the StateAdministrative Tribunal. Consequently the matter was transferred tothis Court and re registered as CWP(T) 83108. Vide judgmentdated 3.4.2012 learned Single Judge allowed the petition andquashed the appointments of private respondents No.3 to 13.9. Challenging the said judgment the private respondents as wellas the State have come up before this Court by filing separateappeals as mentioned above.10. We have heard learned counsel for the parties and gone throughthe record.11. Learned Single Judge has given reasoning that the purpose ofassociating the subject expert is to analyze the in depth study of thecandidate of the subject and assessment suitability of thecandidates. Learned Single Judge further holds that the departmentdid not assign any reason for not including a subject expert in theinterview and went on to hold that the Principal belongs to economicsand as such he could not be treated as subject expert of commerce. Hig h C o urt of H.P on 06 04 HCHP 6 Thus according to learned Single Judge out of the three interviewmembers only one i.e. government nominee had the knowledge ofcommerce and other two did not. Be that as it may it was not theissue before the learned Single Judge. The grievance of the petitionerwas non participation of the expert from the field of commerce and hespecifically pleaded that four persons were in the interview Board whereas in his case only three were present. He never objected toinclusion of Principal and other persons. It appears that the learnedcounsel representing the petitioner did not bring the pleadings to theknowledge of learned Single Judge which led to the oversight andresultantly incorrect findings. On the face of it 32 candidates wereselected as per advertisement Annexure A 4 and due to misfortune 11 selected candidates chose to be arraigned as parties and wereadded as respondents No.3 to 13 however the remaining selectedcandidates were fortunate enough and did not make any suchapplication for impleadment. 12.Learned Single Judge instead of giving relief to the petitioner quashed the appointments of respondents 3 to 13 and did not eventouch the selection of the other candidates. This is otherwise ignoringthe fact that the advertisement of selected candidates wherein 32names were mentioned whereas the petitioner was concerned onlywith the batch in which subject expert did not participate moreparticularly his own selection and that is why he has arraigned themas party. Out of the total selected candidates it was only eleven Hig h C o urt of H.P on 06 04 HCHP 7 candidates who on their own became party. We are of the consideredopinion that the attention of the learned Single judge was not drawncorrectly to the facts.13.Given above both the appeals are allowed and the judgmentdated 3.4.2012 passed by learned Single Judge in CWP(T) No.8312 of2008 is set aside. Pending application(s) if any shall also standdisposed of. Chief Justice. April 06 2021Judge

Abhayanand Mishra V/s State Of Bihar

Law punishes when preparation to commit offence is completed and there has been an attempt to commit offence. [Case Brief] Abhayanand Mishra V/S State Of Bihar Case name: Abhayanand Mishra V/s State Of Bihar Citation: 1961 AIR 1698 Court: The Supreme Court Of India Bench: Justice Raghubar Dayal, Justice K.Subbarao Decided on: APRIL 24, 1961 Relevant Act/Sections: Section 420, 511 of IPC, 1860   The appellant applied to the Patna University for permission to appear at the 1954 M.A Examination in English as a grad of B.A degree in 1951 and teaching in certain school.Necessary permission was given to him and the appellant paid the fees and submitted the photograph as required for admission.It was later found the appellant doesn’t have any degree or teaching anywhere and was barred for certain years because of corruption charges.The appellant was prosecuted and convicted under s.420 read with s.511 of Indian Penal Code, 1860.The appellant has come before the Hon’ble Supreme Court. PROCEDURAL HISTORY: This appeal, by special leave, is against the order of the High Court at Patna dismissing the appellant’s appeal against his conviction under section 420, read with section 511, of the Indian Penal Code. ISSUE BEFORE THE COURT: Whether a certain act amounts to an attempt to commit a particular offence is a question of fact dependent on the nature of the offence and the steps necessary to take in order to commit it?Whether the last act, if uninterrupted and successful, would constitute a crime? RATIO OF THE COURT: The court contended that in Queen Empress v. Soshi Bhushan (2) it was held that  the term  ’property’ in s. 463, Indian Penal Code, included  the written  certificate  to  the effect that  the  accused  had attended, during a certain period, a course of law  lectures and had paid up his fees. We   need  not  therefore  consider  the  alternative   case regarding the possible commission of the offence of cheating by  the appellant, by his inducing the University to  permit him to sit for the examination, which it would not have done if  it  had known the true facts and the  appellant  causing damage  to its reputation due to its permitting him  to  sit for  the examination. The court need not also therefore  consider the  further  question urged for  the  appellant  that  the question  of the University suffering in its  reputation  is not  immediately  connected with the  accused’s  conduct  in obtaining the necessary permission. Another  contention  for  the appellant is  that  the  facts proved  do  not go beyond the stage of  reparation  for  the commission of the offence of ‘cheating’ and do not make  out the  offence of attempting to cheat.  There is a  thin  line between  the  preparation for and an attempt  to  commit  an offence.  Undoubtedly, a culprit first intends to commit the offence,  then  makes  preparation  for  committing  it  and thereafter  attempts to commit the offence.  If the  attempt succeeds,  he has committed the offence; if it fails due  to reasons beyond his control, he is said to have attempted  to commit   the The court referred to Queen   Paterson  (1), Regina  v. Padala Venkatasami (1) whether the last  act, if  uninterrupted and successful, would constitute a  crime.The court observed that their views about the construction of s. 511, Indian Penal Code, thus: A personal commits the offence  of ’attempt to commit a particular offence’ when (i) he intends to commit that particular offence; and (ii) he, having  made preparations  and with the intention to commit the  offence, does an act towards its commission; such an act need not  be the  penultimate act towards the commission of that  offence but  must  be an act during the course  of  committing  that offence. In  the present case, the appellant intended to deceive  the University  and  obtain  the necessary  permission  and  the admission  card  and,  not  only  sent  an  application  for permission  to sit at the University examination,  but  also followed  it  up, on getting the  necessary  permission,  by remitting  the necessary fees and sending the copies of  his photograph, on the receipt of which the University did issue the admission card. There is therefore hardly any scope for saying that  what the appellant had actually done  did  not amount  to his attempting to commit the offence and had  not gone  beyond the stage of preparation.  The preparation  was complete  when  he  had prepared  the  application  for  the purpose  of  submission to the University.The moment  he dispatched it, he entered the realm of attempting to  commit the offence of ’cheating’.  He did succeed in deceiving  the University and inducing it to issue the admission card.   He just  failed to get it and sit for the  examination  because something  beyond  his control took place  inasmuch  as  the University  was informed about his being neither a  graduate nor a teacher. DECISION HELD BY COURT: In this case the judgment was given by JUSTICE RAGHUBAR DAYAL We therefore  hold  that the  appellant  has  been  rightly convicted of the offence under s. 420, read with  section 511, Indian Penal Code, and accordingly dismiss the  Appeal dismissed.  

Vs THE STATE OF BIHAR DATE OF JUDGMENT DAYAL RAGHUBAR DAYAL RAGHUBAR SUBBARAO K 1961 AIR 1698 1962 SCR 241 CITATOR INFO R 1961 SC1782 ss. 420 511 The appellant applied to the Patna University for permission to appear at the 1954 M. A. Examination in English as a private candidate representing that he was a graduate having obtained his B. A. Degree in 1951 and that he had been teaching in a certain school. Believing his statements the University authorities gave him the necessary permission and on his remitting the requisite fees and sending copies of his photograph as required a proper admission card for him was dispatched to the Headmaster of the School. As a result of certain information received by the University an investigation was made and it was found that the appellant was neither a graduate nor a teacher as represented by him and that in fact he had been de barred from taking any University examination for a certain number of years on account of his having committed corrupt practice at a University examination. He was prosecuted and convicted under s. 420 read with s. 511 of the Indian Penal Code of the offence of attempting to cheat the University by false representations by inducing it to issue the admission card which if the fraud had not been detected would have been ultimately delivered to him. The appellant contended that on the facts found the conviction was unsustainable on the groundsthat the admission card had no pecuniary value and was therefore not property under S 415 andthat in any case the steps taken by him did not go beyond the stage of preparation for the commission of the offence of cheating and did not therefore make out the offence of attempting to cheat Held that under s. 511 of the Indian Penal Code a person commits the offence of attempting to commit a particular offence when he intends to commit that particular offence and having made preparations and with the intention to commit that offence does an act towards its commission such an act need not be the penultimate act towards the commission of that offence but must be an act during the course of committing such offence. It is not necessary for the offence under s. 511 that the transaction commenced must end in the crime or offence if not interrupted The observations to the contrary in The Queen v. Ramsarun Chowbey 4 N. W. P. 46 In the matter of the Petition of Raisat Ali I.L.R. 7 Cal. 352 and In re Amrita Bazar Patrika Press Ltd. I.L.R. 47 Cal. 190 not In the matter of the Petition of R. MacCrea I.L.R 15 All. 173 approved In re T. Munirathnan Reddi A.I.R. 1955 And. Prad. 118 Held further that an admission card issued by the Univer sity for appearing at the Examination held by it though it has no pecuniary value has immense value to the candidate and is property within the meaning Of S. 415 Of the Indian Queen Empress v. Appasami I.L.R. 12 Mad. 151 and Queen Empress v. Soski Bhusan I.L.R. 15 All. 210 In the present case the preparation was complete when the appellant had prepared the application for the purpose of submission to the University and the moment he despatched it he entered the realm of attempting to commit the offence of cheating. Accordingly the appellant was rightly convicted of the offence under s. 420 read with S. 511 of the Indian Penal Code CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 226 of Appeal by special leave from the judgment and order dated September 23 1958 of the Patna High Court in Criminal Appeal No. 857 H. J. Umrigar P. Rana and M. K. Ramamurai for the 243 H. R. Khanna and T. M. Sen for the respondent 1961. April 24. The Judgment of the Court was delivered by RAGHUBAR DAYAL J. This appeal by special leave is against the order of the High Court at Patna dismissing the appellant’s appeal against his conviction under s. 420 read with s. 511 ’of the Indian Penal Code The appellant applied to the Patna University for permission to appear at the 1954 M. A. Examination in English as a private candidate representing that he was a graduate having obtained his B.A. Degree in 1951 and that he had been teaching in a certain school. In support of his application he attached certain certificates purporting to be from the Headmaster of the School and the Inspector of Schools. The University authorities accepted the appellant’s statements and gave permission and wrote to him asking for the remission of the fees and two copies of his photograph. The appellant furnished these and on April 9 1954 proper admission card for him was despatched to the Headmaster of the School Information reached the University about the appellant’s being not a graduate and being not a teacher. Inquiries were made and it was found that the certificates attached to the application were forged that the appellant was not a graduate and was not a teacher and that in fact he had been de barred from taking any University examination for a certain number of years on account of his having committed corrupt practice at a University examination. In consequence the matter was reported to the police which on investigation prosecuted the appellant The appellant was acquitted of the charge of forging those certificates but was convicted of the offence of attempting to cheat inasmuch as he by false representations deceived the University and induced the authorities to issue the admission card which if the fraud had not been detected would have been ultimately delivered to the appellant Learned counsel for the appellant raised two contentions The first is that the facts found did not amount to the appellant’s committing an attempt to cheat the University but amounted just to his making preparations to cheat the University. The second is that even if the appellant had obtained the admission card and appeared at the M. A. Examination no offence of cheating under s. 420 Indian Penal Code would have been committed as the University would not have suffered any harm to its reputation. The idea of the University suffering in reputation is too remote. The offence of cheating is defined in s. 415 Indian Penal Code which reads "Whoever by deceiving any person fraudulently or dishonestly induces the person so deceived to deliver any property to any person or to consent that any person shall retain any property or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived and which act or omis sion causes or is likely to cause damage or harm to that person in body mind reputation or property is said to ’cheat’ Explanation. A dishonest concealment of facts is a deception within the meaning of this section." The appellant would therefore have cheated the University if he haddeceived the University fraudulently or dishonestly induced the University to deliver any property to him or had intentionally induced the University to permit him to sit at the M.A. Examination which it would not have done if it was not so deceived and the giving of such permission by the University caused or was likely to cause damage or harm to the University in reputation. There is no doubt that the appellant by making false statements about his being a graduate and a teacher in the applications he had submitted to the University did deceive the University and that his intention was to make the University give him permission and deliver to him the admission card which would have enabled him to sit for the M.A. Examination. This card is ’Property’. The appellant would therefore have committed the offence of ’cheating’ if the admission card had not been withdrawn due to certain information reaching the We do not accept the contention for the appellant that the admission card has no pecuniary value and is therefore not ’property’. The admission card as such has no pecuniary value but it has immense value to the candidate for the examination. Without it he cannot secure admission to the examination hall and consequently cannot appear at the In Queen Empress v. Appasamiit was held that the ticket entitling the accused to enter the examination room and be there examined for the Matriculation test of the University In Queen Empress v. Soshi Bhushanit was held that the term ’property’ in s. 463 Indian Penal Code included the written certificate to the effect that the accused had attended during a certain period a course of law lectures and had paid up his fees We need not therefore consider the alternative case regarding the possible commission of the offence of cheating by the appellant by his inducing the University to permit him to sit for the examination which it would not have done if it had known the true facts and the appellant causing damage to its reputation due to its permitting him to sit for the examination. We need not also therefore consider the further question urged for the appellant that the question of the University suffering in its reputation is not immediately connected with the accused’s conduct in obtaining the necessary permission Another contention for the appellant is that the facts proved do not go beyond the stage of reparation for the commission of the offence of ‘cheating’ and do not make out the offence of attempting to cheat. There is a thin line between the preparation for and an attempt to commit an offence. Undoubtedly a culprit first intends to commit the offence then makes preparation for committing it and thereafter attempts to commit the offence. If the attempt succeeds he has committed the offence if it fails due to reasons beyond his control he is said to have attempted to commit the offence. Attempt to commit an offence therefore can be said to begin when the preparations 1)I.L.R. 12 Mad. 151 2)I.L.R. 15 All. 210 are complete and the culpit commences to do something with the intention of committing the offence and which is a step towards the commission of the offence. The moment he commences to do an act with the necessary intention he commences his attempt to commit the offence. This is clear from the general expression ’attempt to commit an offence’ and is exactly what the provisions of s. 511 Indian Penal Code require. The relevant portion of s. 511 is "Whoever attempts to commit an offence punish able by this Code......... or to cause such an offence to be committed and in such attempt does any act towards the commission of the offence shall where no express provision is made by this Code for the punishment of such attempt be punished These provisions require that it is only when one firstly attempts to commit an offence and secondly in such attempt does any act towards the commission of the offence that he is punishable for that attempt to commit the offence. It follows therefore that the act which would make the culprit’s attempt to commit an offence punishable must be an act which by itself or in combination with other acts leads to the commission of the offence. The first step in the commission of the offence of cheating therefore must be an act which would lead to the deception of the person sought to be cheated. The moment a person takes some step to deceive the person sought to be cheated he has embarked on a course of conduct which is nothing less than an attempt to commit the offence as contemplated by s 511. He does the act with the intention to commit the offence and the act is a step towards the commission of the It is to be borne in mind that the question whether a certain act amounts to an attempt to commit a particular offence is a question of fact dependent on the nature of the offence and the steps necessary to take in order to commit it. No exhaustive precise definition of what would amount to an attempt to commit an offence is possible. The cases referred to make this clear 247 We may refer to some decided cases on the construction of s 511 Indian Penal Code In The Queen v. Ramsarun Chowbeyit was said at p. 47 "To constitute then the offence of attempt under this sectionthere must be an act done with the intention of committing an offence and for the purpose of committing that offence and it must be done in attempting the commission of the offence Two illustrations of the offence of attempt as defined in this section are given in the Code both are illustrations of cases in which the offence has been committed. In each we find an act done with the intent of committing an offence and immediately enabling the commission of the offence although it was not an act which constituted a part of the offence and in each we find the intention of the person making the attempt was frustrated by circumstances independent of his own volition From the illustrations it may be inferred that the Legislature did not mean that the act done must be itself an ingredientof the offence attempted The learned Judge said further at p. 49 "I regard that termas here employed as indicating the actual taking of those steps which lead immediately to the commission of the offence although nothing be done or omitted which of itself is a necessary constituent of the offence attempted We do not agree that the ’act towards the commission of such offence’ must be ’an act which leads immediately to the commission of the offence’. The purpose of the illustration is not to indicate such a construction of the section but to point out that the culprit has done all that be necessary for the commission of the offence even though he may not actually succeed in his object and commit the offence. The learned Judge himself emphasized this by observing at p. 48 "The circumstances stated in the illustrations to (1872) 4 N.W.P. 46 248 s. 51 1 Indian Penal Code would not have constituted attempts under the English law and I cannot but think that they were introduced in order to show that the provisions of Section 51 1 Indian Penal Code were designed to extend to a much wider range of cases than would be deemed punishable as offences under the English Law In In the matter of the petition of R. MacCreait was held that whether any given act or series of acts amounted to an attempt which the law would take notice of or merely to preparation was a question of fact in each case and that s. 511 was not meant to cover only the penultimate act towards the completion of an offence and not acts precedent if those acts are done in the course of the attempt to commit the offence and were done with the intent to commit it and done towards its commission. Knox J. said at p. 179 "Many offences can easily be conceived where with all necessary preparations made a long interval will still elapse between the hour when the attempt to commit the offence commences and the hour when it is completed The offence of cheating and inducing delivery is an offence in point. The time that may elapse between the moment when the preparations made for committing the fraud are brought to bear upon the mind of the person to be deceived and the moment when he yields to the deception practiced upon him may be a very considerable interval of time. There may be the interposition of inquiries and other acts upon his part. The acts whereby those preparations may be brought to bear upon her mind may be several in point of number and yet the first act after preparations completed will if criminal in itself be beyond all doubt equally an attempt with the ninety and ninth act in the series Again the attempt once begun and a criminal act done in pursuance of it towards the commission of the act attempted does not cease to be a criminal attempt in my opinion because the person I.L.R. 15 All. 173 249 committing the offence does or may repent before the attempt is completed Blair J. said at p. 181 "It seems to me that sectionuses the word ’attempt’ in a very large sense it seems to imply that such an attempt may be made up of a series of acts and that any one of those acts done towards the commission of the offence that is conducive to its commission is itself punishable and though the act does not use the words it can mean nothing but punishable as an attempt. It does not say that the last act which would form the final part of an attempt in the larger sense is the only act punishable under the section. It says expressly that whosoever in such attempt obviously using the word in the larger sense does any act etc. shall be punishable. The term ’any act’ excludes the notion that the final act short of actual commission is alone punishable We fully approve of the decision and the reasons therefor Learned counsel for the appellant relied on certain cases in support of his contention They are not much to the point and do not in fact express any different opinion about the construction to be placed on the provisions of s. 511 Indian Penal Code. Any different view expressed has been due to an omission to notice the fact that the provisions of s. 511 differ from the English Law with respect to ’attempt to commit an offence’ In Queen v. Paterson the publication of banns of marriage was not held to amount to an attempt to commit the offence of bigamy under s. 494 Indian Penal Code. It was observed at p. 317 "The publication of banns may or may not be in cases in which a special license is not obtained. a condition essential to the validity of a marriage but common sense forbids us to regard either the publication of the banns or the procuring of the license as a part of the marriage ceremony I.L.R. 1 All. 316 32 The distinction between preparation to commit a crime and an attempt to commit it was indicated by quoting from Mayne’s Commentaries on the Indian Penal Code to the effect "Preparation consists in devising or arranging the means or measures necessary for the commission of the offence the attempt is the direct movement towards the commission after the preparations have been made In Regina v. Padala Venkatasamithe preparation of a copy of an intended false document together with the purchase of stamped paper for the purpose of writing that false document and the securing of information about the facts to be inserted in the document were held not to amount to an attempt to commit forgery because the accused had not in doing these acts proceeded to do an act towards the commission of the offence of forgery In In the matter of the petition of Riasat Ali the accused’s ordering the printing of one hundred receipt forms similar to those used by a company and his correcting proofs of those forms were not held to amount to his attempting to commit forgery as the printed form would not be a false document without the addition of a seal or signature purporting to be the seal or signature of the company. The learned Judge observed at p. 356 "........... I think that he would not be guilty of an attempt to commit forgery until he had done some act towards making one of the forms a false document. If for instance he had been caught in the act of writing the name of the Company upon the printed form and had only completed a single letter of the name I think that he would have been guilty of the offence charged because’the actual transaction would have commenced which would have ended in the crime of forgery if not interrupted’ The learned Judge quoted what Lord Blackburn said in Reg. v. Chessman(1881) I.L.R. 3 Mad. 4 2)I.L.R. 7 Cal. 352 3) Lee & Cave’s Rep. 145 "There is no doubt a difference between the preparation antecedent to an offence and the actual attempt but if the actual transaction has commenced which would have ended in the crime if not interrupted there is clearly an attempt to commit the crime." He also quoted what Cockburn C. J. said in M’Pher son’s Casean attempt to commit a crime is an act done with an intent to commit that crime and forming part of a series of acts which would constitute its actual commission if it were not interrupted. To put the matter differently attempt is an act done in part execution of a criminal design amounting to more than mere preparation but falling short of actual consummation and possessing except for failure to consummate all the elements of the substantive crime in other words an attempt consists in the intent to commit a crime combined with the doing of some act adapted to but falling short of its actual commission it may consequently be defined as that which if not prevented would have resulted in the full consummation of the act attempted: Reg. v. Collins This again is not consistent with what is laid down in s 511 and not also with what the law in England is In Stephen’s Digest of Criminal Law 9th Edition attempt’ is defined thus 1) Dears & B. 202. (1920) I.L.R. 47 Cal. 100 3) 9 Cox. 497 "An attempt to commit a crime is an act done with intent to commit that crime and forming part of a series of acts which would constitute its actual commission if it were not interrupted The point at which such a series of acts begins cannot be defined but depends upon the circumstances of each An act done with intent to commit a crime the commission of which in the manner proposed was in fact impossible is an attempt to commit that crime The offence of attempting to commit a crime may be committed in cases in which the offender voluntarily desists from the actual commission of the crime itself In In re: T. Munirathnam Reddiit was said at p. 122 "The distinction between preparation and attempt may be clear in some cases but in most of the cases the dividing line is very thin. Nonetheless it is a real distinction The crucial test is whether the last act if uninterrupted and successful would constitute a crime. If the accused intended that the natural consequence of his act should result in death but was frustrated only by extraneous circumstances he would be guilty of an attempt to commit the offence of murder. The illustrations in the sectionbring out such an idea clearly. In both the illustrations the accused did all he could do but was frustrated from committing the offence of theft because the article was removed from the jewel box in one case and the pocket was empty in the other case The observations ’the crucial test is whether the last act if uninterrupted and successful would constitute a crime’ were made in connection with an attempt to commit murder by shooting at the victim and are to be understood in that context. There the nature of the offence was such that no more than one act was necessary for the commission of the 1) A.I.R. 1955 And. Prad. 118 We may summarise our views about the construction of s. 511 Indian Penal Code thus: A personal commits the offence of ’attempt to commit a particular offence’ whenhe intends to commit that particular offence andhe having made preparations and with the intention to commit the offence does an act towards its commission such an act need not be the penultimate act towards the commission of that offence but must be an act during the course of committing that In the present case the appellant intended to deceive the University and obtain the necessary permission and the admission card and not only sent an application for permission to sit at the University examination but also followed it up on getting the necessary permission by remitting the necessary fees and sending the copies of his photograph on the receipt of which the University did issue the admission card. There is therefore hardly any scope for saying that what the appellant had actually done did not amount to his attempting to commit the offence and had not gone beyond the stage of preparation. The preparation was complete when he had prepared the application for the purpose of submission to the University. The moment he dispatched it he entered the realm of attempting to commit the offence of ’cheating’. He did succeed in deceiving the University and inducing it to issue the admission card. He just failed to get it and sit for the examination because something beyond his control took place inasmuch as the University was informed about his being neither a graduate nor a teacher We therefore hold that the appellant has been rightly convicted of the offence under s. 420 read with s. 511 Indian Penal Code and accordingly dismiss the appeal

Pre-Arrest Bail denied and Interim Order for protection stood vacated on establishing the grounds for Assault and Dowry Demand: High Court Of Patna

The petitioner alleged torture, assault, and dowry demand were denied the pre-arrest bail. Also, the interim protection of him was vacated by the Court orders. The Hon’ble High Court of Patna before Justice Mr. Ahsanuddin Amanullah in the matter Abhay Kumar v. The State of Bihar[Criminal Miscellaneous No. 78092 of 2019]. The facts of the case were that the petitioner was apprehended arrest in connection with Case, instituted under Sections 498A, 323, 324, 325, and 307/34 of the Indian Penal Code. The petitioner is the husband of the informant. He along with the other family members were accused of assault, torture and dowry demand of cash of Rs. 5 Lakhs and drove her out of her matrimonial home. The Petitioner’s learned counsel submitted that it was the informant who wasn’t interested to live in the petitioner’s house as she always kept going to her parent’s house. It was submitted that in the FIR, it has been stated that Rs. 18 lakhs was spent on the marriage, which is false for the reason that the petitioner is in the job in a private firm and, thus, there was no occasion for the family of the informant spending so much money on him in the marriage. The learned counsel submitted that the petitioner has also filed a case alleging that the family members of the informant had come to his place and had assaulted the inmates and had also forcibly taken his mother to the village of the informant where her hair was cut. Learned counsel submitted that the petitioner all along has been ready to keep the informant but she is not cooperating due to the negative influence of her relatives. The Additional Public Prosecutor contended that the petitioner was making obstacles in the matrimonial relationship to make it difficult for the informant to stay at the matrimonial home. Learned counsel for the informant submitted that the petitioner is a very shrewd person and right from the beginning, he has been creating issues and situations so that the informant may leave the matrimonial home. It was submitted that after the assault, the informant had to be admitted to PMCH where she was treated for various injuries caused by torture and assault by the petitioner and his family members. Learned counsel submitted that the conduct of the petitioner is clear proof that he is somehow trying to avoid taking responsibility for the informant and keep her as his wife in the matrimonial home. The Hon’ble High Court Of Patna held,” Having considered the facts and circumstances of the case and submissions of learned counsel for the parties, the Court finds that repeatedly it has given indulgence and chance to the petitioner to live up to his commitment that he is ready to keep the informant with him for which exercise was directed many times and every time, the Court finds that due to some shortcoming on the side of the petitioner, such exercise failed and even with regard to the last exercise, the informant has brought photographs on record showing that she is waiting outside the locked gate of the house where the petitioner was to take her but he did not turn up.” After taking the whole overview of the matter the petitioner was not granted the pre-arrest bail. Interim protection granted to the petitioner earlier was vacated. 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 Case, instituted under Sections 498A, 323, 324, 325, and 307/34 of the Indian Penal Code. The petitioner is the husband of the informant. He along with the other family members were accused of assault, torture and dowry demand of cash of Rs. 5 Lakhs and drove her out of her matrimonial home. The Petitioner’s learned counsel submitted that it was the informant who wasn’t interested to live in the petitioner’s house as she always kept going to her parent’s house. It was submitted that in the FIR, it has been stated that Rs. 18 lakhs was spent on the marriage, which is false for the reason that the petitioner is in the job in a private firm and, thus, there was no occasion for the family of the informant spending so much money on him in the marriage. The learned counsel submitted that the petitioner has also filed a case alleging that the family members of the informant had come to his place and had assaulted the inmates and had also forcibly taken his mother to the village of the informant where her hair was cut. Learned counsel submitted that the petitioner all along has been ready to keep the informant but she is not cooperating due to the negative influence of her relatives. The Additional Public Prosecutor contended that the petitioner was making obstacles in the matrimonial relationship to make it difficult for the informant to stay at the matrimonial home. Learned counsel for the informant submitted that the petitioner is a very shrewd person and right from the beginning, he has been creating issues and situations so that the informant may leave the matrimonial home. It was submitted that after the assault, the informant had to be admitted to PMCH where she was treated for various injuries caused by torture and assault by the petitioner and his family members. Learned counsel submitted that the conduct of the petitioner is clear proof that he is somehow trying to avoid taking responsibility for the informant and keep her as his wife in the matrimonial home. The Hon’ble High Court Of Patna held,” Having considered the facts and circumstances of the case and submissions of learned counsel for the parties, the Court finds that repeatedly it has given indulgence and chance to the petitioner to live up to his commitment that he is ready to keep the informant with him for which exercise was directed many times and every time, the Court finds that due to some shortcoming on the side of the petitioner, such exercise failed and even with regard to the last exercise, the informant has brought photographs on record showing that she is waiting outside the locked gate of the house where the petitioner was to take her but he did not turn up.” After taking the whole overview of the matter the petitioner was not granted the pre-arrest bail. Interim protection granted to the petitioner earlier was vacated. Click Here To Read The Judgment Judgment Reviewed By Nimisha Dublish The Petitioner’s learned counsel submitted that it was the informant who wasn’t interested to live in the petitioner’s house as she always kept going to her parent’s house. It was submitted that in the FIR, it has been stated that Rs. 18 lakhs was spent on the marriage, which is false for the reason that the petitioner is in the job in a private firm and, thus, there was no occasion for the family of the informant spending so much money on him in the marriage. The learned counsel submitted that the petitioner has also filed a case alleging that the family members of the informant had come to his place and had assaulted the inmates and had also forcibly taken his mother to the village of the informant where her hair was cut. Learned counsel submitted that the petitioner all along has been ready to keep the informant but she is not cooperating due to the negative influence of her relatives. The Additional Public Prosecutor contended that the petitioner was making obstacles in the matrimonial relationship to make it difficult for the informant to stay at the matrimonial home. Learned counsel for the informant submitted that the petitioner is a very shrewd person and right from the beginning, he has been creating issues and situations so that the informant may leave the matrimonial home. It was submitted that after the assault, the informant had to be admitted to PMCH where she was treated for various injuries caused by torture and assault by the petitioner and his family members. Learned counsel submitted that the conduct of the petitioner is clear proof that he is somehow trying to avoid taking responsibility for the informant and keep her as his wife in the matrimonial home. The Hon’ble High Court Of Patna held,” Having considered the facts and circumstances of the case and submissions of learned counsel for the parties, the Court finds that repeatedly it has given indulgence and chance to the petitioner to live up to his commitment that he is ready to keep the informant with him for which exercise was directed many times and every time, the Court finds that due to some shortcoming on the side of the petitioner, such exercise failed and even with regard to the last exercise, the informant has brought photographs on record showing that she is waiting outside the locked gate of the house where the petitioner was to take her but he did not turn up.” After taking the whole overview of the matter the petitioner was not granted the pre-arrest bail. Interim protection granted to the petitioner earlier was vacated. Click Here To Read The Judgment Judgment Reviewed By Nimisha Dublish The learned counsel submitted that the petitioner has also filed a case alleging that the family members of the informant had come to his place and had assaulted the inmates and had also forcibly taken his mother to the village of the informant where her hair was cut. Learned counsel submitted that the petitioner all along has been ready to keep the informant but she is not cooperating due to the negative influence of her relatives. The Additional Public Prosecutor contended that the petitioner was making obstacles in the matrimonial relationship to make it difficult for the informant to stay at the matrimonial home. Learned counsel for the informant submitted that the petitioner is a very shrewd person and right from the beginning, he has been creating issues and situations so that the informant may leave the matrimonial home. It was submitted that after the assault, the informant had to be admitted to PMCH where she was treated for various injuries caused by torture and assault by the petitioner and his family members. Learned counsel submitted that the conduct of the petitioner is clear proof that he is somehow trying to avoid taking responsibility for the informant and keep her as his wife in the matrimonial home. The Hon’ble High Court Of Patna held,” Having considered the facts and circumstances of the case and submissions of learned counsel for the parties, the Court finds that repeatedly it has given indulgence and chance to the petitioner to live up to his commitment that he is ready to keep the informant with him for which exercise was directed many times and every time, the Court finds that due to some shortcoming on the side of the petitioner, such exercise failed and even with regard to the last exercise, the informant has brought photographs on record showing that she is waiting outside the locked gate of the house where the petitioner was to take her but he did not turn up.” After taking the whole overview of the matter the petitioner was not granted the pre-arrest bail. Interim protection granted to the petitioner earlier was vacated. Click Here To Read The Judgment Judgment Reviewed By Nimisha Dublish The Additional Public Prosecutor contended that the petitioner was making obstacles in the matrimonial relationship to make it difficult for the informant to stay at the matrimonial home. Learned counsel for the informant submitted that the petitioner is a very shrewd person and right from the beginning, he has been creating issues and situations so that the informant may leave the matrimonial home. It was submitted that after the assault, the informant had to be admitted to PMCH where she was treated for various injuries caused by torture and assault by the petitioner and his family members. Learned counsel submitted that the conduct of the petitioner is clear proof that he is somehow trying to avoid taking responsibility for the informant and keep her as his wife in the matrimonial home. The Hon’ble High Court Of Patna held,” Having considered the facts and circumstances of the case and submissions of learned counsel for the parties, the Court finds that repeatedly it has given indulgence and chance to the petitioner to live up to his commitment that he is ready to keep the informant with him for which exercise was directed many times and every time, the Court finds that due to some shortcoming on the side of the petitioner, such exercise failed and even with regard to the last exercise, the informant has brought photographs on record showing that she is waiting outside the locked gate of the house where the petitioner was to take her but he did not turn up.” After taking the whole overview of the matter the petitioner was not granted the pre-arrest bail. Interim protection granted to the petitioner earlier was vacated. Click Here To Read The Judgment Judgment Reviewed By Nimisha Dublish It was submitted that after the assault, the informant had to be admitted to PMCH where she was treated for various injuries caused by torture and assault by the petitioner and his family members. Learned counsel submitted that the conduct of the petitioner is clear proof that he is somehow trying to avoid taking responsibility for the informant and keep her as his wife in the matrimonial home. The Hon’ble High Court Of Patna held,” Having considered the facts and circumstances of the case and submissions of learned counsel for the parties, the Court finds that repeatedly it has given indulgence and chance to the petitioner to live up to his commitment that he is ready to keep the informant with him for which exercise was directed many times and every time, the Court finds that due to some shortcoming on the side of the petitioner, such exercise failed and even with regard to the last exercise, the informant has brought photographs on record showing that she is waiting outside the locked gate of the house where the petitioner was to take her but he did not turn up.” After taking the whole overview of the matter the petitioner was not granted the pre-arrest bail. Interim protection granted to the petitioner earlier was vacated. Click Here To Read The Judgment Judgment Reviewed By Nimisha Dublish The Hon’ble High Court Of Patna held,” Having considered the facts and circumstances of the case and submissions of learned counsel for the parties, the Court finds that repeatedly it has given indulgence and chance to the petitioner to live up to his commitment that he is ready to keep the informant with him for which exercise was directed many times and every time, the Court finds that due to some shortcoming on the side of the petitioner, such exercise failed and even with regard to the last exercise, the informant has brought photographs on record showing that she is waiting outside the locked gate of the house where the petitioner was to take her but he did not turn up.” After taking the whole overview of the matter the petitioner was not granted the pre-arrest bail. Interim protection granted to the petitioner earlier was vacated.

IN THE HIGH COURT OF JUDICATURE AT PATNA CRIMINAL MISCELLANEOUS No. 780919 Arising Out of PS. Case No. 331 Year 2019 Thana RAHUI District Nalanda Abhay Kumar aged about 34 years Male Son of Suresh Prasad Resident of Shahpur PS Rahui District Nalanda The State of Bihar ... Petitioner s ... Opposite Party s For the Petitioner s For the State For the Informant Mr. Satya Ranjan Sinha Advocate Ms. Gulnar Begum APP Mr. Hansraj Advocate CORAM: HONOURABLE MR. JUSTICE AHSANUDDIN AMANULLAH ORAL JUDGMENT Date : 10 08 2021 The matter has been heard via video conferencing. 2. Heard Mr. Satya Ranjan Sinha learned counsel for the petitioner Ms. Gulnar Begum learned Additional Public Prosecutor for the State and Mr. Hansraj learned counsel for the informant 3. The petitioner apprehends arrest in connection with Rahui PS Case No. 331 of 2019 dated 27.08.2019 instituted under Sections 498A 323 324 325 and 307 34 of the Indian 4. The petitioner who is the husband of the informant along with his other family members is accused of assault torture Patna High Court CR. MISC. No.780919 dt.10 08 2021 and demand of dowry of Rs. 5 lakhs and further of driving her out of the matrimonial home 5. Learned counsel for the petitioner submitted that it is the informant who is not wanting to live with the petitioner as she keeps going to her parents’ house. It was submitted that in the FIR it has been stated that Rs. 18 lakhs was spent on the marriage which is false for the reason that the petitioner is in job in a private firm and thus there was no occasion for the family of the informant spending so much money on him in the marriage Learned counsel submitted that prior to the filing of the present case the petitioner had filed Informatory Petition No. 1592 of 2019 before the Chief Judicial Magistrate Nalanda at Biharsharif on 18.07.2019 apprehending false implication. Learned counsel submitted that the petitioner has also filed Rahui PS Case No. 330 of 2019 on 27.08.2019 alleging that a day prior at night the family members of the informant had come to his place and had assaulted the inmates and had also forcibly taken his mother to the village of the informant where her hair was cut. Learned counsel submitted that the petitioner all along has been ready to keep the informant but she is not cooperating due to negative influence of Patna High Court CR. MISC. No.780919 dt.10 08 2021 6. Learned APP submitted that as per the allegation the petitioner is creating obstacle in the matrimonial relationship and creating a situation where the informant is unable to live in the 7. Learned counsel for the informant submitted that the petitioner is a very shrewd person and right from the beginning he has been creating issues and situations so that the informant may leave the matrimonial home. It was submitted that after assault the informant had to be admitted to PMCH where she was treated for various injuries caused by torture and assault by the petitioner and his family members. Learned counsel submitted that in the past several attempts were made by this Court by directing the petitioner to take the informant with him to the matrimonial home but initially he took her to a boys hostel where there was a common toilet shared with other male inmates and thereafter when the turn came to take her to a separate house the same was without any provisions and even as per the latest exercise the petitioner had come to the house of the informant on 16.07.2021 and had asked her to follow her as he was on a scooty but on the way he disappeared and the informant kept waiting at his place which was locked and he did not turn up and even the role of the police has not been proper for which she has also submitted a Patna High Court CR. MISC. No.780919 dt.10 08 2021 petition before the Superintendent of Police Nalanda. Learned counsel submitted that the conduct of the petitioner is clear proof that he is somehow trying to avoid taking responsibility of the informant and keep her as his wife in the matrimonial home 8. Having considered the facts and circumstances of the case and submissions of learned counsel for the parties the Court finds that repeatedly it has given indulgence and chance to the petitioner to live up to his commitment that he is ready to keep the informant with him for which exercise was directed many times and every time the Court finds that due to some shortcoming on the side of the petitioner such exercise failed and even with regard to the last exercise the informant has brought photographs on record showing that she is waiting outside the locked gate of the house where the petitioner was to take her but he did not turn up Further the Court finds that from the allegations and materials on record and what has come during the course of hearing it cannot be said that the allegations made are frivolous and fit to be dismissed at the threshold. Further from the conduct of the petitioner before the Court where despite over indulgence given to him the exercise which was directed by the Court that too at the behest of the petitioner has failed primarily because of the conduct of the petitioner. Thus taking an overall view in the Patna High Court CR. MISC. No.780919 dt.10 08 2021 matter the Court is not inclined to grant pre arrest bail to the 9. Accordingly the petition stands dismissed 10. Interim protection granted to the petitioner under order dated 20.07.2020 stands vacated 11. However in view of submission of learned counsel for the petitioner it is observed that if the petitioner appears before the Court below and prays for bail the same shall be considered on its own merits in accordance with law without being prejudiced by the present order 12. Coming to the other issue where there is serious allegation of the role of the SHO of Silao PS for which the father of the informant has filed an application before the Superintendent of Police Nalanda on 31.07.2021 copy of which is Annexure R 1 of the 6th supplementary counter affidavit filed on behalf of the informant let the Superintendent of Police Nalanda file a detail report on the same. It is made clear that if the Court finds that the Superintendent of Police Nalanda has not taken serious note of the allegations made and has not conducted a thorough and proper inquiry into the matter the Court may take serious judicial note and appropriate action in the matter for which the Superintendent of Police Nalanda shall also have to take responsibility Patna High Court CR. MISC. No.780919 dt.10 08 2021 13. Such report be submitted to the Court through the learned APP who shall file it latest by 31st August 2021 and the matter be listed on 4th September 2021 among the top five cases only for the purpose of considering the report of the Superintendent of Police Nalanda. 14. Learned APP shall communicate the order to the Superintendent of Police Nalanda (Ahsanuddin Amanullah J

Report of Forensic Science Laboratory proves whether the accused is guilty of dowry death: High Court of Punjab and Haryana

The petitioner apprehended arrest under Section 304-B of the Indian Penal Code, “Dowry death where the death of a woman is caused by any bodily injury within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or har­assment by her husband or any relative of her husband for, any demand for dowry, such death shall be called “dowry death”, Section 201 IPC, “Causing disappearance of evidence of the offence, or giving false information to screen offender”, Section 34 IPC, “Acts done by several persons in furtherance of common intention”. The petition is in connection with Nayagaon PS Case No. 116 of 2019 dated 19.08.2019. In the High Court of Judicature at Patna, this judgement was given by Honorable Mr Justice Ahsanuddin Amanullah on the 23rd of September 2021 in the case of Sandeep Kumar Versus the State of Bihar, [Criminal Miscellaneous No.36535 of 2020] Mr Ajay Kumar Thakur represented as the advocate for the petitioner, Mr Anant Kumar represented the State of Bihar as the additional Public Prosecutor, the proceedings of the court were held via video conference. The case relates to the facts, wherein the petitioner who is the husband of the deceased is accused of killing his wife (daughter of the informant) and was also accused of disappearing evidence for the case. The counsel representing the petitioner held that after the investigation process it was transpired that the daughter of the informant had run away from her matrimonial home and a letter regarding the same was discovered by the police. The body of the deceased was not yet recovered therefore the petitioner cannot be held guilty as he has no other criminal antecedent and is a simple man living in Patna whereas this incident took place in Saran therefore prayer of bail for the petitioner has been made before this Court as he was falsely implicated. Further, the counsel for the petitioner held that the informant filed for a compromise and stated that this case was filed due to misconception and during police investigation, even the witnesses had testified that the petitioner’s wife had herself run away from her home. The court directed the Additional Public Prosecutor to submit an up-to-date legible photocopy of the entire case diary of Nayagaon PS Case [No. 116 of 2019] from the Superintendent of Police, Saran, and also a report from the Forensic Science Laboratory regarding whether the letter found to have been written by the wife of the petitioner was actually in her handwriting. The Additional Public Prosecutor forwarded the required documents as the court had directed which included the report of the Superintendent of Police, Saran, including the opinion of the police laboratory/CID, Bihar, with regard to the handwriting of the letter. With respect to these documents and reports, it was conceded that the wife of the petitioner had herself run away and the letter was found out to be her own handwriting when it was compared to her other specimen writings. The APP concluded that it was written by the same person (daughter of the informant). After considering the facts and circumstances of the case the Court held that, “In view of what has come during the investigation as also the comparison of the letter said to have been written by the victim that she herself was leaving the house and the writing having been found to be of her after comparison of the specimen writings, the Court is inclined to allow the prayer for pre-arrest bail.” The Honourable Court concluded 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 to the satisfaction Additional Chief Judicial Magistrate 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 and (ii) that the petitioner shall cooperate with the Court and police/prosecution. Failure to co-operate shall lead to the cancellation of his bail bonds. The petition stands disposed of in the aforementioned terms.”

IN THE HIGH COURT OF JUDICATURE AT PATNA CRIMINAL MISCELLANEOUS No.365320 Arising Out of PS. Case No. 116 Year 2019 Thana NAYAGAON District Saran Sandeep Kumar aged approx 30 years Male son of Sri Roopjitan Sah Roopjitan Prasad resident of Village Bariyarchak P.S. Nayagaon District ... Petitioner s The State of Bihar ... Opposite Party s For the Petitioner s For the State CORAM: HONOURABLE MR. JUSTICE AHSANUDDIN AMANULLAH ORAL JUDGMENT Mr. Ajay Kumar Thakur Advocate Mr. Anant Kumar No. 1 APP Date : 23 09 2021 The matter has been heard via video conferencing. 2. Heard Mr. Ajay Kumar Thakur learned counsel for the petitioner and Mr. Anant Kumar No. 1 learned Additional Public Prosecutorfor the 3. The petitioner apprehends arrest in connection with Nayagaon PS Case No. 1119 dated 19.08.2019 instituted under Sections 304 B and 201 34 of the Indian Penal Code 4. The allegation against the petitioner who is the husband of the daughter of the informant is that he had killed his wife and had also done away with evidence. 5. Learned counsel for the petitioner submitted that during investigation it has come that the daughter of the Patna High Court CR. MISC. No.365320 dt.23 09 2021 informant had run away as letter to this effect has been found by the police. It was submitted that the dead body has not been recovered. He submitted that the petitioner having clean antecedent is a simple man working in Patna whereas the incident is said to have taken place in the district of Saran 6. On the aforesaid stand of learned counsel for the petitioner the Court had asked learned APP to obtain the up to date legible photo copy of the entire case diary of Nayagaon PS Case No. 1119 from the Superintendent of Police Saran and later a report from the Forensic Science Laboratory with regard to whether the letter found to have been written by the wife of the petitioner was actually in her handwriting. Today learned APP has forwarded the report of the Superintendent of Police Saran including the opinion of the police laboratory CID Bihar with regard to handwriting of the letter recovered stating that the wife of the petitioner had herself gone away. The report stated that it was in the same handwriting as that of the other such writings of the wife of the petitioner which have been forwarded for comparison i.e. both the disputed and specimen writings have been found to be of one and the same person. Learned counsel for the petitioner submitted that the informant has also filed compromise petition Patna High Court CR. MISC. No.365320 dt.23 09 2021 stating that the case has been filed due to misconception and that even the witnesses during police investigation have stated that the wife of the petitioner herself had gone away. 7. Having considered the facts and circumstances of the case and submissions of learned counsel for the parties in view of what has come during investigation as also the comparison of the letter said to have been written by the victim that she herself was leaving the house and the writing having been found to be of her after comparison of the specimen writings the Court is inclined to allow the prayer for pre arrest 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 with two sureties of the like amount each to the satisfaction of the learned Additional Chief Judicial Magistrate VI Chapra Saran in Nayagaon PS Case No. 1119 subject to the conditions laid down in Section 438(2) of the Code of Criminal Procedure 1973 and furtherthat the petitioner shall cooperate with the Court and police prosecution. Failure to co operate shall lead to Patna High Court CR. MISC. No.365320 dt.23 09 2021 cancellation of his bail bonds. 9. It shall also be open for the prosecution to bring any violation of the foregoing conditions 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 J. Alam

Petitioner released on bail after being arrested under Sections 341, 323, 324, 325, 307, 354B/34IPC: High court of Patna

The petitioner was arrested on the 11th of June 2020 under Section 341 IPC, “Punishment for wrongful restraint.” section 323, “Punishment for voluntarily causing hurt” section324, “Voluntarily causing hurt by dangerous weapons or means” section 325, “Punishment for voluntarily causing grievous hurt.” section 307, “Attempt to murder.” and section 354B, “assaults or uses criminal force to any woman “section 34IPC “Acts done by several persons in furtherance of common intention”. This motion slip is in connection with the Naubatpur PS Case No. 303 of 2020 This judgment was given in the high court of Judicature at Patna by Honorable Mr. Justice Ahsanuddin Amanullah on the 19th of July 2021 in the case of Rudal Paswan v/s Ramdeo Paswan criminal miscellaneous No. 12105 of 2021, Mr. Bimal Kumar represented as the advocate for the petitioner and Mr. Binod Shankar represented as the additional public prosecutor for the state of Bihar   The following are the facts of the case, the incident took place on 10/06/2020 at 4:00 PM the petitioners were armed with garasa and entered a mango orchard and was ordered to kill the informant because she was working as the caretaker of the orchard and this work was supposed to be given to the armed petitioners, there has been an allegation that the co-accused was also armed with garasa and assaulted the informant’s husband and her two sons and another co-villager which resulted in injuries, the petitioners threw her to the ground and tried to outrage her modesty and broke her tooth and her husband had to be given 15 stitches on the head and was in a serious condition after being admitted in the emergency ward. According to the counsel for the petitioners, he submitted that there was a delay in lodging the FIR, he claimed that these allegations were false because initially the petitioners were taking care of the mango orchard and the informants had lately put pressure on the petitioners, and due to certain caste rivalry, this allegation has been falsely implicated regarding the 15 stitches on the head of the informant’s husband it has been transpired that the injury report has not even been prepared which indicates the falsity of the crime and the petitioners has no other criminal antecedent The additional public prosecutor submitted that the petitioners instigated the attack and are solely responsible for the crime and they shouldn’t be given bail. The court held that after considered the facts and circumstances of the case the petitioners will be released on bail upon furnishing bail bonds of Rs. 25,000 each with two sureties of the like amount each to the satisfaction of the learned chief justice magistrate under the conditions laid down in Section 438(2) Cr.P.C., 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 the good behavior 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.”

IN THE HIGH COURT OF JUDICATURE AT PATNA CRIMINAL MISCELLANEOUS No. 121021 Arising Out of PS. Case No. 303 Year 2020 Thana NAUBATPUR District Patna Rudal Paswan aged about 43 years Gender Male. Ramdeo Paswan aged about 39 years Gender Male Both sons of Nanda Paswan. Both residents of Village Jafra Bhagwanpur PS Naubatpur District Patna The State of Bihar ... Petitioner s ... Opposite Party s For the Petitioner s For the State Mr. Bimal Kumar Advocate Mr. Binod Shankar Modi APP CORAM: HONOURABLE MR. JUSTICE AHSANUDDIN AMANULLAH ORAL JUDGMENT Date : 19 07 2021 The matter has been heard via video conferencing. 2. The case has been taken up out of turn on the basis of motion slip filed by learned counsel for the petitioners on 14.07.2021 which was allowed 3. Heard Mr. Bimal Kumar learned counsel for the petitioners and Mr. Binod Shankar Modi learned Additional Public Prosecutor for the 4. The petitioners apprehend arrest in connection with Naubatpur PS Case No. 3020 dated 11.06.2020 instituted under Sections 341 323 324 325 307 354B 34 of the Indian 5. As per the allegation in the FIR the petitioners are said to have come to the mango orchard of Chandrakant Sharma Patna High Court CR. MISC. No.121021 dt.19 07 2021 being armed with garasa and they had ordered to kill the informant asking her why she was working as a caretaker due to which their work had been taken as they would have got to take care of the said orchard. Further it has been alleged that the other co accused who were also armed with garasa had assaulted the informant’s husband her two sons and another co villager resulting in injuries on them had also thrown her on the ground and had tried to outrage her modesty and had taken her ornaments and also broken one tooth. It has also been stated that her husband had to be given 15 stitches on her head and was in a serious condition being admitted to PMCH Emergency Ward 6. Learned counsel for the petitioners submitted that the incident took place on 10.06.2020 at 4:00 PM but the FIR has been lodged on 11.06.2020 at 10:00 AM and thus there is quite a delay which has not been explained. Learned counsel submitted that the reason for false implication is that the mango orchard was initially taken care of by the petitioners’ side and the informant had been lately inducted and to put pressure on the petitioners’ side they have been falsely implicated. It was submitted that due to caste rivalry also such allegation has been made. Learned counsel submitted that though in the FIR there is allegation of assault leading to the informant’s husband getting 15 stitches on Patna High Court CR. MISC. No.121021 dt.19 07 2021 his head but in the order of the Court below it has been noted that from the case diary it transpired that injury report had still not been prepared which shows the falsity of the allegation. Learned counsel submitted that at best the allegation against the petitioners is only of giving order to kill without any overt act being attributed to them and that they have no other criminal 7. Learned APP submitted that as per the allegation the petitioners had instigated others to attack. However it was not controverted that except for the allegation of them being order givers no overt act has been attributed to them 8. Having considered the facts and circumstances of the case and submissions of learned counsel for the parties in the event of arrest or surrender before the Court below within six weeks from today the petitioners be released on bail upon furnishing bail bonds of Rs. 25 000 each with two sureties of the like amount each to the satisfaction of the learned ACJM III Danapur Patna in Naubatpur PS Case No. 3020 subject to the conditions laid down in Section 438(2) of the Code of Criminal Procedure 1973 and further that one of the bailors shall be a close relative of the petitioners that the petitioners and the bailors shall execute bond with regard to good Patna High Court CR. MISC. No.121021 dt.19 07 2021 behaviour of the petitioners andthat 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 9. It shall also be open for the prosecution to bring any violation of the foregoing conditions of bail by the petitioners to the notice of the Court concerned which shall take immediate action on the same after giving opportunity of hearing to the 10. The petition stands disposed off in the (Ahsanuddin Amanullah J

Right to change one’s name is protected under the Constitution: High Court of New Delhi

The High Court of New Delhi declared that the right to change one’s name is a fundamental right and is protected under the Constitution. The single bench consisting of J. Jayant Nath held that the name of an individual is very personal, and she/he must be allowed to express it as they wish, in the case of Rayaan Chawla v. University of Delhi & Anr. [W.P.(C) 6813/2020, CM APPL. Nos. 23586/2020 & 26340/2020]. The petitioner, a 20 year old student of Hindu College (affiliated to respondent), pursuing his 3rd year in the course of B.A.(Hons.) Philosophy was seeking for changing his name. Since his parents got divorced, having no constructive relationship with his father, the petitioner wanted to change his name from ‘Rayaan Singh’ to ‘Rayaan Chawla’, which is his mother’s maiden name. To give effect to this change, he published a declaration in two leading national dailies, effected a notice under the Gazette of India and also applied for an amendment in his Aadhar Card, declaring in all that he has changed his name. Rayaan requested the respondent for the change of name in all college records to which the respondent directed him to comply with a specific notification. Though having complied with the almost all of the conditions, a certain condition was that it was mandatory for the students seeking change of name to get their name changed in their school records first, that is, from CBSE/State Board. Hence, the writ petition was filed wherein the petitioner argued that he should be allowed to change his name without him being expected to change is names in the previous records since the task was impossible. The respondent, relying on Tarachand Soni v. University of Delhi [W.P.(C) 1694/2019], argued that since the petitioner’s parents got divorced in 2015, he had enough time to change his name previously, also, that not adhering to this particular condition would violate the continuity and uniformity required in the educational credentials of a student.  The HC, relying on Rohitash Institute of Elementary Education v. National Council for Teacher Education, 2019 SCC OnLine Del 7532, said that the stand of the respondent is erroneous since the petitioner is being asked to do an impossible task and the maxim “Lex non cogit ad impossibiia” was stated. The court further stated that “to have a name and to express the same in the manner he wishes, is a part of the right to freedom of speech and expression under Article 19 (1) (a) as well as right to liberty under Article 21 of the Constitution of India. It cannot be denied that the right to change a name is a protected right and the petitioner would normally be not denied the said right on technical issues”. Further, relying on Abhishek Kumar v. Union of India & Ors., 2014 SCC OnLine Del 2459, the court held that “ the issuance of revised certificates with changed name as sought by the petitioner therein would create a discrepancy and reflect a status which did not exist at the time of issuance of the certificates thereof (i.e. school leaving certificates)”, and hence, the demand of the respondent is a misplaced one.

RAYAAN CHAWLA IN THE HIGH COURT OF DELHI AT NEW DELHI Judgment Reserved On: 22.10.2020 Judgment Pronounced On: 06.11.2020 W.P.(C) 6813 2020 CM APPL. Nos.23586 2020 & 26340 2020 Through Mr.Ankur Mahindro Mr.Sanjoli Mehrotra and Mr.Rohan Taneja ..... Petitioner UNIVERSITY OF DELHI & ANR. Through Mr.Mohinder J.S. Rupal Standing Counsel with Mr.Hardik Rupal Adv. for R 1 Delhi University. Respondents Mr.Rajeev Sharma and Mr.Aditya Sharma Advs. for R 2. HON BLE MR. JUSTICE JAYANT NATH JAYANT NATH J. This writ petition is filed by the petitioner seeking quashing of the notification issued by respondent No.1 University of Delhi in so far as it makes it mandatory for a student to obtain change of name in the records of the Central Board of Secondary Education as a prerequisite for change of name in the records of respondent No.1 University of Delhi. Change is also sought in the name of the petitioner in the records of respondent No.1 University of Delhi. The case of the petitioner is that he is 20 years of age and is currently pursuing B.A.(Hons.) Philosophy at Hindu College affiliated to respondent W.P.(C) 6813 2020 No.1. The petitioner is in his 3rd Year of the course. The petitioner was born on 30.06.2000 and was named ‘Rayaan Singh’ by his parents namely Ms.Payal Chawla and Mr.Mandeep Singh. The petitioner passed out from Modern School Barakhambha Road New Delhi which is affiliated to CBSE with the name ‘Rayaan Singh’ which is the name on which certificates are issued by CBSE for 10th and 12th Class. He then joined Hindu in B.A.(Hons.) Philosophy affiliated with No.1 University of Delhi as Rayaan Singh. The parents of the petitioner had a strained relationship. It is stated that the petitioner never enjoyed any form of constructive relationship with his father and was raised by his mother Ms.Payal Chawla and maternal grandparents. The parents of the petitioner separated in 2007 and obtained a final decree of divorce on 15.09.2015. Since 2007 the petitioner was in sole custody of his mother till the time he attained majority. The father of the petitioner gave up the natural guardianship and sole custody of the petitioner on 03.04.2007 in Guardianship Petition No.86 2007. In view of the above it is stated that the petitioner wants to change his name as Rayaan Chawla. The petitioner published a declaration in two leading national dailies namely Indian Express and Jansatta on 24.10.2019 declaring that he had changed his name to Rayaan Chawla for all purposes. He has also affected a notice under the Gazette of India dated 07.03.2020 declaring that he had changed his name to Rayaan Chawla. He also applied for the name change in his Aadhar Card which was amended from 19.03.2020. The same was issued in July 2020. It is stated that the petitioner also requested respondent No.1 for change of name. He was informed that he has to comply with the notification dated 01.07.2015. On 19.08.2020 the petitioner submitted all W.P.(C) 6813 2020 the requisite documents in compliance with the aforesaid notification. On 09.09.2020 the application was returned with the noting “Required 10th and 12th Class Certificates after change name”. The petitioner states that the petitioner was informed by respondent No.1’s officials that as per the impugned notification it is mandatory for the students desirous of seeking change of name to get their name changed from CBSE other State Boards first. It is stated that CBSE also states that application for change in name would be considered only before publication of result of the candidate. Hence the present writ petition. Respondent No.1 University of Delhi has filed its counter affidavit. It has been stated that respondent No.1 University of Delhi has framed a policy for change of name of its students which has been approved by the Executive Council. The Executive Counc il is a Statutory Body and its resolutions have the force of law. The resolutions of the Executive Council are passed after much deliberation as per the opinion of experts in the field. It is stated that as per the resolution of Executive Council for change of name the applicant has to fulfil the following requirements: “a) Application for change of name will be entertained only when the applicant is a student of University of Delhi at the time of applying for change of name. Application for change of name from a person who is not a student of the University at the time of submission of application or who has already completed his her course of study shall not be considered. b) To get his her name changed from CBSE State Boards other related Boards first. c) Original Copy of the Government of India Gazette W.P.(C) 6813 2020 Notification about the change of name. d) Newspaper cutting as proof of advertisement published with regard to change of name in at least two leading Indian daily newspaper.” It is pleaded that the parents of the petitioner got divorced in 2015. The petitioner has stayed in the sole custody of his mother since long and has continued to use the name Rayaan Singh. He appeared in 10th and 12th Class examinations with the said name. He has joined the University of Delhi with the said name and thus he was then fully aware of the resolution of the Executive Council passed in 2015 which is mandatory for the student seeking change of name. The petitioner or his mother could have easily taken all steps for proposed change of name before he appeared in 10th and 12 Class Board Examinations. He has however not taken any steps at that stage and cannot now be allowed to impugn the resolution of Executive Council. It is also pleaded that the petitioner cannot have two different names i.e. Rayaan Singh for 10th and 12 Class Certificates and Rayaan Chawla for the graduation degree. The University of Delhi has put this condition so as to maintain continuity and uniformity in the educational credentials of a student. It is stated that the said resolution of the Executive Council has been upheld by this court in the case of Tarachand Soni v. University of Delhi W.P.(C) 1694 2019 decided on 01.11.2019. It is reiterated that the name change can take place only if the petitioner’s name is changed first in the records of CBSE. I have heard learned counsel for the parties. Learned counsel for the petitioner has strongly relied upon judgment W.P.(C) 6813 2020 of the Division Bench of this court in the case of ‘Jigya Yadav v. CBSE’ MANU DE 3700 2010 to plead that the Division Bench has clearly held that the change of name can only take place with effect from the date when the name is changed and not from a backdate. It is pleaded that the stand of respondent No.1 University of Delhi of insisting that the change of name be done in the CBSE records tantamounts to doing the impossible task namely changing the name in the record of CBSE when at that time when the petitioner took the CBSE exams the name of the petitioner was ‘Rayaan Singh’. The change of name has now taken place only in August September 2019. When the petitioner passed out from 10th and 12th Class the name of the petitioner was Rayaan Singh and hence the same obviously cannot be changed to Rayaan Chawla on the certificates of Class 10th and 12th. Respondent No.1’s stand it is pleaded is entirely erroneous. Reliance is also placed on the judgment of this court in the case of Rohitash Institute of Elementary Education v. National Council for Teacher Education 2019 SCC OnLine Del 7532 to plead that the petitioner cannot be required to perform the impossible inasmuch as no law would require the same. Reliance is placed on the maxim “Lex non cogit ad impossibiia”. Learned counsel for respondent No.1 University of Delhi has however strongly urged that there is a delay on the part of the petitioner in taking steps to change his name. As per the petitioner himself the parents of the petitioner were separated in 2007 and the petitioner has now chosen to seek change of name. This could easily have been done while the petitioner was studying in Class 10th and Class 12th. At that stage CBSE could carry out necessary change. Reliance is placed on the judgment of the Division Bench of this court in the case of Jigya Yadav v. CBSE(supra). Reliance is W.P.(C) 6813 2020 also placed on the judgment of a Co ordinate Bench of this court in the case of Tarachand Soni v. University of Delhi(supra). I may look at the relevant notification of respondent No.1 University of Delhi. The writ petition reproduces the notification dated 01.07.2015 of respondent No.1 which reads as follows: In supersession of the previous rules the following procedure for change of name of students duly approved by the Executive Council vide Resolution No. 16 dated 28.05.2015 is hereby notified for necessary compliance by all concerned: Student who wishes to change his her name for any reason is required to submit the following documents. 1. An application mentioning the enrolment number of the student duly forwarded by the Principal of the College Head of the institution alongwith Rs. 500 as application fee. 2. Newspaper cuttings advertisement published with regard to change of name in at least two Indian leading daily newspapers. 3. Self Declaration on the prescribed format by the Applicant. 4. Original copy of Notification about the change of name. 5. Self declaration by the applicant regarding change of his or her name. the Government of India Gazette in original) as proof of Submission of the matriculation or its equivalent certificate in case the student has got his her name changed in the said certificate while studying in the University of Delhi. W.P.(C) 6813 2020 Proof of marriage i.e. a self attested copy of marriage registration certificate issued by the competent authority in case of female students applying for change of surname due to 1. Application for change of name will be entertained only when the applicant is a student of University of Delhi at the time of applying for change of name. Application for change of name from a person who is not a student of the University at the time of submission of application or who has already competed his her course of study shall not be considered. 2. The process of change of name may require at least 2 weeks’ time after submission of application. 3. Application of students of any class for change of name shall be accepted only after 30th September. 4. Any change in name surname will be effective only after its approval by the University. 5. The name after change will be read as changed name alias nee earlier name. After receipt of such requests from the college Departments these will be examined by the University and processed for consideration in accordance with the University rules. The Principals of the Colleges Heads of the Departments may kindly ensure that the above procedure is strictly followed.” 11. Thereafter it is stated in the writ petition that there has been an amendment in the said notification dated 01.07.2015 and a notification dated 16.12.2015 has been issued which reads as follows: “An addendum to this office Notification No.Aca II Change of Name 279 2015 03 dated 01 07 2015 regarding procedure for change of name it is hereby notified that it is mandatory for the students seeking change of name to get his her name changed W.P.(C) 6813 2020 from CBSE State Boards other related Boards first. The other conditions contained in said notification remain the same.” 12. What is important to note is that the change of name is entertained by respondent No.1 University of Delhi only if the student is a student of the University of Delhi at the time of applying for change of name. The amendment clarifies that it mandatory for students seeking change of name to get their name changed from CBSE State Boards other related Boards first. Undoubtedly the petitioner is a student of University of Delhi. However the petitioner objects to the demand of having his name changed in the appropriate records pertaining to CBSE i.e. Class 10th and Class 12th Certificates. It has been pleaded that the petitioner has decided to change his name in August September 2019 when he had already passed out from CBSE. On the same analogy as prescribed by the University of Delhi the CBSE would obviously not change names now after the petitioner has already passed out. Respondent No.1 University of Delhi it has been pleaded seeks the petitioner to do an impossible task. 13. On the right of a man to his name I may look at a judgment of the Kerala High Court in the case of Kailash Gupta v. CBSE 2020 SCC OnLine Ker 1590. That was also a case where the petitioner had sought to change her name. In those facts the court held as follows: “1. Four centuries ago when William Shakespeare wrote the Classic “Romeo and Juliet” he felt that name did not matter much. In the present times if one is asked the same question “What s in a name” the answer would be: “Its everything”. W.P.(C) 6813 2020 1.1 In this writ petition this Court is confronted with an instance where a young girl who wished for a change of name stumbled upon an obstacle in the form of CBSE who turned down her request for incorporating the change of name on a hyper technicality. 8. Name is something very personal to an individual. Name is an expression of one s individuality one s identity and one s uniqueness. Name is the manner in which an individual expresses himself to the world at large. It is the foundation on which he moves around in a civil society. In a democracy free expression of one s name in the manner he prefers is a facet of individual right. In Our Country to have a name and to express the same in the manner he wishes is certainly a part of right to freedom of speech and expression under Article 19 (a) as well as a part of the right to liberty under Article 21 of the Constitution of India. State or its instrumentalities cannot stand in the way of use of any name preferred by an individual or for any change of name into one of his choice except to the extent prescribed under Article 19(2) or by a law which is just fair and reasonable. Subject to the limited grounds of control and regulation of fraudulent or criminal activities or other valid causes a bonafide claim for change of name in the records maintained by the Authorities ought to be allowed without 12. Power of interpretation available to this Court to correct errors committed by the draftsman is quite wide. When the language of a statute in its ordinary meaning and grammatical construction leads to a manifest contradiction of the apparent purpose of the enactment or to some inconvenience or absurdity hardship or injustice presumably not intended a construction may be put upon it which modifies the meaning of the words and even the structure of the sentence. The above mentioned principle has been restated in the decisions in Pentiah v. Mudalla Veeramallappa Eera W.P.(C) 6813 2020 v. State(2017) 15 SCC 133) and also by a Full Bench of this Court in Viswambaran P.N. v. T.P. Sanu 2 KLT 947).” 14. Hence the aforesaid judgment has clearly stated that to have a name and to express the same in the manner he wishes is a part of the right to freedom of speech and expression under Article 19(a) as well as right to liberty under Article 21 of the Constitution of India. It cannot be denied that the right to change a name is a protected right and the petitioner would normally be not denied the said right on technical issues. In the present facts reference may also be had to the judgment of the Division Bench of this court in the case of Abhishek Kumar v. Union of India & Ors. 2014 SCC OnLine Del 3459 which was also dealing with a case of change of name. However that was a case in which the petitioner therein sought to change his name after he had passed out of CBSE School. It was in those facts the Division Bench held as follows: “10. Else we are of the opinion that the issuance of revised certificates with changed name as sought by the petitioner would create a discrepancy and reflect a status which did not exist at the time of issuance thereof. The petitioner though has changed his name but after the date of issuance of the said certificates. Axiomatically the certificates cannot bear the changed name. If anyone were to make a deeper inquiry they will wonder that if the name was changed only in 2011 how the changed name appears on certificates issued on a prior date. Rather the procedure of having a Gazette Notification for changed name is intended to obviate the said difficulties and to give sanctity to the change in name. The said view was taken by one of us in Pallavi @ Pallavi Chandra v. C.B.S.E. MANU DE 2842 2010 and in order dated 9th November 2010 in W.P.(C) No. 4044 2010 titled Ashik Gurung v. CBSE and which matters are not found to have been W.P.(C) 6813 2020 agitated further. We see no reason to take a different view.” 16. Hence the Division Bench was of the view that the issuance of revised certificates with changed name as sought by the petitioner therein would create a discrepancy and reflect a status which did not exist at the time of issuance of the certificates thereofof the said Act i.e. for a CLU certificate is to be obtained only in respect of land which was within the controlled area. The communication dated 23 April 2008 the correctness of which has not been called into question by any of the authorities or even in the counter affidavit filed in response to the writ petition in the present case clearly states that the land in which the W.P.(C) 6813 2020 petitioner s institution was situated was located in an urban area and not in any controlled area as declared by the Town and Country Planning Department. Applying Section 7 of the 1963 Act therefore the said communication dated 23rd April 2008 would in my view satisfy the requirement of a CLU certificate. Indeed given the proscriptions contained in the 1963 Act it was well impossible for the petitioner to obtain any other CLU certificate as any such certificate if issued would be in the teeth of the provisions of the said Act. Needless to say the provisions of the 2014 Regulations can hardly be so interpreted as to require an applicant to produce a document which was not in consonance with the applicable statutory prescriptions. Insistence on production of the said certificate being produced by the petitioner would be requiring him to perform the impossible which it is trite no law could require ‘Lex non cogit ad impossibilia’.” 19. The above judgment would apply to the facts of the present case inasmuch as the requirement of University of Delhi to first seek amendment in the name in the record of CBSE Documents issued by CBSE is an impossible act. When CBSE issued the documents the petitioner had the original name “Rayaan Singh”. The same cannot be changed now as in 2018 when the petitioner completed his Class 12th he was known as ‘Rayaan Singh’. The law would not require the petitioner to perform the impossible. The insistence of respondent No.1 to first get the name changed in the records of CBSE is a misplaced requirement and cannot be accepted. I may now deal with the judgments relied upon by the learned counsel for respondent No.1 University of Delhi. 21. Heavy reliance was placed by the learned counsel for respondent No.1 University of Delhi on the judgment of a Co ordinate Bench of this court in the case of Tarachand Soni v. University of Delhi(supra). That was W.P.(C) 6813 2020 a case where the petitioner sought to challenge the said resolution dated 10.12.2015 as it was coming in the way of change of name of the petitioner. The facts of that case were that the petitioner was then not a student of University of Delhi and further there was no change of name also effected in the records of the concerned State Board. In those facts this court had dismissed the writ petition. The said judgment has no application to the facts of this case. 22. Heavy reliance was also placed on the case of Jigya Yadav v. CBSE(supra). In that case the petitioner sought to challenge Constitutional validity of Bye Law 69.1(i) of the CBSE Education Examination Bye Laws on the ground that they did not permit correction in name either of the candidate or his her parents in the school certificates unless the correction or alteration matches with school records. Relevant portion of the judgment reads as follows: “20. The test laid down in Kruse Vs. Johnsonhas been adopted by the Indian Supreme Court in the case of H.C. Suman Anr. Vs. Rehabilitation Ministry Employees Cooperative House Building Society Ltd. New Delhi & Ors .4 SCC 485 at page 499 wherein it has been held as under: In Kruse v. Johnson it was held that in determining the validity of bye laws made by public representative bodies such as country councils the court ought to be slow to hold that a bye law is void for unreasonableness. A bye law so made ought to be supported unless it is manifestly partial and unequal in its operation between different classes or unjust or made in bad faith or clearly involving an unjustifiable interference with the liberty of those subject to it. In view of this legal position the Notification dated October 27 1987 deserves to be upheld as in our opinion it does not fall within any of the exceptions referred to in the case of Kruse v. Johnson." W.P.(C) 6813 2020 emphasis supplied)” institutions and 22. Moreover we are of the view that the Court should be extremely reluctant to substitute its own views as to what is wise prudent and proper in relation to academic matters in preference to those formulated by professional men possessing technical expertise and rich experience of actual day to day working of educational the departments controlling them. It will be wholly wrong for the Court to take a pedantic and purely idealistic approach to the problems of this nature isolated from the actual realities and grass root problems involved in the working of the system and unmindful of the consequences which would emanate if a purely idealistic view as opposed to a pragmatic one were to be propounded. It is equally important that the Court should also as far as possible avoid any decision or interpretation of a statutory provision rule or bye law which would bring about the result of rendering the system unworkable in practice as contended by the respondent no. 1 in its counter affidavit.” The above judgment would apply only if this court were to strike down any of the statutory provisions. 23. The legal position that would follow from the above conspectus of the judgments noted and cited by the learned counsel for the parties is that normally a person would have a right to have his name changed subject to fulfilment of appropriate formalities procedures to ensure that there is no misuse or confusion created on account of the change in name. The change of name is prospective. As noted above in my opinion the insistence of respondent No.1 University of Delhi to interpret the appropriate Resolution the Executive Council Notification dated 01.07.2015 read with 16.12.2015 to insist that though the name is being changed in 2019 the petitioner must first get the certificates issued by CBSE in 2018 i.e. prior to W.P.(C) 6813 2020 the change of name also changed appears to be a misplaced interpretation of the said provision. The petitioner cannot be asked to do the impossible as the names as reflected in the Class 10th and 12th certificates cannot be changed as there is no change of name retrospectively. A meaningful interpretation has to be given to the aforesaid Notifications dated 01.07.2015 and 16.12.2015 Resolution of respondent No.1 so that it does not seek or does not direct the petitioner to perform an impossible task. In my opinion as the change of name is with effect from August September 2019 i.e. much after the Class 10th and 12th certificates issued by CBSE respondent No.1 cannot in these peculiar facts and circumstances insist that the petitioner should also get his name changed in the records of CBSE in the Class 10th and 12th certificates. It is ordered accordingly. 25. There is one more aspect that may arise in the facts of this case. If respondent No.1 University of Delhi was to change the name in their record and in the degree to be given to the petitioner as Rayaan Chawla it would create some confusion inasmuch the CBSE certificates records would show the name of Rayaan Singh i.e. the former name of the petitioner. In these facts and circumstances the answer lies in the resolution dated 01.07.2015. The same provides that on change of name it would be stated as “changed name alias nee earlier name”. It would be appropriate that respondent No.1 University of Delhi may change the name of the petitioner in their records in the degree that may be given in future to the petitioner as above. Such a course of action would avoid any confusion in the two names which would be seen on the records of CBSE and of University of Delhi appropriate documents issued by the said entities. W.P.(C) 6813 2020 In the facts and circumstances it is accordingly directed that respondent No.1 University of Delhi may change the name of the petitioner in their records accordingly as noted above. 27. With the above directions the present petition stands disposed of. NOVEMBER 06 2020 v JAYANT NATH J. W.P.(C) 6813 2020

Appointment on compassionate ground is an exception to general rule that appointment to public office should be made on the basis of competitive merits.: Supreme Court

Once it is proved that in spite of the death of the breadwinner, the family survived and substantial period is over, there is no need to make appointment on compassionate ground at the cost of the interests of several others ignoring the mandate of Article 14 of the Constitution as upheld by the Hon’ble Supreme Court through the learned bench led by Justice M.R. Shah in the case of Steel Authority of India Limited v. Gouri Devi (CIVIL APPEAL NO. 6910 OF 2021). The brief facts of the case are that the deceased employee died in the year 1977. The eldest son approached the authority for compassionate appointment. His case was considered as per the scheme applicable at the time of death of the deceased employee, i.e., circular dated 01.09.1975 and his application for appointment on compassionate ground was rejected. After a period of more than 18 years of the death of her husband, the widow of the deceased employee filed a Writ Petition being OJC No.783 of 1996 before the High Court with prayer to appoint her second son on compassionate ground. At this stage, it is required to be noted that in the writ petition, the order dated 17.10.1977 rejecting the application for appointment of the eldest son on compassionate ground, was not under challenge. By the order of the High Court, the writ petition was transferred to the Central Administrative Tribunal, Cuttack, which was registered as T.A. No.14 of 2014. By the judgment and order dated 28.11.2019, the learned Tribunal disposed of and directed the appellant to re consider the case of Ramesh Chandra Khuntia, second son of the deceased in accordance with the scheme of compassionate employment. The writ petition filed by the appellant before the High Court being Writ Petition No. 7791 of 2020 has been dismissed by the Division Bench of the High Court by the impugned judgment and order. Feeling aggrieved and dissatisfied with the impugned judgment and order passed by the High Court, the Steel Authority of India Limited has preferred the present appeal. After the perusal of the facts and arguments, the Hon’ble Court held, “Applying the law laid down in the aforesaid decisions and considering the fact that in the present case the second application was made after a period of 18 years, the impugned judgment and order passed by the High Court and that of the Central Administrative Tribunal directing the appellant to re-consider the case of the second son of the respondent is unsustainable and deserves to be quashed and set aside and accordingly the same are hereby quashed and set aside. It is observed and held that the second son of the respondent shall not be entitled to the appointment on compassionate ground as observed and held by the learned Central Administrative Tribunal confirmed by the Division Bench of the High Court by the impugned judgment and order. Present appeal is allowed accordingly.”

IN THE CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 6910 OF 2021 Steel Authority of India Limited …Appellant(s JUDGMENT M.R. SHAH J Feeling aggrieved and dissatisfied with the impugned judgment and order dated 05.02.2021 passed by the Division Bench of the High Court of Orissa at Cuttack in Writ Petition No.77920 by which the Division Bench of the High Court has dismissed the said writ petition preferred by the appellant herein and has confirmed the judgment and order passed by the learned Central Administrative Tribunal passed in T.A. No.114 wherein the learned Tribunal directed the appellant to consider the case of the respondent original applicant’s second son for appointment on compassionate ground the Steel Authority of India Limited has preferred the present appeal. Digitally signed by RNatarajanDate: 2021.11.1816:51:27 ISTReason:Signature Not Verified 2 Though served nobody appeared on behalf of the respondent. The issue involved in the present appeal is in a very narrow compass. The deceased employee died in the year 1977. The eldest son approached the authority for compassionate appointment. His case was considered as per the scheme applicable at the time of death of the deceased employee i.e. circular dated 01.09.1975 and his application for appointment on compassionate ground was rejected. 4.1 After a period of more than 18 years of the death of her husband the widow of the deceased employee filed a Writ Petition being OJC No.7896 before the High Court with prayer to appoint her second son on compassionate ground. 4.2 At this stage it is required to be noted that in the writ petition the order dated 17.10.1977 rejecting the application for appointment of the eldest son on compassionate ground was not under challenge. By the order of the High Court the writ petition was transferred to the Central Administrative Tribunal Cuttack which was registered as T.A. No.114. By the judgment and order dated 28.11.2019 the learned Tribunal disposed of T.A. No.114 and directed the appellant to re consider the case of Ramesh Chandra Khuntia second son of the deceased in accordance with the scheme of compassionate employment. The writ petition filed by the appellant before the High Court being Writ Petition No. 77920 has been dismissed by the Division Bench of the High Court by the impugned judgment and order. 4.3 Feeling aggrieved and dissatisfied with the impugned judgment and order passed by the High Court the Steel Authority of India Limited has preferred the present appeal Having heard the learned counsel appearing on behalf of the appellant and from the facts narrated hereinabove it emerges that the deceased employee died in the year 1977 and the second application for appointment on compassionate ground by the widow to appoint her second son was filed in the year 1996 i.e. after a period of 18 years of the date of the death of the deceased employee. 5.1 At this stage it is required to be noted that in the year 1977 the eldest son made an application for appointment on compassionate ground which was rejected in the year 1977 and the same has attained finality. Despite the above fact second time the application was filed in the year 1996 now to appoint the second son which was after a period of 18 years. Despite the fact that there was a delay of 18 years in making the second application unfortunately the learned Tribunal still directed the appellant to re consider the case and to appoint the second son on compassionate ground which has been confirmed by the High Court by the impugned judgment and order. Apart from the fact that in the impugned judgment and order the Division Bench has not at all given any specific independent findings it can be seen that except narrating the submissions on behalf of the respective parties there is no further discussion at all on merits and there is no discussion at all on delay and laches. Be that it may even otherwise on merits also the respondent shall not be entitled to appointment on compassionate ground on the ground of delay and laches. 5.2 As held by this Court in the case of Punjab State Power Corporation Limited and Ors. Vs. Nirval Singh 6 SCC 774 delay in pursuing claim approaching court would militate against claim for compassionate appointment as very objective of providing immediate amelioration to family would stand extinguished. Before this Court there was a delay of 07 years in approaching the Court and this Court observed and held that on the ground of delay itself the heir dependent of the deceased employee shall not be entitled to the appointment on compassionate ground. In the case of State of J&K and Ors. Vs. Sajad Ahmed Mir 2006) 5 SCC 766 this Court had occasion to consider the delay and laches in case of appointment on compassionate ground. By dismissing the claim for appointment on compassionate ground which was made after a period of four and a half years of death of the deceased employee it was held that appointment on compassionate ground is an exception to general rule that appointment to public office should be made on the basis of competitive merits. It is further observed that once it is proved that in spite of the death of the breadwinner the family survived and substantial period is over there is no need to make appointment on compassionate ground at the cost of the interests of several others ignoring the mandate of Article 14 of the Constitution In view of the above and for the reasons stated above applying the law laid down in the aforesaid decisions and considering the fact that in the present case the second application was made after a period of 18 years the impugned judgment and order passed by the High Court and that of the Central Administrative Tribunal directing the appellant to re consider the case of the second son of the respondent is unsustainable and deserves to be quashed and set aside and accordingly the same are hereby quashed and set aside. It is observed and held that the second son of the respondent shall not be entitled to the appointment on compassionate ground as observed and held by the learned Central Administrative Tribunal confirmed by the Division Bench of the High Court by the impugned judgment and order. Present appeal is allowed accordingly. In the facts and circumstances of the case there is no order as to costs. [M.R. SHAH NEW DELHI NOVEMBER 18 2021 ….J [SANJIV KHANNA

Mere charge of an offence without any substantive crime is insufficient to constitute unorganized crime: Bombay High Court

Merely being involved in several crimes without being involved in any other crime to elevate the continuing unlawful activity to the case of organized crime as defined under Section 2(1)(e) would not be sufficient; held, a single-judge bench of Justice Mangesh S Patil, while adjudicating the matter in Darasing v. The State of Maharashtra; [CRIMINAL APPEAL NO.901 OF 2018]. In the night intervening 16.01.2001 and 17.01.2001 the appellants committed dacoity in village Kothewadi Tq. Pathardi, District Ahmednagar and even committed rape on few women for which Crime No.08/2001 was registered for the offences punishable under Section 395, 342, 376(2)(g), 354, 506(2) of the Indian Penal Code. During the investigation of that crime it transpired that the appellants were involved in organized crime wherein charge sheets were filed and the courts had taken cognizance. Accordingly, the approval was sought under Section 23 and the present crime was registered. The prosecution examined in all 11 witnesses mostly on the point and concerning the earlier crimes. By the impugned judgment the appellants have been convicted and sentenced as mentioned herein above. The learned advocate Mr. Ghanekar vehemently submitted that bearing in mind the fact that Section 3 of the MCOC Act prescribes for punishment for ‘organized crime’ as defined under Section 2(1)(e) and not for being involved in ‘continuing unlawful activity’ as defined under Section 2(1)(d), the appellants could not have been convicted under that provision without being charged for any substantive offence. He would submit that though continuing unlawful activity is an ingredient for constituting an organized crime, in order to constitute an organized crime, the offender must be involved in some crime of the kind described in the definition of organized crime. He would therefore submit that mere proof regarding involvement of the appellants in continuing unlawful activity was not sufficient to convict them. He would submit that admittedly, the appellants have not been charged for any substantive offence in the present crime and have been convicted merely for engaging in continuing unlawful activity during previous years.

on 03 08 2021 on 22 03 929.Crl.Apeal.901.18.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL APPEAL NO.901 OF 2018WITH APPLN 430 2021 IN APPEL 901 20181.Darasing @ Maruti Vakilya Bhosale Age : 49 years Occu.: Labour R o. Dhamangaon Tq. AshtiDistrict Beed.2.Ramesh @ Rajjya Madhav @ Dhuraji Kale Age : 43 years Occu.: Labour R o. Brahmangaon Tq. AshtiDistrict Beed.3.Bandya @ Baan Nilgirya @ Utam Bhosale Age : 41 years R o. Walunj Tq. GangapurDistrict Aurangabad.4.Habib @ Habbya Panmalya BhosaleAge : 41 years Occ : LabourR o. Sablkhed Tq. Ashti District Beed.5.Garmanya Khubjat Chavan Age : 48 years Occ: LabourR o Shori Tq. AshtiDistrict Beed.6.Raju @ Adnyan @ Ashok @ Killya Bhosale Age : 36 years Occ: Labour R o. Dhamangaon Tq. Ashti District Beed.7.Umbrya Dhansha BhosaleAge : 48 years Occ: LabourR o Shorti Tq. AshtiDistrict Beed.8.Rasalya Diggya Bhosale Age : 41 years Occ : LabourR o. Chikhli Tq. Ashti District Beed.9.Santosh @ Hari Suryabhan @Discharge Kale Age : 36 years Occ: Labour R o. Hiwre Pimparkhed Tq. Ashti District Beed.10.Suresh @ Tirsha @ TintashaChintaman @ Chinchwanya KaleAge : 32 years Occ : LabourR o Shori Tq. Ashti District Beed.1 11 on 03 08 2021 on 22 03 929.Crl.Apeal.901.18.odt11.Hanumant Naksha BhosaleAge : 36 years Occ: LabourR o Hire PimparkhedTq. Ashti District Beed.12.Chiku @ Chikkya @ VivryaSarmalya Bhosale Age : 35 years R o. Walunj Tq. Gangapur District Aurangabad… APPELLANTSVERSUSThe State of MaharashtraRESPONDENTS…Advocate for Appellants : Mr. N.S. GhanekarAPP for Respondent State : Mr. R.B. Bagul…CORAM: MANGESH S. PATIL J.Reserved on:29.07.2021Pronounced on:03.08.2021JUDGMENT : This is an appeal under Section 12 of the Maharashtra Controlof Organized Crime Act 1999being aggrievedand dissatisfied by judgment and order returned by the learned SpecialJudge MCOC Aurangabad convicting the appellants under Section 3(1)(ii)and Section 3(4) of the MCOC Act and sentencing them to suffer rigorousimprisonment for 12 years under Section 3(1)(ii) and rigorousimprisonment for 10 years under Section 3(4) and in addition imposing afine of Rs.5 00 000 on each count in default sentencing them to furtherrigorous imprisonment of two years on each count.2.The facts which lead to the Appeal may be summarized asunder:2 11 on 03 08 2021 on 22 03 929.Crl.Apeal.901.18.odtIn the night intervening 16.01.2001 and 17.01.2001 theappellants committed dacoity in village Kothewadi Tq. Pathardi DistrictAhmednagar and even committed rape on few women for which CrimeNo.08 2001 was registered for the offences punishable under Section 395 342 376(2)(g) 354 506(2) of the Indian Penal Code. During theinvestigation of that crime it transpired that the appellants were involved inorganized crime wherein charge sheets were filed and the courts had takencognizance. Accordingly the approval was sought under Section 23 and thepresent crime was registered. The prosecution examined in all 11 witnessesmostly on the point and concerning the earlier crimes. By the impugnedjudgment the appellants have been convicted and sentenced as mentionedherein above.3.The learned advocate Mr. Ghanekar vehemently submitted thatbearing in mind the fact that Section 3 of the MCOC Act prescribes forpunishment for ‘organized crime’ as defined under Section 2(1)(e) and notfor being involved in ‘continuing unlawful activity’ as defined under Section2(1)(d) the appellants could not have been convicted under that provisionwithout being charged for any substantive offence. He would submit thatthough continuing unlawful activity is an ingredient for constituting anorganized crime in order to constitute an organized crime the offendermust be involved in some crime of the kind described in the definition oforganized crime. He would therefore submit that mere proof regardinginvolvement of the appellants in continuing unlawful activity was not3 11 on 03 08 2021 on 22 03 929.Crl.Apeal.901.18.odtsufficient to convict them. He would submit that admittedly the appellantshave not been charged for any substantive offence in the present crime andhave been convicted merely for engaging in continuing unlawful activityduring previous years. 4.The learned advocate would point out that the witnessesexamined by the prosecution are mostly relating to the previous crimesregistered against the appellants and do not make out any new substantiveoffence. He would further submit that the appellants have been duly triedfor the previous crimes and consequently could not have been again tried forcommission of those crimes. He would submit that even though theappellants have been involved in several crimes they have been duly triedfor all those crimes and irrespective of the decisions all these previouscrimes would merely demonstrate as to how they have been engaged incontinuing unlawful activity as defined under Section 2which ispunishable under Section 3.5.In support of his submission the learned advocate Mr. Ghanekarwould place reliance on the Division Bench decision of this Court inCriminal Appeal No.308 2002 Madan S o. Ramkisan Gangwani Vs. State ofMaharashtra and connected Appeals dated 26.03.2009 and Single BenchDecision of this Court in Criminal Appeal No.184 2015 Pundlik S o. UklaPawar and Ors. Vs. State of Maharashtra with connected Appeals dated4 11 on 03 08 2021 on 22 03 929.Crl.Apeal.901.18.odt14.07.2020.6.Per contra the learned APP would submit that there is enoughevidence to demonstrate as to how the appellants have been engaged incontinuing unlawful activity. They were involved in number of cases. As isheld in the case of Bharat Shantilal Shah Vs. State of Maharashtra 2003ALL MR1061 conviction or otherwise is inconsequential. There is noerror or illegality committed by the trial court appreciating the evidence andconcluding that appellants have engaged in organized crimes.7.The learned APP would also refer to the decision of this Courtin the case of Govind Sakharam Ubhe Vs. State of Maharashtra 2009 ALLMR1903 and the order passed in Kishor S o. Changdev Dandwate Vs.The State of Maharashtra Criminal Appeal No.222 2019 and Suryakant @Suresh S o. Shriram Mule Vs. The State of Maharashtra and Anr. CriminalAppeal No.34 2019.8.I have considered the rival submissions and perused the record.There is no dispute about the fact that as the matter stands the appellantshave been charged tried and convicted only for the offences punishableunder Section 3(1)(ii) and 3(4) of the MCOC Act and have not beensimultaneously charged and tried for any substantive crime. The issuetherefore which arises for determination and which in fact is no longer resintegra is as to if a person can be convicted for the offence of organizedcrime without there being a substantive offence. A similar argument wascanvassed before the Division Bench in the case of Madan Ramkisan5 11 on 03 08 2021 on 22 03 929.Crl.Apeal.901.18.odtGangwaniof‘continuing unlawful activity’ it was submitted that it suffersfrom violation of Article 14 as it treats unequals as equals. Itmakes an activity continuing unlawful activity if more than onecharges of cognizable offence punishable with imprisonment ofthree years or more are filed in competent Court it does nottouch an activity as continuing unlawful activity if undertakenby a person who is known to be a criminal but more than onecharge sheets have not been filed against him. A personcharged ten times of an offence though acquitted on everyoccasion may yet be roped in as a person engaged in continuingunlawful activity. Whereas a person who is convicted for anoffence for three years punishment cannot be touched by thisdefinition if he is not charged with more than two of suchoffences. The definition therefore treats as equal persons whoare hopelessly unequal … The arguments appear to beattractive at the first blush but deeper scrutiny reveals thehollowness of the argument.25.In our opinion there is no violation of Article 14 by this definition. Ifwe read the definition again what has been defined as continuingunlawful activity is a member of organized crime syndicate in respectof which any activity prohibited by law and done repeatedly i.e. morethan once for which charge sheet has been filed in the Court ofcompetent jurisdiction in the past ten years. The purpose of definitionis to define what continuing unlawful activity is and it is for thepurposes of defining what is continued unlawful activity that thosecharges are to be taken into consideration. Mere taking intoconsideration of such charges cannot result in discrimination of thekind alleged by Shri Manohar. The activity must be continuingunlawful activity and to define it with clarity it is provided that anyperson who in the past was charge sheeted for more than one chargeof such activity or crime the cognizance of which has been taken andimprisonment for which is more than three years should be taken intoaccount. The fact of the person having been charge sheeted in suchcognizable offences in the past makes the unlawful activity continuing unlawful activity. This section only defines what theactivity is. It does not itself provide for any punishment for thatactivity. Had punishment been provided the submission that it treatswhile punishing unequals as equals may carry weightage. That being6 11 on 03 08 2021 on 22 03 929.Crl.Apeal.901.18.odtnot the case in the challenge to section 2(1)(d) of the Act we see novagueness or violation of Article 14 by the definition. We find that theprovision treats all those covered by it in a like manner and does notsuffer from the vice of class legislation.27.We also do not find substance in the challenge that the equalityclause in the Constitution is violated because the definitionropes in anyone charged more than once irrespective ofwhether the charge resulted in an acquittal or conviction. Thecircumstances that followed the charge are not material. Theprovision only defines what is continued unlawful activities andrefers to whether a person has been charged over a period of tenyears for the purpose of seeing whether the person is chargedfor the first time or has been charged often. The circumstance ofconviction or acquittal that followed the charge are notmaterial. The limited purpose is to see antecedents of theperson. Not to convict.”(emphasis supplied)The Division Bench concluded in paragraph Nos.105 to108 as under :“105.Since in the present case the question raised is about thedefinition of "organised crime" in view of these observations of theSupreme Court it may be permissible to conclude that the findingsof this Court in Bharat Shah s case in this regard which have beenquoted earlier would have to be followed.106. This Court had specifically held that had punishment beenprovided for continuing unlawful activity the submission thatwhile punishing it treats unequals as equals may carryweight. The Court upheld the validity of the provisiondefining "continuing unlawful activity" only because the Actdid not provide any punishment for that activity. In para 27 itwas made clear that the limited purpose of continuingunlawful activity was to see antecedents of the person andnot the convict.107. It was contended that the observations in Bharat Shah s case by thisCourt have to be read in context of the fact that Section 2 is a definitionclause which just defines the offence and therefore could not haveprescribed punishment which Section 3 prescribes. It is truly saidthat Section 2 merely defines not only the offence of "organised crime"but also other terms used in the Act. What is material is the definition ofoffence of "organised crime" and not the definitions of other termsincluded in Section 2. Had the term "continuing unlawful activity" beensynonymous with "organised crime" it would not have been necessary7 11 on 03 08 2021 on 22 03 929.Crl.Apeal.901.18.odtfor the Legislature to include two definitions. It would have beensufficient to provide for only one definition of continuing unlawfulactivity and make that activity punishable. The definitions in clausesclearly show that one of the components of organised crime iscontinuing unlawful activity and therefore organised crime is somethingmore than mere continuing unlawful activity.108. Thus the fact of more than one chargesheet having been filed incompetent Court in preceding period of ten years and such Court havingtaken cognizance of such offence is merely one of the ingredients of theoffence of organised crime. Therefore it cannot be contended that theoffence of organised crime is completed by collection of previouscriminal activities.(emphasis supplied)Again in paragraph No.109 the observations of the DivisionBench in the case of Jaisingh Ashrfilal Yadav and Ors Vs. State ofMaharashtra and Anr. 2003 ALL MR1506 where quoted with aconclusion that even these observations would substantiate the submissionthat for establishing offence of organized crime something more than merecontinuing unlawful activity is necessary. It is pertinent to note that eventhe observation and conclusion of a Single Judge in the case of DineshMahadev Bhondwe Vs. State of Maharashtra 2007Mh.L.J.718 tothe contrary was held to be incorrect. Summarizing the conclusion in paragraph No.115 it has beenobserved as under:“115. If the provisions of the Act are read in entirety in the light offoregoing discussion they will show that offence of"organised crime" is constituted by atleast one instance ofcontinuation apart from continuing unlawful activityevidenced by more than one chargesheets in preceding tenyears : This is so because :(a)If "organised crime" was synonymous with "continuingunlawful activity" two separate definitions were notnecessary.8 11 on 03 08 2021 on 22 03 929.Crl.Apeal.901.18.odt(b) The definitions themselves show that ingredients of use ofviolence in such activity with the objective of gainingpecuniary benefit are not included in definition of"continuing unlawful activity" but find place only indefinition of "organised crime".(c) What is made punishable under Section 3 is "organisedcrime" and not "continuing unlawful activity".(d) If "organised crime" were to refer to only more than onechargesheet filed the classification of crime in Section3(1)(i) and 3(1)(ii) on the basis of consequence ofresulting in death or otherwise would have been phraseddifferently namely by providing that "if any one of suchoffence has resulted in the death" since continuing unlawful activity requires more than one offence.Reference to "such offence" in Section 3(1) implies aspecific act or omission.(e) If the offence of organised crime itself is comprised ofprevious offences in respect of which chargesheets havebeen filed or in other words such chargesheets are acomponent of the offence of organised crime all suchoffences referred to in such chargesheets could be tried atone trial and the rider in Section 7 about triability of theaccused under the Code at the same trial would beredundant.(f) Entire Section 18 of the Act would become redundant if"continuing unlawful activity" evidenced by proof of filingof two chargesheets is equal to organised crime sincequestion of recording confessions would not arise. Certifiedcopies of chargesheets with certified copy of order thereonby the Court taking cognizance would be admissiblewithout formal proof and if this itself was enough toconstitute offence no other evidence would be required tobe tendered.(g) For the same reason there may be no need to examine anywitnesses and consequently Section 19 would beredundant.(h) If proof of filing two chargesheets is enough to establishoffence of organised crime there may be no occasion tocarry out any investigation other than collecting copies ofcharge sheets. Consequently it would be unnecessary forhigh ranking police officers to wield the power to allow9 11 on 03 08 2021 on 22 03 929.Crl.Apeal.901.18.odtrecording information or to sanction prosecution after suchchargsheets are collected.9.Recently the learned Judge of this Court in the matter ofPundlik Ukla Pawarhas taken a similar view albeit withoutreference to the Division Bench judgment in the case of Madan RamkisanGangwaniwithutmost respect does not directly deal with and decide the issue as to if aperson can be tried and convicted for the offences punishable under Section3 without simultaneously implicating him for some substantive crime. EvenKishor Changdev Dandwate and Suryakant @ Suresh S o. Shriram Mule(supra) do not specifically deal with this issue. Besides in all these threematters the Division Benches were merely called upon to consider therequest of the accused for discharge. Even the decision in the case of MadanRamkisan Gangwaniwhich is earlier decision has not been citedbefore any of the Division Benches which decided the matters in GovindSakharam Ubhe Kishor Changdev Dandwate and Suryakant @ SureshShriram Mulewithout any substantive crime. Merely being involved in severalcrimes without being involved in any other crime to elevate the continuingunlawful activity to the case of organized crime as defined under Section10 11 on 03 08 2021 on 22 03 929.Crl.Apeal.901.18.odt2(1)(e) would not be sufficient. Therefore the appellants could not havebeen convicted and sentence only for the offence punishable under Section3(1)(ii) and 3(4) in the absence of any substantive crime so as to constitutean organized crime. The learned Judge of the Special Court has notconsidered all these aspects and has convicted and sentenced the appellantsmerely for being involved in continuing unlawful activity which in itself isnot an offence which is made punishable under the MCOC Act.11.In view of the above the Appeal deserves to be allowed and isaccordingly allowed. The impugned judgment and order convicting theappellants is quashed and set aside. They are acquitted of the offencespunishable under Sections 3(1)(ii) and 3(4) of the MCOC Act. They maybe set at liberty if not required in any other crime. Fine amount if paid berefunded.12.The Criminal Application No.430 2021 is disposed of. (MANGESH S. PATIL J.)habeeb11 11

Appointment on compassionate ground is an exception to general rule that appointment to public office should be made on the basis of competitive merits.: Supreme Court

Once it is proved that in spite of the death of the breadwinner, the family survived and substantial period is over, there is no need to make appointment on compassionate ground at the cost of the interests of several others ignoring the mandate of Article 14 of the Constitution as upheld by the Hon’ble Supreme Court through the learned bench led by Justice M.R. Shah in the case of Steel Authority of India Limited v. Gouri Devi (CIVIL APPEAL NO. 6910 OF 2021). The brief facts of the case are that the deceased employee died in the year 1977. The eldest son approached the authority for compassionate appointment. His case was considered as per the scheme applicable at the time of death of the deceased employee, i.e., circular dated 01.09.1975 and his application for appointment on compassionate ground was rejected. After a period of more than 18 years of the death of her husband, the widow of the deceased employee filed a Writ Petition being OJC No.783 of 1996 before the High Court with prayer to appoint her second son on compassionate ground. At this stage, it is required to be noted that in the writ petition, the order dated 17.10.1977 rejecting the application for appointment of the eldest son on compassionate ground, was not under challenge. By the order of the High Court, the writ petition was transferred to the Central Administrative Tribunal, Cuttack, which was registered as T.A. No.14 of 2014. By the judgment and order dated 28.11.2019, the learned Tribunal disposed of and directed the appellant to re consider the case of Ramesh Chandra Khuntia, second son of the deceased in accordance with the scheme of compassionate employment. The writ petition filed by the appellant before the High Court being Writ Petition No. 7791 of 2020 has been dismissed by the Division Bench of the High Court by the impugned judgment and order. Feeling aggrieved and dissatisfied with the impugned judgment and order passed by the High Court, the Steel Authority of India Limited has preferred the present appeal. After the perusal of the facts and arguments, the Hon’ble Court held, “Applying the law laid down in the aforesaid decisions and considering the fact that in the present case the second application was made after a period of 18 years, the impugned judgment and order passed by the High Court and that of the Central Administrative Tribunal directing the appellant to re-consider the case of the second son of the respondent is unsustainable and deserves to be quashed and set aside and accordingly the same are hereby quashed and set aside. It is observed and held that the second son of the respondent shall not be entitled to the appointment on compassionate ground as observed and held by the learned Central Administrative Tribunal confirmed by the Division Bench of the High Court by the impugned judgment and order. Present appeal is allowed accordingly

IN THE CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 6910 OF 2021 Steel Authority of India Limited …Appellant(s JUDGMENT M.R. SHAH J Feeling aggrieved and dissatisfied with the impugned judgment and order dated 05.02.2021 passed by the Division Bench of the High Court of Orissa at Cuttack in Writ Petition No.77920 by which the Division Bench of the High Court has dismissed the said writ petition preferred by the appellant herein and has confirmed the judgment and order passed by the learned Central Administrative Tribunal passed in T.A. No.114 wherein the learned Tribunal directed the appellant to consider the case of the respondent original applicant’s second son for appointment on compassionate ground the Steel Authority of India Limited has preferred the present appeal. Digitally signed by RNatarajanDate: 2021.11.1816:51:27 ISTReason:Signature Not Verified 2 Though served nobody appeared on behalf of the respondent. The issue involved in the present appeal is in a very narrow compass. The deceased employee died in the year 1977. The eldest son approached the authority for compassionate appointment. His case was considered as per the scheme applicable at the time of death of the deceased employee i.e. circular dated 01.09.1975 and his application for appointment on compassionate ground was rejected. 4.1 After a period of more than 18 years of the death of her husband the widow of the deceased employee filed a Writ Petition being OJC No.7896 before the High Court with prayer to appoint her second son on compassionate ground. 4.2 At this stage it is required to be noted that in the writ petition the order dated 17.10.1977 rejecting the application for appointment of the eldest son on compassionate ground was not under challenge. By the order of the High Court the writ petition was transferred to the Central Administrative Tribunal Cuttack which was registered as T.A. No.114. By the judgment and order dated 28.11.2019 the learned Tribunal disposed of T.A. No.114 and directed the appellant to re consider the case of Ramesh Chandra Khuntia second son of the deceased in accordance with the scheme of compassionate employment. The writ petition filed by the appellant before the High Court being Writ Petition No. 77920 has been dismissed by the Division Bench of the High Court by the impugned judgment and order. 4.3 Feeling aggrieved and dissatisfied with the impugned judgment and order passed by the High Court the Steel Authority of India Limited has preferred the present appeal Having heard the learned counsel appearing on behalf of the appellant and from the facts narrated hereinabove it emerges that the deceased employee died in the year 1977 and the second application for appointment on compassionate ground by the widow to appoint her second son was filed in the year 1996 i.e. after a period of 18 years of the date of the death of the deceased employee. 5.1 At this stage it is required to be noted that in the year 1977 the eldest son made an application for appointment on compassionate ground which was rejected in the year 1977 and the same has attained finality. Despite the above fact second time the application was filed in the year 1996 now to appoint the second son which was after a period of 18 years. Despite the fact that there was a delay of 18 years in making the second application unfortunately the learned Tribunal still directed the appellant to re consider the case and to appoint the second son on compassionate ground which has been confirmed by the High Court by the impugned judgment and order. Apart from the fact that in the impugned judgment and order the Division Bench has not at all given any specific independent findings it can be seen that except narrating the submissions on behalf of the respective parties there is no further discussion at all on merits and there is no discussion at all on delay and laches. Be that it may even otherwise on merits also the respondent shall not be entitled to appointment on compassionate ground on the ground of delay and laches. 5.2 As held by this Court in the case of Punjab State Power Corporation Limited and Ors. Vs. Nirval Singh 6 SCC 774 delay in pursuing claim approaching court would militate against claim for compassionate appointment as very objective of providing immediate amelioration to family would stand extinguished. Before this Court there was a delay of 07 years in approaching the Court and this Court observed and held that on the ground of delay itself the heir dependent of the deceased employee shall not be entitled to the appointment on compassionate ground. In the case of State of J&K and Ors. Vs. Sajad Ahmed Mir 2006) 5 SCC 766 this Court had occasion to consider the delay and laches in case of appointment on compassionate ground. By dismissing the claim for appointment on compassionate ground which was made after a period of four and a half years of death of the deceased employee it was held that appointment on compassionate ground is an exception to general rule that appointment to public office should be made on the basis of competitive merits. It is further observed that once it is proved that in spite of the death of the breadwinner the family survived and substantial period is over there is no need to make appointment on compassionate ground at the cost of the interests of several others ignoring the mandate of Article 14 of the Constitution In view of the above and for the reasons stated above applying the law laid down in the aforesaid decisions and considering the fact that in the present case the second application was made after a period of 18 years the impugned judgment and order passed by the High Court and that of the Central Administrative Tribunal directing the appellant to re consider the case of the second son of the respondent is unsustainable and deserves to be quashed and set aside and accordingly the same are hereby quashed and set aside. It is observed and held that the second son of the respondent shall not be entitled to the appointment on compassionate ground as observed and held by the learned Central Administrative Tribunal confirmed by the Division Bench of the High Court by the impugned judgment and order. Present appeal is allowed accordingly. In the facts and circumstances of the case there is no order as to costs. [M.R. SHAH NEW DELHI NOVEMBER 18 2021 ….J [SANJIV KHANNA

Rape-Marriage Promise cannot be called Inducement when Physical relationship continues over Long Period of Time: Delhi High Court

“A promise of marriage cannot be held as an inducement for engaging in sex over a protracted and indefinite period of time.” The Delhi High Court laid down this ratio while dismissing an appeal of a woman that challenged the order of the lower court acquitting the man, she had accused of raping her on the pretext of marriage. The court presided over by J. V. Bakhru in the case of X Vs. State (Govt. of NCT of Delhi), [CRL.A. 613/2020 & CRL.M.A. 16968/2020]. The facts of the case are that the Appellant filed an FIR against the accused alleging that she has been raped by him. The woman alleges that she shared a physical relationship with this man in the year 2008 and after a period of 3 to 4 months, the man promised to marry her but later he had a relationship with another woman. Therefore, the woman has alleged that she has been raped by the accused. The trial court after analyzing the evidence and testimony acquitted the Accused and they further observed that the Appellant continued to have physical relationship even after the accused was with another woman and therefore stated, “It is thus evident that the prosecutrix established physical relations with the accused of her own free will and accord as she had genuine affection for the accused and that in the first instance her consent for physical relations had not been obtained by the accused by making any promise of marriage to her.” The Appellant aggrieved by this order filed an Appeal in the High Court. The Single bench judge of the Delhi High Court upheld the order of the trial court and stated that “In some of the cases, people agree to have sex after the promise of marriage is made. However, the same does not apply to cases with long-term intimacy.” The Court with respect to consent stated that, “In certain cases, a promise of marriage may induce a party to agree to establish sexual relations, even though the party does not desire to consent to the same. Such inducements in a given moment may elicit consent, even though the concerned party may want to say no.” But in this particular case physical relationship between the two was much before the promise to marry.

IN THE HIGH COURT OF DELHI AT NEW DELHI Date of Judgment: 15th December 2020 CRL.A. 613 2020 & CRL.M.A. 16968 2020 Appellant Through: Mr Saurabh Kansal Advocate. STATEANR. Through: Mr Ravi Nayak APP for State with SI Preeti PS Malviya Nagar. Respondents HON BLE MR. JUSTICE VIBHU BAKHRU VIBHU BAKHRU J.The appellant has filed the present appeal impugning a judgment dated 24.03.2018 whereby the accused was acquitted of the offences for which he was charged offences punishable under Section 417 376 of the Indian Penal Code 1860was registered. The accused was prosecuted pursuant to the said FIR. The contents of the complaint have been set out in paragraph 1 CRL.A.613 2020 of the impugned judgment and the same is reproduced below: “1. Briefly stated case of the prosecution is that on 15.08.2015 prosecutrix went to police station Malviya Nagar and gave her complaint wherein she stated to the effect that she was resident of Panchsheel Parkand that she was doing work of cooking food at Greater Kailash II. Rahul @ Golu was resident of Malviya Nagar. She had physical relations with him since the year 2008. After 3 4 months he promised to marry her and made her elope with him. His family members made him understand after which Golu brought her to his house and kept her with him like his bride at his home. He kept her as his wife. During this period she became one month pregnant but Golu told her that he did not want a child as yet. He brought medicine and gave it to her due to which her pregnancy was aborted. She stayed with Golu at his house for one year after which he made her understand and sent her back to her house. After that also they used meet when no one was present at house of Golu. Thereafter Golu had a quarrel with his neighbour. Due to this Golu went to Punjab and stayed at his Chacha’s house for a few days and from there he eloped with a girl named Manu and married with her at Arya Samaj Mandir. Golu started staying at his house with Manu and did not call her prosecutrix) there. He however started visiting her and staying with her at her rented accommodation at Khanpur. He used to stay at his house for few days and stayed with her at Khanpur for others. During this period she again became pregnant and accused gave her medicine stating CRL.A.613 2020 that he did not want a child. Thereafter they shifted from Khanpur to Savitri Nagar and started staying there in· a rented accommodation. After a few months she returned back to her house to stay with her mother and father. After staying there for 3 4 months she took a room at Savitri Nagar and started residing there all by herself. Golu again had quarrel with his neighbour and absconded from Begumpur. He came to her and started staying with her. They stayed together till 15.08.2015. She used to work in Kothi s and managed her own expenses as well as expenses of her house from her earnings. Golu worked with a property dealer at Malviya Nagar. In the said office Golu developed relationship with the girl named Priya. She used to call Golu every day. Todayshe visited her house house of prosecutrix) and took away Golu as well as his articles with her and Golu also sent with her. Golu had cheated her and established physical relations with her repeatedly by making a false promise of marriage to her and now he had left her for Priya. She and Golu used to establish physical relations mostly at his house as he used to take there when no one was present both before and after marriage of Golu. She prayed for police help and for strict action against Golu.” After registration of the FIR the statement of the complainant was recorded under Section 164 of the Cr.PC. The prosecution’s case rested almost entirely on the statements and the testimony of the complainant. The relevant extract of her examination in chief is set out below: “I know the accused for the past ten years. The accused used to follow me on the bike when I used to go CRL.A.613 2020 to school. We became friends and started speaking to each other on our mobile phones. About 10 years back I left my house and started living in a house at Geetajali Enclave wherever working as domestic help. The accused and I started having a love affair about ten years back. We used to go for outings. The accused and I went to Punjab to his bua’s house where we stayed for ten days. After coming back to Delhi I went to the house of the accused and stayed in his house as husband and wife for one year in 2008 2009. We did not undergo any marriage ceremony. The accused had physical relations with me telling me that I was his wife. The sister of the accused did not like me because of which there were fights in the house and so the accused asked me to stay somewhere else for sometime till the situation improved. I started staying in my parents house. After about three months of my stay at my parents house I and Golu started living in rented premises at Khanpur. During my stay at Khanpur with the accused I came to know that the accused was in relations with some other girl namely Manu who lives in Punjab. When I made enquiry from accused regarding the girl Manu he told me that his friends had a bet that who will succeed in having friendship with Manu and he had succeeded in friendship with Manu. Accused did not tell me that he was having any other relations with Manu. I remained with the accused in a rented premise at Khanpur for about 1½ years. Accused used to stay sometimes with me and sometimes with his family. I remained with the accused in the rented premises at different places upto year 2013. Accused had left me without informing and I returned to my parents house. CRL.A.613 2020 On the next day of karwa chauth in the year 2013 accused had left for Punjab. I came to know from the sister of Golu that accused had married Manu in Punjab. I tried to contact the accused on his mobile phone but he did not pick up my mobile phone. After about 1 0 15 days accused called me at Malviya Nagar market to meet me and I went to Malviya Nagar market and accused met me. When I made enquiry from accused regarding his marriage with Manu accused started making excuses by saying that he will tell all the things later on. After formal talks with me accused left. I remained in touch with the accused through mobile phone and I also used to meet him. In the year 2014 I stayed with the accused in a rented premise at Faridabad. The wife of the accused was staying with his family. Accused used to stay sometimes in the day time with me or sometimes at night time. He also used to stay with his family. Accused used to establish physical relations with me during our stay at Faridabad. I had stayed with the accused for about four months. Thereafter the accused took a rented premises at Savitri Nagar and I stayed with the accused in the said premises. I stayed with accused in the said premises for about 5 6 months. Our physical relations continued during the said period. Thereafter the accused started meeting another girl namely Priya who was working in some kothi at Saket. I came to know about two and half years before filing of the present case that accused Golu was having relations with Priya. I used to convey to the accused to leave Priya and the accused informed me that he is not having any relations with Priya. I had read the message of Priya on the mobile phone of accused Galu and I called back her. CRL.A.613 2020 Priya asked me how I had managed to get her mobile number. I conveyed to Priya that we will sort out the matter after meeting each other. I and Priya met in Sai Saba Mandir at Saket. Accused also reached there later on. Thereafter accused and Priya had a fight and Priya had slapped the accused. Thereafter Priya damaged the mobile phone of Golu and both of them left. Thereafter I started calling Priya to have a talk with Golu as both of them left from Sai Saba Mandir together. Priya did not allow me to have talk with Golu. Thereafter Priya sent her photographs on my Whatsapp and informed me that she had married Golu. I had accepted the marriage of accused Golu with Manu and continued in relation with him but I did not accept the marriage of the accused with Priya. Thereafter I decided to lodge a complaint against accused Golu. Accused had left me alone in a rented premise at Savitri Nagar and started avoiding me. I made a written complaint to the police in my handwriting and the same is Ex.PW1 A bearing my signatures at point A.” under: It is apparent from the above that there is no dispute that even according to the appellant the relationship between the appellant and the accused was consensual. The Trial Court evaluated the said evidence and concluded as the complaint Ex.PW 1 A “59. From Ex.PW 1 C under Section 164 CrPC and the statement of prosecutrix as PW 1 it is thus evident that the prosecutrix established physical relations with accused of her own free will and accord as she had genuine affection for the accused and that in the first CRL.A.613 2020 instance her consent for physical relations had not been obtained by the accused by making any promise of marriage to her. The talks of marriage if any took place between accused and prosecutrix subsequent to their entering into intimate physical relationship. Further from the material placed on record by the prosecution the consent of the prosecutrix in continuing with her relationship with the accused is clearly brought out. From the complaint Ex.PW 1 A itself it is seen that prosecutrix continued with her relationship with the accused despite the fact that she knew that he had eloped and married with a girl named Manu. As per prosecutrix she had physical relations with the accused and became pregnant even after his marriage with Manu. She claimed that after sometime accused had developed relationship with another girl namely Priya but in spite of it prosecutrix continued with her relationship with accused till 15.08 2015 when Priya came to her house and took accused and his articles with him.” This Court finds no infirmity with the aforesaid conclusion. A bare reading of the complaint made by the appellant as well as her testimony clearly indicates that even according to her her relationship with the accused was consensual. Her allegation that her consent has been vitiated on account of having been obtained by misrepresentation is clearly unsustainable. In Pramod Suryabhan Pawar v. State of Maharashtra and Another: SCC online SC 1073 the Supreme Court had observed as under: CRL.A.613 2020 “12. This Court has repeatedly held that consent with respect to Section 375 of the IPC involves an active understanding of the circumstances actions and consequences of the proposed act. An individual who makes a reasoned choice to act after evaluating various alternative actions as well as the various possible consequences flowing from such action or inaction consents to such action. …. xxxx xxxx xxxx 16. Where the promise to marry is false and the intention of the maker at the time of making the promise itself was not to abide by it but to deceive the woman to convince her to engage in sexual relations there is a "misconception of fact" that vitiates the woman s "consent". On the other hand a breach of a promise cannot be said to be a false promise. To establish a false promise the maker of the promise should have had no intention of upholding his word at the time of giving it. The "consent" of a woman under Section 375 the ground of a misconception of fact" where such misconception was the basis for her choosing to engage in the said act...” is vitiated on 10. The Supreme Court also referred to various other decisions and summarized the legal position as under: “18. To summarise the legal position that emerges from the above cases the "consent" of a woman with respect to Section 375 must involve an active and reasoned deliberation towards the proposed act. To establish whether the "consent" was vitiated by a "misconception of fact" arising out of a promise to marry two propositions must be established. The promise of marriage must have been a false promise given in bad CRL.A.613 2020 faith and with no intention of being adhered to at the time it was given. The false promise itself must be of immediate relevance or bear a direct nexus to the woman s decision to engage in the sexual act.” 11. As noted by the Trial Court according to her complaint the appellant has stated that she had physical relationship with the accused in the year 2008 and after three or four months thereafter he had promised to marry her and she had eloped with him. In view of the said statement her allegation that her consent to engage in sexual activity with the accused is vitiated as the same was secured on a promise to get married is not sustainable. Inducement to have a physical relationship by promising marriage and the victim falling prey to such inducement may be understandable in the context of the moment. A promise of marriage cannot be held out as an inducement for engaging in sex over a protracted and indefinite period of time. In State vs Sandeep: CRL. L.P. 532 2019 decided on 25th September 2019 this Court had held that in certain cases a promise to marry may induce a party to agree to establish sexual relations even though such a party does not desire to consent to the same. Such inducement in a given moment may elicit consent even though the concerned party may want to say no. In such cases a false promise to marry with the intention to exploit the other party may vitiate consent and thus constituting an offence of rape under Section 375 of the IPC. However it is difficult to accept that continuing with an intimate relationship which also involves engaging in sexual activity over a significant period of time can be construed as CRL.A.613 2020 involuntary and secured not by affection but only on the lure of 13. The complainant has also alleged that she had conceived on two occasions however the accused did not want any children and therefore had brought medicines which had led her to abort the pregnancy. However in her cross examination she could not recollect the date or the time when such miscarriages had taken place. Concededly there is no other evidence which would establish that the appellant had miscarried on being administered any drugs. 14. The present appeal is also filed after an inordinate delay of six hundred and forty days. There is no credible explanation for such delay. The only explanation provided is that the accused has once again starting interfering with the complainant’s life and therefore she seeks to revive her complaint. Clearly the same presents no ground for condoning such delay. In view of the above the appeal is unmerited and is accordingly dismissed both on merits as well as on the ground of VIBHU BAKHRU J DECEMBER 15 2020 CRL.A.613 2020

Witnesses can be the culprits and this aspect mustn’t be overlooked: Supreme Court of India

There cannot be a fixed formula that the prosecution has to prove or need not prove that the blood group matches. However, the judicial conscience of the Court should be satisfied both about the recovery and about the origin of the human blood. once the recovery is made in pursuance of a disclosure statement made by the accused, the matching or non-matching of blood groups loses significance. This was held by Hon’ble Justice V. Subramaniam in the case of Madhav Vs. State of Madhya Pradesh [Criminal Appeal No. 852 of 2021] on the 18th of August, 2021 before the Hon’ble Supreme Court at New Delhi. The brief facts of the case are, on the night of 13.05.2008, at about 22.30 hrs., all the three accused, in furtherance of the common intention of all, attacked one Pappu @ Nand Kishore with a knife and lathis resulting in his death and that, thereafter, with the intention of screening the offenders from legal punishment, Appellant 2 took the victim to the Government Hospital and sent a false information to the Police as though the murderous assault on the victim was committed by two other persons by name Ruia and Kailash. While all the three accused were charged for offences punishable under Section 302 read with Section 34 IPC, Appellant 2 was charged additionally for the offences punishable under Sections 211 and 194 IPC. The prosecution mainly relied upon (i) the purported eye­ witness account of PWs 4, 5, 6, 7 and 9, (ii) the medical evidence regarding the cause of death; and (iii) the recovery of the weapons used for the commission of the offence namely, knife and lathis, from the houses of the accused and the report of the Forensic Sciences Laboratory. The trial court and the high court convicted them for the above-mentioned offences. Challenging their conviction for the offence punishable under Section 302 read with Section 34 of the Indian Penal Code, 1860 and the sentence of life imprisonment, the present appeal has been filed. The counsel for the appellants argued that the conviction was based entirely upon surmises and that such a conviction is wholly unsustainable in law since the statements of the witnesses were contradictory and there was inconsistency between their testimonies. However, placing reliance upon the seizure of the knife and lathis allegedly used for the commission of the offence, from the houses of the accused under seizure memos and the report received from FSL, it was argued by the learned counsel representing the State that the prosecution had established the guilt of the accused beyond reasonable doubt and that the Sessions Court and the High Court were justified in relying upon the evidence of PW­9 and others. The learned judge heard the submissions of both the parties and observed that IO did not even suspect the role of Ruia and Kailash Yadav in the commission of the crime which remains unexplained. It happens at times that the real culprit lodges the first information against known or unknown persons, to misdirect the investigation of an offence. But, even in such a case, it is only during the course of investigation into the first FIR that the case may take a U­turn. It was also observed that There is nothing on record to show that the blood stains said to have been present in those weapons, matched with the blood of the deceased. Unfortunately, the High Court proceeded on a wrong premise that there was scientific evidence to point to the guilt of the accused, merely because as per Exhibit P­25 (FSL Report), the knife and lathis said to have been seized by the police, contained stains of human blood. The prosecution has not established either through the report of FSL or otherwise, that the blood stains contained in the knife and lathis were that of the deceased.

Challenging their conviction for the offence punishable Code 1860 and the sentence of life the Ist Additional Sessions Judge Sagar M.P. and confirmed Jabalpur Accused Nos.2 and 3 have come up with these 3. We have heard Mr. Ardhendumauli Kumar Prasad and Mr. Amit Arjariya learned counsel appearing for the the appellant in one of these appeals is the sister of Shri Madhav who is the appellant in the other appeal. Shri Raju Yadav who was The case of the prosecution was that on the night of 13.05.2008 at about 22.30 hrs. all the three accused in furtherance of the common intention of all attacked one resulting in his death and that thereafter with the intention victim to the Government Hospital and sent a false and Kailash. While all the three accused were charged for witness account of PWs 4 5 6 7 and 9 the medical knife and lathis from the houses of the accused and the 7. Out of the witnesses on whose ocular testimony heavy persons whom A­2 had named as the accused in the first PWs 4 and 5 were related to PWs 6 and 7. Actually the which was contrary to their statement to the Police. The related to the presence of A­1 and A­2 at the spot but footing without any rhyme or reason as though PWs 4 and 5 Court declared them as hostile at the request of the a person by name Ruia Yadav. As stated in the previous by one Smt. Radha Rani mother of the deceased examined on the side of the defence as DW­1. But that portion of the his brother Raju nearly two hours before the time of occurrence of the crime. Interestingly the argument between the deceased and A­1 was purportedly in relation to an The Sessions Court considered Sapna Yadav examined as PW­9 who was aged 16 years at the time of occurrence as after 21 days of the date of occurrence the Sessions Court with Section 34 IPC. However A­2 was acquitted of the charges under Sections 211 and 194 IPC. All of them were sentenced to life imprisonment and also imposed a fine of 10. A­1 and A­2 being husband and wife respectively 2009 on the file of the High Court challenging their sentence and dismissed the appeals. Aggrieved by the with the above criminal appeals. However A­1 has been the testimonies of PWs 9 and 14 and the glaring for the appellants argued that the conviction was based 12. However placing reliance upon the seizure of the knife and lathis allegedly used for the commission of the offence representing the State that the prosecution had established Sessions Court and the High Court were justified in relying from the date of occurrence of the crime namely 13.05.2008 would show that the investigation in this case instead of the truth. This can be best appreciated by narrating the a) Admittedly an information was received by one Shri Moti Nagar Police Station Sagar District at about 23.00 hrs. on 13.05.2008 from the Government auto rickshaw to the hospital. This Assistant Sub Inspector was examined as PW­12. According to b) Admittedly the investigation was taken over by the investigation in the morning of 14.05.2008 Therefore in the normal course one would have the reverse gear by making the informant namely Sahodra Bai and her husband and brother as as witnesses. One would have expected an the morning of 14.05.2008 in relation to a FIR registered at 23.50 hours the previous night to record the statements of the informant visit the place of commission of the crime secure the But in this case the IO right from the beginning c) During cross­examination PW­14 admitted that the investigation was taken up by him on 14.05.2008 against Ruia and Kailash. This is report to the effect that there were several a report the IO concluded that these abrasions After obtaining the medical report about the their arrest. In other words within three days of the commission of the crime persons named as accused in the FIR were made witnesses for the prosecution and the informant her husband and the three accused that the statement of PW­9 the It is quite strange and completely unfathomable as to how where why and at what point of time the investigation and proceeded towards the very informant and her family accused and the actual accused were made witnesses. This stands corroborated by the admission made by PW­14 whether the accused named in the FIR namely Ruia and Ruia and Kailash Yadav in the commission of the crime remains unexplained. We are conscious of the fact that at times persons who commit a crime themselves make lodge first against those named as accused in the FIR and thereafter the needle of suspicion may turn against the 18. A useful reference can be made in this regard to the persons who allegedly sneaked into the bedroom of her investigation into the FIR registered on the basis of the mother­in­law’s complaint the Police found that the murder informant and her other daughters­in­law. Therefore the Police sent a report to the Court to the effect that the and others. The original informant filed a protest petition a revision and the CJM was directed to conduct an inquiry charge­sheet against the original informant was that once the proceedings initiated contention this Court opined “Of course the legal position is that there cannot be two FIRs against the same accused in respect of the same episode they would normally take the 19. Therefore it happens at times that the real culprit lodges FIR that the case may take a U­turn. When it does the informant may also have to face additional charges for the IPC. This is exactly the reason why in this case the prosecution charged A­2 for the offences punishable under 20. As stated earlier when a question was put to him as to original accused were ever taken into custody the IOthat in ii) that in his presence no weapons were seized from the in his presence. Yet the High Court gave credence to the 24. The fact that right from the beginning the IO proceeded to favour those two persons originally named as accused in the statements of several witnesses including Kailash and “From place of incidence blood stained soil and common soil was collected and was sealed in different different packets was seized in presence of witnesses and seizure Memo is that date only witnesses Rahul Yadav Rajesh Yadav Kailash Yadav Ruia @ Bhagirath Yadav Baby @ Leelabai Gandharv Patel Raghuvir Thakur Brijesh Rawat Om Prakash Pathak Gorelal Kurmi Mahesh Kurmi statement was obtained as told by them and nothing was to take up the cause of Ruia and go to the extent of the Trial Court has believed this story on the basis of the 26. Coming to the testimony of PW­9 projected as the star occurrence of the crime is unbelievable. In any case if her has categorically admitted that Ruia and Kailash were Ruia and Kailash. These admissions on the part of PW­9 hostile there was also one more thing. There is nothing on in those weapons matched with the blood of the deceased accused merely because as per Exhibit P­25the knife and lathis said to have been seized by the police contained stains of human blood. The prosecution has not views on this aspect. In Raghav Prapanna Tripathi vs. The by a majority held that “…that it would be far­fetched to conclude from the mere presence of blood­stained earth that of Orissa3 this Court acquitted the appellant on the ground that though the Serologist report found the shirt and dhoti with the blood of the deceased. In Surinder Singh vs. State for the commission of the offence were established to be Raghunath Ramkishan & Ors. vs. State of Haryana 5 this Court held that the blood stain though of a human blood group of the deceased. In Sattatiya vs State of of the crime substantially dented on account of the fact that the blood stains though found to be of human source could In contrast this Court held in State of Rajasthan vs too insufficient or because of hematological changes and plasmatic coagulation. After referring to the Constitution Bench decision in Raghav Prapanna Tripathi this Court held in Teja Ram that it is not as though the stand relegated to disutility in all cases where there was in Teja Ram that “…the effort of the Criminal Court 30. The decision Teja Ram was followed in Gura Singh vs. State of Rajasthan8 and in Prabhu Dayal vs In R. Shaji vs. State of Kerala10 this Court took note Prapanna Tripathi Teja Ram Gura Singh supra) John Pandian vs. State12 and Sunil Clifford once the recovery is made in pursuance of a disclosure statement made by the accused the matching or non­ 32. Therefore as pointed out by this Court in Balwan Singh vs. State of Chhattisgarh14 there cannot be any fixed that the blood groups match. But the judicial conscience of the Court should be satisfied both about the recovery and In the case on hand even PW­1 who allegedly witnessed the culprits named in the first FIR on account of political pressure as admitted by PW­14 and corroborated by PW­9 whom the prosecution considered to be a star witness Unfortunately both the Sessions Court and the High Court accused were represented by amicus curiae either due to the appearance of the counsel engaged by them at the time of burden of the court is very heavy and unfortunately the Sessions court and the High court did not discharge this escape. Both the Sessions Court as well as the High Court the normal human conduct. It is unbelievable that A­1 A­2 as the accused. It is equally unbelievable that one of the persons who killed the victim in the presence of witnesses either to flee the place of occurrence or to go to the police 36. Therefore we are of the considered view that the appeals deserve to be allowed. But before we do that we must take Shri Shreeyash U. Lalit learned counsel for the State submitted that A­1’s case stands on a completely different appeal by him he cannot be granted any relief we do not of individual overt acts on the part of A­2 and A­3 to conclude that they are entitled to acquittal. This is a case where we have disbelieved in entirety the story of the prosecution. Therefore to deny the 37. Therefore the appeals filed by the appellants are allowed and the conviction handed over by the Sessions Court and including A­1 are set aside. All the three accused shall be released forthwith unless they are in custody in relation to

Partition of properties cannot occur until exclusive title over the said properties has been ascertained: Calcutta High Court

If any judgment or decree is passed pertaining to the partition of properties, then the exclusive right over such said property should be ascertained prior. The present appeal arose from the judgment and preliminary decree dated 16th July, 2018, in an application (GA 4050 of 2017) under Order XII Rule 6 of the Code of Civil Procedure. The quorum of Subhasis Dasgupta J. and I.P. Mukerji J. were faced with trial court’s decree declaring the shares of the heirs of late Prabhat Kumar Mahapatra, in respect of the immovable properties and further appointment of an advocate Commissioner to effect partition to the extent of shares declared in the preliminary decree in the matter of City Centre Properties Pvt. Ltd. v Prasanta Kumar Mahapatra & Ors. [APO No. 232 of 2018]. The case of the first respondent/plaintiff claiming partition, found its basis from the disclosure made, wherein it was averred that Prabhat Kumar Mahapatra during his lifetime purchased three (3) properties, mentioned in the schedule of the plaint, out of his own income, being a businessman, who established and promoted several companies, and one of such company is “City Centre Properties Private Limited/appellant company,” which was promoted as family company, and incorporated as such on 15th July, 1966 It was narrowed down by the bench that the fight between the parties claiming partition was with respect to three (3) immovable properties, shown in the schedule to the plaint. The appellant/company by filing a written statement, jointly with the defendant no. 1, proceeded to answer the claim of the respondent no. 1/plaintiff. Further while observing the lowers court’s approach to the matter, it was revealed that learned trial court granted the preliminary decree having found admission of title, mentioned in the respective written statement of defendants. Though the respondent/plaintiff referred to some of the paragraphs in the written statement of appellant/defendant company to reveal the admission of title, but for ascertainment of categorical, unambiguous and unconditional admission, the learned trial court was under an obligation to consider each and every averment contained in the written statement of the appellant/defendant company, even to infer admission of title of the properties, if it was a deliberate, conscious act of appellant/defendant company making such admission. It was contended before the court that the determination of the question of whether certain properties are the joint properties of the parties or the exclusive properties of any of them, cannot be delegated by the Judge to the Commissioner for partition, and thus the necessity of conducting a trial was focused, and further reliance was placed on Upendra Nath Banerjee & Anr. Vs. Umesh Chandra Banerjee (1910-11) 15 CWN 375. The bench however opined otherwise and stated that it was necessary that the learned trial court should reveal in its judgment that it duly exercised its discretion judicially to find out clear, unambiguous and unconditional admission. The court passed the judgment that “Since, the appellant/defendant company claimed its exclusive title over the scheduled properties, the determination of the question, whether the properties actually are the exclusive properties of the parties proposing partition, or of some other person, as claimed by appellant/defendant company, in our considered view, is obligatory.”

IN THE HIGH COURT AT CALCUTTA Civil Appellate Jurisdiction Present: Hon’ble Justice I. P. Mukerji Hon’ble Justice Subhasis Dasgupta IA No. GA 1 2019under Order XII Rule 6 of the Code of Civil Procedure declaring the shares of the heirs of late Prabhat Kumar Mahapatra in respect of the immovable properties shown in the schedule appended to the amended plaint and further appointing a learned advocate Commissioner to effect partition to the extent of shares declared in the preliminary decree A suit for partition and administration of properties left by the late Prabhat Kumar Mahapatra came to be instituted in the year 2009 The appellant company defendant No. 6 along with the defendant No. 1 filed a written statement jointly in such suit. Besides filing the written statement the appellant filed an affidavit to challenge the application under Order XII Rule 6 C.P.C. was filed By reason of the amendment of the plaint the first respondent plaintiff restricted his claim to the threeimmovable properties left by his father late Prabhat Kumar Mahapatra which is more fully described in the schedule “M” of the plaint The learned trial court by its impugned judgment and order granted a preliminary decree on the alleged admission of the defendants in their respective written statement with respect to the title of immovable properties of late Prabhat Kumar Mahapatra as covered in the scheduled properties keeping in mind that though the defendant Nos. 2a and 2b had raised objection with regard to the representation of defendant No. 1 in the suit by her solicitor for her mental incapacity but no objection was ever raised with regard to the entitlement of share of defendant No. 1 Mr. Ratnanko Banerji learned senior advocate for the appellant defendant no. 6 company challenging the preliminary decree made the following That the said three properties shown in the schedule to the plaint though claimed by the first respondent plaintiff to be the properties belonging to his late father Prabhat Kumar Mahapatra but the said properties were not the properties of late Prabhat Kumar Mahapatra but belonged to the Company. Reference was drawn to the audited balance sheets submitted for the year 1993 1994 wherein Prabhat Kumar Mahapatra had signed the audited balance sheets being a director of appellant company for challenging the title of late Prabhat Kumar Mahapatra That there was no conspicuous and express categorical unequivocal and unqualified admission of appellant defendant company admitting the title of late Prabhat Kumar Mahapatra with respect to the three immovable properties shown in “M” schedule of the plaint thereby justifying the necessity of having held a trial for determination of title of the properties for which partition was sought for without which preliminary decree is not That the assets of appellant defendant company could no be made part of the subject matter of the partition for distribution amongst the heirs of late Prabhat Kumar Mahapatra. The shareholders were not the owners of the properties and assets belonging to the company at best the personal shares held by late Prabhat Kumar Mahapatra in the appellant’s company might be liable for distribution amongst the heirs of late Prabhat Kumar Mahapatra according to their entitlement Reliance was placed by Mr. Banerji on a decision reported in AIR 1955 SC 74 rendered in the case of Bacha F. Guzdar Bombay Vs. Commissioner of Income Tax Bombay that the concept of partners is not akin to shareholders in a company as the company is a separate juristic entity distinct from the shareholders. In Halsbury’s Laws of England Vol. 6 3rd Edn.) Page 234 the law regarding the attributes of shares is stated “A share is right to a specified amount of the share capital of a company carrying with it certain rights and liabilities while the company is a going concern and in its winding up. The shares or other interest of any member in a company are personal estate transferable in the manner provided by its articles and are not of the nature of real estate.” That the learned trial judge ought not to have granted the preliminary decree without enquiring into the title of the threeimmovable properties shown in the schedule as there was no categorical admission of title Mr. Banerji relied on a decision reported in20 SCC 425 delivered in the case of Hari Steel and General Industries Limited & Anr. Vs Daljit Singh & Ors. on the trite principle that no amount of evidence would be of any help in the absence of pleading and foundation in the That the alleged admission sought to be capitalised by the first respondent plaintiff must be conscious specific clear categorical and unequivocal in order to reveal the deliberate act of the party making such admission thereby revealing his intention to be bound by it. In the absence of a clear admission of title the learned trial judge was under an obligation to exercise his judicial discretion keeping in mind that the judgment on admission is a judgment without trial therefore unless the admission is clear unambiguous and unconditional the discretion vested to the learned trial judge ought not to have been exercised so as to deny the valuable right of the appellant defendant no.6 to contest the claim for obtaining a judgment on admission under Order XII Rule 6 C.P.C. Mere giving a look to a solitary statement in the written statement would not be itself sufficient to infer even the admission of the appellant defendant no.6 with respect to the title of the properties shown in schedule allegedly claimed to be belonging to late Prabhat Kumar Mahapatra That the title to the properties shown in the schedule of the plaint whether the properties belonged to the erstwhile owner namely late Prabhat Kumar Mahapatra or not ought to have been determined before granting preliminary decree which should not have been left to be determined by the learned Commissioner Reliance was placed by Mr. Banerji on a decision reported in 1909 15 CWN 375 delivered in the case of Upendra Nath Banerjee & Anr. Vs. Umesh Chandra Banerjee that the determination of the question whether certain properties are the joint properties of the parties or the exclusive properties of any of them cannot be delegated by the Judge to the Commissioner for partition and thus the necessity of conducting a trial was focused That the learned trial judge neither considered the written statement filed by the appellant company jointly with the defendant no. 1 nor advanced any reasons for consideration of the written statement filed by the appellant company as an admission. The impugned judgment and order is thus without any application of mind for not offering any reasons so as to obtain hallmark of a judicial order granting a preliminary decree on admission That in the supplementary affidavit submitted by the appellant company there was a disclosure of tenancy agreement being executed by appellant defendant company in favour of Indian Oil Corporation dated 1st April 2006 wherein the appellant defendant company represented itself to be the owner of the properties let out to Indian Oil Corporation which is of course one of the threeimmovable properties mentioned in the schedule to the plaint and it could not be taken into account by the learned trial court while granting preliminary decree Upon raising such submissions the appellant defendant company proposed for setting aside the impugned judgment and order Per contra Mr. Sakya Sen learned advocate representing the first respondent plaintiff challenged the appeal advancing the That the written statement filed by the appellant would by itself reveal that there was no dispute with regard to the title of late Prabhat Kumar Mahapatra in respect of threeimmovable properties shown in schedule “M” to the plaint and no controversy was there with regard to the shares of heirs of late Prabhat Kumar Mahapatra The claim of the appellant company as to its entitlement to the assets of the company being irrelevant would not require any adjudication when there was categorical and unequivocal admission of appellant defendant as regards title of the Prabhat Kumar Mahapatra Incidentally reliance was drawn from Sub Paragraphof Paragraph 2(n of written statement of appellant defendant company wherein the appellant company itself admitted taking a specific averment that the inherited properties apart all other properties acquired by late Prabhat Kumar Mahapatra were his self acquired properties which according to respondent would be appellant defendant company from challenging the title of late Prabhat Kumar Mahapatra with respect to the three properties shown in the The case of the first respondent plaintiff claiming partition found its basis from the disclosure made in the Paragraph 3 of the amended plaint wherein it was averred that Prabhat Kumar Mahapatra during his lifetime purchased threeproperties mentioned in the schedule of the plaint out of his own income being a businessman who established and promoted several companies and one of such company is “City Centre Properties Private Limited appellant company ” which was promoted as family company and incorporated as such on 15th July 1966 That properties mentioned in 54 Forest Park Bhubaneshwar Odisha was let out to Indian Oil Corporation by the appellant company with the knowledge of 1st respondent. Such letting out would not itself deprive the respondent no.1 plaintiff from having his share to the extent of his entitlement in respect of properties left by his late father for the apparent admission of appellant defendant no.6 in its written statement as regards the title of his late father to the properties as tenancy could be created without being owner of property and appellant company had nothing to do with the ownership and title of such property. Late Prabhat Kumar executed a of property appellant defendant company and the appellant being a lessee of the demised property could not be allowed to dispute the title of Prabhat Kumar Mahapatra over the said property. The appellant company being a lessee of the demised properties there left no hurdle to pass a preliminary decree declaring the shares of late Prabhat Kumar Mahapatra on apparent title the written That though appellant defendant company might be in possession in respect of one of the properties mentioned in the schedule to the plaint but the partibility of such property being a subject of decision could be well taken in a proceeding before the learned Commissioner of partition appointed for the purpose. Paragraph 5 of the written statement of appellant company having dealt with the admission of title individually with the description of immovable properties shown in the schedule of the plaint there left nothing to dispute with the admission of title of properties and thus such paragraph of written statement was much stressed upon to infer even the admission of title That by reasons of such admission of title found in the relevant paragraphs of written statement the balance sheet relied upon by the appellant not being document of title would be without any significance The mere entries in the balance sheet signed by late Prabhat Kumar Mahapatra could not be allowed to be relied upon to contradict the title of late Prabhat Kumar Mahapatra with respect to the three immovable properties mentioned in the plaint The judgments referred by the appellant though being on established proposition of law but the same would not be applied in the facts and circumstances of this case That since the learned trial court simply declared the shares of the heirs of late Prabhat Kumar Mahapatra to the extent of 1 4th share each pursuant to the averment made in Paragraph 42 of the plaint claiming distribution of shares amongst the heirs of late Prabhat Kumar Mahapatra upon sensing the apparent categorical and unqualified admission of title of defendants in their respective written statement and that being the position any exercise for relegating this appeal to trial as proposed to be held by appellant in this case would be unnecessary and prolong the Learned advocate representing respondent no. 2 3a 3b 4 and 5 supported the stand taken by respondent no. 1 plaintiff that no illegality was committed by learned trial court in granting a preliminary decree for the apparent admission of title found in the written statement of defendants Attempt was made by respondent nos. 3a 3b and 5 to distinguish the judgment rendered in the case of Upendra Nath Banerjee immovable properties shown in the schedule to the plaint. The appellant company by filing a written statement jointly with the defendant no. 1 proceeded to answer the claim of the respondent no. 1 plaintiff The learned trial court granted the preliminary decree having found admission of title mentioned in the respective written statement of defendants. Though the respondent plaintiff referred to some of the paragraphs in the written statement of appellant defendant company to reveal the admission of title but for ascertainment of categorical unambiguous and unconditional admission the learned trial court was under an obligation to consider each and every averments contained in the written statement of the appellant defendant company even to infer admission of title of the properties if it was a deliberate conscious act of appellant defendant company making such admission It is so necessary that the learned trial court should reveal in its judgment that it duly exercised its discretion judicially to find out clear unambiguous and unconditional admission There is nothing reflected in the order under appeal that the learned trial court had even taken into account the points raised in the written statement filed by appellant company When the appellant defendant company responding to the summons being issued by the court furnished its written statement jointly with defendant no. 1 the learned trial court ought to have returned a decision in terms of the averments contained in the relevant paragraphs of the written statement of appellant defendant company disputing with the title of the No reasons whatsoever were assigned by learned trial court for not making consideration of the written statement and the affidavit furnished by the Merely giving an isolated look at some of the paragraphs of written statement filed by the appellant defendant company would not be sufficient enough in the given facts of this case to reveal the admission of title of the properties allegedly owned by late Prabhat Kumar Mahapatra The learned trial court is supposed to give a decision after accepting the written statement of the appellant defendant company for reaching its logical conclusion so as to grant a preliminary decree Assigning of reasons being a hallmark of an order passed in exercise of judicial authority it would always be desirable to offer reasons while coming to a conclusion In the impugned judgment and preliminary decree dated 16th July 2018 since there has been non consideration of the written statement filed by the appellant defendant company without offering any justified reasons the same is not sustainable Having considered the controversy raised over the properties mentioned in the schedule of the plaint to its title and bearing in mind the nature and peculiarity of averments contained the written statement of appellant defendant company disputing the title of late Prabhat Kumar Mahapatra from whom the heirs claimed their 1 4th share each all questions raised by appellant defendant company involving the title of the parties and the proposed reliefs sought ought to have determined by the learned trial court before granting any preliminary decree under Order XII Rule 6 C.P.C We thus found strong force in the argument advanced by Mr. Banerji appearing for the appellant There arises the necessity of ascertaining title of properties with respect to which partition has been sought for before granting a preliminary decree Since the appellant defendant company claimed its exclusive title over the scheduled properties the determination of the question whether the properties actually are the exclusive properties of the parties proposing partition or of some other person as claimed by appellant defendant company in our considered view is obligatory Ascertainment of the title of properties appears to be pre requisite prior to effecting a preliminary decree while rendering a judgment on admission under Order XII Rule 6 of C.P.C The impugned judgment and the preliminary decree dated 16th July 2018 for the reasons as aforesaid cannot be allowed to stand and the same is accordingly set aside The application for judgment on admission is The properties and extent to which they belonged to late Prabhat Kumar Mahapatra and the share of the parties in them are to be determined on trial leading to a preliminary decree. This appeal is allowed to the above The connected application is accordingly disposed of Properties shown in the Schedule to the plaint are claimed by the plaintiff petitioner to be the properties belonging to late Prabhat Kumar Mahapatra. However the said properties are the assets of the defendant no 6 as duly reflected in its balance sheets including the balance sheets which are signed by late Prabhat Kumar Mahapatra himself while acting as a director of the defendant no. 6 company.” 2. It is pertinent to note that at the time of his death Prabhat Kumar Mahapatra did not possess any shares in the City Centre Properties Pvt. Ltd being Defendant no. 6 herein Defendant no.7 Defendant no.8 and Carfax Investments Pvt. Ltd. and as such the plaintiff cannot seek any inheritance in such respect. Thus under no circumstances can the shares in these Companies be said to belong to Late Prabhat Kumar Mahapatra or the Companies themselves be described as a proprietorship concern of the said Prabhat Kumar Mahapatra.” “(xi) Without prejudice …... It is denied that the properties of the companies can be said to be joint family property. No documents have been disclosed to show that the properties in question or any of them at any stage was regarded or treated by anyone as joint family property. Nor have those been so treated for tax purposes at any stage.” 5. With reference to paragraphs 2 to 4 of the plaint it is stated state that there is no premises at 27 Free School Street Kolkata 700 087. In any event a leasehold property cannot be a subject matter of partition as there is no partiable interest in the property. The property situated at 10A Lee Road Kolkata 700 020 is a two storied building and the first floor together with common passage and common amenities belongs to the said father during his lifetime and after his death it is being exclusively and illegally controlled by the defendant no.2. It is stated that Prabhat Mahapatra was never the owner of the ground floor flat at 10A Lee Road Kolkata 700 020. The premises mentioned in 54 Forest Park Bhubaneshwar 751009 has been let out to Indian Oil Corporation by the City Centre Properties Pvt. Ltd. and contrary allegations are denied and disputed.” “7. With reference The allegation of the family Companies and that the rights of the Companies are subject to equitable consideration as specifically alleged in paragraph 15 is incorrect and untenable. The Companies are not in the nature of partnership and the rights of the shareholders are not subject to equitable consideration as alleged by the plaintiff. A Company does not recognize any concept of their being a trust in respect of the share of a living person. The shareholdings of the family members are to be found in the Register of members of each of such members.” 13. With reference ..that the plaintiff is not entitled to 1 4th share in any of the properties mentioned in paragraph 42 of the plaint. Inasmuch as the Plaintiff did not have any right title and interest as a coparcener in any of the properties accordingly.” In paragraph 3(d) of the affidavit in opposition of these defendants to the judgment of admission application it has been categorically stated that all the three immovable properties belonged to the company. A copy of the balance sheet for the year 31st March 1993 has been annexed. A schedule to it describing the Company’s fixed assets specifies that those three properties were included in them. The same is also true as regards the balance sheet of the year ending 31st March 1994 With regard to 27 Mirza Galib Street the affidavit in opposition asserted that the land was leased out to the respondent no. 6 by late Prabhat Kumar Mahapatra on 1st January 1967 for 25 years. The company constructed a building on it. The lease was further extended by 25 years on 10th August There are no reasons in the impugned judgment dated 16th July 2018 as to why his lordship thought that there was an admission on the part of the answering defendants that the said properties belonged to late Prabhat Before pronouncing a preliminary decree the court has the power to even investigate the title of the properties to ascertain whether it at all belonged to the person from whom the title is claimed. Thereafter comes the question of determination of the shares of the parties to the partition suit The court might adopt any course of action permissible in law to ascertain such title. In this kind of a case the title could not have been declared on the basis of alleged admissions. It could only have been determined and declared on the basis of a trial leading to a preliminary decree The operative part of my order is identical to the one made by my learned Urgent certified copy of this judgment if applied for be given to the appearing parties as expeditiously as possible upon compliance with the all (I. P. MUKERJI J

Writ petition questioning transfer of government employees dismissed and courts power to   judicial review simplified -Manipur high court

Writ petition questioning transfer of government employees dismissed and courts power to   judicial review simplified -Manipur high court The writ petition questioning the transfer and posting of the health officer was dismissed by HON’BLE MR. JUSTICE M.V. MURALIDARAN in the case of  Bobby Laishram versus The State of Manipur and Ors. ( WP(C) No. 368 of 2020) The crux of the case is the petitioner was appointed In the health department, Manipur as a pharmacist and was posted in Chandel district but the petitioner was transferred to a different district without completion of the term of 3 years and concerning this, a writ petition was filed by petitioner challenging the transfer and posting. Respondents 1 and 2 filed counter-affidavit stating that the transfer order was issued by the second respondent in exigencies of service because of combating and controlling Covid-19 pandemic and the transfer order was issued for administrative convenience which may not be interfered with by the Court and does not fall under judicial review. The learned counsel on behalf of petitioners submitted that the impugned transfer order has not complied with the transfer policy and is thus biased, malafide, arbitrary, and improper and therefore, the same is liable to be set aside as far as the petitioner is concerned and further submitted that the transfer order was issued not only in violation of various Office Memorandums but also the same was issued to cause harassment to the petitioner the decisions of Gauhati high court in the cases of Prasanna Kumar Nath v. State of Assam and others, 2004 (4) GLT 348 and Dayal Das v. State of Assam and others, 2002 (2) GLT 109, learned senior counsel for the petitioner submitted that the State Government itself framing the guidelines are bound to act within the parameters of the said guidelines with the justified exception here and there.  The learned counsel on behalf of respondents submitted that impugned transfer order was issued in exigencies of service and for administrative convenience which maybe not be interfered with by the High Court and further submitted that Unless an order of transfer is shown to be an outcome of malafide exercise, the Courts normally may not interfere with such order as a matter of routine. Therefore, he prayed for the dismissal of the writ petition. The court considered the submissions from both sides and decided that According to the petitioner, no employee should be kept in post for more than 3 years. Similarly, no transfer may be effected unless the concerned employee has completed about 3 years in a post unless there are compelling reasons to do so which in this case he is duty-bound to do healthcare services towards the public which has nowadays become a prime consideration to combat Covid-19 pandemic as well as the exigency of service. The court on interference stated that Transfer ordinarily is an incidence of service and Courts should be very reluctant to interfere in transfer orders as long as they are not illegal. Thus, this Court is of the view that transfer and posting of a Government employee must be left in the discretion of the respondent authorities concerned which are in the best position to assess the necessities of the administrative requirement of the situation. And from the case of Union of India and others v. Lt. General Rajendra Singh and another, reported in (2000) 6 SCC 698 the court held that transfers are best left to the discretion of the competent authority and should not be tinkered with, in the absence of a demonstrable violation of statutory rules, or an instance of mala fide on the part of the competent authority. In the case on hand, the respondent authorities have satisfactorily explained the reason for issuing the transfer and posting order to the petitioner, and considering all the above factors the writ petition was dismissed. Click here to read the judgment

P a g e | 1 IN THE HIGH COURT OF MANIPUR AT IMPHAL WP(C) No. 3620 Bobby Laishram aged about 38 years S o L. Sharatchandra of Sagolband Tera Lukhram Leirak Machin PO Imphal & PS Lamphel Manipur now working as Pharmacisthaving EIN 066291 under Directorate of Health Services Government of Manipur. … PETITIONER VERSUS The State of Manipur represented by the Principal Secretary Secretary Government of Manipur office at Old Secretariat Babupara PO & PS Imphal Imphal West District The Director of Health Services Manipur office at Lamphel Opposite RIMS PO & PS Imphal Imphal West District Manipur—795001. … RESPONDENTS Ng. Indira Devi Pharmacist posted at DMO Tamenglong EIN 034486 C o Director of Health Services Manipur office Lamphel Opp. RIMS PO & PS Imphal Imphal West District Manipur—795001. … PRIVATE RESPONDENTS WP(C) No. 3620 P a g e | 2 HON’BLE MR. JUSTICE M.V. MURALIDARAN Mr. M. Hemchandra Sr. Advocate Mr. Juno Rahman S. Advocate Mr. Lenin Hijam Addl. AG For the Petitioner For the Respondents Date of Hearing and reserving Judgment & Order :: Date of Judgment & Order :: JUDGMENT AND ORDER This writ petition has been filed by the petitioner seeking to quash the impugned transfer and posting order dated 15.5.2020 issued by the second respondent in respect of the petitioner and to consider and dispose of the representation dated 8.7.2020 submitted by the petitioner. 2. The case of the petitioner is that on 12.3.2017 the petitioner and others were initially appointed the Health Department Manipur as Pharmacists temporarily on regular basis and posted at PHSC Khubung Khulen Chandel District. After the appointment as Pharmacist and posted at PHSC Khubung Khulen the petitioner has been transferred and posted at PHSC Somtal Tengnoupal District and thereafter by the order dated 01.2.2018 issued by the second respondent the petitioner was transferred and WP(C) No. 3620 P a g e | 3 posted at CHC Nambol Bishnupur District. Further case of the petitioner is that to the utter shock and surprise vide impugned order dated 15.5.2020 the petitioner was transferred and posted at DMO Tamenglong even not completed two years and 3 months at CHC Nambol and also in violation of the order of the Joint Secretary Health and Family Welfare). Manipur dated 25.7.2007. 3. According to the petitioner the new place of posting where the petitioner was supposed to work has no staff quarters and no transportation from location of the petitioner. Further case of the petitioner is that a similarly situated person namely TD Ahar Chiru who was working as Female Health Worker with the petitioner had challenged the transfer order dated 19.6.2020 as the same has full of material irregularities in W.P.No. 3120. By the order dated 25.6.2020 the said writ petition was disposed of by this Court whereby directing the respondent authorities to consider and dispose of the representation dated 23.6.2020 submitted by the petitioner therein within a period of four weeks. In the said writ petition the Court has also ordered that pending disposal of the representation the petitioner therein should be allowed to continue at her present place of posting. Stating all these facts the petitioner submitted a representation on 8.7.2020 praying inter alia to review the impugned WP(C) No. 3620 P a g e | 4 transfer order in respect of the petitioner but the same has not been considered by the official respondents. Hence the writ petition. 4. The respondents 1 and 2 filed counter affidavit stating that the transfer order dated 15.5.2020 was issued by the second respondent in exigencies of service in view of combating and controlling Covid 19 pandemic and the transfer order was issued for the purpose of administrative convenience which may not be interfered with by the Court. It is stated that pursuant to the impugned transfer order the third respondent has joined the new place of posting and there is no vacancy other than the posting given to the petitioner. It is also stated that the petitioner has not yet joined and complied with the impugned order. It is stated that the order dated 25.7.2007 referred by the petitioner has no application in the present case as the transfer policy dated 25.7.2007 has already been superseded by various subsequent orders. The petitioner has been posted at the same place of posting for more than three years. The petitioner in W.P.(C) No. 3120 cannot be equated with that of the petitioner herein. Hence prayed for dismissal of the writ petition. 5. Assailing the impugned transfer and posting order Mr. M. Hemchandra learned senior counsel for the petitioner submitted that the impugned transfer order has not complied the transfer policy WP(C) No. 3620 P a g e | 5 dated 25.7.2007 and is thus bias malafide arbitrary and improper and therefore the same is liable to be set aside as far as the petitioner is concerned. He would submit that the impugned transfer order dated 15.5.2020 was issued not only in violation of various Office Memorandums but also the same was issued with an intention to cause harassment to the petitioner. Further the impugned transfer order was issued not in public interest 6. Learned senior counsel for the petitioner further submitted that the respondent authorities has not considered the representation dated 8.7.2020 of the petitioner till date for the reasons best known to the authorities. 7. Placing reliance upon the decisions of the Gauhati High Court in the cases of Prasanna Kumar Nath v. State of Assam and others 2004 GLT 348 and Dayal Das v. State of Assam and others 2002GLT 109 learned senior counsel for the petitioner submitted that the State Government itself framing the guidelines are bound to act within the parameters of the said guidelines with the justified exception here and there. Arguing so learned senior counsel for the petitioner submitted that the impugned transfer and posting order dated 15.5.2020 is in total disregard and in violation of WP(C) No. 3620 P a g e | 6 the instructions issued in various Official Memorandums and therefore the same is liable to be set aside. 8. Per contra Mr. Lenin Hijam learned Addl. Advocate General for the respondents 1 and 2 submitted that the impugned transfer order was issued in exigencies of service and for the purpose of administrative convenience which may be not be interfered with by the High Court. He would submit that the third respondent pursuant to the impugned transfer order has joined the transferred place but the petitioner has not yet joined and thus disobeyed the order. 9. Learned Addl. Advocate General for the respondents 1 and 2 further submitted that the transfer is a condition of service and the transfer policy dated 25.7.2007 referred to by the petitioner has no application in this case as the said order has already been superseded by the subsequent orders. 10. Learned counsel for the respondents 1 and 2 then submitted that no Government servant has any legal right to be posted forever at any one particular place or place of his choice since transfer of a particular employee appointed to the class or category of transferable posts from place to other is not only an incident but also condition of service necessary too in public interest and WP(C) No. 3620 P a g e | 7 efficiency in the public administration. Unless an order of transfer is shown to be an outcome of malafide exercise the Courts normally may not interfere with such order as a matter of routine. Therefore he prayed for dismissal of the writ petition. 11. This Court considered the submissions made by learned counsel for parties and also perused the materials available on record. 12. The grievance of the petitioner is that by the order dated 1.2.2018 the petitioner was transferred from PHSC Somtal to CHC Nambol and thereafter issued the impugned order dated 15.5.2020 which is only 2 years and 3 months from the last transfer order dated 1.2.2018. According to the petitioner no employee should be kept in a post for more than 3 years. Similarly no transfer may be effected unless the concerned employee has completed about 3 years in a post unless there are compelling reasons to do so. 13. On the other hand it is the say of the official respondents that the impugned transfer order dated 15.5.2020 was issued by the second respondent in exigencies of service and for the purpose of administrative convenience which may not be interfered with by the Court. WP(C) No. 3620 P a g e | 8 14. Admittedly the place of posting of a Government employee cannot be at the desire and choice of the employee and it is within the purview of the competent authorities for administrative convenience in public interest. 15. The case of the petitioner is that he has not completed three years in the present place of posting and therefore the impugned transfer order is in violation of the transfer policy adopted by the respondent authorities. It is true that no transfer may be effected unless the employee has completed 3 years in a post however there are compelling reasons to do so. 16. Admittedly the petitioner was serving as Pharmacist Allo) in the Medical Directorate Government of Manipur and he is duty bound to do healthcare services towards the public which has nowadays become a prime consideration to combat Covid 19 pandemic as well as the exigency of service. 17. It appears that by the impugned transfer order the petitioner was transferred to DMO Tamenglong and the third respondent was transferred to CHC Nambol. Thus the transfer of the petitioner and the third respondent is vice versa. That apart in the transfer order the second respondent clearly stated that the WP(C) No. 3620 P a g e | 9 transfer is made in public interest. It is contended by the respondent authorities that the third respondent joined the transferred place whereas the petitioner has yet to join at his new place of posting. Since the third respondent obeyed the transfer order and has joined the new place of posting it is the bounden duty of the petitioner to join his new place of posting taking note of the Covid 19 pandemic 18. Learned counsel for the petitioner submitted that the Joint Secretary Health and Family Welfare issued a transfer and posting policy dated 25.7.2007 and constituted Committees to consider and decide the transfer and posting in the Department of Health and Family Welfare on the basis of the policy with immediate effect and until further orders. Thus all transfer and postings in the Health and Family Welfare Department shall be made on the recommendations of the Committees only and any transfer and postings made without such Committees shall be treated as null and void. In the case hand no such recommendation was made by the Committee and therefore the impugned transfer and posting order is liable to be quashed. 19. Placing reliance upon the decisions of the Gauhati High Court in the cases of Prasanna Kumar Nath and Dayal DasWP(C) No. 3620 P a g e | 10 learned senior counsel for the petitioner submitted that State Government itself framing the guidelines are bound to act within the parameters of the said guidelines with the justified exception here 20. In Prasanna Kumar Nath the Gauhati High and there. Court held: the aforesaid Office Memorandum learned counsel for the respondent No.5 argued that they are only directory and not mandatory. There is no dispute in respect of the same. However the question arises as to what for such guidelines are framed. Is it only to violate the same and then to say that those guidelines are not mandatory. Guidelines are always guidelines and like statutory rules. However the State Government itself framing the guidelines are bound to act within the parameters of the said guidelines with the justified exception here and there.” 21. In Dayal Dasthe Gauhati High Court held: WP(C) No. 3620 P a g e | 11 “4. …. The guidelines for transfer of officers in the office memorandum dated 19th Sept ’92 may not have statutory roce but are checks against arbitrary transfers and deviations from the said guidelines may result in an arbitrary transfers. For these reasons I am of the view that the transfer of the petitioner by impugned notification dated 27.7.2001 should not be given effect to till the justification of his transfer with grounds are recorded in writing and these are placed before the Chief Minister for approval. Since by the impugned notification dated 27th July 2001 a chain of transfer has been made and any interim order passed by this Court would affect the chain in any considered opinion this Court should not keep the matter pending in Court by passing an interim order of stay and should dispose of the writ petition with appropriate directions as indicate above.” 22. This Court finds no force in the submission made by learned senior counsel for the petitioner that the impugned transfer is not made on the recommendation of the Committee. In fact the WP(C) No. 3620 P a g e | 12 petitioner has failed to produce any material to show the existence and operation of the transfer policy dated 25.7.2007. According to the respondent authorities the transfer policy dated 25.7.2007 referred by the petitioner has already been superseded by various subsequent orders. When such being the position the petitioner cannot refer to the transfer policy dated 25.7.2007. Therefore the decisions relied upon by learned senior counsel for the petitioner are not applicable to the case on hand. 23. Transfer and posting of an employee having such transfer liability is not only an incidence of service but is an essential condition of service. No person having such transfer liability has any justifiable right to claim for a particular posting which is issued on organisational considerations. 24. In Union of India and others v. H.N.Kirtana reported in 1989) 3 SCC 445 the Hon ble Supreme Court held as under: “5. ...... Transfer of a public servant made on administrative grounds or in public interest should not be interfered with unless there are strong and pressing grounds rendering the transfer order illegal WP(C) No. 3620 P a g e | 13 on the ground of violation of statutory rules or on the ground of mala fide. ......” 25. In Shilpi Bose and others v. State of Bihar and others reported in 1991 SuppSCC 659 the Hon ble Supreme Court held that a Government servant holding a transferable post has no vested right to remain posted at one place or other and he is liable to be transferred from one place to another. It was further held that even if a transfer order is passed in violation of executive instructions or orders the Courts ordinarily should not interfere with the order. 26. In National Hydroelectric Power Corporation Limited v. Shri Bhagwan reported in8 SCC 574 the Hon’ble Supreme Court held as under: “5. ..... it is now well settled and often reiterated by this Court that no government servant or employee of public undertaking has any right to be posted forever at any one particular place since transfer of particular employee appointed to the class or category of transferable posts from one place to another is not only an incident but a condition of service necessary to in public interest and efficiency in public administration. ......” WP(C) No. 3620 P a g e | 14 27. In Rajendra Singh and others v. State of Uttar Pradesh reported in15 SCC 178 the Hon’ble supreme Court observed that a Government servant has no vested right to remain posted at a place of his choice nor can he insist that he must be posted at one place or the other. He is liable to be transferred in the administrative exigencies from one place to other. Transfer of an employee is not only an incident inherent in the terms of appointment but also implicit as an essential condition of service in the absence of any specific indication to the contrary. No Government can function if the Government servant insists that once appointed or posted in a particular place or position he should continue in such place or position as long as he desires. 28. Transfer ordinarily is an incidence of service and Courts should be very reluctant to interfere in transfer orders as long as they are not illegal. Thus this Court is of the view that transfer and posting of a Government employee must be left in the discretion of the respondent authorities concerned which are in the best position to assess the necessities of the administrative requirement of the 29. In the instant case as stated supra the impugned transfer was made in public interest and therefore the question of WP(C) No. 3620 P a g e | 15 completion of three years in the place of posting has no application considering the Covid 19 pandemic situation coupled with the fact that the petitioner is serving in Medical Department. Therefore this Court finds no discrimination in the present transfer. Further this Court is of the view that transfer and posting of the petitioner has been made only after examination of all aspects and thus no policy and or any statutory rule has been violated by the second respondent while issuing the impugned transfer order and therefore no judicial review is warranted. 30. Power of judicial review is available only on two counts namely where the posting is based on mala fide exercise of power or which is made in violation of any statutory provisions. 31. In Union of India and others v. Lt. General Rajendra Singh and another reported in 6 SCC 698 the Hon ble Supreme Court held: “29. ...... Judicial review is permissible only to the extent of finding whether the process in reaching decision has been observed correctly and not the decision as such ........” WP(C) No. 3620 P a g e | 16 32. In State of U.P. and another v. V.Johri Mal reported in 2000) 4 SCC 714 the Hon ble Supreme Court observed as under: “28. ...... The power of judicial review is not intended to assume a supervisory role or don the robes of the omnipresent. The power is not intended either to review governance under the rule of law nor do the courts step into the area exclusively reserved by the supremalex to the other organs of the State. The limited scope of judicial review succinctly put is: i. Courts while exercising the power ofjudicial review do not sit in appeal over the decisions of administrative bodies. ii. .......... iii. An order passed by an administrative authority exercising discretion vested it cannot be interfered in judicial review unless it is shown that exercise of discretion itself is perverse or illegal.” 33. The learned counsel for the respondents argued that even where executive instructions exist and posting is issued in violation of such executive policy but fairly and based on WP(C) No. 3620 P a g e | 17 administrative consideration the Court in its extraordinary writ jurisdiction desists from making any interference. This Court finds some force in the submission made by the learned counsel for the respondent authorities. 34. It is well settled that matters of transfers are best left to the discretion of the competent authority and should not be tinkered with in the absence of a demonstrable violation of statutory rules or an instance of mala fide on the part of the competent authority. In the case on hand the respondent authorities have satisfactorily explained the reason for issuing the transfer and posting order to the 35. The Courts should be extremely slow in interfering with an order of transfer and posting and unless an exceptionally strong case is made out no interference should be made. In the present case since the second respondent has issued the impugned transfer order in public interest this Court finds no malafide in issuing the impugned transfer order and hence no interference is called for. There is no merit in the writ petition and therefore the same is liable to be dismissed. 36. In the result WP(C) No. 3620 P a g e | 18 1) The writ petition is dismissed. 2) The petitioner is directed to report at the transferred place within a period of four weeks from the date of receipt of a copy of this order if already not joined. 3) No costs. 37. Registry is directed to issue copy of this order to both the parties through their WhatsApp e mail. JUDGE FR NFR WP(C) No. 3620

Appellant has 8 queries regarding Karvy’s closure cum transfer application: SEBI, Part 2.

The appellant has filed the appeal on the ground that the information provided was incomplete, misleading or false. The queries of the appellant and the response provided thereto, were discussed in the following paragraphs. The respondent, in response to the query numbers 1, 2, 3 and 4, informed that the information sought is not available with SEBI as the same is not maintained by SEBI in normal course of regulation of securities market. The appellant, in his appeal, inter alia, submitted that the turnover fees and other levies charged by the stock brokers must be maintained by the NSE/SEBI and hence it should be provided to the appellant. On consideration, Appellate Authority did not find any reason to disbelieve the observation that the requested information is not maintained by SEBI in normal course of regulation of securities market. In this context, it was noted that the Hon’ble CIC in Mrigesh Manubhai Thakkar vs. Securities and Exchange Board of India (Order dated December 28, 2016). It was 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, it was noted that the Hon’ble CIC in the matter of Sh. Pattipati Rama Murthy vs. CPIO, SEBI (Decision dated July 8, 2013), held: “… if it (SEBI) does not have any such information in its possession, the CPIO cannot obviously invent one for the benefit of the Appellant. There is simply no information to be given.”

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

Meritorious students should not be deprived of educational opportunities: Bombay High Court

When the policy is unreasonable, discriminatory and in breach of the equality guaranteed by the Constitution, the Court necessarily has to step in by exercising its powers of judicial review, protect the fundamental rights of the aggrieved persons.  This judgment was pronounced by the division bench comprising Justice Dipankar Datta and Justice G.S. Kulkarni in the matter of Ms. Vinita Umesh Singh v. The Administrator, Dadra & Nagar Haveli and Ors. [WP No. 96105 of 2020]. The petitioner, a domicile of Dadra & Nagar Haveli, is an aspirant for admission to the MBBS course for the academic year 2020-21. She has appeared for the NEET-2020 examination and has secured a sufficiently high score of 502 marks out of 720 marks. For admissions to the MBBS course for the Academic year 2020-21 the Union Territory Administration of Dadra & Nagar Haveli and Daman & Diu has issued an ‘Admission Prospectus 2020-21’. The petitioner alleged that the admission of the petitioner was unlikely in view of Admission Rules prescribing the ‘First Priority’ even after scoring high in the NEET examination and even after qualifying the eligibility criteria so prescribed. This rule inter alia provides that a candidate whose parents are domicile of the Union Territory and has studied from the VIII Standard to the XII Standard, from a recognized school in the Union Territory would qualify under the category of ‘First Priority’ for admission to the MBBS Course.  The Hon’ble High Court while deciding upon the matter, held that “As a sequel to the above deliberation, we are of the considered view that in the peculiar facts and circumstances of the case, it would amount to negating the right of the petitioner, guaranteed under Article 14 of the Constitution, in the petitioner being not granted admission to the MBBS course for the academic year 2020-21 and by keeping her outside the ambit of the ‘First Priority’ as prescribed under Rule 4(a). Also, a holistic reading of Rule 4(a) conjointly with the relaxation it already permits would certainly make a way for such inclusion of the petitioner. We are hence inclined to allow the petition by the following order: (i) the respondents are directed to admit the petitioner to the first year MBBS course for the academic year 2020-21 by considering her in the ‘First Priority’ as prescribed under Rule 4(a). (ii) Rule is made absolute in the above terms. No costs. This order will be digitally signed by the Private Secretary/ Personal Assistant of this Court. All concerned will act on production by fax or e-mail of a digitally signed copy of this order.” The Court placed its reliance upon the case of State of Maharashtra & Ors. v. Lata Arun where it was held that “it would be within the power of the Court to examine whether the policy decision or the administrative order is based on fair, rational and reasonable ground and as to whether the decision has been taken into consideration of relevant aspects of the matter. When a policy is unreasonable, the Court would certainly not be powerless to exercise such constitutional jurisdiction.” The Court also relied upon the case of Meenakshi Malik v. University of Delhi [(1989) 3 SCC 112], where “the Supreme Court relaxed the rigour of the condition prescribing that the last two years of education should be received in a school in Delhi and that there should be no insistence on the fulfilment of that condition, in the case of students of parents who are transferred to a foreign country by the Government and who are therefore required to leave India along with them.” Click here to read the judgement

IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITIONNo.96105 OF 2020 Ms.Vinita Umesh Singh Age: 22 years Occ. Student Residing at B 408 Pramukh Gardens Kilvani Road Amli Silvassa Dadra & Nagar Haveli 1. The Administrator Dadra & Nagar Haveli Daman & Diu Secretariat 2. Secretary of Education Union Territory of Dadra & Nagar Haveli Daman & Diu Secretariat 3. Director of Health Directorate of Medical & Health Services Silvassa 4. The Dean NAMO Medical Education & Research Institute Silvassa ..Respondents Mr.Pradeep Thorat with Ms.Aditi Naikare for Petitioner Mr.Hitendra Venegaonkar for Respondents CORAM : DIPANKAR DATTA CJ G.S.KULKARNI J RESERVED ON: DECEMBER 16 2020 PRONOUNCED ON : DECEMBER 17 2020 Judgment :however for further education from the IX to XII Standards she has studied in the Union Territory of Dadra Nagar Haveli at Silvassa in the schools the details of which alongwith the necessary certificates are described in paragraph 4 of The petitioner has contended that the Union Territory of Dadara & Nagar Haveli and Daman and Diu do not have their own board of Secondary and Higher Secondary Education hence the schools in the Union Territory are affiliated to the Gujarat Secondary and Higher Secondary Education Board. She has passed her X Std.from these schools at Silvassa which are in the Union Territory of Dadra & Nagar Haveli and are also affiliated to the Gujarat Secondary and Higher Secondary Education Board. The petitioner has contended that her parents too are domiciled in the Union Territory of Dadara Nagar Haveli. The petitioner s father has been issued a domicile certificate by the UT Administration. The petitioner has contended that in the year 2019 she appeared for the NEETexamination aspiring to seek admission for the MBBS Course conducted by the respondents. She was successful in the said NEET. She accordingly applied for an admission to the MBBS course being conducted by respondent no.4 College. Although the petitioner had good score her application for admission was not considered by the respondents on the ground that she is not eligible for a first priority as she has not studied continuously from the VIII Standard to the XII Standard in a recognized school in the Union Territory of Dadra & Nagar Haveli and Daman & Diu. Her father accordingly made a representation dated 18 June 2019 to the Administrator Dadra and Nagar Haveli requesting to relax the criteria of requirement of schooling in the Union Territory from 5 years to 4 years so that petitioner can be considered for admission in the first priority. The representation however was not responded. Subsequently on 20 July 2019 the petitioner’s father lodged a complaint with the Prime Minister s office alleging that the admission policy was discriminatory in prescribing the first priority only to the students who had completed VIII to XII standard from the schools in the Union Territory. This complaint was also not entertained on the ground that admissions to the MBBS course were completed. The petitioner apprehending that the respondents would continue the said policy in regard to the First Priority and grant benefit to those students who have studied continuously from VIII till the XII Standards from the schools in the Union Territory even for the academic Year 2020 21 made another representation dated 20 September 2020 to the SecretaryUT Administration. In her representation she stated that the Union Territory does not have its own board and all the schools are affiliated to the Gujarat Board. She also stated that in the other States in India candidates seeking admission from the State quota are required to complete the X and XII Standard examinations from the State Board or any recognized Board and if this is to be considered she has completed her entire education from the I to XII Standards from the Gujarat Board hence she should be considered eligible in the First Priority . In response to this letter the Dean of the Medical College informed the petitioner by its letter dated 4 November 2020 that the admission policy for the MBBS course is already notified and that all the students from the Union Territories of Dadra Nagar & Havelli and Daman & Diu are considered equal and there is no discrimination The petitioner contends that there are only 177 seats in the respondent s medical college out of which 73 seats are reserved for the candidates from Dadra & Nagar Havelli and 70 seats are reserved for the candidates from Daman & Diu. Out of the 73 seats for the Dadra Nagar Havelli candidates only 29 seats are available for the general category to which the petitioner belongs. The petitioner has contended that in the year 2019 a candidate in the unreserved category having NEET course of 391 marks was granted admission in the First Year MBBS Course only on the basis of the criteria of First Priority . It is her case that despite her score of 502 marks in the NEET 2020 she would be deprived of an admission to the First Year MBBS course only on the ground that she has not studied the VIII Standard from the Union Territory. To support this contention the petitioner has referred to the provisional allotment list for ‘round I’ of the 2019 admissions which according to the petitioner would show that the candidates who have scored less than 385 marks have been admitted. The petitioner is thus before the Court assailing the validity of Rule 4(a) of the admission rules to the extent it restricts the First Priority only to those students who have studied in any recognized school in the Union Territory in so far as it includes the VIII Standard It is the petitioner s case that to the extent the First Priority Rule prescribes a candidate to study the VIII Standard from a school in the Union Territory the same is illegal discriminatory and violative of the petitioner’s fundamental right guaranteed under Article 14 of the Constitution. It is her case that once the candidate fulfills the requisite eligibility criteria as prescribed in Rule 3 for admission to the MBBS course the respondents cannot deprive the candidate of an admission by further restricting the eligibility so as to include a candidate who has not studied the VIII Standard from the Union Learned Counsel for the petitioner has submitted that there is no rationale and logic to include a prescription that a candidate should school also in the ‘VIII Standard . It is submitted that a candidate having studied continuously from IX to XII Standards in a recognized school in the Union Territory and her parents being domicile of Union Territory is sufficient compliance of the First Priority Rule hence the petitioner is entitled for an admission. It is submitted that the petitioner’s contention is legitimate and just when a relaxation is already prescribed to those students from the Union Territories who have studied from Class I to X in the respective districts in the Union Territories and who were required to study the XI and XII standards from outside the Union Territory due to non availability of XI and XII Standards in their districts. According to the petitioner such condition goes to show that the criteria of continuous education in Union Territory for five yearsso as to include the VIII Standard is unreasonable. It is submitted that the distinction sought to be created by the respondents is not an intelligible differentia and does not have any rational nexus to the object being achieved by such distinction. It is thus submitted that this Court should declare the First Priority Clause Rule 4(a) as arbitrary and unconstitutional and direct the respondents to consider the application of the petitioner for admission to First Year MBBS course in the First Priority On 27 November 2020 this Court passed the following The petitioner stands the risk of losing out on a seat for admission in the MBBS course merely because she did not study in any school in the Union Territory Administration for clearing 8th standard. The constitutional validity of such a requirement has been questioned in this writ To enable Mr. Venegaonkar learned advocate representing the respondents to obtain instructions whether such requirement is mandatory and cannot be waived by the Administrator under any circumstances and to place before us the first merit list and the merit position of the petitioner as well as candidates similarly situate like her we adjourn hearing of this petition till December 1 2020. The writ petition shall be placed on board on such date as the first matter Since admissions to the MBBS Course would commence from November 30 2020 and we are satisfied that filling up all the seats might work out irreparable injury and prejudice to the petitioner who has set up a prima facie case as well as satisfied the other factors for grant of interim relief we restrain the respondents from filling up one seat in the MBBS Course for Dadra Nagar Haveli until further orders This order will be digitally signed by the Personal Assistant of this Court. All concerned will act on production by fax or e mail of a digitally signed copy of this order.” Thereafter in our order dated 1 December 2020 we recorded a statement as made by Mr.Venegaonkar learned Counsel for the respondents that the final merit list would be published on 8 December 2020 and the same would be placed before the Court once At the next hearing of the petition on 11 December 2020 the merit list as prepared by the respondents was placed before us when we passed the following order: “1. Mr.Venegaonkar learned advocate for the respondents has placed before us the merit list prepared by the relevant department for admission in the MBBS course in NAMO Medical Education Research Institute Silvassa We have perused the merit list as well as the comments that have been offered by the relevant department to contest the petitioner’s We find from the materials before us that if the petitioner is to be accommodated there would be several other applicants who would have to be given similar benefit and this is likely to throw the entire system out of gear Mr.Thorat learned advocate for the petitioner submits that paragraph 4(a) of the guidelines framed by the respondents is under challenge in this writ petition and therefore this Court ought to declare the offending condition requiring an applicant to pass even Class VIII from a school located in Dadra and Nagar Haveli and Daman and Diu arbitrary and The decision impugned in this writ petition is essentially a policy matter. Prima facie we are not inclined to accept the contention on behalf of the petitioner having regard to the decision of the Supreme Court in the case of Maharashtra State Board of Secondary and Higher Secondary Education vs. Paritosh Bhupesh Kumar Sheth etc. reported in AIR 1984 SC 1543 Mr.Thorat seeks time to consider the said decision and come better prepared List the writ petition for further consideration on Monday next fairly “High on Board” This order will be digitally signed by the Private Secretary Personal Assistant of this court All concerned will act on production by fax or e mail of a digitally signed copy of this order.” On the above conspectus the petitioner sought leave to amend the prayer as made in the petition and confine the petitioner s prayer only to the inclusion of VIII standard in Rule 4(a). We accordingly passed the following order on 14 December 2020: Leave to amend the prayers is granted. Amendment to be carried out forthwith We call upon the respondents to file a short affidavit explaining therein the logic behind insertion of the clause requiring a candidate seeking admission to the MBBS course to study Class VIII in any school within the Union Territory of Dadra & Nagar Haveli and Daman & Diu for being entitled to first priority . Such affidavit shall be filed by Wednesday next with an advance copy to the learned advocate for the petitioner by Tuesday nextas prescribed by the Government of India was prevailing for more than two decades so that maximum benefits can be availed by the local domicile permanent residents of the Union Territories. The citizens of Union Territory were aware about such policy as existing for several years. It is stated that respondent no.4 college being established at Silvassastarted functioning from the academic year 2019 20 hence the prevailing education policy as applicable for higher education was made applicable for admitting the students for medical course. It is stated that the policy makers while deciding on the point of institutional reservations from time to time have taken into account the geographical educational and financial condition of its own residential population. The reply affidavit states that the logic behind having continuous five years education from Standard VIII is based upon the educational categorization of the academic calendar which had prevailed for several years namely the following: Kindergarten LKG and Senior KG Primary Std. I to Std. IV iii) Upper Primary Std. V to Std VII Secondary Std VIII to Std. X v) Higher Secondary Std. XI to Std XII It is stated that the logic behind keeping the ‘First Priority’ category from VIII standard onward is to have the entire education of secondary and higher secondary within the Union Territory. It is stated that the students who opt for education upto VIII Standard in a particular school would normally get enrolled in the IX Standard in the same school as the IX Standard is treated as registration for the X Standard which is a Board examination. It is stated that it has been observed that in a very rare situation a student changes the school during the VIII standard and therefore the entire secondary calendar becomes important while taking into consideration framing a policy pertaining to continuous education in order to decide institutional reservation. It is stated that the petitioner falls in the said rare category of the students who changed the school in IX standard after having completed his VIII standard from outside the Union Territory. The policy does not take into consideration rare factors but policy is always framed on the basis of taking into consideration the majority factors Also under the Right to Education Act 2009in the calendar the Upper Primary is from Standard V to Standard VIII hence the policy makers decided to continue with the policy of having institutional reservation from the VIII standard itself The respondents in the reply affidavit have also stated that initially before the medical college was established in Silvassa seven seats from the Central Pool were allotted to the Union Territory Dadra Nagar Haveli and four seats to the Union Territory of Daman & Diu As Dadra & Nagar Haveli has tribal population of 43% and Daman Diu of 27% population of the OBCs considering the migratory population the criteria of domicile of Union Territory and education from VIII Standard to X Standard in a school located in the Union Territory was given first priority. This was done for the reason that most of the migratory population continued the education of their children in the parent state and only for securing a medical seat took admission for their children in the XI and XII Standard within the colleges situated in Union Territory. It is stated that the petitioner fits in the Second Priority alongwith the other 42 candidates hence she can be considered only in the second preference. It is stated that a provisional merit list is already prepared and the UT administration cannot make any change in the policy which would disturb the admission On the above backdrop we have heard learned Counsel for the parties. Mr.Thorat learned Counsel for the petitioner would submit that the impugned Rule policy providing for the first priority in clause 4(a) to the extent it includes a candidate having passed VIII Standard from Union Territory is patently unreasonable and discriminatory Mr.Thorat submits that such condition in no manner satisfies the test of equality Article 14 of the Constitution would guarantee to the petitioner. This for the reason that there is a patent discrimination between candidates who are equally placed by virtue of their having cleared the NEET and having undertaken substantial study from the IX to the XII Standards from the Union Territory. Mr.Thorat submits that such classification as impugned also nullifies the basic requirement of merit which would be of paramount consideration for admission to the MBBS course. Mr.Thorat submits that it is thus an arbitrary policy to prescribe inclusion of VIII Standard in Rule 8(a). He submits that it is a settled principle of law that a policy decision can be tested on the ground of its unreasonableness. To support this submission reliance is placed on the decision of the Supreme Court in the State of Rajasthan Ors. Vs. Lata Arun 6 SCC 252. He has also referred to the eligibility criteria for State Quota as adopted in different States. On the other hand Mr.Venegaonkar contesting the contentions as urged on behalf of the petitioner has referred to the reply affidavit to contend that no interference is called for in the sound policy of the respondents in prescribing Rule 4(a). He submits that there is nothing illegal in the policy decision to incorporate the impugned condition. Mr.Venegaonkar has placed reliance on the decision of the Supreme Court in Vasavi Engineering College Parents Association vs. State of Telengana & Ors. 7 SCC 172 to contend that judicial review can only be of a decision making process and not of the decision. Mr.Venegaonkar has also relied on the decision of the Supreme Court in Delhi Development Board & Anr. Vs. Joint Action Committee Allottee of SFS Flats and Ors. 2008SCC 672 to contend that policy decision can be subject to judicial review on the grounds of it being unconstitutional the policy being de hors the statutory Regulations if the deligatee has acted beyond its power of delegation and if the executive policy is contrary to the statutory or larger policy Mr.Venegaonkar hence would submit that the petition deserves to be 22. In these circumstances the question which would arise for our consideration is as follows: “Whether the petitioner can be considered to be eligible for the First Year MBBS admission under the ‘First Priority’ as prescribed under Rule 4(a or is required to be kept out of the said Rule merely because she has completed her VIII Standard from outside the Union Territory ” Discussion and Conclusion 23. To appreciate the challenge as raised by the petitioner it would be appropriate to extract Rule 4(a) which reads as under: PRIORITY IN ADMISSION For the seats earmarked for candidates of Dadra Nagar Haveli and Daman and Diu the candidates will be considered for admission in the following order of priority a) First priority Applicants whose parents guardiansare Domicile of the UT of Dadra & Nagar Haveli and Daman and Diu as the case may be and the applicant has studied continuously from Class 8th to 12th in any of the recognized schools of that UT “Students from the different districts in U.T of Dadra & Nagar Haveli and Daman & Diu who have studied from class 1 to 10th in the respective district in U.T of Dadra & Nagar Haveli and Daman & Diu and due to non availability of 11th & 12th classes in the concerned board stream in the respective district in U.T of Dadra & Nagar Haveli and Daman & Diu will only be given relaxation in the above criteria The students will have to produce a certificate for non availability of Class XI and XII from the Assistant Director of Education of the respective district in U.T of Dadra & Nagar Haveli and Daman & Diu” If the seats remain vacant after allotment of seats to candidates belonging to the first priority they will be offered to candidates whose parents guardianare Domicile of UTs of Dadra & Nagar Haveli and Daman and Diu as the case may be and candidate has studied in any recognized educational institution anywhere in the country or abroad. If seats remain vacant after allotment of seats to candidates falling in first and second priority they will be offered to candidates whose parents guardianare employeesof the UT Government UT PSUs Central PSUs and are posted in Dadra Nagar Haveli and Daman & Diu as the case may be continuously for the past 5 years as on last date of application for admission and the applicants have studied in a recognized school of Dadra & Nagar Haveli and Daman and Diu as the case may be continuously from 10th to 12th standard If the seats remain vacant after allotment of seats to candidates falling in the First Second and Third priority they will be offered to other eligible candidates from any State UT.” It is not in dispute that the petitioner qualifies the eligibility criteria as prescribed in Rule 3 namely the Eligibility Criteria in its entirety. Rule 3 reads as under: A candidate who desires admission shall A citizen of India A Domicile of UT of Dadra & Nagar Haveli and Daman and Diu in case candidate intends to take benefit of reservation for SC ST OBC PWD EWS Wards of Ex Have completed 17 years of age on 31 st December of the Academic year for which the admissions are being Have passed the 10th and 12th qualifying examination from The Gujarat Board or The Central Board of Secondary Education The Central Board of Indian School Certificate Examinations Board New Delhi The International School Board is eminently possessed by the petitioner. What is significant is that the eligibility criteria also accepts candidates who have passed X and XII Standard examinations from the Gujarat Board meaning thereby that the candidates who have passed the VIII to XII Standards from schools affiliated to the Gujarat Board located within the Union Territory who would be academically at par with a candidate having passed the VIII Standard also from the Gujarat Board however from a school outside the Union Territory. It is also not in dispute that the petitioner has secured high marks in the NEET examination namely a score of 502 out of 702 Considering the provisional merit list for Dadra & Nagar Haveli in the First Priority it is clear that 18 candidates whose NEET score is below the petitioner who have scored marks between 495 to 430 much below the petitioner would secure admission to the First Year MBBS Course. The only disqualification for the petitioner is that she is being kept out by applying Rule 4(a) namely the ‘First Priority’ clause on the ground that she has not studied the VIII Standard from the Union Territory of Dadra & Nagar Haveli. The petitioner is being deprived of an admission although she being a domicile of the Union Territory Dadra & Nagar Haveli her parents also being domicile of the Union Territory Dadra & Nagar Haveli by rigorously applying Rule 4(a). We would first examine as to what is the object sought to be achieved by Rule 4(a) when it prescribes that a candidate should not only pass the IX to XII Standards that is “4 years” of education from the Union Territory but also pass the VIII standard which is considered to be a class of upper primary now under the 2009 Act. To our mind the object appears to be to make MBBS seats available to candidates having a domicile of the Union Territory as also of his her parents and who has sufficiently studied within the Union Territory. This sufficiency is being determined by prescribing an additional condition of a candidate having studied from the VIII Standard to the XII Standard However the question is whether there is any strong rationale in including the VIII Standard along with the IX X XI and XII Standards In our opinion considered from any angle there does not appear to be any justifiable reason and or any reasonable rationale to include a condition of the candidate having studied the VIII Standard in the Union Territory to be regarded as an inflexible and a rigid standard to be maintained as a condition to fall in the ‘First Priority’. This becomes quite apparent for more than one reason 27. The first and foremost reason being that the exclusion of the VIII Standard from the category of first preference as contained in Rule 4(a) would not in any manner alter and or change the object which is sought to be achieved by the rule namely to have a candidate who is domicile of the Union Territory and who has sufficiently studied in such higher classes within the Union Territory. This more so when the academic requirements in no manner stand diluted when the student has studied the VIII Standard within the same Board. In the present case the petitioner not only studied the IX X XI and XII from the school affiliated to the Gujarat Board situated in the Union Territory but also has studied the VIII Standard from the very same Board however not within the Union Territory. Would this bring about any primal difference between such similarly placed candidates on the academic front A candidate who has passed the X and XII Standards from the Gujarat Board is considered eligible as per Rule 3 of the admission rules. It is thus quite unreasonable and arbitrary to have a condition prescribing that the candidate should pass the VIII Standard examination from the Union Territory. No material of any substance is pointed out to us which would draw a reasonable nexus to attach a special importance to include the prescription of a candidate to have studied the VIII Standard from the Union Territory. None of the reasons to have such condition as set out in the reply affidavit appeal to us to attribute any rationale to the inclusion of a candidate to have studied the VIII Standard from the Union Territory. In fact as clearly seen from a plain reading of Rule 4(a) it prescribes dual conditions namely to achieve the object of a domicile of the Union Territory should be entitled for an admission to the MBBS course namely that a candidate should possess the eligibility so prescribed in the said Rule in addition to this his or her parents should be domicile of the Union Territory and over and above this the candidate should have studied for a reasonable period from schools within the Union Territory that is VIII to XII Standards. 29. The condition of ‘First Priority’ in Rule 4(a) is required to be interpreted so as to read into it reasonableness and flexibility without disturbing its object and purpose. Our observations would also stand supported by the eligibility criteria being followed in different States prescribing the requirement of the candidate having passed either the X Standard or the X and XII Standards from the concerned States as clear from the following information as placed on record by Mr.Thorat: ELIGIBILITY CRITERIA FOR STATE QUOTA IN DIFFERENT STATES 10th and 12th 11th and 12th 11th and 12th U.T. of Chandigarh 10th to 12th No further priority lists U.T. of Andaman Nicobar 11th and 12th No further priority lists 30. In our opinion when Rule 4(a) includes that a candidate should have studied VIII Standard from the Union Territory in a given case with all the other basic requirements being fulfilled merely because a candidate has not studied the VIII Standard from the Union Territory but who has otherwise studied the IX X XI and XII Standards from the Union Territory to remain disqualified in the First Priority would certainly bring about a discrimination between similarly placed candidates. Added to this is a concern when such candidate is more meritorious in the NEET score than those who fulfill the VIII Standard to the XII Standard criteria. Such candidate would lose a valuable seat on account of such unreasonable condition. Thus in our opinion inclusion of the VIII standard in the ‘First Preference’ as prescribed under Rule 4(a) is required to be read and applied in a manner that it would prevent arbitrariness and illegality so as to bring about more reasonableness than unreasonableness. Candidates who are similarly situated do not suffer patent discrimination in admission to such an important course 31. There is yet another reason as to why the inclusion of the VIII Standard in the ‘First Priority’ as prescribed by Rule 4(a) does not have any logic and a reasonable nexus to the object sought to be achieved. The reason is available from a plain reading of Rule 4(a which permits relaxation in respect of those students who have studied outside the Union Territory in the XI and XII Standards on account of non availability of such education within the Union Territory. If a relaxation of two years and that too for the substantive studies of the XI and XII Standards to be completed outside the Union Territory is permissible then as to how merely a student studying the VIII Standard outside the Union Territory can be said to be a reasonable inclusion in Rule 4(a) Surely a different object is not achieved by granting such a relaxation in favour of candidates who have studied the XI and XII Standards outside the Union Territory for the reason of non availability of such classes with the Union Territory. If this be so then there is no reason why such a relaxation cannot be considered and granted to a student like the petitioner who has studied the VIII Standard from outside the Union Territory when she is eligible under all the other conditions for the admission to the MBBS course. The same logic as applicable to such students who have studied their XI and XII Standards from outside the Union Territory becomes applicable to a student who has undertaken the VIII Standard from a school outside the Union Territory. By applying such norms such student can be brought at par so as to include him her in the ‘First Priority’ prescribed under Rule 4(a No doubt the efficacy of ‘first preference’ as provided in Rule 4(a) can be maintained by prescribing a reasonable period of studies within the Union Territory without obliterating its basic character and the object it canvasses. This apart in our opinion such conditions which are conditions imposed to select candidates who are domicile of a particular State or Union Territory cannot be regarded as conditions of any substantive academic significance from the merit point of view for the reason that merit of the candidates is now considered not on the basis of the academic performance of a candidate in the VIII IX X XI and XII Standards but on the basis of a national competitive examination namely the NEET which is held throughout the country The qualifying examination namely the XII Standard Board examination is relevant only for considering candidate’s performance of securing the prescribed minimum marks in the said Science stream. In our opinion even this facet is quite vital when we consider the reasonableness of a restriction imposed by conditions like Rule 4(a) which are in addition to the eligibility condition for granting preference to the candidates in selecting them for the MBBS course 32. The Court cannot shut its eyes that in the present situation as asserted by the petitioner merit is a casualty. It is a settled principle of law that the meritorious students ought not to be deprived of educational opportunities. It is for this very purpose an entrance test namely NEET is conducted so that there is a uniform comparative merit of the students assessed for limited number of seats in the medical faculty. In our opinion the meritorious position of the petitioner cannot be disregarded in the present circumstances. The petitioner in our opinion is not differently placed than those students who had their schooling from VIII Standard to XII Standard in the Union Territory This more particularly when such candidates have ultimately pursued their education of 4 to 5 years in the Union Territory and all of whom are domicile of the Union Territory they all have become eligible for admission to the MBBS Course. The petitioner is a more meritorious student than the others who are falling in the first preference category The respondents have also conceded in their reply affidavit that this is a peculiar case and there are hardly any instances where a student may undertake VIII Standard outside the Union Territory and have further education from IX to XII Standards from the Union Territory. The statement as made in this regard in the reply affidavit needs to be noted which reads thus: “Thus it has been observed that in a very rare situation a student changes his school during the VIII Standard and therefore this entire secondary calendar becomes important while taking into consideration for framing a policy pertaining to continuous education in order to decide institutional reservation. The present petitioner falls in that rare category of students who change school in IX Standard after completing one year of Secondary education outside UT. The policy does not take into consideration the rare factors but the policy is always framed on the basis of taking into consideration majority factors.” If this be the case of such remote occurrence and possibility it ought not to weigh against the petitioner. This also taking into consideration that Rule 4(a) also carves out an exception in respect of the situations who have undertaken XI and XII Standards outside the Union Territory on account of non availability of such education in a particular district. This exception as made in Rule 4(a) echoes the object of bringing peculiar situations at par. Applying the logic as also the intention with which such an exception is made in our opinion the petitioner also deserves to be considered in this peculiar situation in the first priority so as to fall under Rule 4(a We are certainly aware that when it comes to framing of educational standards it is within the wisdom of the education authorities and their expertise. The Court would also be loath to interfere in academic matters. The Court would also not have any expertise to substitute any policy in exercise of its jurisdiction of a judicial review in regard to a State action. These are settled principles of law. However when the policy is unreasonable discriminatory and in breach of the equality guaranteed by the Constitution the Court necessarily has to step in by exercising its powers of judicial review protect the fundamental rights of the aggrieved persons. When a policy is unreasonable the Court would certainly not be powerless to exercise such constitutional jurisdiction as held by the Supreme Court in State of Maharashtra & Ors. vs. Lata Arunprovides for a first priority to candidates who are domicile of Union Territories however a reasonable fair play in the joints is required to be recognized to deal with peculiar situations without being destructive of the basic object sought to be achieved by providing for the first priority and at the same time make Rule 4(a) workable by recognizing that it does not crush the legitimate rights of meritorious candidates who are placed in peculiar situations as in the present case Such an interpretation of Rule 4(a) would not only save its basic purpose but also prevent it from being rendered unconstitutional. It is well settled that it would be permissible for the Court to read down the rule so as to eliminate any illegality it may possess and make the same workable. In this context we may usefully refer to the decision of the Supreme Court in State of Rajasthan vs. Sanyam Lodha 13 SCC 262 wherein the Court observed thus It is true that any provision of an enactment can be read down so as to erase the obnoxious or unconstitutional element in it or to bring it in conformity with the object of such enactment. Similarly a rule forming part of executive instructions can also be read down to save it from invalidity or to bring it in conformity with the avowed policy of the government. When courts find a rule to be defective or violative of the constitutional or statutory provision they tend to save the rule wherever possible and practical by reading it down by a benevolent interpretation rather than declare it as unconstitutional or invalid…...” This apart in the scheme of medical admissions to bring the candidates at par on merit the NEET examination is now prescribed as noted above. Hence the score of a candidate in the NEET examination certainly plays a significant role as the selection apart from the other permissible selection criteria is on the basis of NEET score. Needless to observe that the candidates in the First Priority for their merit are undoubtedly considered on the basis of their respective NEET scores. In balancing such rights between the candidates inter se the Court cannot be unmindful of the need to recognize merit even in the scheme of Rule 3 and Rule 4 of the Admission Rules prescribed by About 3 decades and 6 years ago in Pradeep Jain vs. Union of India 3 SCC 654 commenting on the equal opportunity and the rights guaranteed under Article 14 of the Constitution in the context of medical admissions the Court made the following observations “10. … But as the position stands today there is considerable paucity of seats in medical colleges to satisfy the increasing demand of students for admission and some principle has there fore to be evolved for making selection of students for admission to the medical colleges and such principle has to be in conformity with the requirement of Article 14. Now the primary imperative of Article 14 is equal opportunity for all across the nation for education and advancement and as pointed out by Krishna Iyer J. in Jagdish Saran v. Union of India "this has burning relevance to our times when the country is gradually being ‘broken up into fragments by narrow domestic walls’ by surrender to narrow parochial loyalties”. What is fundamental as an enduring value of our polity is guarantee to each of equal opportunity to unfold the full potential of his personality. …. Moreover it would be against national interest to admit in medical colleges or other institutions giving instruction in specialities less meritorious students when more meritorious students are available simply because the former are permanent residents or residents for a certain number of years in the State while the latter are not though both categories are citizens of India. Exclusion of more meritorious students on the ground that they are not resident within the State would be likely to promote sub standard candidates and bring about fall in medical competence injurious in the long run to the very region. "It is no blessing to inflict quacks and medical midgets on people by whole sale sacrifice of talent at the thresh hold Nor can the very best be rejected from admission because that will be a national loss and the interests of no region can be higher than those of the nation." The primary consideration in selection of candidates for admission to the medical colleges must therefore be merit. The object of any rules which may be made for regulating admissions to the medical colleges must be to secure the best and most Again in Khalid Hussain vs. Commissioner and Secretary to Government of Tamil Nadu Health Department Madras and Ors. AIR 1987 SC 2074 which is also more than three decades ago Justice A.P. Sen speaking for the Bench commented on merit of the candidates in the following words “…... All of them being more or less equal the best method is to go by marks obtained at the qualifying examination. In such a case the selection must necessarily depend upon their academic merits.” The position is not different today as seen in catena of judgments 6 SCC 537 and Christian Medical College Vellore Association vs Union of India & Ors. 8 SCC 705 In Meenakshi Malik vs. University of Delhi 3 SCC 112 the Supreme Court relaxed the rigour of the condition prescribing that the last two years of education should be received in a school in Delhi and that there should be no insistence on the fulfillment of that condition in the case of students of parents who are transferred to a foreign country by the Government and who are therefore required to leave India along with them. The Court in paragraphs 4 and 5 observed as under : “4. ….. Rules are intended to be reasonable and should take into account the variety of circumstances in which those whom the rules seek to govern find themselves. We are of opinion that the condition in the prescription of qualifications for admission to a medical college in Delhi providing that the last two years of education should be in a school in Delhi should be construed as not applicable to students who have to leave India with their parents on the parent being posted to a foreign country by the Accordingly the denial of admission to the petitioner to a seat in one of the Medical Colleges in Delhi must be held to be unreasonable. It is not disputed that if the condition of schooling for the last two years in a school in Delhi is removed from the way the petitioner would be entitled to admission in a Medical College in Delhi. In the circumstances the petitioner is entitled to an order directing the respondents to admit her to one of the Medical Colleges in Delhi.” Now in regard to the decisions as relied on behalf of the respondents there cannot be two opinions in regard to the principle of law as reiterated in Vasavi Engineering College Parents Association supra) that judicial review as is well known lies against the decision making process and not the merits of the decision itself. In the present case we are concerned with the decision making process and the rationale in providing the first priority ruleand whether such a rule can have a straight jacket application so as to whittle down not only the legitimate merit of more or less equally placed candidate like the petitioner but offend the equality rights guaranteed under Reliance on behalf of the respondents in Delhi Development Authority and Anr. vs. Joint Action Committee Allottee of SFS Flats and Ors. would also not assist the respondents to canvass a proposition that a judicial review is not warranted in the present case. Moreover in paragraph 64 of the said decision the Supreme Court has observed that an executive order termed as a policy decision is not beyond the pale of judicial review. It was held that the superior courts may not interfere with the nitty gritty of the policy or substitute one by the other but it will not be correct to contend that the Court shall lay its judicial hands off when a plea is raised that the impugned decision is a policy decision. That interference therewith on the part of the superior Court would not be without jurisdiction as it will be subject to judicial review. It was also held that a policy decision is subject to judicial review if it is unconstitutional or if the execution of the policy is contrary to the statutory provisions or a larger policy As a sequel to the above deliberation we are of the considered view that in the peculiar facts and circumstances of the case it would amount to negating the right of the petitioner guaranteed under Article 14 of the Constitution in the petitioner being not granted admission to the MBBS course for the academic year 2020 21 and by keeping her outside the ambit of the ‘First Priority’ as prescribed under Rule 4(a). Also a holistic reading of Rule 4(a) conjointly with the relaxation it already permits would certainly make a way for such inclusion of the petitioner. following order: We are hence inclined to allow the petition by the The respondents are directed to admit the petitioner to the first year MBBS course for the academic year 2020 21 by considering her in the ‘First Priority’ as prescribed under ii) Rule is made absolute in the above terms. No costs This order will be digitally signed by the Private Secretary Personal Assistant of this Court. All concerned will act on production by fax or e mail of a digitally signed copy of this order G.S.KULKARNI J.

Violating conditions under Section 438(2) of CrPC 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 Md. Abid vs The State Of Bihar [Criminal Miscellaneous No.34661 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 of general assault on the informant, his wife and brother and specifically against co-accused, Bibi Arhsadi, that she gave two sword blows on the head of the informant and that she snatched silver chain worth Rs.2500/- from his wife and that the petitioner no. 1 tore the clothes of the informant’s wife. The petitioners apprehend arrest in connection with the case instituted under Sections 341, 323, 324, 307, 354-B, 379, 447, 504, 506/34 of the Indian Penal Code. Hence, the bail application was filed Learned counsel for the petitioners contended that the petitioner no. 1 is the full brother of the informant and there is property dispute. Secondly, it was contended that the FIR has been lodged after six days of the incident and there is also counter case for the same incident lodged by the petitioner no. 1. Thirdly, it was contended that the petitioner’s side had also received injuries. Learned counsel further contended that besides the allegation being general in nature against the petitioners, they have no criminal antecedent.  Learned Additional Public prosecutors on behalf of the State submitted that the petitioners had also assaulted the informant’s wife and brother 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 Additional Chief Judicial Magistrate 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 and give undertaking with regard to good behaviour of the petitioners, and (iii) that they shall cooperate with the Court and the police/prosecution”.

IN THE HIGH COURT OF JUDICATURE AT PATNA CRIMINAL MISCELLANEOUS No.346620 Arising Out of PS. Case No. 260 Year 2020 Thana RANIGANJ District Araria 1. Md. Abid aged about 55 yearsson of Akhimuddin @ Akalu 2. Md. Juber aged about 45 yearsson of Akhimuddin @ Akalu 3. Md. Saddam aged about 26 yearsson of Md. Abid All resident of Village Kala Balua Ward No. 06 P.S. Raniganj District ... Petitioner s The State of Bihar For the Petitioner s For the State CORAM: HONOURABLE MR. JUSTICE AHSANUDDIN AMANULLAH Mr. Mukesh Kumar Rana Advocate Mr. Atul Chandra APP ... Opposite Party s Date : 03 05 2021 The matter has been heard via video conferencing. 2. Heard Mr. Mukesh Kumar Rana learned counsel for the petitioners and Mr. Atul Chandra learned Additional Public Prosecutorfor the 3. The petitioners apprehend arrest in connection with Raniganj PS Case No. 2620 dated 28.05.2020 instituted under Sections 341 323 324 307 354 B 379 447 504 506 34 of the Indian Penal Code 4. The allegation against the petitioners is of general assault on the informant his wife and brother and specifically Patna High Court CR. MISC. No.346620 dt.03 05 2021 against co accused Bibi Arhsadi that she gave two sword blows on the head of the informant and that she snatched silver chain worth Rs.2500 from his wife and that the petitioner no. 1 tore the clothes of the informant’s wife. 5. Learned counsel for the petitioners submitted that the petitioner no. 1 is the full brother of the informant and there is property dispute. It was submitted that the FIR has been lodged after six days of the incident and there is also counter case for the same incident lodged by the petitioner no. 1. It was submitted that the petitioner’s side had also received injuries Learned counsel submitted that besides the allegation being general in nature against the petitioners they have no criminal 6. Learned APP submitted that the petitioners had also assaulted the informant’s wife and brother. 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 furnishing bail bonds of Rs. 25 000 of the Code of Criminal Procedure 1973 and further that one of the bailors shall be a close relative of the petitioners that the petitioners and the bailors shall execute bond and give undertaking with regard to good behaviour of the petitioners andthat they shall cooperate with the Court and the police prosecution. Any violation of the terms and conditions of the bonds or undertaking or failure to co operate shall 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 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

Levy Non-agricultural tax and penalty for using the land that does not belong to the claimants: Bombay High Court

No right, title or entitlement shall be awarded to those individuals who are merely in possession of the land and do not own the same. Those individuals shall be considered ranked encroachers and shall be levied non-agricultural tax as well as penalty for the land that does not belong to them. A single-judge bench comprising of Justice Milind N Jadhav, while adjudicating the matter in Ramesh R Pandey & Ors. V. Municipal Corporation of Greater Mumbai; APPEAL FROM ORDER (ST) NO.4532 OF 2021, dealt with the issue of possession of land and its difference from ownership of the same. Plaintiffs are the owners of a certain land which had an open space. The plaintiff’s contention is that the open space is in the exclusive possession of the plaintiffs and is being used by them for parking of their vehicles, and for loading and unloading goods from the suit structures. It is stated that some portion of the open space was acquired for the widening of the Link road. If that be the case then the Plaintiffs should have placed on record the details of acquisition so as to enable the Plaintiffs to claim right, title and entitlement to the suit open space. This has admittedly not been done. The defendant’s contention is that the defendant corporation wanted to construct a public toilet on some portion of the open space. This notice was submitted to the plaintiffs. The plaintiffs have approached the Court by filing the original suit stating that the Corporation is constructing the toilet block without following due process of law. The learned counsel appearing for the plaintiffs, stated that the Corporation has not followed the due process of law and has not taken possession of the suit open space from the Plaintiffs as is required under the law. The exact place where the toilet block is to be constructed is completely uncertain and is not borne out by the record. The learned counsel appearing for the respondent stated that the said order does not confirm any right, title or interest in the land to the encroacher i.e., the plaintiffs. She submitted that the suit structures and the suit open space are not precisely and properly defined in the suit plaint and thus in the absence of specific details pertaining to the suit open space, the suit open space in relation to each Plaintiffs and the specific area of the toilet block which is being constructed, the suit filed by the Plaintiffs is not maintainable.

on 18 05 2021 on 22 03 3.aost.4532.21.docS.S.Kilaje IN THE HIGH COURT OF JUDICATURE AT BOMBAYCIVIL APPELLATE JURISDICTION APPEAL FROM ORDERNO.4532 OF 2021WITHINTERIM APPLICATIONNO.4533 OF 2021Ramesh R. Pandey and Ors...Appellants VersusMunicipal Corporation of Greater Mumbai..Respondent...................Mr. Pradeep Thorat i by Mr. Janardan S. Yadav Advocate for theAppellants.Mr. Dharmesh Vyas a w. Ms. Madhuri More for MCGM.................... CORAM : MILIND N. JADHAV J.RESERVED ON : MAY 07 2021PRONOUNCED ON : MAY 18 2021 JUDGEMENT :.Heard. 2. By the present Appeal against Order the Appellants(original Plaintiff Nos. 1 2 and 3) have challenged the order dated10.02.2021 passed by the City Civil Court at Dindoshi dismissing theNotice of Motion No. 4321 in L.C.Suit No. 1421 filed bythe Appellants. The sole respondent is the Municipal Corporation ofGreater Mumbai. For the sake of convenience the parties shall bereferred to as Plaintiffs and Defendant. Plaintiffs have also filedInterim Application bearing No. 45321 seeking injunction on 18 05 2021 on 22 03 3.aost.4532.21.docagainst the Defendant Corporation from carrying out furtherconstruction of the toilet block in the open portion in front of the suitpremises. 3.Before we advert to the submissions made by therespective parties it will be apposite to briefly state the relevant facts.3.1.Plaintiffs are owners of structures bearing Census No.RXC 85 1 1 RXC 84 1 1 and RXC 18 1 1A standing in survey No.221 CTS No. 532Ganpat Patil Nagar Kandar Pada near I.C.Colony DahisarMumbai 400068. There is an open spaceadmeasuring 15000 sq.ft. in front of these structures abutting theDahisar Link road which is vacant. In the plaint filed by the Plaintiffsthis open space is referred to as the suit premises and it is claimed thatthe suit premises belong to the Plaintiffs. The censused structures ofthe Plaintiffs are referred to as suit structures. The suit is filed forinjunction u s 38 of the Specific Relief Act 1963. It is contended inthe plaint that the Plaintiffs are in use occupation and possession oftheir respective structures and the open space in front of the suitstructures. Though it is stated in the plaint that the Corporation hadinitiated action against the Plaintiff s structures u s. 351 of theMumbai Municipal Corporation Act 1888the Plaintiffs succeeded in setting on 18 05 2021 on 22 03 3.aost.4532.21.docaside the notices issued u s 351. However all facts stated in respectof the structures or any litigation pertaining to action u s 351 is notrelevant for the purpose of the present case. 3.2.Plaintiffs have contended that their suit structures areused as godowns since the last several years. It is stated that the suitopen space in front of the suit structures of Plaintiff Nos. 1 and 2 arelevied to N.A. tax alongwith the suit structures and that Plaintiff Nos. 1and 2 are paying N.A. tax to the concerned authority. Plaintiffs havereferred to and relied upon the N.A. order dated 26.01.2005 which Ishall deal with later. 3.3. Plaintiffs have contended that the open space is inexclusive possession of the Plaintiffs since the last several years and isused by the Plaintiffs for parking of their vehicles for loading andunloading goods from the suit structures. It is stated that someportion of the open space was acquired for the widening of the Linkroad. If that be the case then the Plaintiffs should have placed onrecord the details of acquisition so as to enable the Plaintiffs to claimright title and entitlement to the suit open space. This has admittedlynot been done. 3.4. The Defendant Corporation wanted to construct a public on 18 05 2021 on 22 03 3.aost.4532.21.doctoilet on some portion of the open space. The construction of thispublic toilet was initiated by a Public Notice dated 28.01.2020 andobjections were received from aggrieved persons till 04.02.2020. Thisnotice was specifically pasted on the suit structures of the Plaintiffsand there is no denial of this fact. The Corporation has followed thedue process of law in ensuring that the public toilet is constructedunder the ‘Swacch Bharat Mission Scheme’ initiated by the UrbanDevelopment Department and as per the SBMGuidelines para4.3.2 for construction of household toilets beneficiary householdwould be targeted under this scheme irrespective of whether they livein authorized unauthorized colonies or notified non notified slums.Further the construction of this public toilet having 16 toilet seatswould benefit approximately 2250 users residing in Galli No. 14 ofGanpat Patil Nagar Dahisar West. At present there are only 15 publictoilet seats in operation and service for the use of the aforesaidpopulation. 3.5.The Corporation is carrying out the construction of thetoilet block at Galli No. 14 being the planning authority and obligatedto make arrangement for toilet for the slum dwellers as also to controlspread of contagious diseases in the said area. The Corporation hasobtained the necessary remarks from the Maharahstra Coastal ZoneManagement Authority for construction of the said public toilet on 18 05 2021 on 22 03 3.aost.4532.21.docremarks regarding whether the proposed location falls under CRZ I orCRZ II have been given by the Executive EngineerR North remarks requirement of the public toilet as given by the AssistanceEngineerdepartment of the Corporation letters addressed bythe State Government seeking clarification from the CentralGovernment letters received from the Director SBM Ministry ofUrban Development interpreted to mean that under the SBM(v) (viii) andMumbai states that the name of PlaintiffNo.1 i.e. Ramesh R. Pandey and Plaintiff No.2 Diwakar R. Thakurshow that they are in unauthorized use and occupation of thecommercial structures admeasuring 212 sq. mtr. and 272 sq.mtr. andopen land admeasuring 244 sq.mtr. and 314 sq.mtr. for which N.A. on 18 05 2021 on 22 03 3.aost.4532.21.docassessment has been levied and on the basis of which they claim to bethe owner of the suit open land. He submitted that once the Plaintiffsshow that they are in settled possession of the suit property and if theMunicipal Corporation admits so in its affidavit in reply injunctionshould have been granted by the trial court. He has drawn myattention to paragraph No. 9 of the affidavit in reply filed by theCorporation to contend that there is categorical statement made by theCorporation stating that the Plaintiffs are paying N.A. assessment forthe suit open space and are in possession of the suit open space andare using the same for commercial purpose. On the basis of thisstatement Mr. Thorat has vehemently contended that the Corporationhas admitted possession of the Plaintiffs and thus cannot dispossessthe Plaintiffs from the suit open space.6.The next ground agitated by Mr. Thorat is that theCorporation has not followed the due process of law and has not takenpossession of the suit open space from the Plaintiffs as is requiredunder the law. He stated that the public notice dated 20.01.2020seeks construction of the toilet block at Galli No.14 whereas the sameis now been constructed in the open space adjoining the entrance gateto Galli No.14. Thus the original site has been further shifted towardsthe South and is being constructed at a different location. Hesubmitted that the exact place where the toilet block is required to be on 18 05 2021 on 22 03 3.aost.4532.21.docconstructed is completely uncertain and is not borne out by the record.He has referred to and relied upon the photographs which show theentrance to Galli No.14 and the exact location towards the southwhere the toilet block construction is undertaken by the Corporationto buttress his submission. 7.PER CONTRA Ms. Madhuri More learned counselappearing for the Corporation has drawn my attention to the affidavit in reply dated 27.01.2021 filed by Mr. Amit Y. Koyande Sub Engineer Maintenance Department R N Ward of the Defendant Corporationbefore the trial court and has refuted the case of the Plaintiffs. Shesubmitted that the N.A. order dated 26.01.2005 relied upon by thePlaintiffs does not entitle the Plaintiffs to claim ownership of the suitstructures as well as the suit open space as described by the Plaintiffsin the plaint. Plaintiff Nos. 1 and 2 along with two other parties havebeen described as encroachers and have been directed to pay N.A.taxes till the structures shall be removed by the Municipality or theState Government and most importantly paragraph Nos. 2 and 3 ofthe said order the N.A. order confirm that the said order does notconfirm any right title or interest in the land to the encroacher i.e.Plaintiff Nos. 1 and 2. It is further clarified in the order that paymentof N.A. assessment does not mean any regularization u s 47(b) of theMaharashra Land Revenue Code 1966and the open space. A bare reading of theN.A. order in fact goes against the Plaintiffs case of entitlement. TheN.A. order though reads that the suit open space is in possession of thePlaintiffs and being used by the Plaintiffs it is on their request thatN.A. assessment has been levied as they are using the said structuresand open space. It cannot be construed that the Plaintiffs are theowners of the suit structures as well as the open space by any stretchof imagination or by application of any principle of law. The N.A.order states that "the construction is without prior permission ofCollector u s 44 of the Maharashtra Land Revenue Code 1966. Theland is therefore liable to pay penalty u s 45 of M.L.R.C. 1966. Itfurther states that encroacher should pay N.A. Assessment at the abovementioned rate till the N.A. rates are revised or the structure shall beremoved by Municipality Demolition squad of State Govt. or any otherGovt. body whichever is earlier. It is further stated that this order doesnot confirm any right title or interest in the land to the encroacher. Itis clarified that payment of N.A. Assessment and fine does not mean itis regularized u s 47(b) of M.L.R.C. 1966."1 on 18 05 2021 on 22 03 3.aost.4532.21.doc11. For the sake of convenience the relevant portion of theN.A. order is extracted as below:"OFFICE OF THE ADDITIONAL DISTRICT DY. COLLECTOR MUMBAI SUBURBAN DISTRICT ADMINISTRATIVE BUILDING 9TH FLOOR GOVT. COLONY BANDRAMUMBAI 400 051 No. ADC LND E 2426ADate : 27 01 2005Read : 1. Application from Shri. Louis Itur Vaity & Others 3 dated 26 5 20042.This office Surveyor s report dated 29 05 20043.The Revenue and Forest Department Govt. Circular No. NAA 1090 PK 16 L 2 dated 17 7 19924.Powers u s 45 of M.L.R.C. 1966 delegated by Collr. BSD vide order No. AOM 122 dated 12 5 72ORDER..................................The Construction is without prior permission of Collector u s 44 of theMaharashtra Land Revenue Code 1966. The land is therefore liable to paypenalty u s 45 of M.L.R.C. 1966.Show cause notice in this case was issued to Occupant Applicant and thehearing was fixed on 6 10 2004 @ 3.00 p.m. The applicant was present andargued that they are ready to pay N.A. Tax but their financial position is notsound therefore requested to waive the penalty..................1.That the Encroacher should pay N.A. Assessment at the above mentionedrate till the N.A. Rates are revised or the structure shall be removed byMunicipality Demolition Squad of State Govt. or any other Govt. Bodywhichever is earlier.2.This Orders does not confirm any right title or interest in the land to theEncroacher.3.It is clarified that payment of N.A. Assessment and find does not mean it isregularized u s 47(b) of M.L.R.C. 19664.Occupant should pay N.A. Assessment to TahsildarBorivali I II.Additional District Deputy CollectorMumbai Suburban District"12.From the above it is clearly discernible that the N.A.order does not give any entitlement of right or title to the plaintiffs inthe suit open space. Needless to state that the open space belongs to1 on 18 05 2021 on 22 03 3.aost.4532.21.docone Dyanesh Kamlakar Samant as per the revenue record. Therefore itis beyond any reasonable doubt that the Plaintiffs are rankedencroachers in respect of the suit structures as well as the suit openspace. The N.A. assessment order itself states that an application wasmade by Plaintiff Nos. 1 and 2 along with two others seeking to levyassessment in respect of the structures and the open space used byboth for commercial purpose. The provision of section 45 of the MLRCAct clearly envisage that it pertains to penalty for so using the landwithout permission of the Collector. The contents of the N.A. orderlevied penalty to the extent of ten times of the fine of the annualcommercial assessment for the use of the structures and the openspace. To construe that the N.A. order puts the Plaintiffs in settledpossession and confers title on the Plaintiffs in respect of the openspace is a fallacy and an erroneous proposition of law adopted by thePlaintiffs in their submissions. Such a position cannot becountenanced by the Court which requires to look at documentaryevidence of title or existence of the names of the Plaintiffs in theprimary revenue record pertaining to the suit land. In absence of anydocumentary evidence of title the Plaintiffs case of settled positionand having right title and interest conferred on the Plaintiffs by theN.A. order dated 26.01.2005 stands rejected. 1 on 18 05 2021 on 22 03 3.aost.4532.21.doc13.The Plaintiffs reliance on the averments made by theCorporation in paragraph No. 9 of having accepted the possession ofthe Plaintiffs in respect of the open land cannot be construed literallyas it appears. The possession of the Plaintiffs is derivative from theN.A. order dated 26.01.2005 which is alluded to herein above. Thus no right title or interest is created in the Plaintiffs in respect of suitopen land.14.The submissions relating to following the due process oflaw in construction of the public toilet block as advanced by thePlaintiffs also stand to be rejected in limine. The submissions that theoriginal toilet block was to be constructed at Galli No. 14 and the sameis now being constructed at the mouth of Galli No. 14 and not near theentrance gate of Galli No. 14 cannot be countenanced in as much asthe Municipal Corporation being the planning authority a feasible andsuitable place for the toilet block whether it is at Galli No.14 or nearthe entrance of Galli No.14 will be taken into account keeping in mindthe utility and use of the said public toilet block for the benefit of thebeneficiaries users and more specifically the slum dwellers. Theconstruction of the public toilet block will be beneficial to the slumdwellers of Ganpat Patil Nagar residing at Galli No.14. At presentthere are only 15 public toilet seats for approximate 2250 users atGalli No. 14 and the construction of the present public toilet block1 on 18 05 2021 on 22 03 3.aost.4532.21.dochaving 60 toilet seats would be certainly beneficial. Thus thesubmission of the Plaintiffs relating to change in the precise location ofthe construction of the public toilet block stands rejected.15.The Plaintiffs have referred to and relied upon thephotographs pertaining to the construction of the public toilet block. Amere glance at the photographs clearly show that as alleged by thePlaintiffs the toilet block is not covering the entire open space which isbetween the Plaintiff s structure and the Link road. Despite the toiletblock being constructed there is adequate open space which is leftopen. The Plaintiffs have relied upon the decision in the case of RameGowdaby LRS. vs. M. Varadappa Naidu(Dead) by LRS. andAnr.1 to agitate that under the provisions of the Specific Relief Act ifan occupant is in settled possession he cannot be dispossessedwithout recourse to law. In the said case the Plaintiffs and theDefendant both claimed to be the owners of two adjoining pieces ofland and the real dispute between them was about the demarcation ofthe common boundary of the two pieces of land. In that context theland in possession of the Plaintiffs was referred to as the suit land andthe Plaintiffs raised construction over the said suit land which wasobjected by the Defendant. In the trial court the Plaintiffs filed a suitfor title and possession whereas in the present case the Plaintiffs have12004(1)SCC 7691 on 18 05 2021 on 22 03 3.aost.4532.21.docconveniently not filed any suit for title primarily because the plaintiffsare aware that their suit for title cannot be based upon the N.A. order.There is no other documentary piece or evidence with the Plaintiffs toprove their title. In the above context the learned counsel has placedreliance on para Nos.8 and 9 of the above judgement which areextracted as under :"8.It is thus clear that so far as the Indian law is concerned theperson in peaceful possession is entitled to retain his possession and in orderto protect such possession he may even use reasonable force to keep out atrespasser. A rightful owner who has been wrongfully dispossessed of landmay retake possession if he can do so peacefully and without the use ofunreasonable force. If the trespasser is in settled possession of the propertybelonging to the rightful owner the rightful owner shall have to takerecourse to law he cannot take the law in his own hands and evict thetrespasser or interfere with his possession. The law will come to the aid of aperson in peaceful and settled possession by injuncting even a rightful ownerfrom using force or taking law in his own hands and also by restoring him inpossession even from the rightful ownerif the latter has dispossessed the prior possessor by use of force.In the absence of proof of better title possession or prior peaceful settledpossession is itself evidence of title. Law presumes the possession to go withthe title unless rebutted. The owner of any property may prevent even byusing reasonable force a trespasser from an attempted trespass when it is inthe process of being committed or is of a flimsy character or recurring intermittent stray or casual in nature or has just been committed while therightful owner did not have enough time to have recourse to law. In the lastof he cases the possession of the trespasser just entered into would not becalled as one acquiesced to by the true owner. 9. It is the settled possession or effective possession of a personwithout title which would entitle him to protect his possession even asagainst the true owner. The concept of settled possession and the right of thepossessor to protect his possession against the owner has come to be settledby a catena of decisions. Illustratively we may refer to Munshi Ram and Ors.Vs. Delhi Administration 2 SCR 455 Puran Singh and Ors. Vs. TheState of Punjab 4 SCC 518 and Ram Rattan and Ors. Vs. State ofUttar Pradesh 1 SCC 188. The authorities need not be multiplied. InMunshi Ram & Ors. s caseit was held that no one including the trueowner has a right to dispossess the trespasser by force if the trespasser is insettled possession of the land and in such a case unless he is evicted in thedue course of law he is entitled to defend his possession even against therightful owner. But merely stray or even intermittent acts of trespass do notgive such a right against the true owner. The possession which a trespasser isentitled to defend against the rightful owner must be settled possession extending over a sufficiently long period of time and acquiesced to by thetrue owner. A casual act of possession would not have the effect ofinterrupting the possession of the rightful owner. The rightful owner may re enter and re instate himself provided he does not use more force than isnecessary. Such entry will be viewed only as resistance to an intrusion upon1 on 18 05 2021 on 22 03 3.aost.4532.21.dochis possession which has never been lost. A stray act of trespass or apossession which has not matured into settled possession can be obstructedor removed by the true owner even by using necessary force. In Puran Singhand Ors. s casethe Court clarified that it is difficult to lay down anyhard and fast rule as to when the possession of a trespasser can mature intosettled possession. The settled possession must beeffective to the knowledge of the owner or without any attemptat concealment by the trespasser. The phrase settled possession does notcarry any special charm or magic in it nor is it a ritualistic formula which canbe confined in a strait jacket. An occupation of the property by a person as anagent or a servant acting at the instance of the owner will not amount toactual physical possession. The court laid down the following tests whichmay be adopted as a working rule for determining the attributes of "settledpossession"that the trespasser must be in actual physical possession of the propertyover a sufficiently long period ii) that the possession must be to the knowledgethe process of dispossession of the true owner by the trespasser must becomplete and final and must be acquiesced to by the true owner and iv) that one of the usual tests to determine the quality of settled possession in the case of culturable land would be whether or not the trespasser afterhaving taken possession had grown any crop. If the crop had been grown bythe trespasser then even the true owner has no right to destroy the cropgrown by the trespasser and take forcible possession. 16. From the reading of the aforesaid paragraphs of thejudgement and applying the facts to the present case whatdistinguishes the present case is that the N.A. order dated 27.01.2005speaks for itself the relevant contents of the N.A. order have beenreproduced in paragraph No. 10 herein above. The same are clearand unambiguous. The N.A. order does not confer any right title orinterest on the Plaintiffs. The Plaintiffs are ranked encroachers ascertified by the N.A. order. The Plaintiffs have been levied N.A. taxand penalty for using the land which does not belong to them. The1 on 18 05 2021 on 22 03 3.aost.4532.21.docPlaintiffs are aware about the same. Therefore on the basis of the N.A.order the Plaintiffs cannot construe themselves to be in settledposition. In the various judgements which are referred to in theaforesaid case decided by the Supreme Court it is seen that theoriginal suit filed by the parties was for declaration of title andinjunction to protect their possession. In the present case the Plaintiffshave not filed any suit for declaration of title and have merely filed asuit for injunction. Therefore the facts of the case referred to andrelied upon by the Plaintiffs are clearly distinguishable. The Plaintiffshave also referred to and relied upon the judgement dated 19.09.2011passed in L.C.Suit No. 13010 and 13010. L.C. Suit No.13010 was filed by Plaintiff No.2 whereas L.C. Suit No. 1304 of2020 was filed by Plaintiff No.1 to challenge the notices u s 351 issuedby the Corporation for demolition of their unauthorised structuresonly. The Plaintiffs led evidence in the trial court and producedseveral documents pertaining to the existence of the censusedstructures since 1976 and thus sought protection of the structuresfrom the action of the Corporation. The trial court in the above twosuits held that the Plaintiffs were entitled to perpetual injunction inrespect of the suit structures only. The suit property i.e. suit structuresis described in para No.3 of the above judgement. There is no whisperabout the suit open space in the above judgement so as to enable thePlaintiffs to claim any right title or entitlement in respect of the same. 2 on 18 05 2021 on 22 03 3.aost.4532.21.doc17. In view of the above discussions and findings the Appealfrom OrderNo. 45321 fails and is dismissed with no orderas to costs. 18.In view of the dismissal of the Appeal from OrderNo. 45321 does notsurvive and is disposed of as dismissed. 2

Petitioner should be granted bail from the Judicial custody as nothing has been recovered in the form of contraband or money : High Court of Delhi

Petitioner is in judicial custody since 14.03.2015, he is admitted to bail on furnishing personal bond in the sum of Rs. 50,000/- with one surety in the like amount for the satisfaction of the learned Trial Court and was upheld by High Court of Delhi through the learned bench led by HON’BLE MR. JUSTICE RAJNISH BHATNAGAR in the case of KALE RAM @ KALU RAM vs. NARCOTICS CONTROL BUREAU (BAIL APPLN. 3045/2019) on 10.03.2022. Brief facts of the case are that on secret information accused Raghav Sehajpal, Krishan Chand and Ram Lal were apprehended and from the possession of accused Raghav 220 gm of charas was recovered and two parcels containing 399 and 925 gm of charas were recovered from Kishan Chand and Rs. 65000/- were recovered from accused Ram Lal.  Raghav Sehajpal in his statement under Section 67 of NDPS Act has disclosed the name of the petitioner and his mobile number, co-accused Raghav disclosed that he used to get the contraband through Kale Ram (petitioner) through conductors and drivers who sometimes used to give money in cash and sometimes used to deposit money in HDFC bank accounts. It is further alleged that many transactions were found to have taken place between accused Raghav and petitioner Kale Ram and accused/petitioner Kale Ram disclosed in his statement under Section 67 of NDPS Act that he gave five packets to Kishan Chand and Ram Lal with instructions to give the packets to Raghav Sehejpal. Learned counsel for the petitioner submits that the petitioner is in custody since 14.03.2015. It is further submitted by learned counsel for the petitioner that co-accused – Raghav Sehajpal and Ram Lal are on regular bail. He further submitted that the petitioner did not possess any contraband, and he is charged with conspiracy with co-accused. He further submitted that the bank slips which are exhibited in the court are not bearing the signature of co- accused Raghav and different signatures are appearing on them. Learned senior standing counsel for the NCB submits that co-accused Raghav Sehajpal on apprehension categorically disclosed that he used to get contraband from Kale Ram i.e. present accused/petitioner through drivers and conductors, and used to make payment in cash or sometimes deposit money in HDFC bank account of the petitioner. The verification of the bank account of present petitioner shows that number of transactions have taken place between both and the said fact is also corroborated through the statements under Section 67 NDPS Act of the accused persons. As far as the question of voluntary statement of the petitioner under Section 67 of the NDPS Act is concerned, in the absence of any recovery of any drugs from the petitioner, it will be a debatable issue whether the disclosure statement made by the co-accused is admissible against the him or not. Court in the view of facts and circumstances decides that the petitioner is in judicial custody since 14.03.2015, he is admitted to bail on his furnishing personal bond in the sum of Rs. 50,000/- with one surety in the like amount, to the satisfaction of the learned Trial Court. The petitioner shall not leave the country without the prior permission of the concerned Trial Court.

IN THE HIGH COURT OF DELHI AT NEW DELHI BAIL APPLN. 3045 2019 KALE RAM @ KALU RAM Reserved on: Pronounced on: 08.02.2022 10.03.2022 .....Petitioner Through: Mr. A.K. Sahu Advocate with petitioner produced Versus NARCOTICS CONTROL BUREAU .....Respondent Through: Mr. Subhash Bansal Sr. St. Counsel with Mr. Shashwat Bansal Adv. HON BLE MR. JUSTICE RAJNISH BHATNAGAR O R D E R RAJNISH BHATNAGAR J. This is a petition filed by the petitioner under section 439 of Cr.P.C. for grant of regular bail in SC.No.8605 of 2016 under Sections 20 & 29 NDPS ACT registered at Police Station NCB. The brief facts of the case are that on secret information accused Raghav Sehajpal Krishan Chand and Ram Lal were apprehended and from the possession of accused Raghav 220 gm of charas was recovered and two parcels containing 399 and 925 gm of charas were recovered from Kishan Chand and Rs. 65000 were recovered from accused Ram Lal. It is further BAIL APPLN. 3045 2019 alleged that accused persons in their statements under Section 67 NDPS Act admitted their involvement. It is further alleged that accused Raghav Sehajpal in his statement under Section 67 of NDPS Act has disclosed the name of the present petitioner and his mobile number. It is further alleged that co accused Raghav disclosed that he used to get the contraband through Kale Ramthrough conductors and drivers who sometimes used to give money in cash and sometimes used to deposit money in HDFC bank accounts. It is further alleged that many transactions were found to have taken place between accused Raghav and petitioner Kale Ram and accused petitioner Kale Ram disclosed in his statement under Section 67 of NDPS Act that he gave five packets to Kishan Chand and Ram Lal with instructions to give the packets to Raghav Sehejpal. I have heard the learned counsel for the petitioner and learned senior standing counsel for the respondent NCB. I have also perused the status report and the records of this case. It is submitted by the learned counsel for the petitioner that the petitioner is in custody since 14.03.2015. It is further submitted by learned counsel for the petitioner that co accused Raghav Sehajpal and Ram Lal are on regular bail. He further submitted that the petitioner did not possess any contraband and he is charged with conspiracy with co accused. It is further submitted by the learned counsel for the petitioner that the petitioner was arrested on the disclosure statement of the co accused and has been falsely implicated. He further submitted that the petitioner has deep roots in BAIL APPLN. 3045 2019 the society and has family to support. Learned counsel for the petitioner further submitted that as per the allegations in the complaint the element of conspiracy with the other co accused person is missing. He further submitted that the bank slips which are exhibited in the court are not bearing the signature of co accused Raghav and different signatures are appearing on them. He further submitted that there is no evidence to show that the amount of Rs.65 000 which according to the prosecution was deposited by co accused Raghav Sehajpal in the account of petitioner was in relation to sale and purchase of contraband. On the other hand it is submitted by the learned senior standing counsel for the NCB that co accused Raghav Sehajpal on apprehension categorically disclosed that he used to get contraband from Kale Ram i.e. present accused petitioner through drivers and conductors and used to make payment in cash or sometimes deposit money in HDFC bank account of the petitioner. The verification of the bank account of present petitioner shows that number of transactions have taken place between both and the said fact is also corroborated through the statements under Section 67 NDPS Act of the accused persons. He further submitted that there is an entire chain including the drivers and conductors involved in the trade. Learned senior standing counsel further submitted that the petitioner Kale Ram is the main accused who used to deal in the contraband through the other co accused and there is a recovery of commercial quantity of charas in this case. He further submitted that at this stage the court is not supposed to prejudge the BAIL APPLN. 3045 2019 evidence and the petitioner is unable to show even prima facie that he is not guilty of such offence and also that there is an embargo u s 37 of the NDPS Act in granting bail to the petitioner. In the instant case co accused Raghav Sehajpal has been released on bail vide order dated 06.06.2015 as he was found in possession of intermediate quantity of charas. The other co accused who has been released on bail is Ram Lal as nothing was recovered from him except Rs.65 000 which according to the prosecution was received by him from co accused Raghav Sehajpal. In the present case there is no recovery of any contraband from the petitioner and as per the prosecution no amount has been recovered from his bank account. The recovery of Rs.65 000 has been effected from co accused Ram Lal which according to the prosecution was received by him from co accused Raghav Sehajpal both of whom are already on bail. As far as the question of voluntary statement of the petitioner under Section 67 of the NDPS Act is concerned in the absence of any recovery of any drugs from the petitioner it will be a debatable issue whether the disclosure statement made by the co accused is admissible against the him or not and in this regard reliance can be placed upon the judgment of the Supreme Court in the case of Tofan Singh Vs. State of Tamil Nadu16 SCC 31. Looking into the facts and circumstances of this case and the fact that two co accused are already on bail nothing has been recovered from the petitioner in the form of contraband or money which according to the BAIL APPLN. 3045 2019 prosecution has changed hands during the conspiracy alleged to have been hatched by petitioner and his co accused therefore in these circumstances the embargo of Section 37 of NDPS Act does not come in the way in granting bail to the petitioner as far as the facts of the present case is concerned. I am also of the view that requirement of Section 37 of the NDPS Act are satisfied. In so far as the petitioner is concerned there are reasonable grounds to believe that petitioner is not guilty of the said offence. 9. It is not the case of the prosecution that petitioner has been involved in any case of similar nature. Reference may be had to the judgment of the Supreme Court in Ranjit Singh Brahmajeet Singh Sharma Vs. State of Maharashtra 5 SCC 294 wherein while referring to an identically worded provision under Maharashtra Control of Organized Crimes Act 1999 the Supreme Court held that the satisfaction is with regard to likelihood of not committing the offence under the Act and not any offence 10. Therefore in the facts and circumstances discussed hereinabove and without commenting upon the merits of the case and considering the fact that the petitioner is in judicial custody since 14.03.2015 he is admitted to bail on his furnishing personal bond in the sum of Rs. 50 000 with one surety in the like amount to the satisfaction of the learned Trial Court. The petitioner shall not leave the country without the prior permission of the concerned Trial Court. 11. The petition stands disposed of accordingly. BAIL APPLN. 3045 2019 12. Nothing stated hereinabove shall tantamount to the expression of any opinion on the merits of the case. MARCH 10 2022 ib RAJNISH BHATNAGAR J BAIL APPLN. 3045 2019

Peerless General Finance and Investment Company Ltd. V/s. Commissioner of Income Tax

Income Tax Law – Book keeping entries are not decisive or determinative of the true nature of the entries The Appellant-Company floated various schemes which required subscribers to deposit certain amounts by way of subscriptions in its hands, and, depending upon the scheme in question, these subscribed amounts at the end of the scheme were ultimately repaid with interest. The scheme also contained forfeiture clauses as a result of which if, mid-way, a certain amount is forfeited, then the said amount would immediately become income in the hands of the assessee.In the present case, the assessee was asked to bring to tax such amounts as income for the two years in question, in as much as, according to the Assessing Officer, it had treated the whole amount as income, 3% of which was not disputed to be income before the court for the years in question. These amounts were credited to the profit and loss account for the years in question as income. The Commissioner of Income Tax (Appeals) dismissed the appeal from the original assessment orders and confirmed the same.The Income Tax Appellate Tribunal, on the other hand, allowed the appeals by relying upon the judgment of this Court in Peerless General Finance and Investment Co. Limited and Another vs. Reserve Bank of India, (1992) 2 SCC 343 in which, according to the Appellate Tribunal, this Court finally decided the question in the assessee’s own case stating that such amounts cannot be treated to be income but are in the nature of capital receipts.These were not only because of the interpretation of an RBI Circular of 1987, but also because, on general principles, such amounts must be treated to be capital receipts or otherwise they would violate the provisions of the Companies Act. PROCEDURAL HISTORY: An appeal went to the high court which was dismissed as the high court held that no question of law had been raised.The High Court of Calcutta allowed the appeal against the Appellate Tribunal holding that a perusal of the subscription scheme of the appellant company would show that since forfeiture of the amounts deposited is possible, this amount should be treated as income and not as a capital receipt. ISSUE BEFORE THE COURT: Whether the decision of the did not lay down any absolute proposition of law that all receipts of subscription at the hands of the assessee for the previous year relevant to the assessment years 1985-86 and 1986-87 must necessarily be treated as capital receipts?If the answer to the first question is in the negative, on the facts and in the circumstances of the case, and having regard to the fact that the first year’s subscriptions were consciously offered as revenue receipt for taxation by the assessee in the returns of income filed in respect of assessment years 1985-86 and 1986-87, whether the Tribunal was justified in accepting the assessee’s contention that the first years’ subscription was capital receipts and hence not taxable?Whether on the facts and in the circumstances of the case and having regard to the observations of Hon’ble Supreme Court to the effect that the directions of Reserve Bank of India dated 15th May,1987 had been made applicable from 15th May,1987 and would only apply to the deposits made onor after 15th May, 1987, the tribunal was justified in law as well as on the facts in holding that the said directions of the Reserve Bank of India were retrospective and must be applied in all pending proceedings? RATIO OF THE COURT Court observed that subscriptions were received in the years in question from the public at large under a collective investment scheme, and these subscriptions were never at any point of time forfeited. This being the case, and surrendered certificates not being the subject-matter of the appeal, it is clear that evenon general principles, deposits by way of amounts pursuant to these investment schemes made by subscribers which have never been forfeited can only be stated to be capital receipts.On the first issue court held that while it is true that there was no direct focus of the Court in in Peerless General Finance and Investment Company Ltd. (supra)on whether subscriptions so received are capital or revenue in nature, we may still advert to the fact that this Court has also, on general principles, held that such subscriptions would be capital receipts, and if they were treated to be income, this would violate the Companies Act.It was, therefore, incorrect to state, as has been stated by the High Court, that the decision in Peerless General Finance and Investment Co. Limited (supra) must be read as not having laid down any absolute proposition of law that all receipts of subscription at the hands of the assessee for these years must be treated as capital receipts.Court agreed with the appellants contention that in cases of this nature it would not be possible to go only by the treatment of such subscriptions in the hands of accounts of the assessee itself. In this behalf, he cited a decision of the Division Bench of the Allahabad High Court in Commissioner of Income Tax vs. Sahara Investment India Ltd., reported as Volume 266 ITR page 641 in which the Division Bench followed Peerless General Finance and Investment Co. Limited(supra), and then held as follows: It is well settled in income-tax law that bookkeeping entries are not decisive or determinative of the true nature of the entries as held by the Supreme Court in CIT vs. India Discount Co. Ltd.[1970] 75 ITR 191 and in Godhra Electricity Co. Ltd v. CIT [1997] 225 ITR 746 (SC).It has been held in those decisions that the court has to see the true nature of the receipts and not go only by the entry in the books of account. Court finally observed the “theoretical” aspect of the present transaction is the fact that the assessee treated subscription receipts as income. The reality of the situation, however, was that the business aspect of the matter, then viewed as a whole, leads inevitably to the conclusion that the receipts in question were capital receipts and not income. DECISION HELD BY COURT: The apex court restored the order of the Income Tax Appellate Tribunal and set aside the judgement of the High court. Appeal was Allowed.

IN THE CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 1265 OF 2007 THE PEERLESS GENERAL FINANCE AND INVESTMENT COMPANY LTD. APPELLANT(S COMMISSIONER OF INCOME TAX JUDGMENT R.F. Nariman J The question raised in this appeal is as to whether receipts of subscriptions in the hands of the assessee Company for the previous years relevant to the assessment years 1985 86 and 1986 97 should be treated as income and not capital receipts inasmuch as the assessee has in its books of accounts shown this sum as income. The assessee Company has floated various schemes which require subscribers to deposit certain amounts by way of subscriptions in its hands and depending upon the scheme in question these subscribed amounts at the end of the scheme are ultimately repaid with interest. The scheme at hand also contains forfeiture clauses as a result of which if mid way a certain amount is forfeited then the said amount would immediately become income in the hands of the assessee. This is an admitted position before us. In the present case the assessee was asked to bring to tax such amounts as income for the two years in question inasmuch as according to the Assessing Officer it had treated the whole amount as income 3% of which is not disputed to be income before us for the years in question. The Assessing Officer treated these amounts as income inasmuch as under the accounting system followed by the assessee these amounts were credited to the profit and loss account for the years in question as income. The Commissioner of Income Taxdismissed the appeal from the original assessment orders and confirmed the same. The Income Tax Appellate Tribunal on the other hand allowed the appeals by relying upon the judgment of this Court in Peerless General Finance and Investment Co. Limited and Another vs Reserve Bank of India 2 SCC 343 in which according to the Appellate Tribunal this Court finally decided the question in the assessee’s own case stating that such amounts cannot be treated to be income but are in the nature of capital receipts. These were not only because of the interpretation of an RBI Circular of 1987 but also because on general principles such amounts must be treated to be capital receipts or otherwise they would violate the provisions of the Companies Act. It further went through the various clauses contained in the scheme at hand and found that in point of fact no subscription certificate had in fact been forfeited as a result of which it was clear that there would be no income in the hands of the assessee for these two years. It also dealt with certificates that were surrendered prior to the stated time and stated that in such cases as well whatever would remain as surplus in the hands of the assessee would be treated as income. It went on to state that there would be no estoppel in law against the assessee making a claim that these amounts were in the nature of capital receipts and not income and also relied upon certain judgments of this Court to buttress the proposition that this Court had also held that what is the true position in law cannot be deflected by what the assessee may or may not do in its treatment of the matter at hand in its accounts So doing the appeal against the Commissioner of Income Tax was allowed by the Income Tax Appellate Tribunal. In the first round the High Court by its judgment dated 09.09.1999 stated that since no question of law arose the reference applications before it were dismissed. This Court by an order dated 03.12.2002 set aside the High Court judgment and referred the following questions to the High Court “(a) Whether the judgment of the Supreme Court in Peerless General Finance and Investment Co. Ltd vs. Reserve Bank of India 2 SCC 343 lays down as an absolute proposition of law that all receipts of subscription in the hands of the assessee for the previous years relevant to the assessment years 1985 86 and 1986 87 must necessarily be treated as capital receipts b) If the answer to the first question is in the negative on the facts and in the circumstances of the case and having regard to the fact that the first year’s subscriptions were consciously offered as revenue receipt for taxation by the assessee in the returns of income filed in respect of assessment years 1985 86 and 1986 87 whether the Tribunal was justified in accepting the assessee’s contention that the first years’ subscription was capital receipts and hence not taxable c) Whether on the facts and in the circumstances of the case and having regard to the observations of Hon’ble Supreme Court to the effect that the directions of Reserve Bank of India dated 15 th May 1987 had been made applicable from 15th May 1987 and would only apply to the deposits made on or after 15th May 1987 the tribunal was justified in law as well as on the facts in holding that the said directions of the Reserve Bank of India were retrospective and must be applied in all pending When remanded to the High Court by the impugned judgment dated 06.10.2005 the High Court of Calcutta allowed the appeal against the Appellate Tribunal holding that a perusal of the subscription scheme of the appellant company would show that since forfeiture of the amounts deposited is possible this amount should be treated as income and not as a capital receipt. Further it relied heavily upon the fact that the assessee had itself treated such amounts as income and credited them to its profit and loss account for the years in question and would therefore be estopped by the same. On going through the judgment of this Court namely Peerless General Finance and Investment Co. Limited it went on to state that since the said judgment dealt with an RBI Circular of 1987 which itself was only prospective any law declared as to the effect of Clause 12 of that Circular would be prospective in nature and would therefore not apply to the assessment years in Mr. S. Ganesh learned Senior Advocate appearing for the appellant Company has argued before us that the High Court is incorrect on all counts. According to him the fact that forfeiture may take place under the clauses of the scheme has to be read with an interim order which he has brought to our notice by way of a supplementary affidavit dated 05.04.2017 in which it is made clear that post the date of the order i.e. 03.09.1979 no amount can be forfeited under any of the schemes by the appellant Company. He stated that as a matter of fact the supplementary affidavit states that for the years in question and in particular for every year after 1979 no sum has in fact been forfeited by the Company under any of the schemes in question. He then argued that it was incorrect to go only by the accounting system of the assessee since it is well settled that the real position in law qua deposits that are made by subscriptions on first principle would show that they are in the nature of capital receipts and cannot be possibly be said to be income as they would enure to the benefit of the subscribers of the scheme and would have to be paid back at the end of the scheme together with interest thereof. He also argued that in any event that the judgment in Peerless General Finance and Investment Co Limited was not merely grounded on an interpretation of Clause 12 of the RBI Circular of 1987 but it also specifically held that as a general proposition receipts of this nature would be capital and adverted to both the judgments of N.M. Kasliwal J and K. Ramaswamy J. in this behalf. He also argued that even for the period in question this judgment would squarely apply as if such receipts were to be treated as income it would violate the Companies Act. He also argued that it would be incorrect to raise any question of estoppel against the appellant Company and cited judgments of this Court to buttress this proposition On the other hand Mr. Arijit Prasad learned Senior Counsel appearing for the Revenue has countered Mr. Ganesh’s submissions. He read copiously from the Commissioner of Income Taxorders in order to buttress his submission that the ground reality of the situation in the facts of this case is that in point of fact the appellant Company itself treated these amounts as income. Had it not done so it would not have been able to face its subscribers for payments in future. He also argued based on Ram Janki Devi and Another vs. M s Juggilal Kamlapat 1 SCC 477 that the true form of the transaction must be looked at. He also cited Poona Electric Supply Co. Ltd. Bombay vs. Commissioner of Income tax Bombay AIR 1966 SC 30 to the effect that the ground reality must govern and not mere theoretical considerations. Also according to the learned Senior Advocate the issue at hand did not arise directly before this Court in the Peerless General Finance and Investment Co. Limited and therefore any observations made therein would not bind on the facts of this case. Further in any event the Commissioner of Income Taxwas correct in stating that this judgment dealing only with an RBI circular 1987 being prospective in nature would not apply to the assessment years at hand Having heard the learned counsel for both parties we must first set out the answers given to the three questions by the High Court in its judgment under appeal. The answers given are as “10.1 The questions referred to us therefore having regard to the principles discussed above are answered in the following manner a) that the decision of the Apex Court in Peerless General Finance and Investment Company Ltd supra) did not lay down any absolute proposition of law that all receipts of subscription at the hands of the assessee for the previous year relevant to the assessment years 1985 86 and 1986 87 must necessarily be treated as capital receipts b) Having regard to the facts and circumstances of the case the learned Tribunal was wrong in treating the first year’s subscription relevant to the assessment years 1985 86 and 1986 87 as capital receipts and hence not taxable and c) the decision of the Apex Court in the second Peerless case that the deposits made after 15th May 1987 were to be treated in the manner directed in the 1987 directions are applicable to all pending proceedings so far as such deposits relate to the period after 15th May 1987 particularly in relation to the assessee.” What is clear even on general principle on the facts of this case is that subscriptions were received in the years in question from the public at large under a collective investment scheme and these subscriptions were never at any point of time forfeited Indeed the supplementary affidavit filed before this Court states this as a fact being based on an interim order of the High Court dated 03.09.1979 which obtained during the assessment years in question. This being the case and surrendered certificates not being the subject matter of the appeal before us it is clear that even on general principles deposits by way of amounts pursuant to these investment schemes made by subscribers which have never been forfeited can only be stated to be capital receipts This Court in Peerless General Finance and Investment Co Limitedwas faced with a situation in which the RBI had pursuant to this Court’s earlier judgment in Reserve Bank of India vs. Peerless General Finance and Investment Co. Ltd. And Others 1987) 1 SCC 424 taken steps to remedy the concerns raised by this Court in that judgment. The steps taken were under powers conferred by Section 45 J & 45 K of the Reserve Bank of India Act as a result of which directions were issued by the RBI dated 15.05.1987. These directions in turn were the subject matter of challenge by the Peerless General Finance and Investment Co Limited i.e. the second Peerless case. The aforesaid directions are set out in full in para 9 of the said judgment. We are concerned with para 12 which states as follows: “12. Every residuary non banking company shall disclose as liabilities in its books of accounts and balance sheets the total amount of deposits received together with interest bonus premium or other advantage accrued or payable to the It is true that the focus of this Court was a challenge on various grounds to the aforesaid directions. However this Court did state Kasliwal J. in particular holding “The amount contributed by the depositors being a capital receipt and not a revenue receipt cannot under any circumstances be shown in the balance sheet otherwise than at its full value. Moreover being a capital receipt it cannot be credited to the profit and loss account since Part II of Schedule VI to the Companies Act 1956 requires that the amounts to be shown in the profit and loss account should be confined to the income and expenditure of the company. Thus crediting a part of the first and subsequent year’s deposit instalments to the profit and loss account and not showing them fully as a liability in the balance sheet would be a contravention of the provisions of the Companies The learned Judge further went on to hold “The method followed by the companies in carrying on the aforesaid business is that a certain portion of the subscriptions received by it is transferred to the profit and loss account shown as income and the same is used to defray inevitable working capital requirements of the company namely payment of agent’s commission management expenses staff salaries and other overheads. However the balance of the subscriptions is transferred to a fund each year and the corpus of the fund is invested in turn in interest bearing investment. The Peerless Company initially used to transfer approximately 95 per cent of the first year’s subscriptions to the profit and loss account and used to invest the subscriptions received from the second year onwards.” K. Ramaswamy J. in a separate concurring judgment also turned down the challenge to the said guidelines and in doing so held as “The deposit or loan is a capital receipt but not a revenue receipt and its full value shall be shown in the account books or balance sheet as liability of the company. It cannot be credited to the profit and loss account. Part II of Schedule VI of the Companies Act 1956 requires that the amount shown in the profit and loss account should be confined to the income and expenditure of the company. Para of the Directions is thus in consonance with the Companies Act.” 10) While it is true that there was no direct focus of the Court on whether subscriptions so received are capital or revenue in nature we may still advert to the fact that this Court has also on general principles held that such subscriptions would be capital receipts and if they were treated to be income this would violate the Companies Act. It is therefore incorrect to state as has been stated by the High Court that the decision in Peerless General Finance and Investment Co. Limitedmust be read as not having laid down any absolute proposition of law that all receipts of subscription at the hands of the assessee for these years must be treated as capital receipts. We reiterate that though the Court’s focus was not directly on this yet a pronouncement by this Court even if it cannot be strictly called the ratio decidendi of the judgment would certainly be binding on the High Court. Even otherwise as we have stated it is clear that on general principles also such subscription cannot possibly be treated as income. Mr Ganesh is right in stating that in cases of this nature it would not be possible to go only by the treatment of such subscriptions in the hands of accounts of the assessee itself. In this behalf he cited a decision of the Division Bench of the Allahabad High Court in Commissioner of Income Tax vs. Sahara Investment India Ltd. reported as Volume 266 ITR page 641 in which the Division Bench followed Peerless General Finance and Investment Co. Limited supra) and then held as follows “In Peerless General Finance and Investment Co. Ltd. v. Reserve Bank of India 75 Comp Cas 12 the Supreme Court on similar facts held that the deposits were capital receipts and not revenue receipts75 ITR 191 and in Godhra Electricity Co Ltd v. CIT225 ITR 74687 ITR 54297 ITR 615 the Supreme Court observed57 ITR 532220 ITR 305. In our opinion that decision is also distinguishable because in that case the deposit was forfeited and the result of the transaction was that the bank became full owner of the security and the amount lying in deposit with it became its own money. In the present case there is no such finding that the deposit was forfeited or that at the end of the transaction the security deposit became the property of the assessee or that changed from a capital receipt to a revenue receipt. Hence that decision is clearly distinguishable.” This Court on 21.07.2015 in appeal against the said judgment held “After reading of the decision of the High Court we find that the High Court has rightly relied upon the judgment of this Court in “Peerless General Finance & Investment Co. Ltd. & Anr. v. Reserve Bank of India”2 SCC 343. Since the case is squarely covered by the judgment we do not find any merit in these appeals and petitions which are accordingly dismissed.” It is also correct to state that there can be no estoppel against a settled position in law Ltd. 29 ITR 661 at 665 and Commissioner of Income Tax Madras vs. V.MR.P. Firm Muar 1965) 56 ITR 67 11) Shri Arijit Prasad learned senior counsel appearing on behalf of the Revenue however strongly relied upon the observations in Ram Janki Devi and another v. M s. Juggilal Kamlapat 1 SCC 477. In particular he relied upon paragraph 12 of the judgment which reads as follows: “The case of a deposit is something more than a mere loan of money. It will depend on the facts of each case whether the transaction is clothed with the character of a deposit of money. The surrounding circumstances the relationship and character of the transaction and the manner in which parties treated the transaction will throw light on the true form of the transaction.” 12) This judgment has no direct relevance to the facts of the present case. The vexed question in that case was as to whether a particular transaction in question was a loan or a deposit. It was in that context that paragraph 12 laid down that whether a loan of money could be called a deposit would depend upon the facts of each case having regard to the surrounding circumstances etc In the present case there is no such question raised by Revenue The question raised is completely different and as has been held by us above the character of the transaction being clearly a capital receipt in the hands of the assessee cannot possibly be taxed as income in the assessee’s hands. 13) Shri Prasad then relied upon the judgment of this Court in Poona Electric Supply Co. Ltd. Bombay v. Commissioner of Income tax Bombay City I Bombay AIR 1966 SC 30. In particular he relied upon a quotation from a Bombay High Court judgment which was approved by this Court as follows: “The principle of real income is not to be subordinated as to amount virtually to a negation of it when a surrender or concession or rebate in respect of managing agency commission is made agreed to or given on grounds of commercial expediency simply because it takes place some time after the close of an accounting year. In examining any transaction and situation of this nature the court would have more regard to the reality and specialty of the situation rather than the purely theoretical or doctrinaire aspect of it. It will lay greater emphasis on the business aspect of the matter viewed as a whole when that can be done without disregarding statutory language.” The “theoretical” aspect of the present transaction is the fact that the assessee treated subscription receipts as income. The reality of the situation however is that the business aspect of the matter when viewed as a whole leads inevitably to the conclusion that the receipts in question were capital receipts and not income. In the circumstances we set aside the judgment of the High Court and restore that of the Income Tax Appellate Tribunal. The appeal is allowed. There shall be no order as to costs ROHINTON FALI NARIMAN New Delhi July 09 2019

Maintenance can’t be rejected due to mere presence of wife’s job: High Court of Delhi

When a case of marital discord is brought before the court and the suit has been filed for calculation of maintenance to be given by the husband to the wife, the contention that the wife is already employed cannot be used to deny her maintenance. This was decided in the case of Pooja v. Sanjay Chopra [CRL.M.C. 1992/2020 & Crl.M.A. 14264/2020] in the High Court of Delhi by single bench consisting of Hon’ble Judge Suresh Kumar Kait. The background of the case is that the parties got married as per Hindu Rites. It was a second marriage for both the parties. However, due temperamental differences, the parties started living separately within three months of their marriage the wife filed a complaint against the husband and his family alleging domestic violence. In proceedings under the Protection of Women from Domestic Violence Act, 2005, the wife filed an application seeking interim maintenance and the husband was directed to pay interim maintenance @Rs.25,000/- per month. The husband filed an application before the Metropolitan Magistrate and placed his income affidavit, income tax returns and bank statement on record and taking the said documents into consideration, the Metropolitan Magistrate dismissed the application of wife for interim maintenance. In the appeal filed before the court of Sessions, it was observed that husband is earning Rs.30,000/- per month and thereby, fixed interim maintenance @Rs.7,500/- per month for the wife, which she claims to be on the lower side. In this court, the wife has pleaded that the Appellate Court has failed to take into consideration the fact that wife is only 9th class pass and was then jobless and hence, unable to maintain herself and her son and that she lost her job recently. On the other hand, husband has pleaded that the wife has left the matrimonial home of her own will and has roped him in various false and baseless cases. He has submitted that it is an admitted fact that the wife studied till class 9th, but as per her own statement she is earning Rs.6,000/- per month. and her assertion that she has to spend Rs.3,000/- for day care of the son is also ruled out, as she herself has admitted that she is unemployed. The court relied upon the judgement of Supreme court in in Bhuwan Mohan Singh Vs. Meena (2015) 6 SCC 353 has observed as under:- “Be it ingeminated that Section 125 of the Code of Criminal Procedure (for short “the Code”) was conceived to ameliorate the agony, anguish, financial suffering of a woman who left her matrimonial home for the reasons provided in the provision so that some suitable arrangements can be made by the court and she can sustain herself and also her children if they are with her.” The court further noted that that there is nothing on record to show that she had been working on regular basis nor any intention has been established to show that she was not willing to work further. Keeping this view in mind coupled with the fact that the wife had studied only up to class 9th, it said that the Appellate Court had rightly rejected the finding returned by the Metropolitan Magistrate that the wife has failed to disclose her employment or that she has not made efforts for reemployment.

IN THE HIGH COURT OF DELHI AT NEW DELHI CRL.REV.P. 448 2018 Date of decision: 26th FEBRUARY 2021 IN THE MATTER OF: STATEJIWAN KANT JAIN AND ANR Through Mr. Avi Singh Advocate HON BLE MR. JUSTICE SUBRAMONIUM PRASAD SUBRAMONIUM PRASAD J. Through Mr. Aditya Jain Advocate ..... Petitioner ..... Respondents This revision petition filed under Section 397 401 Cr.P.C is directed against the order dated 03.01.2018 passed by the Additional Sessions Judge Special Fast Track Court South District Saket Courts New Delhi in Case No.342 2017 where by the Additional Session Judge has discharged the accused from the charges under Sections 376 328 354A 323 506 and FIR No.23 2016 dated 05.01.2016 was registered at Police Station Safdarjung Enclave for offences under Sections 376 328 354A 323 506 509 IPC. and 509 IPC. In the FIR the prosecutrix stated that she had been working in two companies Faison World Hauz Khas and Perfect Organiser belonging to the accused respondent No.1 since six months prior to the lodging the CRL.REV.P. 448 2018 complaint. It is stated that the respondent No.1 told the prosecutrix that he had divorced his wife and was staying separately and needed a capable woman to handle his work. It is stated by the prosecutrix that the accused made her the CEO and later partner in one of the said companies. The prosecutrix states that since there was no separate place for work work related meetings and talks regarding work were held at the home of the accused respondent No.1. It is alleged in the complaint that one day the accused called her home he mixed some intoxicant in her cold drink because of which she went into a semi conscious state and respondent No.1 raped her four times. It is stated that the prosecutrix got up in the morning and started crying. The respondent No.1 told her that he liked her and wanted to marry her. It is stated that after that incident the respondent No.1 made her his partner and told her that he would gradually pay her salary. It is stated that the respondent No.1 started harassing the prosecutrix for salary and stopped paying her salary and removed her from the job. It is stated that when the prosecutrix questioned the action of respondent No.1 he told her that due to financial constraints he was terminating their partnership and that she would be working with one Mr. Batra who would pay her salary as well as profit. It is stated that when the prosecutrix asked for her dues the respondent No.1 refused to pay the same. The prosecutrix gave him a call and asked the respondent No.1 for a meeting. It is alleged that the respondent No.1 called her to his office and gave her one month s salary and that too in two parts half was paid in cash and the other half was by way of cheque which was issued in a wrong name. It is alleged that the prosecutrix protested. It is alleged that the respondent No.1 told her to come to Safdarjung Club where he would make another cheque with correct name. It CRL.REV.P. 448 2018 is alleged that the prosecutrix went to Safdarjung to collect her salary. It is stated that respondent No.1 came there with the other accused respondent No.2 who was working in the office of the respondent No.1 and her husband. It is alleged that the respondent No.1 told the prosecutrix that if she persisted with her demand of money he would viral her video which he had made. It is alleged that out of anger the prosecutrix went to the parking area. It is alleged that the respondent No.1 followed her and also threatened her. It is alleged that the respondent No.2 and her husband Prakash also came to the parking with the respondent No.1 and when they saw that the prosecutrix was alone they started quarrelling with her. It is stated that one Heena friend of the prosecutrix) had accompanied the prosecutrix and was sitting in the car and was waiting for her to return. It is stated that the respondent No.2 abused the prosecutrix and the respondent No.1 caught hold of her and tried to touch her inappropriately. It is also alleged that the respondent No.1 also gave a blow on her head with watch kada which he was wearing. It is stated that the prosecutrix sat in the car and locked herself and as she was trying to leave in her car all three of them attempted to follow her. She managed to escape in her car. On receiving the complaint the prosecutrix was sent to Safdarjung Hospital for medical examination. On the complaint of the prosecutrix FIR 05.01.2016 376 328 354a 323 506 509 IPC was registered against the accused persons. On the very same day the statement of the prosecutrix under Section 164 Cr.P.C was recorded. The records indicate that during the investigation the IO obtained the CCTV footage from the Safdarjung Club. The Material on record indicates that on 24.02.2016 the prosecutrix visited the Police Station CRL.REV.P. 448 2018 and gave an affidavit stating that the prosecutrix and the accused respondent No.1 have amicably settled the matter and the complaint was lodged due to some misunderstanding. However the prosecutrix has gone back on her statement during the course of the hearing of the anticipatory bail. Charge sheet was filed 20.03.2017. Supplementary Charge sheet was filed on 11.07.2017. On 03.01.2018 the Additional Session Judge while passing the order on charge discharged the accused persons. The learned Additional Session found that a) prosecutrix has not mentioned any specific date or month of the incident in her complaint dated 04.01.2016. Although In her statement under Section 164 Cr.P.C she has stated that the incident had taken place in September 2015 two three days after the birthday of accused respondent No.1. The learned Additional Session Judge has come to a conclusion that the evidence which has been placed on record by the prosecution is to be connected with accused respondent No.1 indicated that the date of birth of the accused is 25.09.1950. The Additional Session Judge found that the call details and the location of the mobile numbers of the accused and the mobile phone numbers of the prosecutrix showed different locations and they did not match with the alleged case of the incident. b) The prosecutrix has not reported the matter immediately after the incident to the police. The learned Additional Session Judge held that though it is alleged that the accused had promised to marry the prosecutrix and had also threatened the prosecutrix that CRL.REV.P. 448 2018 he would make her video viral on internet but there was a age difference of nearly 40 years between the accused and the prosecutrix. The Additional Session Judge noted prosecutrix is a mature and well educated woman and not an uneducated woman who is disconnected from the ways of the world. The learned Additional Session Judge noted that at no point of time after the alleged incident did the prosecutrix call upon the accused to marry her or to ensure that he kept his promise of marriage. The learned Additional Session Judge held that a bald plea by prosecutrix that accused had promised to marry her does not inspire any confidence. c) The Additional Session Judge took note of the fact that the prosecutrix has given contradictory versions in her complaint and her statement under Section 164 Cr.P.C regarding the alleged threat of making her video viral. The Additional Session noted that in her complaint to the police the prosecutrix has stated that accused threatened her about making her video viral on 04.01.2016 when she went to meet him at Safdarjung Club for talks regarding full and final settlement of her dues. In her statement under Section 164 Cr.P.C the prosecutrix has stated that accused respondent No.1 threatened her on the morning of the incident. d) The Additional Session Judge also found that the allegation of the prosecutrix that accused respondent No.1 had issued her a cheque of Rs. 35 000 in wrong name is also false because it has been verified that the cheque had been duly encashed by the prosecutrix. CRL.REV.P. 448 2018 e) The Additional Session Judge found that the story of the prosecutrix that when she went to Safdarjung Club on 04.01.2016 to talk to accused regarding full and final settlement of her dues later that the respondent No.1 along with co accused Dimpal respondent No.2 and Prakash assaulted her in the parking of Safdarjung Club is not correct because the CCTV footage of the area obtained by the IO does not substantiate the allegation of the f) The learned Additional Session Judge found that the mobile phone of the accused respondent No.1 was seized by the IO during the course of investigation but no obscene content or video of the prosecutrix was found in data retrieved from the mobile phone. g) The Additional Session Judge also took note of the fact that the prosecutrix had herself came to the Police Station and gave an application stating that she had resolved the dispute with the accused respondent No.1. The Additional Session Judge observed that even though the prosecutrix claimed that the said affidavit was signed by her under threat from the accused respondent No.1 no complaint has been filed by the prosecutrix regarding the threat. h) It has been found that the medical report of accused respondent No.1 shows that after being subjected to scientific examination and diagnosis he was found to be suffering from Artereogenic Vascular Impotence. The Additional Session Judge has found that though the MLC conducted by doctor of Safdarjung Hospital contradicts the said report the information given to the counsel for accused CRL.REV.P. 448 2018 pursuant to query made by accused under Right to Information Act reveals that no test for determining potency of the person accused of rape has been carried out in the department of forensic medicine. The learned Additional Session Judge therefore held that the accused respondent No.1 was not subjected to any scientific test by the doctors of Safdarjung Hospital. i) The Additional Session Judge found that there is discrepancy even in the narration of facts by the prosecutrix regarding her visit to Safdarjung Club. In the complaint it is stated that the prosecutrix escaped in her car with her friend Heena and gave a call to her brother as well as other family friends and then came to wait outside Safdarjung Club from where her brother and some other family members came there and took her to police station. Whereas in her statement under Section 164 Cr.P.C the prosecutrix has stated that when she left in the car with her friend Heena accused were waiting for her and they followed her and so she drove her car faraway so that they could not follow her and thereafter she parked her car and called all her relatives uncle mother and brother. The Additional Session Judge held that despite this contradiction the factum of quarrel and prosecutrix leaving the parking of Safdarjung Club on 04.01.2016 in haste to dodge off accused persons is disproved by the CCTV footage obtained by the IO. j) The Additional Session Judge therefore came to a conclusion that no case is made out against the accused respondent No.1 herein and accordingly the accused respondent No.1 was discharged of offences punishable under Sections CRL.REV.P. 448 2018 376 328 354 354A 323 506 509 IPC. The accused respondent No.2 herein was also discharged by the same order on the ground that she could not be convicted only on the basis of the allegations made by the prosecutrix. It is this order which is under challenge in this revision petition. 5. Mr. Avi Singh learned counsel appearing for the State would contend that the learned Additional Session Judge has conducted a mini trial at the time of framing of charge which is not permissible. He submitted that the investigation had recorded a medical opinion of the accused’s potency and the same may only be dislodged by the accused at trial to the satisfaction of the trial court. Mr. Avi Singh learned counsel for the State submits that the Trial Court has held the doctor’s opinion and the Investigating Officer’s collection of the same to be entirely false without giving either of them an opportunity to be cross examined. He would state that the statement under Section 164 Cr.P.C recorded on 05.01.2016 clearly records the offence that occurred in the house of the accused around September 2015 two or three days after the birthday of the accused which is admitted to be 25th September. He contend that the learned Trial Court has erred in examining the plea of alibi evidence without any cross examination and has discharged the accused on the basis of different cell tower locations of the accused and the prosecutrix during the relevant time. He contends that even if proved it will merely show that the accused and the prosecutrix did not make a call at that time. He would submit that the judgment is contrary to the settled law that at the stage of framing charge the court has to prima facie consider whether there is sufficient ground for proceeding against the accused. It is CRL.REV.P. 448 2018 submitted that as per the evidences and materials placed on record before the Court including the FIR and statement of the Prosecutrix under Section 164 Cr.P.C a prima facie case has been made out against the accused. Mr. Singh would rely on the judgment of the Supreme Court in the case of Sajjan Kumar v. CBI 9 SCC 368 to contend that at the initial stage if there is a strong suspicion which leads the Court to think that there is ground for presuming that the accused has committed an offence then it is not open to the court to say that there is no sufficient ground for proceeding the against the accused. He would state that the Supreme Court has held that the presumption of the guilt of the accused which is drawn at the initial stage is only for the purpose of deciding prima facie whether the Court should proceed with the trial or not. Mr. Singh would also rely on the following judgments: i. Bihar v. Ramesh Singh 1978 SCR257 ii. Sheoraj Singh Ahlawat v. State of U.P. 11 SCC 476 iii. Ravindra v. State of MP 4 SCC 491 iv. Superintendent and Remembrance of Legal Affairs West Bangal v. Anil Kumar Bhunja and others 4 SCC 274 v. Araj Sk. v. State of West Bengal 2000 SCC Online Cal 400 vi. Rajudan Gemardan v. State of Maharashtra CRL Appeal 90 2016to substantiate his contention that the Additional Session Judge has in fact done a “mini trial” while discharging the accused which is impermissible. On the other hand Mr. Aditya Jain learned counsel appearing for the respondent supports the impugned judgement by bringing on record the various contradictions in the Statement of the prosecutrix between initial CRL.REV.P. 448 2018 complaint and her Statement under Section 164 Cr.P.C. Mr. Jain has relied on the judgment of the Supreme Court in Parshant Bharti Vs. State of NCT of Delhi 2013(9) SCC 293 and Gajraj v. State of NCT of Delhi 2011(10) SCC 675 wherein the Supreme Court had acquitted the accused in a case against Section 376 IPC by adverting to the tower locations of the mobile phones of the complainant and the accused and found that the parties were not present together at the place of occurrence. He would state that in the present case also the tower location of the accused and the complainant shows that they were far away on 27 and 28th September 2015 which is approximate time of the incident. He would state that in view of this information the entire case of the prosecution is false. Mr. Aditya Jain learned counsel for the respondent also states that the CCTV footage which has been relied upon by the Additional Session Judge while discharging the respondents is a material which is unimpeachable in nature and of sterling quality which points out to the innocence of the accused which the prosecution cannot get over and therefore no useful purpose will be served in continuing the trial against the accused. Heard Mr. Avi Singh learned counsel Additional Standing Counsel for the State and Mr. Aditya Jain learned counsel appearing for the respondents and perused the documents. The scope and ambit of Section 227 Cr.P.C has been discussed in a number of judgments. In Union of India v. Prafulla Kumar Samal 3 SCC 4 the Supreme Court laid down the following principles: “10. Thus on a consideration of the authorities mentioned above the following principles emerge: CRL.REV.P. 448 2018 1) That the Judge while considering the question of framing the charges under Section 227 of the Code 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. 2) Where the materials placed before the Court disclose grave suspicion against the accused which has not been properly explained the Court will be fully justified in framing a charge and proceeding with the trial. 3) The test to determine a prima facie case would naturally depend upon the facts of each case and it is difficult to lay down a rule of universal application. By and large however if two views are equally possible and the Judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused he will be fully within his right to discharge the accused. 4) That in exercising his jurisdiction under Section 227 of the Code the Judge which under the present Code is a senior and experienced court cannot act merely as a Post Office or a mouthpiece of the prosecution but has to consider the broad probabilities of the case the total effect of the evidence and the documents produced before the Court any basic infirmities 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 and weigh the evidence as if he was conducting a trial.” In State of Orissa v. Debendra Nath Padhi 1 SCC 568 the Supreme Court after comparing Section 207 in the old Code of 1898 and Section 227 which was introduced in the new Cr.P.C observed as under: “9. Further the scheme of the Code when examined in CRL.REV.P. 448 2018 of minimum the light of the provisions of the old Code of 1898 makes the position more clear. In the old Code there was no provision similar to Section 227. Section 227 was incorporated in the Code with a view to save the accused from prolonged harassment which is a necessary concomitant of a protracted criminal trial. It is calculated to eliminate harassment to accused persons when the evidential materials gathered after requirements. If the evidence even if fully accepted cannot show that the accused committed the offence the accused deserves to be discharged. In the old Code the procedure as contained in Sections 207 and 207 A was fairly lengthy. Section 207 inter alia provided that the Magistrate where the case is exclusively triable by a Court of Session in any proceedings instituted on a police report shall follow the procedure specified in Section 207 A. Under Section 207 A in any proceeding instituted on a police report the Magistrate was required to hold inquiry in terms provided under sub sectionto take evidence as provided in sub section the accused could cross examine and the prosecution could re examine the witnesses as provided in sub sectiondischarge the accused if in the opinion of the Magistrate the evidence and documents disclosed no grounds for committing him for trial as provided in sub sectionand to commit the accused for trial after framing of charge as provided in sub section summon the witnesses of the accused to appear before the court to which he has been committed as provided in sub sectionand send the record of the inquiry and any weapon or other thing which is to be produced in evidence to the Court of Session as provided in sub section 2 SCC 398 the Supreme Court took note of the judgment in Union of India v. Prafulla Kumar Samal supra) and after quoting Section 227 Cr.P.C observed as under: Code was resulting in inordinate delay and served no useful purpose. That inquiry has therefore been dispensed with in the Code with the object of expeditious disposal of cases. Instead of committal Magistrate framing the charge it is now to be framed by the Court of Session under Section 228 in case the accused is not discharged under Section 227. This change brought out in the Code is also required to be kept in view while determining the question. Under the Code the evidence can be taken only after framing of charge.” “10. Before considering the merits of the claim of both the parties it is useful to refer to Section 227 of the Code of Criminal Procedure 1973 which reads as “227. Discharge.—If upon consideration of the record of the case and the documents submitted therewith and after hearing the submissions of the accused and the prosecution in this behalf the Judge considers that there is not sufficient ground for proceeding against the accused he shall discharge the accused and record his reasons for so doing.” If two views are possible and one of them gives rise to suspicion only as distinguished from grave suspicion the trial Judge will be empowered to discharge the accused and at this stage he is not to see whether the trial will end in conviction or acquittal. Further the words “not sufficient ground for proceeding against the accused” clearly show that the Judge is not a mere post office to frame the charge at the behest of the prosecution but has to exercise his judicial mind to the facts of the case in order to determine whether CRL.REV.P. 448 2018 a case for trial has been made out by the prosecution. In assessing this fact it is not necessary for the court to enter into the pros and cons of the matter or into a weighing and balancing of evidence and probabilities which is really the function of the court after the trial starts. 11. At the stage of Section 227 the Judge has merely to sift the evidence in order to find out whether or not there is sufficient ground for proceeding against the accused. In other words the sufficiency of ground would take within its fold the nature of the evidence recorded by the police or the documents produced before the court which ex facie disclose that there are suspicious circumstances against the accused so as to frame a charge against him.” 11. Similarly State of M.P. v. S.B. Johari 2 SCC 57 the Supreme Court has held that charge can be quashed if the evidence which the prosecutor proposes to adduce to prove the guilt of the accused even if fully accepted before it is challenged by cross examination or rebutted by defence evidence if any cannot show that the accused committed the particular offence and in such case there would be no sufficient ground for proceeding with the trial. In Dilawar Balu Kurane v. State of Maharashtra 2 SCC 135 the Supreme Court after relying on Union of India v. Prafulla Kumar Samal supra) observed as under: “12. Now the next question is whether a prima facie case has been made out against the appellant. In exercising powers under Section 227 of the Code of Criminal Procedure the settled position of law is that the Judge while considering the question of framing the charges under the said section has the undoubted power to sift and weigh the evidence for the limited CRL.REV.P. 448 2018 purpose of finding out whether or not a prima facie case against the accused has been made out where the materials placed before the court disclose grave suspicion against the accused which has not been properly explained the court will be fully justified in framing a charge and proceeding with the trial by and large if two views are equally possible and the Judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused he will be fully justified to discharge the accused and in exercising jurisdiction under Section 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 but should not make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial 3 SCC 4:1979 SCC609])” A reading of the above mentioned judgments would show that while framing a charge the Court has the 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 and after analysing the materials before it and if two views are possible and the judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused he will be fully justified in discharging the accused in exercising its jurisdiction under Section 227 Cr.P.C. It is well settled that while framing charge the Court cannot hold a mini trial for discharging the accused. In the facts of the present case the allegation of the prosecution is that the incident occurred two three days after the birthday of the accused respondent No.1. The Passport reveals that CRL.REV.P. 448 2018 the date of birth of the respondent No.1 is 25.09.1950 the offence therefore could have occurred on 27.09.2015 or 28.09.2015. Though in a rape case the time and place where the incident took place is extremely important for the accused to answer a charge which is framed against him however even if we ignore that necessity and we take an approximate date when the incident would have took place the tower locations of the accused and the prosecutrix show that they were always at different locations throughout the period. On 27.09.2015 the tower locations of the respondent were that of Himachal Pradesh Haryana and Punjab and after entering Delhi on 28.09.20I5 his tower location throughout the night until the next morning was in the area of Safdar Jung Enclave Delhi. The locations of the prosecutrix on 27.09.2015 and on 28.09.2015 were in the area of Qutab Minar Metro Station. The accused and the prosecutrix were therefore never together at any time. The call detail record therefore completely destroys the case of the prosecution: a) It is not the case of the prosecution that the accused did not have his mobile phone during the period or that his phone was taken by somebody else nor it is the case of the prosecution that the prosecutrix was not having her mobile when she went to the Safdarjung Club. b) The mobile phone of the accused which has been seized does not show any obscene content. There is nothing on record to show that the mobile phone has been tampered with or the contents have been c) Even after the incident the prosecutrix has taken the salary money from the accused and has encashed the cheques. d) In the light of the above mentioned facts the delay in lodging the FIR deleted. is fatal. CRL.REV.P. 448 2018 e) The prosecutrix herself had came to the Police Station and had given an application and an affidavit stating that the dispute had been amicably settled. There are several contradictions in the statement given by the prosecutrix in her complaint to the police about an incident which transpired about six months before the incident and the statement made under Section 164 Cr.P.C to the Magistrate which is recorded on the same day. In the present case therefore other than the statement of the prosecutrix there is hardly any material which points towards the accused. Even though the statement of the prosecutrix alone is sufficient to bring out a case of rape but in the present case the material shows that at the time the offence was committed on the prosecutrix the respondent No.1 was not there with the prosecutrix. 16. The learned Additional Session Judge by the judgment impugned herein has considered all the material before him while discharging the accused. This Court while exercising its jurisdiction under Section 397 401 does not find any infirmity in the order impugned which calls for interference. It is well settled that while exercising its jurisdiction under Section 397 401 the revisional Court should not act like an appellate court. It cannot be said that the judgment of the Trial Court is so perverse or is completely contrary to law warranting any interference. Even if a different conclusion is possible it is well settled that a revisional court does not CRL.REV.P. 448 2018 substitute its conclusion to the one arrived at by the lower court unless is it perverse or contrary to law. In view of the above the petition is dismissed. SUBRAMONIUM PRASAD J. FEBRUARY 26 2021 CRL.REV.P. 448 2018

Identity of a rape victim cannot be disclosed : Supreme Court

A rape victim suffers not only a mental trauma but also discrimination from the society. The Supreme Court bench consisting of J. Ashok Bhushan, J. R. Subhash Reddy and J. M. R. Shah, directed executive officials to provide housing and protection to a rape victim in the matter of Ms. X v. The State of Jharkhand & Ors. [Writ Petition (Civil) No. 1352 of 2019]. The Petitioner, who claims to be a Scheduled Tribe, was taken away by  Basant Yadav, after which she was married to him by her father. One son was born out of marriage after which the Petitioner filed a complaint as well as case for maintenance against her husband. After obtaining divorce, the custody of the son was given to Basant Yadav. One day, the petitioner went to meet her son when she was raped by Mohd. Ali and three other accused. A case under Section 376/34 read with Section 3(xi) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 was registered in which the accused, Mohd. Ali was apprehended and put on trial. The petitioner lodged an FIR against the Inspector General of Police under Section 376, 376(2)(a) IPC after which the Inspector was acquitted against which a criminal appeal was further filed. Mohd. Ali was convicted and a criminal case was also lodged against the petitioner. The petitioner’s case was that she being a rape victim, whose identity was disclosed by the media, was not able to get any accommodation even on rent and so invoked the jurisdiction of this court in the matter of her rehabilitation. The landloard had asked her to vacate the premises owing to non-payment of rent. She stated that she had three children and no means of survival and the administration, media and society had now compelled her to lead a life with no security, no job and no shelter. The counsel for the State submitted that the petitioner has lodged various FIRs alleging rape against several persons and thus, was in the habit of making false allegations.

IN THE CIVIL ORIGINAL JURISDICTION WRIT PETITIONNO.1352 OF 2019 THE STATE OF JHARKHAND & ORS JUDGMENT ASHOK BHUSHAN J This writ petition has been filed by a rape victim invoking the jurisdiction of this Court under Article 32 of the Constitution This Court entertained the writ petition and while issuing notice on 29.11.2020 passed the following order “Issue notice. Mr. Tapesh Kumar Singh learned standing counsel for the State of Jharkhand accepts notice on behalf of respondent State. Let the respondent State file an affidavit giving details of all proceedings initiated by the petitioner or against her and the status of those proceedings. We however observe that the respondent no.3 Home Secretary shall also ensure that the concerned police authorities are instructed to ensure protection of the petitioner. List after four weeks.” A counter affidavit has been filed on behalf of the State of Jharkhand to which rejoinder has also been filed by the petitioner. The petitioner has also filed certain additional documents. From the pleadings of the parties following facts The petitioner claims to be a Scheduled Tribe in the State of Jharkhand. The petitioner was born on 24.12.1984. On 31.03.1998 petitioner was taken away by one Basant Yadav. Petitioner’s father Rajender Badaik lodged a complaint. Basant Yadav was apprehended on 02.04.1998. Father of the petitioner and Police of the concerned Police Station got the marriage of the petitioner solemnised with Basant Yadav. After one year of the marriage one son was born named Manish Yadav Petitioner filed a complaint as well as case for maintenance against her husband Basant Yadav The petitioner obtained divorce from Basant Yadav and the custody of son was given to Basant Yadav. On 08.06.2002 petitioner went to Dultonganj on asking of Basant Yadav to meet her son on which date she was raped by one Mohd. Ali and three other accused. Case No.1602 under Section 376 34 read with Section 3(xi) of the Scheduled Castes and Scheduled Tribes Act 1989was registered in which accused Mohd. Ali was apprehended and put on trial The petitioner lodged an FIR against the DY Inspector General of Police on 02.08.2005 under Section 376 376(2)(a)IPC and Section 3(1)(xii) of the Scheduled Castes and Scheduled Tribes IPC and Section 3(1)(xii) of the Scheduled Castes and Scheduled Tribes Prevention of Atrocities) Act 1989. In other criminal cases either the accused were acquitted ortrial is pending in some cases. In two FIRs lodged by the petitioner in the year 2018 under Section 354 A(ii) as well as under Section 376 448 and 506 IPC respectively the investigation is said to be going on. 11. The petitioner has appeared in person. Shri Tapesh Kumar Singh learned counsel has appeared for the State of Jharkhand. 12. The petitioner submits that due to the petitioner being rape victim she is not getting any help from family friends or society. She with three children has no means of survival and she is not able to give education to her children. The administration media and society has compelled the petitioner to lead a life with no security no job and no shelter in future. 13. Shri Tapesh Kumar learned counsel appearing for the State submits that the petitioner has lodged various FIRs alleging rape against several persons. It is submitted that against the petitioner also an FIR was lodged at Palamau Sadar PoliceCase No.194 of 2002 for the commission of the offences under Section 25(1 b)a of Arms Act on the basis ofa written report submitted by the Assistant Sub Inspector of Police in which charge sheet has also been filed. It is submitted that since 02.10.2019 an armed Lady Constable namely Suman Surin has been deputed with the writ petitioner for her 14. It is further submitted that the State has taken care of making security arrangement of the petitioner and in pursuance of the order dated 06.01.2020 another security personnel has been deputed with the writ petitioner Learned counsel however submits that the Police authority may be permitted to review the security from time to time to take appropriate measures in that regard Shri Singh further submits that the petitioner is in a habit of making false allegations against several persons and officers. A complaint has recently been submitted making allegations of offences under Section 376 IPC. It is submitted that the petitioner has vacated the earlier accommodation of Subodh Thakur. 15. We have heard the petitioner in person as well as learned counsel appearing for the State 16. There can be no denial that the petitioner is a rape victim. Even if we do not take into consideration other criminal cases filed by the petitioner under Section 376 IPC in Case No.162 2002 where allegation of rape was made on 08.06.2002 the accused Mohd. Ali has been convicted under Section 376(2)(g) IPC for 10 years RI The petitioner being a rape victim deserves treatment as rape victim by all the authorities. 17. A rape victim suffers not only a mental trauma but also discrimination from the society. We may refer to the judgment of this Court in Nipun Saxena and another vs Union of India and others 2 SCC 703 wherein following observations were made by this Court “12. A victim of rape will face hostile discrimination and social ostracisation in society. Such victim will find it difficult to get a job will find it difficult to get married and will also find it difficult to get integrated in society like a normal human being. …” 18. The petitioner herself has brought on record few orders passed in Writ PetitionWhoever prints or publishes the name or any matter which may make known the identity of any person against whom an offence under section 376 section 376A section 376B section 376C or section 376D is alleged or found to have been committed hereafter in this section referred to as the victim) shall be punished with imprisonment of either description for a term which may extend to two years and shall also be liable to fine 2) Nothing in sub section extends to any printing or publication of the name or any matter which may make known the identity of the victim if such printing or publication is— a) by or under the order in writing of the officer in charge of the police station or the police officer making the investigation into such offence acting in good faith for the purposes of such investigation or b) by or with the authorisation in writing of the victim or where the victim is dead or minor or of unsound mind by or with the authorisation in writing of the next of kin of the victim Provided that no such authorisation shall be given by the next of kin to anybody other than the chairman or the secretary by whatever name called of any recognised welfare institution or Explanation.—For the purposes of this sub section “recognised welfare institution or organisation” means a social welfare institution or organisation recognised in this behalf by the Central or State Government 3) Whoever prints or publishes any matter in relation to any proceeding before a court with respect to an offence referred to in sub section without the previous permission of such Court shall be punished with imprisonment of either description for a term which may extend to two years and shall also be liable to fine. Explanation.—The printing or publication of the judgment of any High Court or the Supreme Court does not amount to an offence within the meaning of this section.” 22. This Court in Nipun Saxena and anotherhas occasion to consider Section 228 A wherein this Court in para 50.1 has issued following directions: “50.1. No person can print or publish in print electronic social media etc. the name of the victim or even in a remote manner disclose any facts which can lead to the victim being identified and which should make her identity known to the public at large.” 23. The law with regard to Section 228A is well established all including the media both print and electronic have to follow the law. 24. With regard to the payment of compensation to the petitioner as a rape victim along with additional documents the petitioner has brought on record materials to indicate that the decision was taken by the District Legal Services Authority Ranchi to pay compensation of Rs.1 00 000 by letter dated 06.03.2017. The letter of the Secretary District Legal Services Authority Ranchi has been brought on record by the petitioner herself. The grant of compensation has been considered under the Jharkhand Victim Compensation Scheme 2012 as amended in 25. There is a statutory scheme already enforced in the State of Jharkhand framed under Section 357A of the Code of Criminal Procedure Code 1973 which provides procedure for grant of compensation. The petitioner had already made application to seek compensation under the above Scheme and payment of compensation has already been 26. The next grievance which has been highlighted by the petitioner is the petitioner’s inability to get any rented accommodation in Ranchi due to she being a rape victim. In the counter affidavit filed by the State it is clear that the petitioner has lived at several different places but due to the dispute with the landlord she has to leave the premises. There are various Central as well as State Schemes for providing residential accommodation to persons living below poverty line and other deserving cases the Deputy Commissioner Ranchi may consider the case of the petitioner for allotment of any housing accommodation under Prime Minister Awas Yojna or any other Scheme of the Centre or the State. 27. In view of the foregoing discussion we dispose of this writ petition with the following directions 1) The Deputy Commissioner Ranchi is directed to take measure to ensure that minor children of the petitioner are provided free education in any of the Government Institutions in District Ranchi where the petitioner is residing till they attain the age of 14 years. 2) The Deputy Commissioner Ranchi may also consider the case of the petitioner for providing house under Prime Minister Awas Yojna or any other Central or State Scheme in which petitioner could be provided accommodation. 3) The Senior Superintendent of Police Ranchi and other competent authority shall review the Police security provided to the petitioner from time to time and take such measures as deem fit 4) The District Legal Services Authority Ranchi on representation made by the petitioner shall render legal services to the petitioner as may be deemed fit to safeguard the interest of the ( ASHOK BHUSHAN ( R. SUBHASH REDDY ( M.R. SHAH New Delhi January 20 2021

A valid authorisation under Rule 58 of NDPS Rules 1985 is needed for obtaining export permit of medicines: High Court of Delhi

An application for an excise permit from the State Government under Rule 58 NDPS Rules 1985 is required for obtaining export permit of medicines and in absence of this specific authorization, there would be a violation of Section 8(c) NDPS Act. The drug license issued under Form No. 20 & 20B and 21 & 21B under the Drugs and Cosmetics Rules 1945 only authorises the sale and distribution of medicines domestically and locally and the same was upheld by High Court of Delhi through the learned bench led by Justice Subramonium Prasad in the case of YASHPAL SINHMAR vs. NARCOTICS CONTROL BUREAU [BAIL APPLN. 4170/2021] on 16.02.2022. The facts of the case are that petitioner is the sole Proprietor of Ethical Enterprises. A secret information was received by the NCB that a package containing psychotropic substances was to be dispatched from DHL Express Pvt. Ltd. A team got constituted and after collecting field-testing kit, they left for the destination. On reaching DHL Express, a carton covered with white colored plastic and sealed with yellow tape of DHL was discovered. During inspection of the carton, a copy of invoice, doctor’s prescription, slip of medicine and the Aadhar Card of the Petitioner herein, who was the sender of the consignment, was found and the package was being sent to Myanmar. In the presence of independent witness, the carton was opened and two separate bundles of medicines which were wrapped with a rubber band were found in it. Notice under Section 67 of the NDPS Act was served on the Petitioner and his statement was recorded. He was arrested. The Petitioner’s counsel submitted that the Petitioner runs a sole proprietorship business in the name and style as M/s Ethical Enterprises and holds a valid drug license issued under Form No. 20 & 20B and 21 & 21B under the Drugs and Cosmetics Rules 1945 and is authorized to sell, stock, exhibit, offer for sale and distribute various medicines specified under schedule H & H1 of Drugs and Cosmetics Rules. The respondent’s counsel submitted that a consignment containing 50 strips of Tramadol tablets was booked by the Petitioner for exporting to Myanmar and pursuant to which, investigation was conducted at the shops of the Petitioner where 130gms of Tramadol and 50.5 grams of Clonazepam was recovered. He submitted that the Petitioner did not produce a single bill or invoice to justify his possession of these medicines and in absence of a valid bill the same would be viewed as a contravention of the NDPS Act. The bail application of the Petitioner was dismissed by the Ld. ASJ by stating that the Petitioner was selling and exporting medicines without a proper authorization under the NDPS Rules 1985. The Court observed, “A valid authorisation under Rule 58 of NDPS Rules 1985 is needed. An application for an excise permit from the State Government under Rule 58 NDPS Rules 1985 is required for obtaining export permit. In absence of this specific authorization, there would be a violation of Section 8(c) NDPS Act. The drug license issued under Form No. 20 & 20B and 21 & 21B under the Drugs and Cosmetics Rules 1945 only authorizes the sale and distribution of medicines domestically and locally.”

IN THE HIGH COURT OF DELHI AT NEW DELHI Date of decision: 16th FEBRUARY 2022 IN THE MATTER OF: BAIL APPLN. 4170 2021 & CRL.M.A. 540 2022 YASHPAL SINHMAR ...... Petitioner Through Mr. V K Shukla Senior Advocate with Mr. Rohit Pandey Mr. Varad Dwivedi Advocates NARCOTICS CONTROL BUREAU ..... Respondent Through Mr. Subhash Bansal Sr. Standing Counsel for NCB with Mr. Shashwat Bansal Advocate HON BLE MR. JUSTICE SUBRAMONIUM PRASAD SUBRAMONIUM PRASAD J. Vide the instant petition under Section 439 Cr.P.C the petitioner seeks bail in NCB Case No. VIII 48 DZU 2021 dated 23.8.2021 registered under Sections 8 22(c) and 23 NDPS Act. Brief Facts leading up the present case are given as follows i. The Petitioner is the sole Proprietor of M s Ethical Enterprises Shop No. 4 5 J Block Market Sarita Vihar New Delhi. ii. Secret information was received by the NCB Delhi Zonal Unit that a package containing psychotropic substances was to be dispatched from DHL Express Pvt. Ltd. 71 3 Rama Road Kirti Nagar New Delhi. A team got constituted including constable Shamsher Singh and Driver Virender Ramand after collecting BAIL APPLN. 4170 2021 10 Kit weighing machine and field testing kit they left for the destination. On reaching DHL Express a carton covered with white colored plastic and sealed with yellow tape of DHL was shown by one Ashit Yadav. During inspection of the carton a copy of invoice doctor’s prescription slip of medicine and the Aadhar Card of the Petitioner herein who was the sender of the consignment was found. The package was being sent to Bawai Ling Room 505 4th Floor Tosta Plaza Laydaung Kam Road near Jeyx junction Zawana Thingangyun TSP 11071 Myanmar. Before opening the package attempt was made to join an independent witness and one Indra Raj agreed to be the independent witness to the search process. In the presence of independent witness the carton was opened and two separate bundles of medicines which were wrapped with a rubber band were found in it. One bundle contained 20 strips of 10 tables each of Pexofenadene Hydrochloride Tablets IP Allegra and the second bundle contained 50 strips of 15 tablets each of Tramadol Hydrochloride Accetamino PHL Tab USP Ultracet were found. It is stated that Tramadol being a scheduled substance is banned under the NDPS Act. Accordingly the package was seized vide Panchnama dated 23.08.2021 in the presence of the independent witness. On the basis of seizure the instant case was registered. iv. Notice under Section 67 of the NDPS Act was served on the Petitioner and his statement was recorded. He was arrested on BAIL APPLN. 4170 2021 v. On 25.8.2021 during investigation shops of the petitioner bearing Shop No. 4 & 5 J Block Sarita Vihar New Delhi were searched. Two people Rajeev Yadav and Mukesh Kumar were requested to join the search proceedings as independent witnesses which they agreed to join and proceeded towards the shops. It is stated that Mukesh Kumar backed out and did not join as independent witness. It is stated that the shop was closed and Ms. Sangeeta wife of the petitioner was informed about the search of the shop. She stated that the keys of the shop were kept at her house. The team proceeded towards the house of the Petitioner at No.77 H Block Sarita Vihar to bring the keys to shop with the Petitioner and independent witness Rajiv Yadav. On reaching the shop it is stated that 3 4 other bystanders were requested to join the search proceedings out of whom one Md. Shazada Alam assented to become an independent witness and the shops got opened in the presence of the Petitioner his wife Sangeeta and the independent witness. It is stated that Shop No.4’s ground floor and basement were used a storage space for medicines whereas Shop No. 5 was the office. It is stated Shop No. 4 was searched first and some NRx medicines namely one box containing 10 stripsof Ultracet Tramadol Hydrochloride and Acetaminophen Batch No.N1848 Mfg 06 2021 exp. 01 23 manufactured by Johnson & Johnson)was recovered for which the Petitioner could not produce any bills in support thereof. On weighing BAIL APPLN. 4170 2021 each strip was found to be weighing 6.5 grams hence 10 strips of the Ultracet Tramadol medicine weighed 65 grams and were put in a box wrapped in a pullinda and marked. It is stated further that two boxes each containing 10 stripsi.e. 300 tablets of Clonazepam dispersible tablets clonotrail were foundand 23 of the NDPS Act. The Trial Court found that there is a recovery of 750 tablets of tramadol weighing 350 gm. which is a commercial quantity and the tablets were booked on the ID of the petitioner herein. It also found that during search of the shop 300 BAIL APPLN. 4170 2021 tablets of tramadol weighing 130 gm and 375 tablets of clonazepam weighing 50.5 gm were also recovered for which the petitioner was not able to prove any valid bill or purchase bill. Further it was held that there were some transactions made by the Petitioner were not recorded in the bank account statements or reflected in his Income Tax Returns submitted to the respondent and there were properties purchased by him which could not be substantiated by his income and that investigation was still ongoing. Therefore application for bail of the Petitioner was rejected. 4. Mr. V.K. Shukla Ld. Senior counsel appearing for the Petitioner submitted that the Petitioner runs a sole proprietorship business in the name and style as M s Ethical Enterprises and holds a valid drug license issued under Form No. 20 & 20B and 21 & 21B under the Drugs and Cosmetics Rules 1945 and is authorized to sell stock exhibit offer for sale and distribute various medicines specified under schedule H & H1 of Drugs and Cosmetics Rules. He submitted that the Petitioner apart from having the above licenses has a valid Importer Exporter Code in the name of M s Ethical Enterprises which was issued on 05.02.2015 and had been renewed last on 26.06.2021 and has a GST number. He submitted that all the medicines bought by the Petitioner have been accounted for in his books of He submitted that he is the proprietor of two other shops and has 34 employees working for him who have not been paid their salaries in the past six months. He contended that the sales of the medicines made by him have been strictly made after receiving a doctor’s prescription. He further submitted that the provisions of NDPS have been incorrectly pressed into BAIL APPLN. 4170 2021 service by the respondent as the Petitioner’s business is governed by Drugs and Cosmetics Act 1945. The Ld. Senior counsel contended that Ultracet is not banned from sale in India. He contended that the method used by the NCB in determining the quantity of Tramadol recovered from the petitioner and declaring it as commercial quantity was incorrect he submitted that Ultracet is composed of a minor percentage of 37.5 grams of Tramadol and has a major percentage of 325 grams of Acetaminophen. He placed reliance on the judgment of Hira Singh V. Union of India to contend that the purpose of enacting NDPS was to remove the scourge of drugs from society and contended that the judgment held that while determining a small or commercial quantity in relation to a narcotic drug or a psychotropic substance the quantity of a neutral substance should not be taken into consideration and determination of quantity should be done by weighing the actual quantity of the offending drug. Learned Senior Counsel placed reliance on a prescription by one Dr. Sandeep Guleria Senior Consultant Indraprastha Apollo Hopital for a patient from Myanmar Ngun Tham Bawi Ling who had undergone a kidney surgery and stated that these tablets were being sent to Myanmar on the basis of the prescription of Dr. Sandeep Guleria Senior Consultant Indraprastha Apollo Hopital. Mr. Shukla further contended that there are bills to substantiate the recovery of Ulatracet and Clonazepam from the shop of the petitioner. He placed reliance on the decision rendered by this Court in Mohd. Hasan v. Customs wherein this Court granted bail to a person who was carrying 110 bottles of Phensedyl to Saudi BAIL APPLN. 4170 2021 Arabia and contended that bail should be granted to the Petitioner since his case stands on a better footing as he is a valid license holder and is authorized to sell distribute and store medicines under the Drugs & Cosmetics Rules 1945. Per Contra Mr. Subhash Bansal Sr. Standing Counsel NCB vehemently opposed the arguments of the Petitioner. He submitted that a consignment containing 50 strips of Tramadol tablets was booked by the Petitioner for exporting to Myanmar with a prescription of one Dr. Sanjiv Saxena of Indraprastha Apollo Hospital and pursuant to which investigation was conducted at the shops of the Petitioner where 130gms of Tramadol and 50.5 grams of Clonazepam was recovered. He submitted that the Petitioner did not produce a single bill or invoice to justify his possession of these medicines and in absence of a valid bill the same would be viewed as a contravention of the NDPS Act. He submitted that during investigation Indraprastha Apollo Hospital was contacted to verify whether Dr. Sanjiv Saxena had issued the prescription s found with the consignment which were being exported to Myanmar and it was discovered that no doctor by the name of Sanjiv Saxena was empaneled at the Hospital. He submitted that Dr. Sanjiv Saxena was served a notice to join investigation and he tendered a voluntary statement stating that he was not working at Apollo Hospital for the last 11 years the prescriptions were not issued by him and the letter head and signatures on it were forged. 11. He submitted that the Petitioner in his statement under Section 67 NDPS Act has admitted of forging letter heads in the name of Dr. Sanjiv Saxena and selling medicines and drugs covered under H & H1 category of BAIL APPLN. 4170 2021 the Drugs and Cosmetic Rules 1945 and banned under the NDPS Act. Further he argued that on probing the matter it was found that there were many transactions done by the Petitioner which have been unexplained and some properties purchased by the petitioner were incompatible with his income tax returns. To contradict the submission of the Petitioner on the decision of the Apex Court in Hira Singh V. Union of India he submitted that a complete reading of the said decision makes it clear that while determining the quantity of a substance drug contraband the weight of the neutral substance or mixture will be included and the substance would have to be seen as whole and not separately. 12. He submitted that the Petitioner’s licenses under Form 20 Form 21 Form 20B and Form 21B authorized him for sale storage and distribution of medicines but did not permit him to export the said medicines. He stated further that for exporting the medicines the Petitioner would have to apply for an excise permit from the State Government under Rule 58 NDPS Rules 1985 and fill out a Form No. 5 for obtaining export permit and the Petitioner did not have this specific authorization which permitted export and therefore the Petitioner has violated Section 8(c) NDPS Act. He lastly submitted that investigation into the case is still being done to find out other persons who were involved with the cross border trafficking of medicines and therefore bail application of the petitioner should be rejected. 13. Heard Mr. V.K. Shukla learned Senior Counsel appearing for the Petitioner and Mr. Subhash Bansal learned counsel appearing for the Respondent. I have perused the material on record. 14. A perusal of the material on record shows that a package containing 750 tablets of Tramadol weighing 350 grams was recovered from a parcel BAIL APPLN. 4170 2021 given by the petitioner herein at DHL Express Pvt. Ltd. which was to be dispatched to Myanmar. It has also been noted that the Petitioner owned two shops by the name of Ethical Enterprises where he sold medicines and the search done by the NCB at his premises recovered a total of 300 tablets of Tramadol weighing 130 grams and 375 tablets of Clonazepam weighing 50.5 grams and no bills were shown to the respondent. The search carried out by the NCB officilas was done before independent witnesses. 15. The argument of the Petitioner that Hira Singh v. Union of India supra) stipulates that the different compositions of an illicit substance need to measured individually while evaluating whether the quantity commercial or intermediate or small is unsustainable. A holistic reading of the judgment shows that while coming to conclusion about the quantity of an illicit substance the substance would have to be weighed in toto including the weight of the neutral or mixed substance. In other words a piecemeal calculation of the quantity of a substance would not be tenable and any interpretation otherwise would lead to an abuse of the legislative intention of the NDPS Act. 16. The Respondent has contended that the Petitioner gave a disclosure statement wherein he has allegedly admitted to the stance being canvassed the NCB pertaining forging prescriptions and unlawfully transporting exporting medicines into neighbouring countries without requisite authorisation whereas the Petitioners have claimed that the statement of the Petitioner was recorded under duress and has been retracted and has refuted the assertion of the respondent by submitting a number of bills and prescriptions before this Court. However it is not the remit of this Court to adjudicate upon the guilt or innocence of the Petitioner BAIL APPLN. 4170 2021 that and are matters to be examined closely and determined at the time of Trial. The task of this Court at this stage is only to consider whether it would be permissible to let out the Petitioner on bail or not. 17. The principles for granting bail under Section 37 NDPS Act have been settled and reiterated time and again by the Supreme Court. In State of Kerala V. Rajesh 12 SCC 122 while emphasising that the dual conditions under Section 37 NDPS should be satisfied irrefutably it held “19. The scheme of Section 37 reveals that the exercise of power to grant bail is not only subject to the limitations contained under Section 439 CrPC but is also subject to the limitation placed by Section 37 which commences with non obstante clause. The operative part of the said section is in the negative form prescribing the enlargement of bail to any person accused of commission of an offence under the Act unless twin conditions are satisfied. The first condition is that the prosecution must be given an opportunity to oppose the application and the second is that the court must be satisfied that there are reasonable grounds for believing that he is not guilty of such offence. If either of these two conditions is not satisfied the ban for granting bail operates. The expression “reasonable grounds” means than prima something more contemplates substantial probable causes for believing that the accused is not guilty of the alleged offence. The reasonable belief contemplated in the provision requires existence of such facts and circumstances as are sufficient in themselves to justify satisfaction that the accused is not guilty of the alleged offence. In the case on hand the High Court seems to have completely overlooked the underlying object of Section 37 that in facie grounds. BAIL APPLN. 4170 2021 addition to the limitations provided under the CrPC or any other law for the time being in force regulating the grant of bail its liberal approach in the matter of bail under the NDPS Act is indeed uncalled for. ” 18. The Supreme Court in Collector of Customs V. Ahmadaleiva Nodira 2004) 3 SCC 549 observed that the twin conditions for bail under NDPS Act are cumulative and not alternative and held as under: The limitations on granting of bail come in only when the question of granting bail arises on merits. Apart from the grant of opportunity to the Public Prosecutor the other twin conditions which really have relevance so far as the present accused respondent is concerned are: the satisfaction of the court that there are reasonable grounds for believing that the accused is not guilty of the alleged offence and that he is not likely to commit any offence while on bail. The conditions are cumulative and not alternative. The satisfaction contemplated regarding the accused being not guilty has to be based on reasonable grounds. The expression “reasonable grounds” means something more than prima facie grounds. It contemplates substantial probable causes for believing that the accused is not guilty of the alleged offence. The reasonable belief contemplated the provision requires existence of such facts and circumstances as are sufficient in themselves to justify satisfaction that the accused is not guilty of the alleged offence. In the case at hand the High Court seems to have completely overlooked the underlying object of Section 37. It did not take note of the confessional statement recorded under Section 67 of the Act.” The argument of the Petitioner that the Petitioner has a valid Importer Exporter Code and a GST registration number and further did not BAIL APPLN. 4170 2021 require any other licenses or permissions for sending a package of medicines to Myanmar does not impress this Court. I find force in the argument of the counsel for the respondent that the Petitioner would need a valid authorisation under Rule 58 of NDPS Rules 1985 and the license which was being used for selling medicines from his shop would not suffice as it authorises the sale and distribution of medicines domestically and locally. 20. As per Notification S.O. 1760 dated 26.04.2018 issued by the Revenue Department amended S.O. 1055dated 19.10.2001 by inserting Tramadol as Entry 110Y to the Schedule of Psychotropic substances under the NDPS Act and specifies its commercial quantity to be 250gms. This makes it amply clear that the Petitioner ought to have had a valid authorization as per Rule 58 before exporting Tramadol. 21. A perusal of the Status Report shows that 750 tablets of Tramadol weighing 350 grams were recovered from a parcel given by the petitioner herein at DHL Express Pvt. Ltd. which was to be dispatched to Myanmar and 300 tablets of Tramadol weighing 130 grams and 375 tablets of Clonazepam weighing 50.5 grams were recovered from the shop of the Petitioner. Furthermore the seizures at both DHL office and Petitioner’s shop were done in the presence of independent witnesses. 22. The prescription of Dr. Sandeep Guleria Senior Consultant Indraprastha Apollo Hospital has been placed on record for the first time by the Petitioner before this Court. It was not placed on record before the Trial Court. A reading of the prescription does not show that Tramadol which was seized at the office of DHL Pvt. Ltd. had been prescribed to Mr. Ngun Tham Bawi Ling who is a resident of Myanmar. Certain other prescriptions have been give for local consumption wherein Ultracet has been prescribed but BAIL APPLN. 4170 2021 this does not satisfy as to from where the petitioner had purchased those tables and whether license has been given to him to retain those tablets. 23. Even though there are prescriptions it cannot be substantiate the presence of tablets at the shop of the petitioner. Further in any event the prescription amount does not match with the total number of tablets that have been recovered from the shop of the petitioner. This Court is not making any observations on this aspect lest it will prejudice the case of the petitioner. However these facts are shows only to come to the conclusion that there are reasonable grounds to believe that the petitioner has committed an offence punishable under Sections 8 22(c) and 23 NDPS Act and thereby the rigour of Section 37 of the NDPS Act will apply in the present case. 24. Therefore for the above said reasons this Court is not inclined to grant bail to the Petitioner at this juncture. The Petition is dismissed along with pending applications if any. 25. Be it noted that the observations made in this Order are only for the purpose of bail and are not on the merits of the case. FEBRUARY 16 2022 SUBRAMONIUM PRASAD J BAIL APPLN. 4170 2021

Trademark Infringement specks about the unauthorized use of mark/logo by the person who is not authorized to do so: High Court Of New Delhi.

The suit for permanent injunction restraining the defendants from infringing the registered trademark/copyright PARKO on packaging/label of goods, passing off, damages and unfair trade practice, was held in the judgement passed by a single bench judge comprising HON’BLE MS. JUSTICE  SURESH KUMAR KAIT, in the matter AMIT TALWAR AND ORS.V. VIVEK TALWAR AND ORS. The present application has been jointly filed by plaintiffs as well as defendant no.1 for issuance of the decree in terms of Para no. 6 of the application, as a settlement has been arrived at between the parties. Also, the suit is all about, a permanent injunction restraining the defendants from infringing the registered trademark/copyright PARKO on packaging/label of goods, passing off, damages and unfair trade practices. As per the plaintiffs, plaintiff no.1 along with his father Sh. Charanjit Talwar and Ram Gopal Khanna started a business for manufacturing and trading in sanitary goods and fittings selling and built up a partnership firm namely “Parkash Brassware Industries” and they started using a unique word PARKO for label/packaging of their goods. After the demise of the parents of Plaintiff no.2 in 1997, he became the sole proprietor of the Prakash Brassware Industries then they have mentioned that plaintiff No.3 has also been authorised by plaintiff No.2 to use the trademark PARKO. This agreement plays an important role that is were, Plaintiff No.2 and defendant No.l entered into an Agreement CS(COMM) 330/2019 Page 3 of 5 on 03.07.2010 wherein plaintiff No.2 is the first and prior adopter of the trademark PARKO for bathroom fitting and cognate and allied goods. The proprietorship of plaintiff No.2 on the trademark PARKO was duly acknowledged and it was also agreed that defendant No.l will not use the trademark PARKO but he will be allowed to use the word PARKO in conjunction with VIC i.e. PARK VIC or any other word. In Vide order dated 12.07.2019, the matter was referred to Delhi High Court Mediation & Conciliation Centre for exploring the possibility of settlement, however, mediation failed. Later, learned counsel for both the parties submit that plaintiff no.1 and 2 and defendant no.1 i.e. Shri Vivek Talwar, belong to the same family and they have agreed to amicably settle and compromise the present suit following the terms. Meanwhile  Learned counsel for plaintiffs pray that the present suit is decreed in aforesaid terms qua defendant no.1 and seeks permission of this Court to withdraw the present suit qua defendant nos.2 to 10.

IN THE HIGH COURT OF DELHI AT NEW DELHI Date of decision: 09.09.2021 CS(COMM) 330 2019 AMIT TALWAR AND ORS. ..... Plaintiffs Through: Mrs.Bindra Rana Ms.Priya Adlakha Ms.Tanvi Bhatnagar Advs. VIVEK TALWAR AND ORS. ..... Defendants Through: Mr.Mayank Rustagi Adv. for Defendant Nos.1 & 2. HON BLE MR. JUSTICE SURESH KUMAR KAIT JUDGMENTThe hearing has been conducted through video conferencing. I.A. 11483 2021In a suit for permanent injunction restraining the defendants from infringing the registered trademark copyright PARKO on packaging label of goods passing off damages and unfair trade practice the present application has been jointly filed by plaintiffs as well as defendant no.1 for issuance of decree in terms of Para no. 6 of the application as settlement has been arrived at between the parties. Plaintiffs have also prayed for withdrawal of the present suit against defendant nos.2 to 10. They have CS(COMM) 330 2019 further prayed that goods seized by the Local Commissioner at the premises of M S Malik Traders 1553 Gurudwara Road Kotla Mubarakpur New Delhi and handed over to Mr. Amar Nath Chug on superdari be released. As per the plaintiffs plaintiff no.1 along with his father Sh. Charanjit Talwar and Ram Gopal Khanna started business for manufacturing and trading in sanitary goods and fittings selling and built up a partnership firm namely "Parkash Brassware Industries" and they started using a unique word PARKO for label packaging of their goods. After the demise of parents of Plaintiff no.2 in 1997 he became the sole proprietor of the Prakash Brassware Industries and has individually applied for registration of the trademark PARKO including trademarks PARKO & PARKOVIC. From 1986 onwards he is the only owner of the copyright in the original artistic work of logos and PARKO. It is further stated that the plaintiff No.3 has also been authorised by plaintiff No.2 to use the trademark PARKO. On 02.04.2010 plaintiff No.2 entered into a Family Settlement with his sons and wife in which it was mutually decided that defendant No.l will resign from the Directorship of plaintiff No.3. Plaintiff No.2 and defendant No.l entered into an Agreement CS(COMM) 330 2019 on 03.07.2010 wherein plaintiff No.2 is the first and prior adopter of the trademark PARKO for bathroom fitting and cognate and allied goods. The proprietorship of the plaintiff No.2 on the trademark PARKO was duly acknowledged and it was also agreed that defendant No.l will not use the trademark PARKO but he will be allowed to use the word PARKO in conjunction with VIC i.e. PARKVIC or any other word. However despite signing the agreement dated 03.07.2010 defendants applied for identical trade mark in the year 2010 and further disputes arose between the parties. Vide order dated 12.07.2019 matter was referred to Delhi High Court Mediation & Conciliation Centre for exploring possibility of settlement however mediation failed. Today learned counsel for both the parties submit that plaintiff no.1 and 2 and defendant no.1 i.e. Shri Vivek Talwar belong to the same family and they have agreed to amicably settle and compromise the present suit in accordance with the terms as stated in Paragraph no. 6 of the present application as well as in an additional clause mentioned in an email which is annexed along with the application. Contents of additional clause are incorporated in Paragraph no. 6 as Sub Para V and the same read as under: 6. V. That the Defendant No. 1 by himself his partners officers employees servants agents representatives CS(COMM) 330 2019 dealers stockiest distributors retailers successors or any one claiming under him directly or indirectly shall be allowed to use the trademark PARKOVIC only in straight font as agreed in the trade mark Agreement in terms of CS(Comm.) 330 2019 by the Hon’ble Delhi High Court and the Plaintiffs shall have no objection whatsoever to such user." the order dated 26.08.2019 passed Learned counsel for the parties also undertake to abide by the terms of the settlement as narrated in the present application as well as in the additional clause. Learned counsel for plaintiffs pray that the present suit be decreed in aforesaid terms qua defendant no.1 and seeks permission of this Court to withdraw the present suit qua defendant nos.2 to 10. Accordingly the present joint application filed by the parties is allowed. The suit is decreed in favour of the plaintiffs and against defendant no.1 in terms mentioned in Paragraph No.6 of this application along with newly incorporated sub para 6 which shall form part of decree sheet. Decree sheet be accordingly drawn. CS(COMM) 330 2019 In view of order passed in I.A. 11483 2021the present suit is decreed qua defendant no.1 in view of the terms mentioned in Paragraph No.6 of this application along with newly CS(COMM) 330 2019 incorporated sub para 6which shall form part of decree sheet. Decree Counsel for the plaintiffs seeks permission to withdraw the present sheet be accordingly drawn. suit qua defendant nos.2 to 10. 10. Permission is granted. SEPTEMBER 09 2021 ab 11. Pending application if any stands disposed of as infructuous. SURESH KUMAR KAIT) CS(COMM) 330 2019

Court while exercising its revision jurisdiction cannot substitute its own conclusion: High Court of Delhi

Underlining the scope of revision petition it was held that if two courts have acquitted the accused, it cannot be said that the view taken by the Courts below is not a plausible view. The Court while exercising its revision jurisdiction under Section 397 Cr.P.C does not have the power to substitute its own conclusion to the one arrived at by the lower Courts. This was decided in the case of Sapna v State (NCT of Delhi) & Ors [CRL.REV.P. 681/2018] in the High Court of Delhi by a single bench consisting of Hon’ble  Justice Subramonium Prasad. The facts of the case are that the petitioner claims to be the owner of a property. The accused and his associates, in the absence of the petitioner, broke into the house of the petitioner and ransacked the residence, throwing away the household goods taking into their custody the jewelry, other articles, and documents of the petitioner. The petitioner filed a complaint about offenses under Sections 448/323/34 IPC and after investigation charge-sheet was filed. The learned Metropolitan Magistrate found that the entire case of the prosecution rested upon the testimony of the petitioner herself. It was found that she had filed a Civil Suit wherein she disputed her possession. The learned Metropolitan Magistrate found inconsistency in the petitioner testimony and held it unreliable. After the perusal of the facts and evidences, the learned Judge acquitted the accused. The learned Additional Session in appeal observed contradiction in the petitioner testimony in regards to the date of the alleged incident and also with regards to her claim of possession. Thus the learned Additional Session Judge dismissed the appeal. The High Court placed reliance on the Amit Kapoor v. Ramesh Chander, (2012) 9 SCC 460  and highlighted the scope of revision under Sections 397/401 Cr.P.C. read with Section 482 Cr.P.C under which it was observed that “If one looks into the various judgments of this Court, it emerges that the revisional jurisdiction can be invoked where the decisions under challenge are grossly erroneous, there is no compliance with the provisions of law, the finding recorded is based on no evidence, material evidence is ignored or judicial discretion is exercised arbitrarily or perversely. Though the section does not specifically use the expression “prevent abuse of process of any court or otherwise to secure the ends of justice”, The jurisdiction under Section 397 is a very limited one. The legality, propriety or correctness of an order passed by a court is the very foundation of exercise of jurisdiction under Section 397 but ultimately it also requires justice to be done.”

IN THE HIGH COURT OF DELHI AT NEW DELHI Date of decision: 12th March 2021 CRL.REV.P. 681 2018 IN THE MATTER OF: ..... Petitioner Through Mr. K.G. Seth Advocate STATE& ORS ..... Respondents Through Ms. Kusum Dhalla APP for State S.I. Suraj P.S. Sangam Vihar Mr. S.C. Chawla Advocate HON BLE MR. JUSTICE SUBRAMONIUM PRASAD SUBRAMONIUM PRASAD J. This revision petition filed under Section 397 401 Cr.P.C is directed against the order dated 08.05.2018 passed by the Additional Session Judge 02 Saket Courts New Delhi in Criminal Appeal No.27 2017 where by the Additional Session Judge has dismissed the appeal filed by the petitioner and has affirmed the order dated 08.11.2016 passed by the Metropolitan Magistrate Saket Courts New Delhi. The Metropolitan Magistrate New Delhi by order dated 08.11.2016 has acquitted the respondents No.2 3 and 4 for offences under Sections 323 448 34 IPC arising out of FIR No.368 09 dated 10.10.2009 registered at Police Station Sangam Vihar New Delhi. The petitioner states that she is the owner of the property bearing CRL.REV.P. 681 2018 H.No. 1125 Gali No. 19 Sangam Vihar Delhi. It is stated that she is in possession of the said property since June 2004. It is stated in the revision petition that on 01.10.2009 the accused and his associates broke open into the house of the petitioner and threw away the household goods of the petitioner in her absence and took away the jewellery and other articles and documents. It is stated that on her return the petitioner went to the Police Station. However the records indicate that FIR bearing No. 368 09 was registered on 10.10.2009 at Police Station Sangam Vihar Delhi for offences under Sections 448 323 34 IPC. After investigation charge sheet has been filed. On being summoned the accused entered appearance they pleaded not guilty and claimed trial. Proceedings were initiated against the accused. In order to prove the guilt prosecution examined 5 witnesses. PW lis the complainant. PW 2 ASI Gajraj Singh duty officer was examined to prove the copy of FIR and endorsement on rukka. PW 3 Head Constable Nathi Lal deposed that he alongwith Constable Sarvan went to the spot on receiving DD N0.33A regarding quarrel on 09.10.2009. PW 4 Constable Sarvan was examined to prove the arrest memos and personal search memos. PW 5 SI Ram Kishan was examined to prove the site plan and personal search memo of one of the accused. The learned Metropolitan Magistrate after hearing both sides came to CRL.REV.P. 681 2018 the conclusion that the prosecution has not been able to establish its case. The learned Metropolitan Magistrate held that for the purpose of establishing offence under Section 323 IPC it has to be proved that the accused caused hurt to the complainant and that the accused persons acted in furtherance of their common intention within the meaning of section 34 IPC. The learned Metropolitan Magistrate found that the entire case of the prosecution rests upon the testimony of PW 1 complainant petitioner herein. The learned Metropolitan Magistrate after analysing the deposition of the complainant petitioner herein held that the complainant has given contradictory answers to the question put by the Defence counsel. The learned Metropolitan Magistrate found that the FIR is dated 10.10.2009 whereas according to the complainant petitioner herein the alleged incident took place on 09.09.2009. It is also found that she has filed Civil Suit against the accused wherein the complainant petitioner had stated that the date of incident is 01.10.2009. The learned Metropolitan Magistrate did not accept the version of the complainant petitioner that even though the incident took place on 01.10.2009 the complaint was not recorded by the Police Officer and the FIR was registered only on 10.10.2009. The learned Metropolitan Magistrate found that the complainant was changing her stance at every stage and that the statement of the complainant is not believable. The learned Metropolitan Magistrate by its order dated 08.11.2016 acquitted the accused. The matter was taken up in appeal by the complainant. The learned Additional Session Judge perused the record and found that the order of acquittal does not require any interference. The learned Additional Session CRL.REV.P. 681 2018 Judge observed that in the Civil case filed by the complainant petitioner it was stated that the date of incident was 01.10.2009 but the rukka mentions the date of incident as 09.10.2009. The learned Additional Session Judge there has been the statement of complainant petitioner as to when the incident took place as at some places the complainant petitioner has mentioned that the incident took place on 01.10.2009 whereas in other places she has mentioned that the date of the incident was 09.10.2009. The learned Additional Session Judge held that there is nothing to demonstrate that the petitioner was in possession of the property on 09.10.2009. The Additional Session Judge noted that if the facts stated in the civil suit are correct and the complainant petitioner was dispossessed on 01.10.2009 then she cannot be in possession of property on 09.10.2009 and therefore no case of criminal trespass could be made out against the accused. The Additional Session Judge dismissed the appeal. It is this order which is under challenge in the instant petition. 6. Mr. K. G. Seth learned counsel for the petitioner states that the petitioner is the owner of the said address and she purchased the same by paying Rs. 2 00 000 to the previous owner in June 2004. The petitioner was handed over the possession and has been living in the said address since June 2004. He states that on 01.10.2009 the accused came with his associates and threw the household goods of the petitioner in absence of the petitioner and took away the jewellery and other article and documents. The petitioner was in a Jagran in old Delhi and came to know about the incident when she got calls from her neighbour. She returned to her residence and went to the Police Station to lodge an FIR. It is stated by Mr. K.G. Seth CRL.REV.P. 681 2018 learned counsel for the petitioner that the complainant made repeated visits to the Police Station to register the FIR but the Police registered the FIR only on 10.10.2009. Mr. K.G. Seth learned counsel for the petitioner contends that the petitioner has been forcefully dispossessed from her premises. Mr. K.G. Seth learned counsel for the petitioner vehemently contends that the husband of the petitioner died as he was not able to take the shock of being forcefully dispossessed. Learned counsel for the petitioner also state that the accused have no document to substantiate that they are the owners of the premises. He would rely on the judgment of Supreme Court in Suraj Lamp Industries v. State of Haryana 2012SCC 656 to contend that the documents given by the accused to substantiate their ownership are not sufficient to confer title. Mr. K.G. Seth learned counsel for the petitioner would also rely on the judgement of Supreme Court in Nar Singh v. State of Haryana 2015SCC 496 to support his contention that the omission on the part of the Court to put questions under Section 313 Cr.P.C cannot give benefit to the accused. Heard Mr. K.G. Seth learned counsel appearing for the petitioner Ms. Kusum Dhalla learned APP appearing for the State and Mr. S.C. Chawla learned counsel appearing for the respondent Nos.2 3 and 4 and perused the documents. A perusal of the deposition of PW 1 the complainant petitioner who is the sole eye witness and on whom the entire case of the prosecution rests complainant petitioner herein states that she does not remember the exact date of the incident but the incident occurred nine days before Diwali. She CRL.REV.P. 681 2018 states that on that day at about 8:00 AM she along with her three children went to a temple at Lal Kuan to attend Ratri Jagran. It is stated in her chief examination that she was informed by her neighbour that the accused and their family members had ransacked the entire household articles and thrown them out and had demolished the house. She further states that she returned back at around 02:30 P.M. It is stated in her chief examination that when she asked the accused as to why they threw her household articles and demolished her house the accused told her that they were the owners of the house and that she was a tenant and she has not been paying the rent and that was the reason she has been evicted from the said house. It is stated in her chief examination that all the accused persons started beating the complainant petitioner herein with iron pipe after confining her inside the said house. It is stated in her chief examination that at about 2:00 AM in the morning the accused took her to a forest area and confined her there for a month and thereafter deserted her in the ridge area of Prahladpur. It is stated in the Chief examination that she was rescued with the help of some passerby and thereafter she informed the Police about the incident but no action was taken. In her cross examination she accepts that in the civil suit filed by her she had stated in the plaint that she had been dispossessed on 01.10.2009. In the cross examination she also states that on 09.09.2009 she lodged a complaint with the Police on which date the incident took place. 10. While specifically asked a question as to whether the incident took place on 01.10.2009 or 09.09.2009 the complainant petitioner herein reiterated that the correct date is 09.09.2009. She further stated that she had CRL.REV.P. 681 2018 not given any complaint to the Police on 10.10.2009 nor signed any document on 10.10.2009. She has further stated that no statement was recorded on 10.10.2009. PW 3 Head Constable Nathi Lal had deposed that he received DD No.33A on 09.10.2009. He reached the spot at 5:00 AM where he found the complainant and her household items had been scattered. He states that he sent the complainant to the AIIMS Trauma Centre but when he went to AIIMS the complainant was not found in the OPD. He also states that the complainant visited the Police Station and gave her statement. 12. There are several contradictions in the chief examination and the cross examination of the complainant and the courts below are justified in coming to the conclusion that the deposition of PW 1 does not inspire confidence. 13. Reading of the judgments of the Courts below shows that the Trial Court and the first Appellate Court after perusing the documents and analysing the evidence have acquitted the accused. It cannot be said that the judgment of the Courts below are perverse. 14. The scope of the revision petition under Sections 397 401 Cr.P.C. read with Section 482 Cr.P.C. has been explained in Amit Kapoor v. Ramesh Chander 9 SCC 460 the Supreme Court observed as under: “12. Section 397 of the Code vests the court with the power to call for and examine the records of an inferior court for the purposes of satisfying itself as to the legality and regularity of any proceedings or order made in a case. The object of this provision is to set right a patent defect or an error of jurisdiction or law. There has to be a well founded error and it may not be appropriate for CRL.REV.P. 681 2018 the court to scrutinise the orders which upon the face of it bears a token of careful consideration and appear to be in accordance with law. If one looks into the various judgments of this Court it emerges that the revisional jurisdiction can be invoked where the decisions under challenge are grossly erroneous there is no compliance with the provisions of law the finding recorded is based on no evidence material evidence is ignored or judicial discretion is exercised arbitrarily or perversely. These are not exhaustive classes but are merely indicative. Each case would have to be determined on its own 20. The jurisdiction of the court under Section 397 can be exercised so as to examine the correctness legality or propriety of an order passed by the trial court or the inferior court as the case may be. Though the section does not specifically use the expression “prevent abuse of process of any court or otherwise to secure the ends of justice” the jurisdiction under Section 397 is a very limited one. The legality propriety or correctness of an order passed by a court is the very foundation of exercise of jurisdiction under Section 397 but ultimately it also requires justice to be done. The jurisdiction could be exercised where there is palpable error non compliance with the provisions of law the decision is completely erroneous or where the judicial discretion is exercised arbitrarily. On the other hand Section 482 is based upon the maxim quando lex aliquid alicui concedit concedere videtur id sine quo res ipsa esse non potest i.e. when the law gives anything to anyone it also gives all those things without which the thing itself would be unavoidable. The section confers very wide power on the Court to do justice and to ensure that the process of the court is not permitted to be abused.”CRL.REV.P. 681 2018 15. After two courts have acquitted the accused this Court while exercising its jurisdiction under Section 397 401 Cr.P.C. cannot substitute its own conclusion to the one arrived at by the Courts below. It cannot be said that the view taken by the Courts below is not a plausible view. 16. The judgment dated 08.05.2018 passed by the Additional Session Judge 02 Saket Courts New Delhi in Criminal Appeal No.27 2017 17. Accordingly the revision petition is dismissed along with the pending SUBRAMONIUM PRASAD J. is sustained. applications if any. MARCH 12 2021 CRL.REV.P. 681 2018

Ex-parte order without the knowledge of Corporate Debtor not sustainable: NCLAT (New Delhi)

The Adjudicating Authority shall reject the application so filed if the Operational Creditor has received a notice of a dispute from the Corporate Debtor. The Court allowed the Insolvency application filed by the Respondent filed under Section 9 of the Insolvency & Bankruptcy Code, 2016 held by Justice Jarat Kumar Jain in the case of Prakash Kailash v. Apeejay Surrendra Park Hotels [Company Appeal (AT) (Insolvency) No. 1462 of 2019]. The appellant started a hotel with the respondents being the operational creditor in charge of the management of the hotel. The respondents had filed a claim for insolvency in the NCLAT due to non-payment of salary. The respondent also stated that the notice was returned owing to an insufficient address of the corporate debtor and NCLAT by way of order given the substituted service of publication in the newspaper where the corporate debtor has his office. There was no claim regarding any other dispute mentioned before the adjudicating authority. After the publication of the notice in the local newspaper, NCLAT accepted the application by the respondent in an ex-parte proceeding. Aggrieved by this decision the Corporate Debtor had approached by way of an appeal. According to the appellant, the respondents did not fulfil their duty and there were inadequacies in their service provided. The respondents were in charge of taxes payable by the hotel which was not paid by the respondent and without prior information to the appellant the respondents had issued a post-dated cheque in their name. The appellant also contended not being aware of the proceeding filed in NCLAT as there was no official communication. The respondent submitted that this appeal exceeded the statutory limit of appealing within 30 days of any order. They also denied any conflict arising before the initiation of the insolvency proceeding. It was further stated that the notice was duly posted in the newspaper following the order of NCLAT. The tribunal noted that “notice issued against the Corporate Debtor could not be served on account of insufficient address; after that, the Adjudicating Authority passed an order of publication of notice in the newspaper. Based on the publication of notice in the newspaper, service was held sufficient, and the Court passed an order to proceed the case ex-parte against the Corporate Debtor. Thus, it is clear that before the publication of notice in the newspaper, no effort was not made for serving the notice through email.” NCLAT held that the appeal has been filed within 30 days of the order and thus is sustainable. Various e-mails exchanged between the appellant and the respondent were produced from where it is clearly mentioned that the appellant is not satisfied with the service provided. In the email, it can also be seen that the appellant had opposed the issue of post-dated cheque when it came to his knowledge. The tribunal also observed that in the original application filed by the respondent there is no mention of the disputed cheque amounting to Rs 76 Lakh. The tribunal relied on the judgement of the Hon’ble Supreme Court in the case of Neerja Realtors (P) Ltd. Vs. Janglu [2018 (2) SCC 649], where it was held that “for ordering substituted service the Court is required to be satisfied that there is reason to be read that Defendant is keeping out of the way for the purpose of avoiding service or for any other reason, the summons cannot be served in an ordinary way.” In such circumstances, the passing of an order for an ex-parte hearing against the Corporate Debtor, based on substituted service, cannot be held proper in the light of the law laid down by the Supreme Court. Thus, the appeal was allowed and the proceeding in the NCLAT was to be set aside. Click here to read the judgement

NATIONAL COMPANY LAW APPELLATE TRIBUNAL NEW DELHI Company Appeal(Insolvency) No. 14619 Arising out of Order dated 14th November 2019 passed by the Adjudicating Authority National Company Law Tribunal Cuttack in Company PetitionNo. 62 CTB 2019] IN THE MATTER OF: Prakash Kalash Shareholder & Member of suspended Board of M s Gurusukh Vintrade Service Pvt Ltd R o Gurusukh Villa Opposite Shagun Farm VIP Road Raipur Chattisgarh 492006 Mobile: 9993333332 Email: prakashkalash@yahoo.in 1. M s Apeejay Surrendra Park Hotels Ltd 17 Park Street Kolkata West Bengal Kolkata 700016 2. Ms Teena Saraswat Pandey Resolution Professional of M s Gurusukh Vintrade Service Private IBBI IPA P00652 2017 2018 11126 387 F 114 Scheme Part 1 Behind Diksha Boys Hostel Sant Nagar Indore Madhya Pradesh 452010 Respondent No.1 Respondent No.2 For Appellant Mr Krishna Mohan K Menon Advocate For Respondent Mr Vijay Kandel Advocate for R1. Mr Divyanshu Srivastava Advocate for R2. Company Appeal(Insolvency) No. 14619 J U D G M E N T Per V.P. Singh MemberThis Appeal emanates from the order dated 14th November 2019 passed by the Adjudicating Authority National Company Law Tribunal Cuttack in CP No. 62 CTB 2019 whereby the Adjudicating Authority has admitted the Application filed under Section 9 of the Insolvency & Bankruptcy Code 2016filed the present Appeal against the Respondent No.1 Apeejay Surrendra Park Hotels Ltd. and Respondent No. 2 Umesh Chandra Sahoo under Section 61(1) of the I&B Code. The Appellant is a company incorporated under the Companies Act 1956 having its registered office at Maharshi Valmiki Ward No.28 Telibandha Raipur and Chhattisgarh. The Appellant has opened Hotel at Great Eastern VIP Road Chowk Avanti Vihar Raipur Chhattisgarh. The Respondent No.1 had approached to the Appellant for providing technical services and pre operation advice for launching Hotel and further for the operation and management services after the launch of the Hotel. The Appellant entered into the „Management and Technical Service Agreement‟ from now on will be referred to as „MTSA‟ with Respondent No. 1. As per the Agreement the Respondent No.1 was responsible for the training of the staff. However they failed to provide Company Appeal(Insolvency) No. 14619 proper training to the hotel staff. They were posting wrong revenue on barter ledger to hide their under performance since the Hotel started its commercial operations. As per terms of the Agreement no payment was supposed to be made to any person without prior information of the Appellant. But the Respondent No.1 Operational Creditor in violation the terms of MTSA issued post dated cheques of Rs. Seventy three lakhs to itself even without informing the Appellant about the same. The Appellant Corporate Debtor further contends that as per the Agreement all the money received as revenue from the operations of the Hotel was supposed to be deposited in the bank account of the Hotel which was to be operated by the authorized representative appointed by Respondent No.1 Operational Creditor. Further all the operating expenses including taxes were to be discharged by Respondent No.1. However Respondent No.1 has miserably failed to deposit statutory dues and applicable taxes such as TDS EPF ESI GST VAT Service Tax and Luxury Tax since the beginning of the Hotel. The Appellant through an internal enquiry found that a non recoverable revenue of Rupees Seventy Lakh has been shown as revenue earned in financial records of the Hotel by the Respondent No.1. The Appellant contends that Respondent No.1 was responsible for the operation of the Hotel however there was no visit by the Respondent No.1 to the Hotel of the Appellant since August 2018. Thus effectively Respondent No.1 has not provided any service to the Appellant since August 2018. Company Appeal(Insolvency) No. 14619 6. Consequent upon the default made by the Respondent No.1 about the provision of services the Appellant disputed the amount payable to the Respondent and stopped making payment to Respondent No.1 Operational Respondent No. 1 had initiated the proceedings under Section 9 of the I&B Code for alleged unpaid dues arising out of the services performed under the „MTSA‟ between the Appellant and the Respondent. As per the operational creditor Respondent No.1‟s claim in the Section 9 Application a total of Rs.1 45 99 236 Principal Rs.1 25 63 786 and Rs.20 35 450 calculated @ 24% p.a.] was due from the Corporate Debtor for services performed by the Operational Creditor for a period from 01st January 2018 to 20th May 2019. It is contented by the Appellant that there were various email communication and telephonic conversations held between the Appellant and the Respondent No.1 even after filing of the Application by the Respondent No.1 before the Adjudicating Authority. However Respondent No.1 Operational Creditor never communicated Appellant about the filing of the petition U S 9 of the Code. It is submitted on behalf of the Appellant that there was a plausible pre existing dispute between the parties which was not brought to the notice of the Adjudicating Authority. Since the Appellant was not aware of the proceedings they could not appear before the Adjudicating Authority Company Appeal(Insolvency) No. 14619 and an ex parte impugned order has been passed. The corporate insolvency proceeding started against the Appellant corporate Debtor. 10. The Respondent in his reply submitted that the Company Appeal filed by the Appellant is devoid of any merit and as such liable to be dismissed. It is submitted that the Appeal is liable to be dismissed on the ground that the same is filed beyond 30 days from the date of passing of the impugned order which is beyond the statutory period as prescribed under Section 61(2) of the I&B Code. 12. The Respondent No.1 further submits that the Appellant had the sufficient knowledge of initiation of proceedings under Section 9 of the I&B Code against him by admitting the receiving of Demand notice sent to him and further when the Respondent No.1 sent a copy of Application in Form 5 filed under Section 9 of the I&B Code. The service on the corporate office of the Appellant has been proved by the Affidavit of Service containing tracking report of successful delivery of the same. 13. The Respondent No.1 Operational Creditor further submits that the Adjudicating Authority based on the affidavit of service and other documents filed with the petition regarding service of notice passed an order to proceed ex parte against the Appellant as there was no representation from the Corporate Debtor despite substituted service of notice through the publication of notice in newspapers. Company Appeal(Insolvency) No. 14619 14. Respondent No.1 contends that from a bare perusal of the contents of Appeal and the material placed on record it is sufficiently established that till date the Appellant has not disputed even a single invoice or the amounts therein amongst the total invoices raised by Respondent No.1 operational creditor. 15. Further Respondent no.1 denies that at the time of entering into the contract the Appellant was assured by Respondent No. 1 that there would be 40% of sales contribution from their side. 16. The Respondent No.1 submits that it was pointed out by the Respondent to the Appellant that due to Appellants failure to provide the working capital as agreed under the Agreement salaries of the employees could not be paid on time and resultantly a lot of competent people resigned from the organization. 17. Further Respondent No.1 Operational Creditor denies of posting wrong revenue on barter ledger since the Hotel started its commercial operations to inflate the income to increase their fee share and to hide its under performance and violation of the conditions of the Agreement. Regarding the allegation of issuance of post dated cheques of Rs. Seventy three Lakhs to itself without informing the Appellant it is contended that the Appellant is hiding the fact from this Tribunal. Respondent No.1 argued that the Appellant was informed of the post dated cheques and further shared cheque sheet showing details of the cheques issued by the Respondent No.1. Company Appeal(Insolvency) No. 14619 18. The Respondent No.1 Operational Creditor submitted and denied that as per the Agreement all the operating expenses including taxes were to be discharged by the Respondent No.1. It has never been agreed between the parties that the Respondent No.1 shall discharge the liabilities of payment of taxes. It is pleaded that even the word “tax” find no mentioned in the said perused the record. 19. Heard the arguments of the Learned Counsel for the parties and 20. The Respondent contends that the Appeal is liable to be dismissed on the ground that the same is filed beyond 30 days from the date of passing of the impugned order which is beyond the statutory period as prescribed under section 61(2) of the I&B Code. The impugned order dated 14th November 2019 and Appeal is filed on 05.12.2019 which within 30 days from the date of order. Thus Appeal is filed within the statutory period of Limitation as prescribed under Section 61(2) of the Code. 21. The Learned Counsel for the Appellant submits that the impugned order is liable to be set aside on the sole premise of the failure of compliance with the service procedure prescribed under Rule 5 of the Insolvency and Bankruptcy Rules 2016. It is submitted that the prescribed mode of service as per Rule 6(2) is a registered post or speed post. The publication of notice is not a prescribed mode of service and hence impugned order is liable to be set aside on this ground. It is further submitted that registered notice issued against the Company Appeal(Insolvency) No. 14619 Corporate Debtor was returned with the postal remarks „want of sufficient address‟. In such a situation Respondent No.1 was not stopped from serving the Corporate Debtor via email. Learned Counsel for the Operational Creditors submits that as per Clause of sub rule of Rule 5 of the Insolvency and Bankruptcy Application to Adjudication Authority) Rules 2016 the demand notice or the copy of an invoice demanding payment may be delivered to the Corporate Debtor at the registered office by hand registered post or speed post with acknowledgement due or by electronic mail service to a Whole Time Director of the Corporate Debtor. It is submitted that a demand notice dated 21st May 2019 was sent to the Appellants registered office as well as the Corporate Office. However the demand notice dated 21st May 2019 was returned with endorsement “insufficient address”. Further a copy of the demand notice was also sent to the corporate address of the Appellant and the same has been successfully delivered. Lastly in compliance with clause b) of sub rule of Rule 5 of the above Rules copy of the demand notice dated 21st May 2019 was also sent to the Appellant vide email dated 22nd May 2019. The Operational Creditor has annexed the xerox copy of an email dated 22nd May 2019 which shows that demand notice was sent to Corporate Debtor through an email dated 22nd May 2019 at 2:49 pm. In the circumstances it is clear that the Appellant was having sufficient knowledge of the demand notice issued under Section 8 of the I&B Code. 23. The Learned Counsel for the Appellant has filed the copy of the order sheets of the Adjudicating Authority dated 09th July 2019 and dated 01st Company Appeal(Insolvency) No. 14619 August 2019. It appears that on 09th July 2019 after filing of the petition under Section 9 of the Code the Adjudicating Authority passed an order for issuance of notice against the Corporate Debtor. After that on 01st August 2019 the Adjudicating Authority passed an order “Ld. Counsel for the Operational Creditor appear. Corporate Debtor could not be served with notice for reason of insufficient address. Operational Creditor to publish notice an newspaper one English and one vernacular having wide circulation in the area where the Registered Office of the Corporate Debtor situated and file affidavit in reply service of notice. Matter to appear for further consideration on 20.08.2019.” verbatim copy) 24. Thus it is clear that the Court notice issued against the Corporate Debtor could not be served on account of insufficient address after that the Adjudicating Authority passed an order of publication of notice in the newspaper. Based on the publication of notice in the newspaper service was held sufficient and the Court passed an order to proceed the case ex parte against the Corporate Debtor. Thus it is clear that before the publication of notice in the newspaper no effort was not made for serving the notice through email. 25. The Hon‟ble Supreme Court in case of Neerja Realtors Ltd. Vs. Janglu2018 SCC 649 has held that „for ordering substituted service the Court is required to be satisfied that there is reason to be read that Defendant is keeping out of the way for the purpose of avoiding service or for any other Company Appeal(Insolvency) No. 14619 reason the summons cannot be served in an ordinary way. Thus while making that Order Court must apply its mind to requirements under Order 5 Rule 20 of CPC and indicate in its order and due consideration of provisions contained in Order 5 of Rule 20.‟ In the present case the notice issued against the Corporate Debtor returned unserved because of „insufficient address‟. After that without exploring the possibility of service by other modes like email the Adjudicating Authority passed the order for substituted service by publication of notice in the newspaper. In such circumstances passing of an order for an ex parte hearing against the Corporate Debtor based on substituted service cannot be held proper in the light of the law laid down by Hon‟ble Supreme Court in the Neerja RealtorsLtd(Insolvency) No. 14619 1 Company Appeal(Insolvency) No. 14619 1 Company Appeal(Insolvency) No. 14619 1 Company Appeal(Insolvency) No. 14619 1 28. Admittedly in this case the demand notice dated 22nd March 2019 in Form 3 was issued against the Corporate Debtor by registered post which could not be served on account of insufficient address. After that the demand notice dated 21st May 2019 in Form 3 was again sent through Company Appeal(Insolvency) No. 14619 1 speed post. On perusal of the email dated 14th July 2018 it appears that the Corporate Debtor objected to „the posting of wrong revenue on barter ledgers‟. It also appears from a perusal of email correspondence dated 17th October 2018 that the Corporate Debtor objected to releasing post dated cheque of Rs.73 lakhs without keeping it informed to the Corporate Debtor. It is also stated in the email that management fees will be paid after the barter reconciliation issue is resolved. By perusal of email communication dated 17th January 2019 it appears that dispute was raised regarding the quality of services. On perusal of email dated 14th March 2019 it appears that the Corporate Debtor raised the issue regarding service rendered by the Operational Creditor. It also shows that the Corporate Debtor informed the operational Creditor of taking over the complete management in its own hands because of being dissatisfied with the services rendered by the Operational Creditor. All these correspondences are before issuance of demand notice. 29. Looking to such material above it is quite clear that there was a pre existing dispute regarding the operation of management and services provided by the Respondent No.1 before the issuance of the demand notice dated 21.05.2019 under Section 8 of the I&B Code. 30. The definition of the word dispute provided under the Code was well elaborated and explained by Hon‟ble Supreme in the case of 2018(1)SCC 353 Mobilox Innovation Pvt Ltd vs. Kirusa Software Pvt Ltd in the following words: Company Appeal(Insolvency) No. 14619 1 Para 40 “It is clear therefore that once the operational Creditor has filed an application which is otherwise complete the adjudicating authority must reject the Application under S.9(5)(2)(d) if notice of dispute has been received by the operational Creditor or there is a record of dispute in the information utility. It is clear that such notice must bring to the notice of the operational Creditor the “existence” of a dispute or the fact that a suit or arbitration proceeding relating to a dispute is pending between the parties. Therefore all that the adjudicating authority is to see at this stage is whether there is a plausible contention which requires further investigation and that the “dispute” is not a patently feeble legal argument or an assertion of fact unsupported by evidence. It is important to separate the grain 9 Company Appeal AT)(Insolvency) No.542 2020 from the chaff and to reject a spurious defence which is mere bluster. However in doing so the Court does not need to be satisfied that the defence is likely to succeed. The Court does not at this stage examine the merits of the dispute except to the extent indicated above. So long as a dispute truly exists in fact and is not spurious hypothetical or illusory the adjudicating authority has to reject the Application.” The intent of Legislature is very vital for interpreting any law which can be well deduced from the words of Section 8(2)(a) of I&B Code „existence of a dispute if any‟. It can be easily inferred that dispute shall not be limited to instances specified in the definition as provided under Section 5(6) as it has far arms apart from pending Suit or Arbitration as provided Under Section 5(6) of IBC. The IBC is not a substitute for a recovery forum. Section 9 of the IBC makes it very clear for the Adjudicating Authority to admit the application “if no notice of dispute is received by the Operational Creditor and there is no record of the dispute in the information utility.” Whereas on the other hand Section 9 also states that the Adjudicating Authority shall reject Company Appeal(Insolvency) No. 14619 1 the Application so filed “if the Operational Creditor has received a notice of a dispute from the Corporate Debtor. Thus it is clear that once an operational creditor has filed an application which is otherwise complete the Adjudicating Authority must reject the Application if notice of dispute has been received by the operational Creditor or there is a record of dispute in the information utility the Adjudicating Authority is to see whether there is a plausible contention which requires further investigation and the “dispute “is not a patently feeble legal argument or an assertion of fact unsupported by evidence. It is important to separate the grain from the chaff and to reject a spurious defence which is mere bluster.” emphasis in bold supplied) In the present case it is crystal clear that there was a pre existing dispute even though the Adjudicating Authority admitted the Application for initiation of Corporate Insolvency Resolution Process by the impugned 32. Thus the Appeal is allowed and the impugned order dated 14th November 2019 passed by the Adjudicating Authority National Company Law Tribunal in CP No.62 CTB 2019 is set aside. In effect the order passed by the Adjudicating Authority appointing Interim Resolution Professional declaring moratorium and all other order(s) passed by the Adjudicating Authority pursuant to impugned order and actions taken by „the Resolution Professional „is declared illegal and are set aside. The application preferred by the respondent No.1 under Section 9 of the I&B Code is dismissed. The Adjudicating Authority will now close the proceeding. Company Appeal(Insolvency) No. 14619 1 33. The Adjudicating Authority will fix the fee of Interim Resolution Professional „for the period he has functioned. The Appeal is allowed with the observation above and direction there shall be no order as to cost. NEW DELHI 23rd SEPTEMBER 2020 Justice Jarat Kumar Jain] MemberBalvinder Singh] MemberV. P. Singh] MemberCompany Appeal(Insolvency) No. 14619 1

False and inconsistent testimonies directed the appeal against the judgment of conviction – Jharkhand high court

False and inconsistent testimonies directed the appeal against the judgment of conviction – Jharkhand high court Major incoherency and inconsistency in the testimonies of witnesses and error in evidence are found to be the basis of allowing The appeal against the judgment of conviction. the appeal was allowed by the single judge heading  HON’BLE MR. JUSTICE NAVNEET KUMAR  in the case of Pachu Gope Versus The State of Jharkhand (Cr. Appeal (SJ) No. 1384 of 2003) The crux of the case is an appeal is directed against the judgment of conviction dated 26.08.2003 and order of sentence dated 26.08.2003 passed by the learned Additional Sessions Judge whereby Pachu Gope has been convicted under sections 376/511 of IPC and sentenced to undergo Rigorous Imprisonment for three years. The learned counsel on behalf of the appellant submitted that the trial court has failed to take into consideration that there is no corroborative evidence in the present case to convict the appellant and there have been serious contradictions amongst the prosecution witnesses and there is inordinate delay in lodging the FIR which has not been properly explained and the veracity of the solitary evidence of the victim is also not believable and trustworthy and, therefore, the impugned judgment of conviction and order of sentence is bad in law and fit to be set aside. The A.P.P appearing on behalf of the state opposed the contentions held the appellant guilty for the offense punishable u/s 376/511 of IPC and there is no contradiction or illegality in the impugned judgment of conviction and order of sentence. The court hearing both sides found that no independent witnesses have been examined to support the case of the prosecution and found falsity of the case with respect to the alleged assault of the date of occurrence and,  the veracity and the truthfulness of the offense of attempt to commit rape by which the occurrence of assault had taken place are also falsified. therefore it is well found that the learned trial court has committed error in the appreciation of the pieces of evidence in totality and major incoherency and inconsistency found in the testimonies of witnesses P.W. 1 and P.W. 2 coupled with the inordinate delay in lodging the FIR. Accordingly, the court held that the impugned judgment of conviction and order of sentence does not hold good and fit to be set aside, hence this appeal is allowed and the impugned judgment of conviction and order of sentence dated 26.8.2003 passed in S.T. No. 79/2000  is set- aside Click here to read the judgement

Cr. AppealNo. 13803 Cr. AppealNo. 13803 IN THE HIGH COURT OF JHARKHAND RANCHI Pachu Gope … Appellant Versus The State of Jharkhand … Respondent CORAM: HON BLE MR. JUSTICE NAVNEET KUMAR For the Appellants For the Respondent Mr. Tirthankar Bose Advocate Mr. Santosh Kr. Shukla A.P.P. Order No. 09 : Dated: 20th December 2021 HON BLE MR. JUSTICE NAVNEET KUMAR Navneet Kumar J. This appeal is directed against the judgment of conviction dated 26.08.2003 and order of sentence dated 26.08.2003 passed by the learned Additional Sessions Judge Fast Track Court III Hazaribagh in Sessions Trial No. 700 whereby and whereunder the appellant Pachu Gope has been convicted under sections 376 511 of IPC and sentenced to undergo Rigorous Imprisonment for three years. Prosecution Story Briefly stating the prosecution case arising in the wake of written report dated 10.11.1999 of the informantis that on 07.10.1999 the informant had gone to Ghoghari Forest for collecting fire woods and her husband had gone to Hazaribagh for working as labour. It started raining at about 4 P.M. then she hide herself beneath Mahuwa Tree near her Ghoghari field to save herself from rain. In the meantime accused Pachhu Gope who happens to be her Dewarcame and caught her hand and breast with bad intention and forcibly fell her on the ground. She protested to this action due to which he did not succeed Cr. AppealNo. 13803 in committing rape on her. She shouted then accused appellant Pachhu Gope fled away due to fear leaving behind her lying on the earth. She narrated the offence to her husband when he returned home in the evening and also to co villagers Ramu Gope Lado Gope and others. Her husband went to the house of Pachhu Gope to enquire about his misdeeds then the appellant and his brother abused him and assaulted him by danda Thick stick) and slaps. She further stated that she did not go to the police for lodging information due to shame and prestige but now she came to police because both the appellant and his brother Basudeo Gope who has been acquitted by the learned court below were threatening her and her husband. On the basis of the aforesaid written report dated 10.11.1999 of the victim a formal FIR was drawn vide Katkamsandi P.S. Case no. 1399 dated 10.11.1999 for the offence punishable u s 376 511 323 of IPC and the investigation of the case commenced. After completion of the investigation the charge sheet was submitted vide charge sheet no. 1799 dated 30.11.1999 for the offence punishable u s 376 511 & 323 IPC against the two accused persons including the appellant Pachu Gope and one Basudeo Gope since acquitted). The Chief Judicial Magistrate on the receipt of charge sheet took cognizance for offences u s 376 511 323 IPC vide his order dated 03.01.2000 and the case was committed to the court of sessions. After commitment the learned trial court framed the charges for the offence punishable u s 376 511 and 323 IPC against two accused persons including this accused appellant and one Basudeo Gope and trial of the case commenced and after concluding the trial the co accused Basudeo Gope was acquitted and this accused appellant was convicted for the offence punishable u s 376 511 IPC and sentenced to undergo R.I. for 3 years therein which is under Cr. AppealNo. 13803 7. Heard Mr. Tirthankar Bose learned counsel for the appellant and Mr. Santosh Kr. Shukla learned A.P.P. for the State. Arguments on behalf of the appellant: Assailing the impugned judgment of conviction and order of sentence it is submitted on behalf of the appellant that the trial court has failed to take into consideration that there is no corroborative evidence in the present case to convict the appellant and there has been serious contradictions amongst the prosecution witnesses particularly P.W. 1 & P.W. 2 which caste the serious doubts in the entire prosecution story. Learned defence counsel has further submitted that the court below has failed to take into consideration that there is inordinate delay in lodging the FIR which has not been properly explained and no independent witness has been examined and further it has been pointed out that there are two parts of the occurrence one is attempt to commit rape and another followed by the assault by the accused persons upon the victim and her husband but the second part i.e. assault by the accused persons have not been proved and therefore truthfulness of the connected offence i.e. attempt to commit rape also gets falsified. Further the veracity of the solitary evidence of the victim is also not believable and trustworthy and therefore the impugned judgment of conviction and order of sentence is bad in law and fit to be set aside. Arguments on behalf of the State: 10. On the other hand learned A.P.P. appearing on behalf of the State strongly opposed the contentions raised on behalf of the appellant and submitted that the learned trial court has appreciated the evidences in a very meticulous manner and rightly held the appellant guilty for the offence punishable u s 376 511 of IPC and there is no contradiction or illegality in the impugned judgment of Cr. AppealNo. 13803 conviction and order of sentence and therefore this appeal deserves to be dismissed being devoid of any merit. FINDINGS 11. Having heard the learned counsels Mr. Tirthankar Bose learned counsel for the appellant and Mr. Satosh Kr. Shukla learned A.P.P. and perused the record of the case including the lower court It is admitted case of the prosecution that the accused appellant Pachhu Gope is the cousin brother in law and the FIR has been instituted after the lapse of more than one month as the occurrence had taken place on 07.10.1999 and this FIR was instituted on 10.11.1999. It appears that the explanation given for the delay by the victim in her written report itself is that due to shame and honor the victim could not come forward to institute the case. Further she stated that the appellant along with his brother Basudeo Gope had given threatening to her and her husband which compelled her to institute the FIR. In support of the case the prosecution has been able to examine only 3 witnesses out of which P.W. 1 Victim P.W. 2 is her husband and the third witness examined on behalf of the prosecution P.W.3 has been tendered. 14. From the testimony of P.W. 1 who is said to be the victim of the incident stated in her examination in chief that she did not remember the exact date of the occurrence indicating weakness in the charges levelled against the appellant at the outset. It is further in para 19 of her cross examination she stated that on the date of the incident only her husband had gone alone to the house of the accused appellant whereas her husband P.W. 2 in para 9 & 10 stated that she had also gone to the house of the accused appellant to inquire about the incident and making complaint thus the major contradiction is Cr. AppealNo. 13803 found in the post incident assault which is said to have taken place between the husband of the victim and the accused persons. It is evident from the FIR itself that the husband of the informant on the same night went to the house of the accused persons in order to make query and it is alleged that the husband of the victim was abused and assaulted by the accused appellants by danda and fists but no independent witnesses have been examined to support the case of the prosecution on the point of the assault on the date of occurrence which took place between the accused appellant and husband along with his informant wife and thus the different versions on the point of the assault have been found. From the deposition of P.W. 1it appears that her husband P.W. 2 went there alone and therefore it is very difficult to accept the contradictory versions in absence of the evidence of any independent reliable witness and this incident of assault is consequence of the earlier incident of attempt to commit rape with P.W.1. The learned trial court has elaborately appreciating the evidence and deposition of P.Ws. 1 & 2 has rightly come to the conclusion to the falsity of the case with respect to the alleged assault of the date of occurrence and therefore the veracity and the truthfulness of the offence of attempt to commit rape by which the occurrence of assault had taken place also gets falsified. It is also found that no cogent explanation has been given for the delay of period of 1 months 3 days in lodging the case when the incident had taken place on 7.10.1999 and FIR was instituted on 10.11.1999. Although the P.W.2 the husband in para 14 has categorically stated that on the very next morning of the incident i.e. 08.10.1999 a Panchayati was called for and a number of persons including Jobar Gope Ramu Gope and Lado Gope were present there including Mukhiya and Chowkidar of the village but even after the Panchayati of the next date of occurrence the FIR could not be instituted and after more than one month the FIR was instituted although the legal personnel chowkidar of the village was Cr. AppealNo. 13803 present in the said Panchayati. The testimonies of P.W.2 in para 14 of his cross examination on the point of Panchayati is also vague with respect to the outcome of Panchayti. Further the prosecution has miserably failed to examine any one of the members who had admittedly attended the said Panchayat including Mukhiya and Chowkidar and co villagers Jobar Gope Ramu Gope and Lado Gope etc. As a matter of fact the reasons for delay including dignity honor and fear in lodging the FIR were also existing even after the lapse of more than one month rather dignity honour and fear was more at stake on the date of occurrence when mar pit also took place as per the charges levelled against the accused persons and on the very next date of the occurrence the Panchayti was also held where the Mukhiya and Chowkidar and the co villagers of the village also attended the said Panchayati and hence the reasons given in FIR for delay of more than one moth are neither cogent nor acceptable and therefore the defence taken on behalf of the accused persons that both the parties were closely related to each other as the accused appellant is admittedly Dewar of the victim and there was a landed property dispute between them and therefore false implication of the accused persons cannot be ruled out and it is also evident from the discrepancies emanating from the testimonies of P.W.1 & P.W.2 also. 17. Further from the perusal of the statement recorded u s 313 Cr.P.C. it is clearly established that the defence taken on behalf of the accused appellant was that 5 to 6 acres of land in the name of the father of the accused were standing and his father had three brothers and each brother had got 1.67 acres of land but the husband of the informant wanted some more land and insisted upon the accused appellant to part with more land and for this reason this false case has been instituted and therefore the defence taken on behalf of the accused persons in the light of the aforesaid inconsistencies and contradictions in the testimony of P.W. 1 and P.W. 2 become more pertinent more convincing and more Cr. AppealNo. 13803 believable. Further so far as the second consequential incident i.e. assault upon the P.W. 2 by the accused appellant after the attempt to commit rape has been falsified by the learned court below and therefore the incident to commit attempt to rape also does not get corroborated because of the appraisal of the witnesses in the foregoing paragraphs where a number of inconsistencies and unacceptable facts have been found. In the backdrop it is well found that the learned trial court has committed error in the appreciation of the evidences in totality. The second part of the incident i.e. mar pit which is inextricably related to the first part i.e. the offence of attempt to commit rape has not been proved on the basis of the evidences available on record by the learned trial court. As a result the first part of the incident i.e. attempt to commit rape is not substantiated inasmuch as falsification of the second part i.e. Mar Pit and also remained unproved in view of the major incoherency and inconsistency found in the testimonies of witnesses P.W. 1 and P.W. 2 coupled with the inordinate delay in lodging the FIR without any cogent explanation as appraised elaborately in foregoing paragraphs 19. Accordingly the impugned judgment of conviction and order of sentence does not hold good and fit to be set aside hence this appeal is allowed and the impugned judgment of conviction and order of sentence dated 26.8.2003 passed in S.T. No. 79 2000 by Addl. Sessions Judge Fast Track Court No. III Hazaribagh is set aside. Since the appellant of this appeal is on bail and thus he is discharged from the liabilities of his bail bond in this case. 21. Let the Lower Court records be sent back to the Court concerned forthwith along with a copy of this Judgment. Jharkhand High Court Ranchi Dated the 20.12.2021 NAFR MM Navneet Kumar J.)

Amendment that is merely seeking to refer to specific instances in support of the assertions in the plaint is necessary for a complete adjudication of the dispute between the parties : Delhi High Court

The court always views both parties equally and defends the right to assert their point of view and stance equally. This was held in the judgment passed by a single judge bench comprising HON’BLE JUSTICE C .HARI SHANKAR, in the matter BEIERSDORF AG V. HINDUSTAN UNILEVER LIMITED, dealt with an issue where the petitioner has filed an application under Order VI Rule 17 of the Code of Civil Procedure, 1908 (CPC) seeking to amend paras 38 and 43 of the plaint in the present and to add documents, relevant to the averments contained in the amended paragraphs. Counsel for the defendant, seriously objected to the present application on the ground that it was in the nature of an oblique attempt to introduce, into the proceedings, additional documents, in clear transgression of Order XI Rule 1(2) & 1(5) of the CPC as amended by the Commercial Courts Act, 2015. He also submitted that the documents which have been now sought to be introduced under cover of this application under Order VI Rule 17 of the CPC were within the possession of the plaintiff at the time when the suit was filed. Additionally, he submits that the facts which are now sought to be introduced by way of the amendment were also facts, which were known to the plaintiff at the time of filing of the suit. Counsel for the plaintiff, contested these submissions of defendant. He submits that the documents, which are being introduced along with the present application, were not in the custody of the plaintiff at the time when the suit was filed and have come into the plaintiff’s possession only thereafter. He submitted that this Court had, vide its order dated 5th July, 2021, allowed and granted the plaintiff four weeks’ time to place additional documents on record, subject to the right of the defendant to admit or deny the said documents. He submitted that the documents have been filed within the said period of four weeks and that, therefore, there can be no justifiable objection to their being taken on record. After hearing both the parties The hon’ble Delhi High court allowed the petition and held that a perusal of the averments, which are sought to be introduced by way of the present amendment, vis-a-vis those which are already contained in the plaint, indicates that no fresh cause of action is sought to be pleaded and that the amendment cannot be treated as an attempt to overcome an objection which has been taken by the defendant in the written statement, as no written statement has been filed till date. It also held that, In this view of the matter, there is no justifiable reason to refuse the prayer for amendment as contained in the present application.

IN THE HIGH COURT OF DELHI AT NEW DELHI CS(COMM) 300 2021 BEIERSDORF AG Plaintiff Through Mr. Bharath MS Mr. Ayush Sharma Mr. Akshaya P Sachin and Mr. Krishna Advs. HINDUSTAN UNILEVER LIMITED ..... Defendant Through Mr. C.M. Lall Sr Adv. with Mr.Nishad Nadkarni Mr. Ankur Sangal and Ms. Pragya Mishra Advs. HON BLE MR. JUSTICE C .HARI SHANKAR O R D E R27.08.2021 IA 9051 2021This is an application under Order VI Rule 17 of the Code of Civil Procedure 1908seeking to amend paras 38 and 43 of the plaint in the present and to add documents relevant to the averments contained in the amended paragraphs. A reply has been filed to this application and the rejoinder has also been filed thereto. I have heard Mr. Bharath learned Counsel for the plaintiff and Mr. Lall learned Senior Counsel for the defendant at some length on this application. CS(COMM) 300 2021 4. Mr. Lall learned Senior Counsel for the defendant seriously objected to the present application on the ground that it was in the nature of an oblique attempt to introduce into the proceedings additional documents in clear transgression of Order XI Rule 1(2) & 1(5) of the CPC as amended by the Commercial Courts Act 2015. For ready reference Order XI Rule 1(2) & 1(5) of the CPC as amended by the Commercial Courts Act 2015 may be reproduced “1. Disclosure and discovery of documents: 2) The list of documents filed with the plaint shall specify whether the documents in the power possession control or custody of the plaintiff are originals office copies or photocopies and the list shall also set out in brief details of parties to each document mode of execution issuance or receipt and line of custody of each document. 5) The plaintiff shall not be allowed to rely on documents which were in the plaintiff’s power possession control or custody and not disclosed along with plaint or within the extended period set out above save and except by leave of Court and such leave shall be granted only upon the plaintiff establishing reasonable cause for non disclosure along with the plaint.” 5. Mr. Lall submits that the documents which have been now sought to be introduced under cover of this application under Order VI Rule 17 of the CPC were within the possession of the plaintiff at the time when the suit was filed. Additionally he submits that the facts which are now sought to be introduced by way of the amendment were CS(COMM) 300 2021 also facts which were known to the plaintiff at the time of filing of the suit. He relies for this purpose on an application dated 1st July 2021 which was served on him and has apparently been also filed with this Court but has not been registered and listed at any point of time. Mr. Lall submits that this application contained averments relating to all the facts which are sought to be introduced by the present amendment and therefore the documents which are relevant to these assertions must also be treated as within the possession of the plaintiff even prior to the filing of the plaint. He submits that in fact the Court had heard the plaintiff for some time in this matter and that the present application is an attempt to improve the case set out in the plaint in view of the observations made by the Court during hearing. 6. Mr. Bharath learned Counsel for the applicant plaintiff contests these submissions of Mr. Lall. He submits that the documents which are being introduced along with the present application were not in the custody of the plaintiff at the time when the suit was filed and have come into the plaintiff’s possession only thereafter. He submits that along with the suit IA 7637 2021 had also been filed under Order XI Rule 1(4) of the CPC for permission to place additional documents on record. There were specific averments in the said application that the documents which the plaintiff desired to place on record were not in its custody or possession at that point of time. He submits that this Court had vide its order dated 5th July 2021 allowed IA 7637 2021 and granted the plaintiff four weeks’ time to place additional documents on record subject to the right of the defendant to admit or deny the said documents. He submits that CS(COMM) 300 2021 the documents have been filed within the said period of four weeks and that therefore there can be no justifiable objection to their being taken on record. Apropos the unnumbered application to which Mr. Lall alludes Mr. Bharath submits that this application did not annex any document therewith and in fact was filed in the Registry of this Court about ten days after the suit was filed but before the suit came up for preliminary hearing before the Court. Thereafter consequent to the Court having granted the plaintiff permission to file additional documents he submits that the present formal application under Order VI Rule 17 of the CPC has been filed along with the said documents. 8. Mr. Bharath also draws my attention to para 43 of the plaint which specifically avers that the defendant was indulging in activities which were perceived by the plaintiff to be unlawful in the past as well. He submits that by the present amendment he merely seeks to place instances of such activities on record along with the documents which are relevant in that connection. As such he submits that there is no justification to deny the prayers contained in the present application. In my view subject to reserving the right of the defendant to admit and deny the documents which are being placed on record along with the present application as well as to refute the averments on facts or in law as contained in the amendments now being sought to CS(COMM) 300 2021 be made there is no real justification for refusing to take the amendments on record. 11. The law with regard to Order VI Rule 17 of the CPC is well settled. Amendments which seek to alter the case set out in the plaint orintroduce a new cause of action orseek to introduce causes of action which are barred by time orwhich are intended to overcome an objection taken by the defendant in the written statement or in the reply filed in response to the plaint may be justifiably refused. In all other cases the law is that amendments ordinarily ought to be allowed where the Court is of the opinion that they are necessary in order for a complete adjudication of the lis between the parties. 12. The position in law in this regard stands settled by the judgment of the Supreme Court in Mount Mary Enterprises v. M s. Jivratna Medi Treat Pvt Ltd1 and Ramesh Kumar Agarwal v. Rajamala Exports Ltd2 to which Mr. Bharath has drawn my attention. The relevant passages from the said decisions may be reproduced thus: From Mount Mary Enterprises “7. In our opinion as per the provisions of Order 6 Rule 17 of the Civil Procedure Code the amendment application should be normally granted unless by virtue of the amendment nature of the suit is changed or some prejudice is caused to the defendant. In the instant case the nature of the suit was not to be changed by virtue of granting the amendment 14 SCC 182 25 SCC 337 CS(COMM) 300 2021 application because the suit was for specific performance and initially the property had been valued at Rs 13 50 000 but as the market value of the property was actually Rs 1 20 00 000 the appellant plaintiff had submitted an application for amendment so as to give the correct value of the suit property in the plaint.” 10. With regard to the amendment of the plaint the following observation has been made by this Court in North Eastern Railway Admn. v. Bhagwan Das3 “16. Insofar as the principles which govern the question of granting or disallowing amendments under Order 6 Rule 17 CPCare concerned these are also well settled. Order 6 Rule 17 CPC postulates amendment of pleadings at any stage of the proceedings. In Pirgonda Hongonda Patil 4 which still holds the v. Kalgonda Shidgonda Patil field it was held that all amendments ought to be allowed which satisfy the two conditions: of not working injustice to the other side and of being necessary for the purpose of determining the real the parties. Amendments should be refused only where the other party cannot be placed in the same position as if the pleading had been originally correct but amendment would cause him an injury which could not be compensated in costs.” in controversy between Emphasis supplied) From Ramesh Kumar Aggarwal “19. In Rajkumar Gurawara v. S.K. Sarwagi & Co. this Court considered the scope of amendment of pleadings before or after the commencement of the trial. In para 18 this Court held as under: “18. … It is settled law that the grant of application for amendment be subject to certain conditions namely 38 SCC 511 4 AIR 1957 SC 363 : 1957SCR 595 514 SCC 364 CS(COMM) 300 2021 when the nature of it is changed by permitting amendment when the amendment would result in introducing new cause of action and intends to iii) when allowing amendment application defeats the law of limitation.” the other party In Revajeetu Builders & Developers 20. Narayanaswamy & Sons6 this Court once again considered the scope of amendment of pleadings. In para 63 it concluded as follows: “Factors to be taken into consideration while dealing with applications for amendments 63. On critically analysing both the English and Indian cases some basic principles emerge which ought to be taken into consideration while allowing or rejecting the application for 1) whether the amendment sought is for proper and effective adjudication of the case 2) whether amendment is bona fide or mala fide the amendment should not cause 3) such prejudice to the other side which cannot be compensated adequately in terms of money refusing amendment would in fact lead to injustice or lead to multiple litigation 5) whether the proposed amendment changes the nature and character of the case and 6) as a general rule the court should 610 SCC 84 CS(COMM) 300 2021 decline amendments if a fresh suit on the amended claims would be barred by limitation on the date of application. These are some of the important factors which may be kept in mind while dealing with application filed under Order 6 Rule 17. These are only illustrative and not 21. It is clear that while deciding the application for amendment ordinarily the court must not refuse bona fide legitimate honest and necessary amendments and should never permit mala fide and dishonest amendments. The purpose and object of Order 6 Rule 17 of the Code is to allow either party to alter or amend his pleadings in such manner and on such terms as may be just. Amendment cannot be claimed as a matter of right and under all circumstances but the courts while deciding such prayers should not adopt a hypertechnical approach. Liberal approach should be the general rule particularly in cases where the other side can be compensated with costs. Normally amendments are allowed in the pleadings to avoid multiplicity of litigations. 22. In view of the fact that the amendment application came to be filed immediately after the filing of the suit i.e. before the commencement of the trial and taking note of the fact that the learned Single Judge confined the relief only to a certain extent and also that in the proposed amendment the plaintiff wants to explain how the money was paid though necessary averments in the form of foundation have already been laid in the original plaint we hold that by this process the plaintiff is not altering the cause of action and in any way prejudice the defendants.” 13. The principles enumerated when applied to the present case all justify grant of the Emphasis supplied) in Revajeetu Builders & prayer to amend the plaint. CS(COMM) 300 2021 14. Regarding the objection of Mr. Lall relatable to Order XI Rule 1(1) andof the CPC as amended by the Commercial Courts Act 2015 I am of the opinion that Order XI Rule 1(1) andof the CPC really does not arise for consideration as it deals with the right of the plaintiff to rely on documents which are on record. The stage of reliance is yet to be reached and it would always open to the defendant to oppose the right of the plaintiff to rely on the documents which are on record. 15. Regarding Order XI Rule 1(1) andof the CPC Mr. Bharath has pointed out that while it is true that with the plaint the statement of truth filed by the plaintiff stated that all documents in the custody and control of the plaintiff were being filed with the plaint IA 7637 2021 nonetheless sought permission to rely on additional documents which may not have been at that stage in the custody of the plaintiff. Para 7 of the present application Order VI Rule 17 of the CPC reads thus: It is humbly submitted that even now the Plaintiff is “7. having limited access to the documents that are spread across its offices in various countries which are under different stages of lockdown with no or partial access to office and records. It is to be noted that the Plaintiff is still in the process of collecting evidence pertaining to the unlawful activities of the Defendant its subsidiaries and affiliates. Nevertheless the Plaintiff humbly submits that it undertakes to file other additional documents regarding the above mentioned and place it on record as and when it is accessible and made available to the Plaintiff.” 16. Mr. Bharath submits that the documents now being sought to be placed on record were documents which were not in the custody of the plaintiff at the time when the plaint was filed and have thereafter CS(COMM) 300 2021 come into the custody of the plaintiff. As such he submits that there can be no justification to reject the present application on the ground that it seeks to introduce additional documents especially as the documents have been filed within the period granted by this Court vide order dated 5th July 2021 in IA 7637 2021 which was never assailed by the defendant at any point of time. 17. The submissions of Mr Bharath merit acceptance. 18. Further a perusal of the averments which are sought to be introduced by way of the present amendment vis a vis those which are already contained in the plaint indicates that no fresh cause of action is sought to be pleaded and that the amendment cannot be treated as an attempt to overcome an objection which has been taken by the defendant in the written statement as no written statement has been filed till date. In this view of the matter there is no justifiable reason to refuse the prayer for amendment as contained in the present application. As the amendment merely seeks to refer to specific instances in support of the assertions in the plaint I am of the opinion that it would be necessary for a complete adjudication of the dispute between the parties that the averments as sought to be introduced by the amendments are permitted to be taken on record irrespective of the merits and demerits thereof. 19. Besides I am also in agreement with the submission of Mr. Bharath that permitting the present amendments to be taken on record would really not result in any prejudice to the defendant. The CS(COMM) 300 2021 defendant is at complete liberty to refute or rebut the assertions which are sought to be introduced by way of the present amendments. The right of the defendant to admit or deny the documents which have been filed in support therewith would also remain available to it. 20. The defendant has fairly not assailed the prayer for amendment of the plaint as lacking in bona fides. In view of the aforesaid observations the prayer for amendment in my view deserves to be allowed. 22. Accordingly IA 9051 2021 stands allowed in terms of the prayers made therein. The right of the defendant to refute the assertions introduced by way of present amendments therefore also remains alive. The period of four weeks for filing the written statement granted to the defendant shall stand reckoned from today. CS(COMM) 300 2021 23. List the matter before the Joint Registrar for completion of th October 2021. The date of 1st pleadings etc. on 12 September 2021 already fixed before the Joint Registrar stands cancelled. C. HARI SHANKAR J. AUGUST 27 2021 r.bararia CS(COMM) 300 2021

Amendments made in the year 2014 and 2018 to the Companies Act, 2013 are prospective: Calcutta High Court

Amendments made in the year 2014 to Section 164(2) and 2018 amendment to proviso to Section 167(1)(a) of the Companies Act, 2013 are prospective in nature and a retrospective application would be anomalous, absurd, unreasonable and could potentially ruin the economy. The Sections deals with the disqualification of director of a company for not filing financial statements for a continuous period of three years and/or balance sheet within thirty days of the date of the Annual General Meeting. This ratio was laid down by the Calcutta High Court presided over by J. S. Bhattacharya in the case of Naresh Kumar Poddar Vs. Union of India, [W.P.O. No. 439 of 2019]. The director of a private company was disqualified by a 2017 notification for the period between November 2016 and October 2021. Hence, he filed a Petition in the High Court stating that the notice was not applicable to him as the amendment is prospective and nit retrospective. He further alleged that The impugned notice disqualifying the petitioner for five years from November 1, 2016 to October 31, 2021 is premature and untenable at law. The High Court after analyzing the Section and Amendments was of the opinion that the disqualification of a director through a retrospective application of an amendment was patently penal in nature and this has violated the fundament right under Article 19(g) of the Constitution which is a right to practice any profession or occupation, trade or business. The Court with consequences of the retrospective application was of the opinion that, “If retroactive effect is given thereto, and would entail the directors suffering a grievous violation of their fundamental right under Article 19(1)(g) of the Constitution without any possibility of the directors, or anyone for that matter, having been able to predict such consequence on the relevant date, that is, the date of such default. In such a factual scenario, it cannot be argued by reasonable prudence that a retroactive effect ought to be given to the amendment-in-question. This is an irreconcilable anomaly that would befall the directors if retrospective/retroactive effect is given to the amendments-in-question, not justiciable even by applying Article 19(6) of the Constitution.”

In The High Court at Calcutta Constitutional Writ Jurisdiction Original Side The Hon’ble Justice Sabyasachi Bhattacharyya W.P.O. No. 4919 Naresh Kumar Poddar Union of India through Secretary Ministry of Corporate Affairs and another For the petitioner For the respondent Hearing concluded on Judgment on : Mr. Palash Tiwari Mr. Mainak Swarnokar Mr. Avinash Kankani The Court: 1. The petitioner was a director of a Private Limited Company namely Lambodar Vinimay Private Limited incorporated on January 27 2009. 2. Vide public notice no. ROC WB STK 2017 1 dated April 7 2017 it was the name of the said company would stand removed struck off from the Register of Companies within 30 days from the date of the notice under Section 248(1) of the Companies Act 2013 hereinafter referred to as “the 2013 Act”). Accordingly the petitioner’s Director Identification Number and Digital Signature Certificate DSC) were deactivated under Section 164(2) of the 2013 Act with effect from November 1 2016 till October 3 2021. The present writ petition 2 has been preferred challenging such disqualification of the petitioner by the impugned notice dated April 7 2017. 3. Learned counsel for the petitioner argues that sub sectionof Section 164 of the 2013 Act came into force from April 1 2014 and can apply only prospectively. Thus the three financial years non filing of the annual return and financial statement of the company for which would make the petitioner liable for deactivation of his DIN would commence from April 1 2014. The relevant three financial years would be 2014 2015 2015 2016 and 2016 2017 covering the period from April 1 2014 to March 31 2017. Hence it is argued the deactivation of the DIN with effect from November 1 2016 was patently illegal. 4. The petitioner further argues that the last date for filing financial statements for the third financial year was October 30 2017 and July 27 2018as per Section 403 of the 2013 Act which provides for an additional period of 270 days. Thus in any event no question of disqualification of the petitioner arose before the expiry of the said period. 5. Learned counsel for the petitioner next submits that the proviso to Section 167(1)(a) was inserted by the Amendment of Act of 2018 with effect from May 7 2018. The said provision reads as follows: “Section 167: Vacation of office of director The office of a director shall become vacant in case 3 a) he incurs any of the disqualifications specified in section 164: Provided that where he incurs disqualification under sub section of section 164 the office of the director shall become vacant in all the companies other than the company which is in default under that sub section It is contended that such proviso would be applicable to companies whose names are struck off only after the introduction of the 2018 Amendment that is after May 7 2018 and could not be invoked in the case of the petitioner. 7. The proviso prior to the 2018 Amendment read as follows: “Provided that the office shall be vacated by the director even if he has filed an appeal against the order of such Court ” and did not contemplate the vacancy of the office of the director in respect of companies other than the defaulting company. 8. Learned counsel places reliance on Keshavan Madhava Menon vs. State of Bombay reported at AIR 1951 SC 128 to submit that every statute is presumed to be prospective unless the contrary is specifically stipulated. Thus the operation of the amended Section 164(2) and the amended proviso to Section 167(1)(a) of the 2013 Act would not be operative prior to April 2014 and May 2018 respectively. 9. Learned counsel for the petitioner contends that a conjoint reading of Sections 92 96 137 and 403 of the 2013 Act makes it clear that a copies of the annual returns of the company and of the financial statements 4 thereof have to be filed within 60 days and 30 days respectively from the date on which the Annual General Meetingis held. The AGM has to be held once in the financial year within six months from the date of closing of the financial year latest before expiry of 15 months from the last AGM. The first proviso to Section 403(1) allows documents to be submitted filed or registered within a period of 270 days from the date by which they could have been submitted on the payment of additional prescribed fees. The second proviso thereto allows the same to be filed even after the said period of 270 days without prejudice to any other legal action or liability under the 2013 Act. It is submitted that such provisions ought to be construed to the effect that the petitioner’s company could have filed its annual returns latest by November 30 and financial statements by October 30 of the relevant financial year ending on March 31 even without availing of the additional period of 270 days. 10. Thus the director of the company would incur disqualification or be ineligible to be reappointed as director of a company or appointed in any other company for five years for defaults under Section 164(2)(a) only after October 30 or November 30 as the case may be of the year 2017. The impugned notice disqualifying the petitioner for five years from November 1 2016 to October 31 2021 is premature and untenable at law. 5 11. Learned counsel for the petitioner reiterates the proposition that no retrospective effect can be given to the amended Section 164(2)(a). 12. By citing Dilip Kumar Sharma and others vs. State of Madhya Pradesh AIR 1976 SC 133] and Tolaram Relumal and another vs. State of Bombay AIR 1954 SC 496] it is submitted that when two interpretations are possible the one favouring the subject ought to be made applicable especially in case of a penal statute. By relying on State of Madhya Pradesh vs. Narmada Bachao Andolan and another 7 SCC 639] learned counsel submits that an interpretation which is just fair and sensible should be made and not one which results in drastic 13. Learned counsel further argues that a DIN once allotted by the Central Government to a particular director is valid for her his lifetime allowing her him to become director in other companies as well. There is no provision defining a “disqualification of director” at least with regard to Section 154(2) of the 2013 Act though Rule 11 of the relevant Rules provides for cancellation surrender or deactivation of DIN under certain circumstances. Since such circumstances do not arise in the present case the company being struck off could not necessarily imply the cancellation deactivation of its director that is the petitioner. 6 following judgments: 14. In support of his contentions counsel for the petitioner cites the Name of the parties Case No. 1 Mrs. Sunita Jain & Ors. Vs. Union of India & Ors. WPC 7367 2018 Dated: 18.03.2018 Arun Seth vs. Union of India M.A.T. 1874 2017 Dated 15.11.2017 Kshitij Dattaray Shah vs. Union of India W.P. 802 2018 Dated 26.03.2018 Shah Vs. Union of India Dated 18.12.2018 Sunita Mehta Ministry of Corporate affairs W.P. 2729 19 Dated 13.02.2019 Dhananjaya Das v s Union of India Dated 03.08.2018 Yashodhara Shroff Vs. Union of India Dated 12.06.2019 Siddharth Gupta & Another Vs. Union of India & Another Dated: 25.04.2019 High Court of Delhi High Court of Calcutta High Court of Bombay High Court of Gujrat High Court of Telengana High Court of Madras High Court of Karnataka High Court 15. Learned counsel for the respondents on the other hand submits that the petitioner stood disqualified by operation of Section 164(2)(a) and Section 167(1)(a) of the 2013 Act which cannot be read in isolation. 7 Default as per the said provisions is triggered for not filing financial statements for a continuous period of three years and or balance sheet within thirty days of the date of AGM. 16. The said provisions it is submitted do not envisage any adjudicatory hearing to be provided to the errant company or concerned directors. The action taken for such default is through operation of the prevalent mandate of the 2013 Act. Disqualification of the petitioner is the consequence of operation of law and there is no scope of following principles of natural justice as there is no discretion with the authorities to take recourse to any other procedure or to arrive at any other decision conclusion. 17. Learned counsel for the respondents next contends that the nature of Section 164 of the 2013 Act is ‘disqualifying’ and not penal. Penal consequence for not filing financial statements is envisaged under Section 137 of the 2013 Act which corresponds to Section 220 of the Companies Act 1956. The penal consequence for not filing annual returns is envisaged under Section 92 of the 2013 Act corresponding to Sections 159 and 162 of the 1956 Act. Thus penal consequences are provided for separately in both the 1956 and 2013 Acts. 18. Section 164 of the 2013 Act however is disqualifying in nature and not penal in the sense of criminal law and hence retrospective in nature. The amended Section 164 merely creates a disability to be appointed or 8 continue as a director in respect of a past event and no new penal 19. Section 164 read with Section 167 of the 2013 Act is clearly intended to provision has been introduced. be retrospective in operation. 20. The original provision that is Section 167(1)(a) created a paradoxical situation as the office of all directors in a Board would become vacant when they were disqualified under Section 164(2) and a new person could not be appointed as a director as they would also attract such a disqualification. Thus it is argued the newly introduced proviso to Section 167(1)(a) of the 2013 Act is curative and declaratory in nature. A proviso is added to an enactment to qualify or create an exception to the enactment and ordinarily is not interpreted as stating a general rule. A proviso inserted to remedy unintended consequences and to make the provision workable supplying an obvious omission in the section and required to be read into the section to give the latter a reasonable interpretation requires to be treated as retrospective in operation so that a reasonable interpretation can be given to the section as a whole. 21. As regards principles of natural justice learned counsel for the respondents reiterates that neither Section 164(2)(a) nor Section 167(1)(a) of the 2013 Act envisages any adjudicatory hearing to the errant companies or concerned directors. Action is taken thereunder by operation of law that is the 2013 Act. Such disqualification is an 9 hearing. automatic consequence by operation of law and there is no scope of the authorities exercising any discretion thus negating any scope of 22. Learned counsel for the respondents cites the following judgments: Name of the parties Gautam Mehra vs. Union of India W.P.A. 227919 Vijay vs. State of Maharashtra & Ors. 2006) 6 Supreme Court Cases 289 K. Prabhakaran vs. P Jayarajan 2005) 1 Supreme Court Cases 754 State of Bombayvs. Vishnu Ramchandra All India Reporter 1961 Supreme Court 307 Shah Bhojraj Kuverji Oil Mills and Ginning Factory vs. Subhash Chandra Yograj Sinha All India Reporter 1961 Supreme Court 1596 Allied MotorsLimited vs. Commissioner of Income Tax Delhi 1997) 3 Supreme Court Cases 472 Punjab National Bank and Others vs. Manjeet Singh & Another 2006) 8 Supreme Court Cases 647 W.P. No. 700(W) of 2020 Subhas Kumar Biswas vs. Union of India & Ors. W.P. No. 2619 Imraj Ali Molla vs. Union of India and Others 10 W.P. No. 4282(W) of 2018 Mukul Somany & Anr. vs. Registrar of Companies & Anr. 11 W.P. No. 5774(W) of 2020 Sourajit Ghosh vs. Union of India & Ors. 23. The legal questions posed in the present case are: i) Whether Section 164(2)(a) as introduced by the 2014 Amendment and the proviso to Section 167(1)(a) as 10 introduced by the 2018 Amendment are prospective retrospective or retroactive in nature and ii) Whether there is any scope for giving opportunity to the defaulting company or its directors to represent against the disqualification under Section 164 read with Section 167 of the 2013 Act. broad questions. 24. The other questions raised by the parties are corollaries of the above two 25. For the sake of brevity the second question posed above is taken up first for resolution. A clear reading of Section 164(2) and Section 167(1)(a) both with the corresponding provisos leaves no scope of any discretion on the part of the authorities in case of a company incurring the defaults as contemplated therein. It is well settled that the rules of natural justice can only be applied if an opportunity of hearing representation is of relevance and affects the outcome of the procedure. In the absence of any discretion of the authorities since the disqualification under the said sections is automatic on the perpetration therein representation hearing to the defaulter would merely be an exercise in futility. Thus question as formulated above is answered in the negative. 11 26. While dealing with questionabove some of the provisions of the 2013 Act are required to be considered. Those are as follows: “92. Annual return. Every company shall prepare a returnin the prescribed form containing the particulars as they stood on the close of the financial year regarding subsidiary and associate companies a) its registered office principal business activities particulars of its holding b) its shares debentures and other securities and shareholding pattern c) Omitted by Act 18 S. 23(i)(a). Prior to its omission Cl.read as under: “(c) its indebtedness ”.] of the previous financial year d) its members and debenture holders along with changes therein since the close e) its promoters directors key managerial personnel along with changes therein since the close of the previous financial year f) meetings of members or a class thereof Board and its various committees along with attendance details g) remuneration of directors and key managerial personnel h) penalty or punishment imposed on the company its directors or officers and details of compounding of offences and appeals made against such penalty or punishment prescribed i) matters relating to certification of compliances disclosures as may be j) details as may be prescribed in respect of shares held by or on behalf of the Foreign Institutional Investors and 12 k) such other matters as may be prescribed and signed by a director and the company secretary or where there is no company secretary by a company secretary in practice: Provided that in relation to One Person Company and small company the annual return shall be signed by the company secretary or where there is no company secretary by the director of the company: Provided further that the Central Government may prescribe abridged form of annual return for "One Person Company small company and such other class or classes of companies as may be prescribed. 2) The annual return filed by a listed company or by a company having such paid up capital and turnover as may be prescribed shall be certified by a company secretary in practice in the prescribed form stating that the annual return discloses the facts correctly and adequately and that the company has complied with all the provisions of this Act. Board s report. 3) Every company shall place a copy of the annual return on the website of the company if any and the web link of such annual return shall be disclosed in the 4) Every company shall file with the Registrar a copy of the annual return within sixty days from the date on which the annual general meeting is held or where no annual general meeting is held in any year within sixty days from the date on which the annual general meeting should have been held together with the statement specifying the reasons for not holding the annual general meeting with such fees or additional fees as may be prescribed (w.e.f. 7 5 2018)]. 5) If a company fails to file its annual return under sub sectionbefore the expiry of the period specified therein the company shall be punishable with fine which shall not be less than fifty thousand rupees but which may extend to five lakhs rupees and every officer of the company who is in default shall be punishable with 13 imprisonment for a term which may extend to six months or with fine which shall not be less than fifty thousand rupees but which may extend to five lakh rupees or with both. 6) If a company secretary in practice certifies the annual return otherwise than in conformity with the requirements of this section or the rules made thereunder he shall be punishable with fine which shall not be less than fifty thousand rupees but which may extend to five lakh rupees. 96. Annual general meeting. Every company other than a One Person Company shall in each year hold in addition to any other meetings a general meeting as its annual general meeting and shall specify the meeting as such in the notices calling it and not more than fifteen months shall elapse between the date of one annual general meeting of a company and that of the next: Provided that in case of the first annual general meeting it shall be held within a period of nine months from the date of closing of the first financial year of the company and in any other case within a period of six months from the date of closing of the financial year : Provided further that if a company holds its first annual general meeting as aforesaid it shall not be necessary for the company to hold any annual general meeting in the year of its incorporation: Provided also that the Registrar may for any special reason extend the time within which any annual general meeting other than the first annual general meeting shall be held by a period not exceeding three months. 2) Every annual general meeting shall be called during business hours that is between 9 a.m. and 6 p.m. on any day that is not a National Holiday and shall be held either at the registered office of the company or at some other place within the city town or village in which the registered office of the company is situate: Provided that annual general meeting of an unlisted company may be held at any place in India if consent is given in writing or by electronic mode by all the members in 14 Provided further that the Central Government may exempt any company from the provisions of this sub section subject to such conditions as it may impose. Explanation.—For the purposes of this sub section "National Holiday" means and includes a day declared as National Holiday by the Central Government. 137. Copy of financial statement to be filed with Registrar. A copy of the financial statements including consolidated financial statement if any along with all the documents which are required to be or attached to such financial statements under this Act duly adopted at the annual general meeting of the company shall be filed with the Registrar within thirty days of the date of annual general meeting in such manner with such fees or additional fees as may be prescribedare not adopted at annual general meeting or adjourned annual general meeting such unadopted financial statements along with the required documents under sub sectionshall be filed with the Registrar within thirty days of the date of annual general meeting and the Registrar shall take them in his records as provisional till the financial statements are filed with him after their adoption in the adjourned annual general meeting for that purpose: Provided further that financial statements adopted in the adjourned annual general meeting shall be filed with the Registrar within thirty days of the date of such adjourned annual general meeting with such fees or such additional fees as may be prescribed(w.e.f. 7 5 2018)]: Provided also that a One Person Company shall file a copy of the financial statements duly adopted by its member along with all the documents which are 15 required to be attached to such financial statements within one hundred eighty days from the closure of the financial year: Provided also that a company shall along with its financial statements to be filed with the Registrar attach the accounts of its subsidiary or subsidiaries which have been incorporated outside India and which have not established their place of business in English. Provided also that in the case of a subsidiary which has been incorporated outside Indiawhich is not required to get its financial statement audited under any law of the country of its incorporation and which does not get such financial statement audited the requirements of the fourth proviso shall be met if the holding Indian company files such unaudited financial statement along with a declaration to this effect and where such financial statement is in a language other than English along with a translated copy of the financial statement in 2) Where the annual general meeting of a company for any year has not been held the financial statements along with the documents required to be attached under sub section duly signed along with the statement of facts and reasons for not holding the annual general meeting shall be filed with the Registrar within thirty days of the last date before which the annual general meeting should have been held and in such manner with such fees or additional fees as may be prescribed (w.e.f. 7 5 2018)]. 3) If a company fails to file the copy of the financial statements under sub section 1) or sub section as the case may be before the expiry of the period specified therein the company shall be punishable with fine of one thousand rupees for every day during which the failure continues but which shall not be more than ten lakh rupees and the managing director and the Chief Financial Officer of the company if any and in the absence of the managing director and the Chief Financial Officer any other director who is charged by the Board with the responsibility of complying with the provisions of this section and in the absence of any such director all the directors of 16 the company shall be punishable with imprisonment for a term which may extend to six months or with fine which shall not be less than one lakh rupees but which may extend to five lakh rupees or with both. …. 403. Fee for filing etc. Any document required to be submitted filed registered or recorded or any fact or information required or authorised to be registered under this Act shall be submitted filed registered or recorded within the time specified in the relevant provision on payment of such fee as may be prescribed: Provided that where any document fact or information required to be submitted filed registered or recorded as the case may be under section 92 or 137 is not submitted filed registered or recorded as the case may be within the period provided in those sections without prejudice to any other legal action or liability under this Act it may be submitted filed registered or recorded as the case may be after expiry of the period so provided in those sections on payment of such additional fee as may be prescribed which shall not be less than one hundred rupees per day and different amounts may be prescribed for different classes of companies: Provided further that where the document fact or information as the case may be in cases other than referred to in the first proviso is not submitted filed registered or recorded as the case may be within the period provided in the relevant section it may without prejudice to any other legal action or liability under this Act be submitted filed registered or recorded as the case may be on payment of such additional fee as may be prescribed and different fees may be prescribed for different classes of Provided also that where there is default on two or more occasions in submitting filing registering or recording of the document fact or information it may without prejudice to any other legal action or liability under this Act be submitted filed registered or recorded as the case may be on payment of a higher additional fee as may be prescribed and which shall not be lesser than twice the additional fee provided under the first or the second proviso as applicable. 17 2) Where a company fails or commits any default to submit file register or record any document fact or information under sub section before the expiry of the period specified in the relevant section the company and the officers of the company who are in default shall without prejudice to the liability for the payment of fee and additional fee be liable for the penalty or punishment provided under this Act for such failure or default. 27. Section 92(4) provides that every company shall file with the Registrar of Companies a copy of its annual return within 60 days from the date on which the AGM is held or should have been held with consequent compliance of deposit of fees additional fees as prescribed. Sub section of Section 92 stipulates the pecuniary penalty visiting non compliance of sub sectionon the other hand grants 30 days from the date of AGM or when not adopted at an AGM or adjourned AGM provisional filing of financial statements subject to filing within 30 days of the date of adjourned AGM in case of financial statements of a company. 29. Section 96 of the 2013 Act provides for AGM which is to be held not more than 15 months after the date of the previous AGM and within a period of 6 monthsfrom the date of closing of the financial year. 30. Section 403 of the 2013 Act stipulates the documents and fees to be filed by a company. The provisos to Section 403 envisage delayed filing of 18 such document fact or information as required under Section 92 or 137 of the 2013 Act upon payment of additional fee as prescribed. 31. A conjoint reading of the aforesaid provisions reveals that non compliance of the provisions regarding filing submission of annual returns and financial statements by a company as envisaged in Sections 92 and 137 of the 2013 Act shall result in pecuniary fines as penalty nothing more nothing less. 32. However the scenario has completely changed with the introduction of the 2014 Amendment to Section 164(2) with effect from April 1 2014. The directors of a defaulting company now become liable contravention of Sections 92 and 137 to ineligibility for re appointment as a director of that company or appointment in any other company for a period of five years from the date of default. This consequence has been newly introduced and had no parallel in the 2013 Act or for that matter in the 1956 Act. Similarly before the amendment to Section 167(1)(a) by way of a proviso with effect from May 7 2018 there was no provision in the 2013 or 1956 Act which automatically vacated the office of the director in all companies other than the defaulting company in case a director incurs disqualification under sub sectionof Section 164. 33. Although the aforesaid provisions “disqualify” the directors for a span of five years the effect of such disqualification is patently penal in nature. Several provisions of the 2013 Actensure that the disqualification of a director entails the concerned director to be precluded not only from acting as director of the defaulting company but all other companies in which he is a director for a five year period which is sufficient to throw off the director from the limelight of competition by hitting at the root of her his goodwill and integrity. Nature abhors a vacuum which translates into the functioning of the concerned person in his capacity as director of companies to be replaced by others in the line of competition. The concerned director misses out on participation in company affairs for five crucial years and might lose relevance in the cut throat rat race of the corporate world. This directly affects the fundamental right of the director enshrined in Article 19(g) of the Constitution of India that is the right to practice any profession or to carry on any occupation trade or business. Although Article 19(6) clarifies that nothing in sub clauseof Article 19(1) shall affect the operation of any existing law insofar as it imposes or prevent the State from making any law imposing in the interests of the general public reasonable restrictions on the exercise of the right conferred by sub clausethe expression “reasonable” is not applicable to the scenario under discussion since the punishment of disqualification would be rather disproportionate with the offence more so if operative for a previous period of default when the director had no scope of apprehending the severe penalty to be meted out by a future 20 statutory amendment. Such disqualification would effectively screen off the director from his commercial activity for five crucial years which may witness an era of difference in technology and finance in the fast paced modern world. The specific instances given in Article 19(6) of the Constitution pertaining to any law relating to the professional or technical qualifications necessary for practicing any profession or carrying on any occupation trade or business or the carrying on by the State of any trade business industry or service whether to the exclusion complete or partial of citizens or otherwise are indicators as to the ratio behind Article 19(6) and are completely inapplicable to the situation at hand. 34. Thus even abiding by the ratio laid down by the Supreme Court in Vijay vs. State of Maharashtra and othersto the effect that the general rule of retrospective construction is not applicable to a disqualifying provision or to a curative or clarificatory statute the context of the disqualification is to be assessed in each particular case to appreciate whether it is ‘disqualifying’ merely by nomenclature but penal in effect or is uniformly disqualifying both in nomenclature and effect. The said report itself clarifies strongly that every law that takes away a right vested under the existing law is ordinarily retrospective in nature. Even if the intendment of the legislature in the present case is considered to be for the benefit of the community as a whole by streamlining the economy 21 nature. and shutting out recalcitrant operators if a literal reading of the provision giving retrospective effect produces absurdity or anomaly the same has to be construed to be only prospective and not retrospective in 35. Speaking of anomalies one should consider the practical implication of giving retrospective retroactive effect to the amended provisions of Section 164(2) and the proviso to Section 167(1)(a). Assuming that a company has failed to file its annual returns and or financial statements for three consecutive years ending between the enactment of the 2013 Act and before April 1 2014 and May 7 2018 the only consequence suffered by a director of the defaulting company would be in pecuniary penalty affecting the pocket of the director or the company at best but not visiting them with the grave consequence of depriving the director of her his livelihood for five crucial years. 36. As on the date when such default for three years ripens and reaches culmination it would not have been possible for the director to apprehend that the rigours of the 2014 or the 2018 Amendment would be breathing down their neck soon. 37. Now assuming retroactive effect is given to the 2014 and 2018 Amendments as on the date on which such amendments come into force that is April 1 2014 and May 7 2018 respectively the directors 22 would be removed from office not only in the defaulting company but in the other companies where they are directors despite no defaults having been committed by such other companies. In such a case the previous default would attract operation of the amendments if retroactive effect is given thereto and would entail the directors suffering a grievous violation of their fundamental right under Article 19(1)(g) of the Constitution without any possibility of the directors or anyone for that matter having been able to predict such consequence on the relevant date that is the date of such default. In such a factual scenario it cannot be argued by reasonable prudence that a retroactive effect ought to be given to the amendment in question. This is an irreconcilable anomaly that would befall the directors if retrospective retroactive effect is given to the amendments in question not justiciable even by applying Article 19(6) of the Constitution. 38. The relevant test here is not a mere lip service to public good but of the ground level impact of the amendment. Such an amendment would without fail be anomalous and absurd outlying the “reasonableness” envisaged in Article 19(6) of the Constitution and overreaching the justification for the ratio laid down in Vijay vs. State of Maharashtra and othersspecifies operation of its ratio to statutes which create no new punishment but authorize “some 23 action” based on past conduct and reaches out to statutes designed to protect the public against acts of a harmful character which it lays down may be considered retrospectively if the language admits of such an interpretation. The “harmful” nature of the act has to factor in the practical consequence of the act. Till April 1 2014 the consequence was mere pecuniary penalty. Thereafter more so after May 7 2018 the character of the offence itself was vilified to the extent of interdicting with the right of the concerned directors to practice their trade thereby changing the rules after commencement of the game. This itself is absurd even as per the standards laid down in State of Bombay vs. Vishnu Ramchandrais concerned even the Supreme Court observed in paragraph no. 11 thereof that the arguments advanced by the parties were interesting and much could be said on both sides particularly as the legislature had by a subsequent amendment changed the proviso therein. However in the facts of that case such question was not considered at length. A proviso it was observed is added to qualify or create an exception to an enactment and is not interpreted ordinarily to state a general rule. 41. Even otherwise the ratio said report is not applicable in the present circumstance. In the report a curtailment of the rights regarding a landlord tenant relationship was being considered. Rent control acts it 24 is well settled often afford a cloak of protection to tenants. Such protection is a creature of the statute in question and can be taken away even retrospectively in some cases by subsequent amendments. Directorship of a company however is an existing right guaranteed under the Constitution of India and is not any additional cloak of protection provided by subordinate legislation. In the latter case a new punishment is created not merely “some action” based on past conduct as contemplated in Vishnu Ramchandra the Supreme Court dealt with curative declaratory provisos and held those might have retrospective effect. However the amended provisions of Section 164 and Section 167 of the 2013 Act are not merely curative provisions. By virtue of the 2018 Amendment to Section 167 for example vacancy of the director’s office is contemplated in all companies other than the defaulting company which serious consequence cannot be relegated to the toothless domain of a mere curative provision. If effect is given to such a provision retrospectively the right guaranteed to directors under the Constitution of India itself would be obliterated for ‘offences’ committed without having any inkling or premonition of the future introduction of such provision. Thus Allied Motorsis not helpful for the respondents in the present case. 25 43. K. Prabhakarandeals with the right to contest an election which might be nipped in the bud by an amendment to the relevant law. However in the present case the existing right of directorship in companies is being considered. There is a sea of difference between the two inasmuch as an inchoate statutory right if not exercised would not prejudice an election candidate drastically whereas the erasing of the existing fundamental right to continue with one’s profession as in the case of directors of companies has serious economic and financial effects to the detriment of the directors affecting their livelihood. The two are not on equal footing and thus do not merit analogy. 44. Since Gautam Mehra differed with the proposition laid down in Subhas Kumar Biswas as to the prospectivity of the 2014 and 2018 amendments and also since Subhas Kumar Biswas was a product of the same logic delivering the present judgment propriety demands that the ratio laid down in Subhas Kumar Biswasis not assumed to be valid here to obviate any scope of bias in thought process. 45. Sourajit Ghoshrendered by a co ordinate Bench of this court did not consider Subhas Kumar Biswasor enter into all the questions raised in the present writ petition and hence can be kept out of the present discussion. As to the other judgments cited by the respondents only Gautam Mehrathe judgment of Justice Debangsu Basak of 26 this court has to be considered in serious light being relevant on the point and having discussed several other judgments of this court and others. The learned Single Judge examined the context of the amendments in question and the development of company law in recent years. The pre dominant logic in the said report was based on the Literal Rule of interpretation. It was held that principles of natural justice should not be applied mechanically and that if the statute itself permits consideration of periods of time anterior to the statute coming into effect a Government Circular could not override such statutory provisions. The premise of the report under consideration was that the cancellation of DIN occurs by virtue of a statute and is imperative to give effect to the disqualification suffered under statute. Justice Basak held that as was the scheme under the Act of 1956 a company governed by the Act of 2013 cannot have an existence ad infinitum if it continues to remain in default for non compliance of the statutory provisions which visits the company with stipulated consequences which are graded and are nuanced on the gravity of the situation. There are methods for curing such defaults as well. There being nothing in the amendments to prevent disqualification in case of previous defaults under Sections 92 and 137 of the 2013 Act for three years the learned Single Judge differed with the ratio of Subhas Kumar Biswasand Chetan Chokhani vs. Union of India and others 27 W.P. No. 21504(W) of 2019] but agreed with Mukul Somany and Sourajit Ghoshlarge operators but ruining the credibility and goodwill of small companies completely veering them off course. Sops in the form of credit incentives for MSMEs and other medium sector units have been 29 proved to be ineffective to alleviate such large scale economic disasters. This coupled with the automatic disqualification envisaged in the 2014 and 2018 amendments to the 2013 Act is sufficient to ruin the economy as a whole which somewhat counter intuitively is detrimental to the growth of the economy. Thus attributing retrospective retroactive effect to the said amendments would run contradictory to the purpose of public good. The simplistic approach of merely identifying non performers in an attempt to provide a fillip to commerce by a pseudo streamlining of the economy loses teeth in the broader perspective discussed above. 49. Taking into consideration the above factors and the ground level impact and practical impossibility of giving retrospective effect it cannot but be held that the operation of the 2014 and 2018 Amendments to the 2013 Act are prospective in nature. 50. To be specific the amendment to Section 164(2) with effect from April 1 2014 has to be applied prospectively. The three year default contemplated therein has to commence from the financial year 2014 2015 and end in the financial year 2016 2017of the 2013 Act is concerned the operation of such proviso has also to be construed prospectively by applying it to companies in default of Sections 92 and 137 of the 2013 Act only after May 7 2018. 30 51. On a conjoint reading of the provisions in proper perspective the distilled effect is that the DIN of directors of defaulting companies can only be deactivated for violations of Sections 92 and 137 of the 2013 Act commencing from April 1 2014 and such disqualification shall extend to other companies than the defaulting company as envisaged in the amended proviso to Section 167(1)(a) only in case the default takes place post May 7 2018. Needless to mention the deactivation of DIN for violation of pre existing Company Rules framed under the 2013 Act can happen within the limited scope of such Rules only and not on blanket non compliance of Sections 92 and 137 of the 2013 Act. 52. Since the above questions and factors did not fall for consideration in Gautam Mehra the ratio laid down therein does not impede the conclusion reached in the present case. 53. That apart in paragraph no. 69 of Gautam Mehra the learned Single Judge held that the decision on the topic as to why an event occurring prior to April 1 2014 can be taken into consideration for the purpose of considering whether a person suffered disqualification under Section 164 of the Act of 2013 need not detain the Court in considering the relief to be granted to the petitioner in that case. In paragraph nos. 95 and 96 of the report the learned Single Judge merely referred to the judgments considered therein and it was specified that in the facts of the said case the petitioner was not entitled to any relief as he had failed to 31 explain the delay in approaching the court and had not explained as to why the defaulting company did not avail of the condonation of delay scheme in vogue from time to time for which he stood disqualified to be a director by operation of provisions of Section 164(2)(a) of the Act of 2013. The learned Single Judge further clarified that since the views expressed therein were in conflict with Chetan Chokhani and Subhas Kumar Biswas but in consonance with Mukul Somany and another and Sourajit Ghosh there were conflicting views of this court on the same issue and it would be appropriate to invoke the provisions of Rule 26 of the Writ Rules of the High Court thus referring the said writ petition to a Division Bench. 54. As such there was no specific adjudication in Gautam Mehraon the question as to whether the operation of the amendments to Sections 164 and 167 of the 2013 Act is retrospective or prospective. Moreover there was no formulation of any particular question of law for reference but the writ petition was merely transferred under the general provisions of Rule 26 of the Writ Rules to be considered by a Division Bench. Hence there was no reference or adjudication on the questions which are in issue in the present case and thus Gautam Mehra does not operate as a precedent on such questions. In fact there was no reference on any specifically formulated question as contemplated under Chapter 32 Gautam Mehraof the Appellate Side Rules of this court in 55. Question as formulated above is thus answered to the effect that Section 164(2)(a) as introduced by the 2014 Amendment and the proviso to Section 167(1)(a) as introduced by the 2018 Amendment to the 2013 Act are prospective in operation. 56. W.P.O. No.493 of 2019 is thus allowed thereby setting aside the deactivation of DIN by virtue of the notice dated April 7 2017. 57. There will be no order as to costs. 58. Urgent certified website copies of this order if applied for be made available to the parties upon compliance with the requisite formalities. Sabyasachi Bhattacharyya J. )

Score Information Technologies Limited Vs. Gr Infra Projects Limited

Unilateral appointment of arbitrator is unsustainable  The petitioner filed the present petition under Sections 14 and 15 of the Arbitration and Conciliation Act, 1996 (hereinafter the ‘A&C Act’), inter alia, seeking that the mandate of the learned Sole Arbitrator unilaterally appointed by the respondent be terminated. According to the petitioner, the learned Arbitrator was de jure unable to act as an Arbitrator under the A&C Act. ISSUE BEFORE THE COURT:Whether the petitioner has waived the applicability of Section 12(5) of the A&C Act.RATIO OF THE COURT:The petitioner contended that the unilateral appointment of the arbitrator was contrary to various decisions including the judgment of the Supreme Court in Perkins Eastman Architects DPC and Anr. v. HSCC (India) Limited: Arbitration Application No 32 of 2019 decided on 26.11.2019.This court heavily relied upon Perkins Eastman judgement and held that in terms of the proviso to Sub-section 12(5) of the A&C Act, the parties may waive the applicability of Section 12(5) of the Act. However, the said waiver has to be (i) subsequent to the disputes having arisen; and (ii) made by way of “an express agreement in writing”. Concededly, in this case, there was no written agreement between the parties, whereby the petitioner has agreed to waive the applicability of Section 12(5) of the A&C Act.This Court was also unable to accept that the proceedings recorded by the Arbitrator would constitute such an express agreement in the facts of this case. The petitioner had pointed out that on that date, its representatives were not assisted by any counsel. It was also submitted by the petitioner that the proceedings of the day, which are not signed by the parties, incorrectly record that the petitioner had no objection for the appointment of the learned Arbitrator. The petitioner had immediately on receipt of the notice of appointment of the learned Arbitrator, had objected to such appointment.It was noted that the petitioner had in its letter dated 23.12.2019, clearly stated that it had not submitted to the jurisdiction of the learned Sole Arbitrator. Although the petitioner had not specifically referred to its objection to the respondent unilaterally appointing the learned Arbitrator, it nonetheless, had expressed its opposition to the appointment of learned Arbitrator. Thereafter, the petitioner had objected to the appointment of the learned Arbitrator and contended that the respondent had appointed the Arbitrator as a dilatory tactic to withhold the payments due to the petitioner.Thus, the court refused to accept that the petitioner had not objected to the appointment of the learned Arbitrator. Subsequently, by an email dated 10.09.2020, the petitioner had expressly stated that the unilateral appointment of the Tribunal is contrary to the decision of the Supreme Court in Perkins Eastman Architects DPC and Anr. v. HSCC (India) Limited (supra).DECISION HELD BY COURT:The petition was allowed.The mandate of learned Arbitrator unilaterally appointed by the respondent was terminated.Justice (Retired) R.C. Chopra, a former judge of this Court was appointed as the Sole Arbitrator to adjudicate the disputes that have arisen between the parties in connection with the Work Order dated 11.08.2015

IN THE HIGH COURT OF DELHI AT NEW DELHI Judgment delivered on: 28.01.2021 O.M.P.(COMM.) 59 2020 SCORE INFORMATION TECHNOLOGIES LIMITED GR INFRA PROJECTS LIMITED .... Petitioner ..... Respondent Advocates who appeared in this case: For the Petitioner: Mr Amar Dave Mr Gautam Narayan and Mr Pankaj Jain Advocates. For the Respondent: Mr H. S. Chandhok Mr Rajan Raj Ms Shikha Thakur and Mr Hriday Kochhar HON’BLE MR JUSTICE VIBHU BAKHRU VIBHU BAKHRU J The petitioner has filed the present petition under Sections 14 and 15 of the Arbitration and Conciliation Act 1996inter alia seeking that the mandate of the learned Sole Arbitrator appointed by the respondent be terminated. According to the petitioner the learned Arbitrator is de jure unable to act as an Arbitrator under the A&C Act. OMP(COMM) 59 2020 The disputes between the parties arise out of a contract whereby the respondent had sub contracted the work of “Trenching Laying Installation Testing of Optical Fiber Cable PLB Duct and accessories for construction of exclusive optical NLD backbone and optical access routes on turnkey basis for Defence Network for specified part of Package F totaling to 224 Kmin the State of West Bengal.” Bharat Sanchar Nigam Limitedhad invited tendersfor procurement supply trenching laying installation testing and maintenance of optical fiber cable PLB duct and accessories for construction of exclusive optical National Long Distance backbone and optical access routes on turnkey basis for the defence network. The tender was for the Network For Spectrumproject of the Ministry of Defence Government of India. The aforesaid works was divided into seven packages Packages A to G. The implementation of the project was undertaken jointly by BSNL and Project Implementation Core Group(COMM) 59 2020 averred that in the month of February 2015 A2Z Infra Engineering Limited further sub contracted the work to the respondent herein. On 20.02.2015 the respondent issued a Letter of Intentto the petitioner for executing the work relating to “obtaining ROW survey trenching laying installation commissioning of optical fiber cable PLB duct & accessories for construction of exclusive optical NLD backbone and optical access route for defence network for a specified part of Package F of 224 km approximately) in the State of West Bengal”. In terms of the said LOI the petitioner was called upon to issue a bank guarantee for an amount equivalent to 5% of the total work(COMM) 59 2020 Duct & Accessories for construction of Exclusive optical NLD Backbone & optical access route for Defense network for specified part of Package F totaling of 1056 Kmin the State of West Bengal and Sikkim”. It is averred that subsequently in the month of September 2015 BSNL accepted the appointment of the petitioner as a sub contractor for execution of part of Package F. The petitioner claims that the work awarded to it entailed providing thirty five links out of which the petitioner has completed sixteen links. The petitioner also avers that the said links were handed over and acceptance certificates for the same have been issued by BSNL and PICG. 10. The respondent alleges that the pace of the execution of the work has been slow and the petitioner has also abandoned part of the works. Accordingly on 03.10.2017 the respondent issued a show cause notice in terms of Clause 3.4 of the Work Order placed on the petitioner. 11. Thereafter under the cover of a letter dated 12.03.2019 the respondent terminated the Work Order placed on the petitioner alleging that the petitioner was responsible for inordinately delaying the execution of the contract awarded to it. 12. The petitioner claims that the delay in execution of the works was not attributable to the petitioner but for reasons beyond its control and those attributable to the respondent. OMP(COMM) 59 2020 In view of the disputes that had arisen between the parties the respondent issued a notice dated 23.11.2019 informing the petitioner that it had pursuant to Clause 23 of the Work Order appointed a sole Arbitrator to adjudicate the disputes between the parties. 14. The petitioner responded by a letter dated 17.12.2019 objecting to the termination of the Work Order and contesting the allegations levelled against it. 15. On 23.12.2019 the petitioner sent a letter to the respondent contending that the appointment of the Sole Arbitrator was wrongful illegal and contrary to the Arbitration Clause. The petitioner further stated that it had not submitted to the jurisdiction of the Arbitrator appointed by the respondent. 16. The first meeting of the Arbitral Tribunal was held on 07.01.2020. The respondent claims that the representatives of the petitioner present at the hearing had expressed that the petitioner had no objection for constitution of the Arbitral Tribunal consisting of the Sole Arbitrator appointed by the respondent. This is disputed by the petitioner. The petitioner claims that the proceedings recorded by the learned Arbitrator incorrectly record that the petitioner had no objection to the constitution of the Arbitral Tribunal. The petitioner further submits that its representatives were present but did not have the assistance of any counsel. At the material time the parties were attempting to arrive at an amicable resolution of the disputes. However they were unable to arrive at an amicable settlement. OMP(COMM) 59 2020 17. On 26.02.2020 the Arbitral Tribunal held its second hearing wherein it directed the respondent to file its Statement of Claims on or before 15.04.2020. 18. Thereafter both the parties sent mails to the Arbitral Tribunal. Whereas the respondent claimed that the petitioner was using dilatory tactics in delaying the proceedings the petitioner claimed that the respondent had invoked the Arbitration as a dilatory tactics to avoid making payments of its legitimate dues. The petitioner also stated that it was advised to file a Writ Petition before this Court for impleading the necessary stakeholders and it had done so. 19. On 10.09.2020 the petitioner sent an email to the Arbitrator inter alia informing the learned Arbitrator that it had filed a Writ Petition W.P.(C) 6174 2020] before this Court. The petitioner also stated that it was resorting to taking appropriate remedies against the claimant for wrongful and illegal invocation of Arbitration as well as the unilateral appointment of the Arbitral Tribunal. The petitioner contended that the same was contrary to various decisions including the judgment of the Supreme Court in Perkins Eastman Architects DPC and Anr. v. HSCC India) Limited: Arbitration Application No 32 of 2019 decided on 26.11.2019. Thereafter on 29.09.2020 the petitioner filed the present petition. Discussions and Conclusion OMP(COMM) 59 2020 20. Before proceeding further it would be relevant to refer to the Arbitration Clause as included in the General Conditions of Contract GCC) which form a part of the Work Order. Clause 23 of the GCC is reproduced below: “23. DISPUTE RESOLUTION validity If any dispute arises between the parties hereto during the subsistence of this Work Order or thereafter including in connection with interpretation implementation of any alleged breach of any provision of this Work Order or relating to any question with reference to or in connection with the work order including the question as to whether any termination of this Work Order has been legitimate the parties hereto shall endeavour to settle such dispute amicably within 30 days from arising of the dispute by either of the parties in writing to other party mentioning the exact nature of the subject in dispute. In case the said dispute could not be resolved amicably within the said period of 30 days then immediately upon expiry of the said period in a written communication by either party to the dispute shall inform the other party that the subject matter in dispute shall be referred to arbitration. The arbitration shall be in accordance with the Arbitration and Conciliation Act 1996 including any statutory amendments made thereof. The arbitration proceedings shall be conducted by a sole arbitrator appointed by the Company. In case of a dispute the Company shall appoint the sole arbitrator and send notice to such appointment in writing to the Contractor. The sole arbitrator shall give the award as expeditiously as possible. The award of the sole arbitrator shall be binding on the parties. The venue of the arbitration as OMP(COMM) 59 2020 mutually agreed by the parties to this Work Order shall be exclusively and only held in New Delhi. It is mutually agreed between the parties hereto that Courts in New Delhi subject to the aforesaid shall have exclusive jurisdiction. During the process of arbitration the Order should be executed with no interruption any party defaulting in performing their scope of work prior or during the subsistence or after the award has been made but before it is enforced as a rule of the court shall be held liable for the cost incurred by the other party parties for executing the scope of work of the defaulting party.” 21. The petitioner contends that although the Arbitration Clause provides for the unilateral appointment of a Sole Arbitrator by the respondent such an appointment is not permissible in view of the decisions of the Supreme Court in Perkins Eastman Architects DPC and Anr. v. HSCCLimited267 DLT 51 in support of his contention that unilateral appointment of the learned Arbitrator is not permissible. In addition he also referred to the decisions of the Supreme Court in Bharat Broadband Network Limited v. United Telecoms Limited: 2019) 5 SCC 755 in support of his contention that a petition for terminating the mandate of an Arbitrator who is ineligible under Section 12(5) of the A&C Act and for the appointment of another Arbitrator in his place is maintainable and it is not necessary for a party to challenge the learned Arbitrator under Section 13 of the A&C Act. OMP(COMM) 59 2020 In Perkins Eastman Architects DPC and Anr. v. HSCCLimited the Supreme Court had following the principle enunciated in its earlier decision in TRF Limited v. Energo Engineering Projects Limited:8 SCC 377 observed as under: “20. We thus have two categories of cases. The first similar to the one dealt with in TRF Limited where the Managing Director himself is named as an arbitrator with an additional power to appoint any other person as an arbitrator. In the second category the Managing Director is not to act as an arbitrator himself but is empowered or authorised to appoint any other person of his choice or discretion as an arbitrator. If in the first category of cases the Managing Director was found incompetent it was because of the interest that he would be said to be having in the outcome or result of the dispute. The element of invalidity would thus be directly relatable to and arise from the interest that he would be having in such outcome or decision. If that be the test similar invalidity would always arise and spring even in the second category of cases. If the interest that he has in the outcome of the dispute is taken to be the basis for the possibility of bias it will always be present irrespective of whether the matter stands under the first or second category of cases. We are conscious that if such deduction is drawn from the decision of this Court in TRF Limited all cases having clauses similar to that with which we are presently concerned a party to the agreement would be disentitled to make any appointment of an Arbitrator on its own and it would always be available to argue that a party or an official or an authority having interest in the dispute would be disentitled to make appointment of an 21. But in our view that has to be the logical deduction from TRF Limited. Paragraph 50 of the decision shows that this Court was concerned with the OMP(COMM) 59 2020 issue “whether the Managing Director after becoming ineligible by operation of law is he still eligible to nominate an Arbitrator” The ineligibility referred to therein was as a result of operation of law in that a person having an interest in the dispute or in the outcome or decision thereof must not only be ineligible to act as an arbitrator but must also not be eligible to appoint anyone else as an arbitrator and that such person cannot and should not have any role in charting out any course to the dispute resolution by having the power to appoint an arbitrator. The next sentences in the paragraph further show that cases where both the parties could nominate respective arbitrators of their choice were found to be completely a different situation. The reason is clear that whatever advantage a party may derive by nominating an arbitrator of its choice would get counter balanced by equal power with the other party. But in a case where only one party has a right to appoint a sole arbitrator its choice will always have an element of exclusivity in determining or charting the course for dispute resolution. Naturally the person who has an interest in the outcome or decision of the dispute must not have the power to appoint a sole arbitrator. That has to be taken as the essence of the amendments brought in by the Arbitration and ConciliationAct 2015and recognised by the decision of this Court in TRF In Proddatur Cable TV Digi Services v. Citi Cable Network Limiteda Coordinate Bench of this Court had following the earlier decisions of the Supreme Court in TRF Limited v. Energo Engineering Projects Limitedand Perkins Eastman Architects DPC and Anr. v. HSCCLimitedheld that the unilateral appointment of an Arbitrator by a companywould also be impermissible. The Court had founded the OMP(COMM) 59 2020 decision on the rationale that an incorporated entity also acts through individualswho are ineligible to act as Arbitrators in terms of Section 12(5) of the A&C Act read with the Seventh Schedule of the A&C Act. The relevant observations made by the court are as under: “25. Insofar as the reliance by the respondent on the judgments permitting unilateral appointment by the Authority designate of one party to the agreement is concerned in my view the same will have no relevance in view of the judgment of the Supreme Court in the case of Perkinswill not apply only because the designated Authority empowered to appoint an Arbitrator is other than a Managing Director. Moreover as brought out by the respondent itself Company here is run by the Board of Directors. The ‘Board of Directors’ is defined in Section 2(10) of the Companies Act 2013 as under: OMP(COMM) 59 2020 “2(10) “Board of Directors” or “Board” in relation to a company means the collective body of the directors of the company.” 26. Thus the Company is run none other than the Directors collectively. Duties of the Directors have been stipulated in Section 166 of the Companies Act 2013. A bare perusal of the duties clearly reveals that the Director at all times has to act in good faith to promote the objects of the Company and in the best interest of the Company its employees and the shareholders. A Director shall not involve in a situation in which he may have a direct or an indirect interest that conflicts or possibly may conflict with the interest of the Company. It goes without saying that the Directors of the Company as a part of the Board of the Directors would be interested in the outcome of the Arbitration proceedings. The Company therefore acting through its Board of Directors would suffer the ineligibility under Section 12(5) read with Schedule VII of the Act. The same ineligibility would also apply to any person appointed by the said Company. Thus in my view for the purposes of Section 11(6) and Section 12(5) read with Schedule VII there cannot be a distinction based on the appointing authority being a Company. 25. The said view has also been followed by a Coordinate Bench of this Court. In M s Omcon Infrastructure pvt. Ltd. v. Indiabulls Investment Advisors Limited: OMP(T)(COMM.) 35 2020 decided on 01.09.2020 the Court allowed the petition filed under Section 14 of the A&C Act and terminated the mandate of an Arbitrator who had been unilaterally appointed by a party. The Court following the decision of the Supreme Court in Perkins Eastman Architects DPC and Anr. v. HSCCLimited held as under: OMP(COMM) 59 2020 “9. .The ratio of the decision in Perkins Eastman Architects DPC & Anr.cannot be read in such a narrow manner as has been sought to be done by the learned Arbitrator. In my view once the Managing Director of the Respondent Company was ineligible to appoint the arbitrator in the light of the decision in Perkins Eastman Architects DPC &Anr. the same would also bar the Company itself from unilaterally appointing the sole arbitrator.” 26. After some arguments Mr. Chandhok learned counsel appearing for the respondent fairly conceded that in view of the decisions of the Supreme Court in TRF Limited v. Energo Engineering Projects LimitedPerkins Eastman Architects DPC and Anr. v. HSCC India) Limited and the decision of this Court in Proddatur Cable TV Digi Services v. Citi Cable Network Limitedit is no longer open for a company to unilaterally appoint an Arbitrator. However he submitted that in the present case the petitioner had agreed to the appointment of the learned Arbitrator and therefore waived the applicability of Section 12(5) of the A&C Act. Therefore it was not open for the petitioner to now challenge the appointment of the learned Arbitrator. He also referred to the minutes of the first meeting held before the Arbitral Tribunal on 07.01.2020 wherein the Arbitrator had recorded the statement made on behalf of the parties that they had no objection to the constitution of the Arbitral Tribunal. 27. Thus the limited issue to be addressed is whether the petitioner has waived the applicability of Section 12(5) of the A&C Act. 28. Section 12(5) of the A&C Act reads as under: OMP(COMM) 59 2020 “12(5) Notwithstanding any prior agreement to the contrary any person whose relationship with the parties or counsel or the subject matter of the dispute falls under any of the categories specified in the Seventh Schedule shall be ineligible to be appointed as an arbitrator: Provided that parties may subsequent to disputes having arisen between them waive the applicability of this sub section by an express agreement in writing.” In terms of the proviso to Sub section 12(5) of the A&C Act the parties may waive the applicability of Section 12(5) of the Act. However the said waiver has to besubsequent to the disputes having arisen andmade by way of “an express agreement in writing”. 30. Concededly in this case there is no written agreement between the parties whereby the petitioner has agreed to waive the applicability of Section 12(5) of the A&C Act. 31. This Court is also unable to accept that the proceedings recorded by the Arbitrator would constitute such an express agreement in the facts of this case. The petitioner had pointed out that on that date its representatives were not assisted by any counsel. It is also averred by the petitioner that the proceedings of the day which are not signed by the parties incorrectly record that the petitioner had no objection for the appointment of the learned Arbitrator. The petitioner had immediately on receipt of the notice of appointment of the learned Arbitrator had objected to such appointment. OMP(COMM) 59 2020 32. As noticed above the petitioner had in its letter dated 23.12.2019 clearly stated that it had not submitted to the jurisdiction of the learned Sole Arbitrator. Although the petitioner had not specifically referred to its objection to the respondent unilaterally appointing the learned Arbitrator it nonetheless had expressed its opposition to the appointment of learned Arbitrator. Thereafter the petitioner had objected to the appointment of the learned Arbitrator and contended that the respondent had appointed the Arbitrator as a dilatory tactic to withhold the payments due to the petitioner. 33. Thus it is difficult to accept that the petitioner had not objected to the appointment of the learned Arbitrator. Subsequently by an email dated 10.09.2020 the petitioner had expressly stated that the unilateral appointment of the Tribunal is contrary to the decision of the Supreme Court in Perkins Eastman Architects DPC and Anr. v. HSCCLimitedR.C. Chopra a former judge of this Court is appointed as the Sole Arbitrator to adjudicate the disputes that have arisen between the parties in connection with the Work Order dated 11.08.2015. This is subject to the Arbitrator making the necessary disclosure under Section 12(1) of the A&C Act and not being ineligible under Section 12(5) of the A&C Act. 35. The petition is allowed in the aforesaid terms. OMP(COMM) 59 2020 36. The parties are at liberty to approach the Learned Arbitrator for further proceedings. VIBHU BAKHRU J JANUARY 28 2021 OMP(COMM) 59 2020

In order to hold a person guilty of cheating, the intention of a person must be dishonest and there must be mens rea. : Kerala High Court

In order to hold a person accountable for the offence of cheating, it is necessary that the person was deceiving from the very beginning and had an intention to cheat. It is necessary to show that the intention while making the promise was dishonest. Mens rea cannot be proven by the mere fact that a promise could not be fulfilled. This was held by Justice Sophy Thomas in the matters between Sundareswaran K. & Others v State of Kerala and another in CRL.MC NO. 4863 OF 2019 decided on 9th Febraury,2022. The petition is filed by three accused with  a pleading to quash the proceedings of the Judicial First-Class Magistrate Court, Thiruvananthapuram. The petitioners are accused of running am unlicensed lab and then cheating the respondents and are therefore charged under Section 420, 502 read with Section 32 of IPC, and Section 442 read with Section 543 of the Kerala Municipal Act. The respondents have stated that the accused collective samples of his wife and then issued a faulty result and also criminally intimated him. The petitioners have submitted that an offence under Section 420 has not been committed since there was no fraudulent intention on part of petitioners to deceive the complainant. In fact, the petitioners had clearly asked the complainant to get the test verified. Moreover, they has no role in the process  other than collecting samples. To this, the respondents submitted that the clinic was not working under a proper license and the respondent had to face a lot of embarrassment due to the test results, which later turned out to be false. Therefore, he was cheated on by the petitioners. After observing the laws and the facts of the present case, the court stated that ‘to bring home the offence of cheating, intention must be established.’ In the present case, no facts and circumstances have stated that the accused have intended to cheat. Following the precedent set out in Chidambaram Chettiar vs Shanmugham AIR 1938 Mad 129, the court stated that four cardinal assets of humanity-body, mind, reputation and property have not been harmed. For the offence under Section 506, the evidences must be examined. The court ruled that there has been no trace of cheating and thus, the offence under Section 420 is not attracted. Quashing the proceedings under Section 420, the court ordered the proceedings under other sections to be continued. Click here to view the judgement. Reviewed by Namisha Choudhary.

IN THE HIGH COURT OF KERALA AT ERNAKULAM THE HONOURABLE MRS. JUSTICE SOPHY THOMAS WEDNESDAY THE 9TH DAY OF FEBRUARY 2022 20TH MAGHA 1943 AGAINST CC No.259 2019 OF JUDICIAL MAGISTRATE OF FIRST CRL.MC NO. 4863 OF 2019 CLASS III TRIVANDRUM PETITIONERS ACCUSED Nos. 1 TO 3 AGED 48 YEARS S O. SRI. R KRISHNA IYER NO.116 GEETHAM SANKAR NAGAR NEERAMAN KARA KAIMANAM P.O. THIRUVANANTHAPURAM DISTRAIT 695 040 AGED 24 YEARS S O. SHAHUL HAMEED T.C. 48 319 A MITHRA NAGAR HOUSE NO.71 PARITHIKUZHI POONTHURA P.O. THIRUVANANTHAPURAM DISTRICT 695 026 AGED 31 YEARS S O. A SUDHAKARAN NAIR T.C. 79 2296 THIRUVONAM ARA 40 CHAKKAI KARIKKAKOM P.O. THIRUVANANTHAPURAM DISTRICT 695 021 BY ADV. SRI.RAJESH P.NAIR RESPONDENTS STATE COMPLAINANT & DE FACTO COMPLAINANT STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA ERNAKULAM KOCHI 682 031 THE DIRECTOR GENERAL OF POLICE POLICE HEAD QUARTERS THIRUVANANTHAPURAM 695 004 THE SUB INSPECTOR OF POLICE THAMPANOOR POLICE STATION THIRUVANANTHAPURAM DISTRICT 695 014 Crl.M.C No.48619 AGED 32 YEARS S O. MAHADEVAN MS BHAVAN TC 54 699SASTHRI NAGAR NEDUNKAVU NEDUNKAD WARD MANACAUD VILLAGE THIRUVANANTHAPURAM 695 009 BY ADVS. SMT.SEENA CHANDRAN PUBLIC PROSECUTOR THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 02.02.2022 THE COURT ON 09.02.2022 PASSED THE FOLLOWING: Crl.M.C No.48619 SOPHY THOMAS J. C.R Crl.M.C No.48619 Dated this the 9th day of February 2022 O R D E R This petition has been filed by accused Nos.1 to 3 in Crime No.14218 of Thampanoor Police Station for quashing the proceedings in C.C No.2519 on the files of Judicial First Class Magistrate Court III Thiruvananthapuram invoking the inherent jurisdiction of this Court under Section 482 of Cr.P.C. 2. The allegation against the petitioners is that they being the Manager and employees of Anderson Diagnostics and Labs which is running without any Municipal licence fraudulently collected the blood samples of the de facto complainant and his wife and issued a faulty result and when the de facto complainant questioned them the 1st accused criminally intimidated him. Thus they are alleged to have committed the offences punishable under Sections 420 506 read with Section 34 of IPC and Section 442 Crl.M.C No.48619 read with Section 543 of the Kerala Municipal Act. 3. According to the petitioners they are the employees of the Thiruvananthapuram Branch of Anderson Diagnostics and Labs having its registered office at Chennai. The doctor who was treating the de facto complainant and his wife for infertility referred them for blood test and the 2nd accused collected blood sample and sent it for test to the Chennai Lab. Out of the five test results one was found to be reactive and it was duly informed to the de facto complainant. The de facto complainant collected the test result on 25.08.2018 and as instructed by the petitioners and the doctor concerned a confirmatory test was conducted in another lab. In that test the result showed non reactive. Due to that fact the de facto complainant manhandled the petitioners on 31.08.2018 and demanded compensation for the mistake in the test result. Since they were not amenable after a delay of about four weeks he lodged a complaint before the Thampanoor Police Station on the basis of which a crime was registered and investigated and finally final report was filed against the petitioners for the offences mentioned above. Crl.M.C No.48619 4. According to the petitioners an offence under Section 420 of IPC will not be attracted as there was no fraudulent or dishonest intention on the part of the petitioners to deceive the de facto complainant. Since the demand for compensation was not heeded to by the petitioners the de facto complainant lodged a false complaint against them. The owner of the Lab or the Doctors who conducted the blood investigation were not arrayed as accused. The petitioners are only employees of the Thiruvananthapuram branch of Anderson Lab based at Chennai They have nothing to do with the blood investigation result issued by the Lab. They had no role other than collecting the sample and sending the same to the Lab at Chennai for the purpose of investigation by the Doctors there. The offence under Section 506 IPC and also under Section 442 read with Section 543 of Kerala Municipal Act will not be attracted against the petitioners. 5. Learned counsel for the de facto complainant vehemently opposed this petition saying that the Anderson Lab at Thiruvananthapuram was not having proper licence and it was functioning unauthorisedly without employing qualified staff and Crl.M.C No.48619 they induced the de facto complainant and his wife to give their blood sample after collecting fees for the same and issued a test result stating that the de facto complainant was found reactive to Hepatitis B causing so much of embarrassment and unnecessary treatment for the same and thus the petitioners cheated him. 6. Learned Public Prosecutor also opposed the petition stating that the petitioners had no authority to run the Lab and they were not qualified to collect blood sample and that is why the result was incorrect. So according to him an offence under Section 420 of IPC will be attracted. 7. Now the question to be considered is whether issuance of a faulty test result from an accredited Medical Laboratory will amount to cheating 8. The petitioners produced Annexure A1 Certificate of Incorporation to show that Anderson Diagnostic Services Pvt. Ltd. Chennai was incorporated under the Companies Act 1956 Annexure A2 is a copy of the Certificate of Accreditation issued to Anderson Diagnostics and Labs in the field of medical testing Annexure A5 is a copy of the appointment letter issued by Crl.M.C No.48619 Anderson Diagnostics and Labs to the 1st accused as its Divisional Manager. Annexure A3 is a copy of the certificate of BSS Diploma in Medical Laboratory Technician Course issued to the 2nd accused from the Board of Examinations. Annexure A4 is a copy of the Diploma certificate in General Nursing and Midwifery issued to the 3rd accused and Annexure A6 is a copy of the appointment letter issued by Anderson Diagnostics and Labs to the 3rd accused. So according to the petitioners Anderson Diagnostics and Labs is an accredited Lab in the filed of medical testing and the petitioners are its qualified employees 9. The de facto complainant and his wife were undergoing infertility treatment in W&C Hospital Thycaud and as directed by the Doctor for blood test the 2nd accused collected their blood sample from the infertility clinic itself as he introduced to them as a hospital staff and he assured them that the test result will be ready by 23.08.2018. On 23.08.2018 the de facto complainant received a phone call saying that he was found reactive for Hepatitis B and directed him to collect the test result immediately and to take follow up treatment. But on doing confirmatory test in Crl.M.C No.48619 DDRC and Rajiv Gandhi Centre for Biotechnology his blood result was found non reactive. So according to the de facto complainant the petitioners cheated them 10. Cheating is defined under Section 415 of IPC. The ingredients to constitute an offence of cheating are as follows there should be fraudulent or dishonest inducement of a person by deceiving him The person who was induced should be intentionally induced to deliver any property to any person or to consent that any person shall retain any property or the person who was induced should be intentionally induced to do or to omit to do anything which he would not do or omit if he were not so deceived Thus a fraudulent or dishonest inducement is an essential ingredient of the offence under Section 415 IPC. A person who dishonestly induced any person to deliver any property is liable for the offence of cheating 11. Now let us examine the facts of this case keeping in mind the relevant ingredients to constitute an offence under Section 420 of IPC. 12. The de facto complainant has no case that the petitioners Crl.M.C No.48619 induced him to give blood for conducting the test and intentionally issued a faulty result in order to cheat him. Even according to the de facto complainant there were five test results out of which one was found faulty. Annexure A7 series shows the test results of the de facto complainant issued from Anderson Diagnostics and Labs. Annexure A7 4 is the test result for HbsAg Immunochromatography) which was found reactive. In the comment portion of that report it was stated that “the test was Reactive. Immunochromotography is a screening method only Kindly correlate results clinically. It is also suggested to confirm the test with more specific tests such as ELISA and also with other Hepatitis B viral markers”. The de facto complainant himself admitted that on getting the test result on 28.03.2018 itself he was asked to confirm the same to take follow up treatment. So we cannot say that the petitioners had an intention to cheat the de facto complainant at the time of collecting blood sample or at the time of issuing the test result. If at all a faulty result was issued after conducting blood test of the de facto complainant the test was done by Anderson Lab at Chennai and the employees who Crl.M.C No.48619 only collected and sent the sample to Chennai cannot be held liable for the test result. The Lab is not made an accused in the final report. 13. To bring home the offence of cheating it must be shown that at the time of representation being made it was not only false but that the person who made such false representation knew that it was false and with that knowledge the accused made such representation and thereby induced the party deceived to deliver the property. 14. In the offence of cheating there are two elements. deception and dishonest inducement to do or omit to do something. Mere dishonesty is not a criminal offence. Moreover to establish the offence of cheating the complainant would have to show not only that he was induced to do or omit to do a certain act but that this induced omission on his part caused or was likely to cause him some harm or damage in body mind reputation or property which are presumed to be the four cardinal assets of humanity. (Chidambaram Chettiar vs Shanmugham AIR 1938 Crl.M.C No.48619 15. To constitute cheating the concept of deception must exist from the very start of the transaction. In order to hold a person guilty of cheating the intention of a person must be dishonest and there must be mens rea. It has to be shown that his intention was dishonest at time of making a promise. Such intention cannot be inferred from the mere fact that he could not subsequently fulfil the promise. Fraud is proved when it is shown that a false representation has been made knowingly or without belief in its truth or recklessly without caring whether it be true or 16. In the case in hand no materials are available to find that the petitioners collected the blood sample with an intention of cheating and subsequently issued an incorrect test result with a mens rea of cheating him. The FI statement of the de facto complainant is to the effect that a false result was given by the petitioners after conducting his blood test. As already stated out of five only one test result is now challenged by the de facto complainant. Annexure A7 4 clearly says that it was only a screening method and so it has to be correlated clinically and it Crl.M.C No.48619 was suggested to confirm the test with more specific tests Moreover as soon as the test result showing reactive was obtained the de facto complainant was informed by the petitioners to conduct confirmatory tests and on doing the same he was found non reactive. There is nothing to show that he had undertaken any treatment for Hepatitis B on the basis the faulty result. So an element of cheating was not there while collecting the blood sample or while issuing the test result. 17. Regarding the offence alleged under Section 506 of IPC according to the de facto complainant when he questioned the 1st accused regarding the faulty result he threatened him and his wife and thus he criminally intimidated them. It is a matter to be enquired into by taking evidence. Like that the allegation of want of licence under the Kerala Municipal Act also has to be enquired into during trial. So the petitioners have to face the trial for the offences alleged under Section 506 IPC and Section 442 read with Section 543 of the Kerala Municipal Act. Since no trace of cheating could be found out in collecting the blood sample or in issuing the test result the Crl.M.C could be allowed in part quashing the Crl.M.C No.48619 proceedings against the petitioners under Section 420 of IPC. In the result the proceedings against the petitioners for the offence punishable under Section 420 of IPC in C.C No.2519 pending in the Court of Judicial First Class Magistrate III Thiruvananthapuram is hereby quashed and the case shall be continued for the offences punishable under Section 506 of IPC and Section 442 read with Section 543 of Kerala Municipal Act as per the charge sheet and it shall be disposed of within a period of six months from today in accordance with law on its merits. This Crl.M.C is allowed in part as above Sd SOPHY THOMAS Crl.M.C No.48619 APPENDIX OF CRL.MC 4863 2019 TRUE COPY OF THE CERTIFICATE OF INCORPORATING GIVEN BY THE REGISTRAR OF COMPANIES CHENNAI TO ANDERSON DIAGNOSTICS AND LABS TRUE COPY OF THE CERTIFICATE OF ACCREDITATION ISSUED BY THE NABL DATED TRUE COPY OF THE M.L.T CERTIFICATE SECURED BY THE 2ND PETITIONER HEREIN TRUE COPY OF THE CERTIFICATE ISSUED BY THE SCHOOL OF NURSING S.U.T. THIRUVANANTHAPURAM TO THE 3RD PETITIONER TRUE COPY OF THE APPOINTMENT LETTER ISSUED BY THE SAID LAB TO THE 1ST PETITIONER DATED 27.3.2017 TRUE COPY OF THE APPOINTMENT LETTER ISSUED BY THE SAID LAB TO THE 3RD PETITIONER DATED 6.11.2017 TRUE COPY OF THE BILL ISSUED FROM ANDERSON DIAGNOSTICS AND LABS TO THE DE FACTO COMPLAINT CERTIFIED COPY OF THE FINAL REPORT IN C.C. NO. 259 2019 IN CRIME NO 1424 2018 OF THAMPANOOR POLICE STATION Crl.M.C No.48619 TRUE COPY OF THE FIRST INFORMATION STATEMENT OF DE FACTO COMPLAINANT IN CRIME No.1424 2018 OF THAMPANOOR POLICE RESPONDENTS ANNEXURES: NIL P.S to Judge

A requirement that is bona fide in nature and not tainted with any oblique motive and is not a wish or desire is a valid requirement in the court of law: Delhi High Court

It is manifest that the requirement spelt out by the respondents/landlord is a bona fide requirement. It is an honest requirement and not tainted with any oblique motive and is not a mere wish or desire. Recently the Delhi High Court, in the matter of Bhawani Sankar v. Nand Lal & Ors. [RC. REV. 146/2020 & CM APPL. 10916/2020 & 13409/2021], the above opinion was given by the court. The proceedings were presided by a single judge bench of Justice Jayant Nath on September 07th, 2021. The facts of the case are as follows. The respondents are the co-owners / landlord of the said shop for the purposes of manufacturing of sweets and for extension of the counter of their shop. It is stated that respondents are running their business of selling sweets and catering by the name and style of M/s Chaina Ram which is very famous in the area of the walled city. The said business is at a stone throwing distance from the premises which is subject matter of this petition, it is further stated that sweets and other eatable items are being manufactured on the upper floors of such property. All such manufacturing was subjected to the upper floor of the said property. However, to the same, the respondents denied the allegation that such manufacturing was being by M/s Chaina Ram. The petitioners contended that the alleged bona fide needs of the respondents/landlord are not continuous and they allegedly require additional accommodation only in festival season. Hence, for a short period requirement of the respondent/landlord present eviction petition is not maintainable. In the proceedings, many cases like Shiv Sarup Gupta vs. Dr.Mahesh Chand Gupta, [(1999) 6 SCC 222], G.C. Kapoor Vs. Nand Kumar Bhasin, (AIR 2002 SC 200), Prativa Devi (Smt.) v. T.V. Krishnan, [(1996) 5 SCC 353], were cited.

IN THE HIGH COURT OF DELHI AT NEW DELHI Pronounced on: 07.09.2021 RC. REV. 146 2020 & CM APPL. 10916 2020 & 13409 2021 BHAWANI SHANKAR Petitioner Through: Mr.J.C.Mahindroo Ms.Megha Verma Mahindroo Mr.Shubham Agarwal and Mr.Cherry Singh Advs. NAND LAL AND ORS. Respondents Through: Mr.Jai Sahai Endlaw Mr.Ajay Kumar Gupta Mr.Subhoday Banerjee and Ms.Surbhi Gupta Advocates. HON BLE MR. JUSTICE JAYANT NATH JAYANT NATH J. I may at the outset note that after arguments were heard and judgment was reserved the respondent moved an application CM No.13409 2021 praying for dismissal of the present petition as having become infructuous as peaceful possession of the demised premises had been taken over on 19.03.2021 by the respondent. The matter was thereafter adjourned on several dates on account of non availability of either of the learned counsel. Learned counsel for the respondent has in the present application vehemently relied upon various orders passed by this court to hold that once possession has been regained by the respondent landlord the revision RC. REV. 146 2020 petition is rendered infructuous. Learned counsel for the petitioner tenant does not deny that in the Execution Proceedings the respondent landlord has received physical possession of the property in question. He denies that the present petition is infructuous. Reference may be had to the judgment of a Co ordinate Bench if this court in Neelam Sharma vs. Ekant Rekhan 1958 seeking to impugn the eviction order dated 15.11.2019 pertaining to property being ground floor RC. REV. 146 2020 bearing Municipal No. 6449 Katra Baryan Fatehpuri Delhi 110006. The respondent landlord had filed a petition for eviction under Section 14 (e) read with Section 25 B of the Delhi Rent Control Act 1958 on ground of bona fide requirements. It was pleaded in the petition that the respondents are the co owners landlord of the said shop in question and require the same bonafidely for their own use for the purposes of manufacturing of sweets and for extension of the counter of their shop. It is stated that respondents are running their business of selling sweets and catering by the name and style of M s Chaina Ram which is very famous in the area of the walled city. The said business is at a stone throwing distance from the premises which is subject matter of this petition it is further stated that sweets and other eatable items are being manufactured on the upper floors of such property No. 6449 to 6452 Katra Baryan Fatehpuri Delhi 110006. It is further stated that every year throughout the festive season i.e. Raksha Bandhan Teej Diwali Bhaiya Dooj Eid Holi and Lohri the respondents have to arrange rented accommodation near the halwai shop M s Chaina Ram for sale of sweets and storage etc. and have to pay exorbitant rent for the said rented premises. Further it is stated that manufacturing on the upper floors is costly as it involves loading and unloading for which extra amount has to be paid for upper floors. At present the manufacturing space is insufficient. The respondents do not own any reasonably suitable accommodation except the premises in question. The respondents are in bona fide need of the premises No. 6449 to 6452 Katra Baryan Fatehpuri Delhi 110006 for their personal use for selling and storage of sweets in the suit property. 11. The petitioner tenant filed an application under Section 25 Bof RC. REV. 146 2020 The DRC Act seeking leave to defend and contest the eviction petition. Following pleas were raised in the application: The respondent landlord has intentionally and deliberately not disclosed the entire accommodation available with them or their family members. It has been further stated that the respondent has following properties in their possession which are sufficient to do their alleged business. The details of the properties are given below: 6452 Katra Baryan Fatehpuri Delhi 110 006 142 Gali Memwali Katra Baryan Fatehpuri 143 Gali Memwali Katra Baryan Fatehpuri 144 Gali Memwali Katra Baryan Fatehpuri v. 6398 First floor Katra Baryan Fatehpuri Delhi Delhi 110 006. Delhi 110 006. Delhi 110 006. 110 006. Apart from the above mentioned properties it is claimed that the respondents landlord have several other commercial properties in their possession. It is further pleaded that the respondents are not doing any alleged business of manufacturing sweets rather the business is carried out by M s Chaina Ram Sindhi Confectioners which is a separate legal entity. Further the respondents are not proprietors partners in the above named firm. It is stressed that the respondents landlord have wrongly stated RC. REV. 146 2020 in the petition that they have to arrange rented accommodation for their halwai shop. It is pleaded that the respondent is trying to mislead this court as the respondents have various properties in their possession for the purpose of manufacturing and storage of sweets. It is further stated that the respondents landlord have filed three eviction petitions against three other tenants in regard to three different properties including the present petition. V. It is further stated that the alleged requirement projected by the the eviction petition only pertains additional accommodation required during the festive season for storage and manufacturing of sweets. Hence the alleged bona fide needs of the respondents landlord are not continuous and they allegedly require additional accommodation only in festival season. Hence for a short period requirement of the respondent landlord present eviction petition is not maintainable. It is further stated that the respondent landlord have entered into an agreement with a local builder for the demolition of the entire property being 6449 to 6452 Katra Baryan Fatehpuri Delhi 110006 and thereafter they will construct shops and godowns to get huge monetary benefits. 12. The respondent landlord has filed a reply to the aforesaid application of the petitioner tenant seeking leave to defend. The respondent has pointed out that the first floor of the property bearing Municipal No.6452 is being used for manufacturing namkeen and sweets by the respondents landlord. Further the respondents landlord has no concern whatsoever with the property bearing No.142 Gali Memwali Katra Baryan Fatehpuri Delhi. The RC. REV. 146 2020 petitioner owns only one small shop on ground floor being property No.143 Gali Memwali Katra Baryan Fatehpuri Delhi which is being used by the respondent for manufacturing seasonal items. The property having one small room at first floor bearing No.144 Gali Memwali Katra Baryan Fatehpuri Delhi and first floor of the property bearing No.6398 Katra Baryan Fatehpuri Delhi 110006 is being used by the respondents landlord as staff accommodation. It is further denied that the respondents landlord are not doing any alleged business of manufacturing sweets. Rather the said business is being carried out by M s. Chaina Ram Sindhi Confectioners. It is stated that the Firm M s. Chaina Ram Sindhi Confectioners is a partnership firm having four partners namely Shri Nand Lal Shri Pardeep Gidwani Shri Harish Gidwani and Shri Hari Gidwani. Out of these three of the partners namely Shri Nand Lal Shri Pardeep Gidwani and Shri Hari Gidwani are respondents landlords who have also filed the Eviction Petition. The respondents landlords have also denied that they have jointly purchased properties bearing No.6449 6452 Katra Baryan Fatehpuri Delhi as alleged. It has also been denied that the respondents have entered into an agreement with local builders who would demolish the entire property bearing No.6449 to 6452 Katra Baryan Fatehpuri Delhi and construct shops and godowns. 13. The Ld. ARC by the impugned order rejected the contentions of the petitioner tenant. The impugned order notes that there is no dispute raised regarding the ownership of the respondents landlord. The relationship of landlord and tenant is also not disputed. Regarding the aforesaid properties mentioned by the petitioner the RC. REV. 146 2020 impugned order notes that as far as property No. 6452 is concerned the same is on the first floor and it is already being used for manufacturing of sweets and Namkeen by the respondent landlord. Respondent landlord have no concern with property No. 142 Gali Memwali Katra Baryan Fatehpuri Delhi 110006. Further property no. 143 Gali Memwali Katra Baryan Fatehpuri Delhi 110006 is also being used by the respondent landlord for manufacturing seasonal items. Property No.144 Gali Memwali Katra Baryan Fatehpuri Delhi 110006 is a small room situated on the first floor and similarly the first floor of property No. 6398 is being used by the respondents landlord for staff accommodation. Further it has been noted in the order that no documents in support of the submissions have been filed by the petitioner tenant and only bald averments have been made. The impugned order further notes that mere non disclosure of other petitions said to have been filed by the respondents landlord against other tenants does not raise a triable issue. The impugned order further notes that the petitioner has failed to place on record any document to substantiate its contention about availability of any alternate accommodation with the respondent landlord which may be called sufficient to meet the bona fide requirements as projected in the Eviction Petition. A bald statement without any material it is stated does not give rise to triable issue entitling the tenant for leave to defend. The impugned order further holds that the law is well settled and that the landlord is the best judge of his necessity and he has got complete freedom in the matter. Therefore a tenant cannot dictate the terms to the landlord regarding his necessity. Hence the court concluded that no triable issue between the parties arises which entitles the petitioner tenant for leave to defend the eviction petition. The application for leave to contest was RC. REV. 146 2020 accordingly dismissed and an eviction order was passed. I have heard learned counsel for the parties. 15. Learned counsel for the petitioner has reiterated that the abovenoted five shops have been mentioned in the application for leave to defend which are available to the respondent landlord. He has also further stated that he has denied the need for additional accommodation in his application for leave to defend. Hence it is pleaded that this denial itself would be a ground for grant of leave to defend as it raises a triable issue. 16. Learned counsel for the respondents landlord has pointed out that the properties mentioned in the application for leave to defend have been duly explained by the respondents in their reply to the application seeking leave to defend. It is also pleaded that the partnership deed between the landlords which is placed on record gives details of the properties based on which the averments are being made by the petitioner. I may first see the scope of the present petition. The Supreme Court in Shiv Sarup Gupta vs. Dr.Mahesh Chand Gupta 6 SCC 222 described the revisional powers of this court as follows: reading placed “11 . The phraseology of the provision as reproduced hereinbefore provides an juxtaposition with the phraseology employed by the Legislature in drafting Section 115 of the CPC. Under the latter provision the exercise of revisional jurisdiction of the High Court is circumscribed by the subordinate court having committed one of the three errors namelyhaving exercised jurisdiction not vested in it by law orhaving failed to exercise a jurisdiction so vested orhaving exercised its jurisdiction with illegality or material irregularity. Under the proviso to Sub sectionof Section 25B the expression governing the exercise of revisional jurisdiction by the High Court is for the purpose of satisfying if an order made by the Controller is according to law . The RC. REV. 146 2020 revisional jurisdiction exercisable by the High Court under Section 25B(8) is not so limited as is under Section 115 C.P.C. nor so wide as that of an Appellate Court. The High Court cannot enter into appreciation or reappreciation of evidence merely because it is inclined to take a different view of the facts as if it were a court of facts. However the High Court is obliged to test the order of the Rent Controller on the touchstone of whether it is according to law . For that limited purpose it may enter into re appraisal of evidence that is for the purpose of ascertaining whether the conclusion arrived at by the Rent Controller is wholly unreasonable or is one that no reasonable person acting with objectivity could have reached conclusion on the material available…” 18. Hence this court is to test the order of the ARC to see whether it is according to law and whether the conclusions are not wholly unreasonable. 19. Section 14(1)(e) of the DRC Act reads as follows: “14.Protection of tenant against eviction. 1)Notwithstanding anything to the contrary contained in any other law or contract no order or decree for the recovery of possession of any premises shall be made by and court or Controller in favour of the landlord against a Provided that the Controller may on an application made to him in the prescribed manner make an order for the recovery of possession of the premises on one or more of the following grounds only namely: e) that the premises let for residential purposes are required bona fide by the landlord for occupation as a residence for himself or for any member of his family dependent on him if he is the owner thereof or for any person for whose benefit the premises are held and the landlord or such person has no other reasonably suitable RC. REV. 146 2020 residential accommodation.” The essential ingredients which a landlord is required to show for the purpose of getting an eviction order for bona fide needs arethe petitioner is the owner landlady of the suit premisesthe suit premises are required bona fide by the landlord for himself herself and any of his her family members dependent upon him her. the landlord landlady or such other family members have no other reasonable suitable accommodation. 20. As noted above there is no dispute regarding the relationship of tenant and landlord between the parties. 21. Essentially what the petitioner is pleading is that there are five other properties available to the respondent landlord which are sufficient for their alleged business. The respondent deny the said submission they have very clearly spelt out that the accommodation available with them falls short of carrying out their business of sweets. The properties mentioned by the petitioner are already being used by the respondent. 22. Reference may also be had to the judgment of the Supreme Court in the case of G.C. Kapoor Vs. Nand Kumar Bhasin AIR 2002 SC 200 where the Supreme Court noted as follows: “9. It is settled position of law that bonafide requirement means that requirement must be honest and not tainted with any oblique motive and is not a mere desire or wish. In Dattatraya Laxman Kamble v. Abdul Rasul Moulali Kotkunde 2 SCR 912 this Court while considering the bonafide need of the landlord was of the view that when a landlord says that he needs the building for his own occupation he has to prove it but there is no warrant for presuming that his need is not bonafide . It was also held that while deciding this question. Court would look into the broad aspects and if the Courts feels any doubt about bonafide RC. REV. 146 2020 requirement it is for the landlord to clear such doubt.” Similarly in Prativa Devi v. T.V. Krishnan 5 SCC 353 it was held that the landlord is the best Judge of his requirement and Courts have no concern to dictate to the landlord as to how and in what manner he should live. The bona fide personal need is a question of fact and should not be normally interfered with. 24. The respondent has repeatedly relied upon the properties mentioned in the leave to defend application namely 6452 Gali Memwali Katra Baryan Fatehpuri Delhi property No.142 143 144 Gali Memwali Katra Baryan Fatehpuri Delhi and property No. 6398 First Floor Katra Baryan Fatehpuri Delhi to claim that alternate accommodation is available with the respondents landlord and there is no bona fide requirement. Allegations are also made repeatedly that the respondents landlord have entered into an agreement with a local builder for demolition of the entire property being 6449 to 6452 Gali Memwali Katra Baryan Fatehpuri Delhi and thereafter they will construct shops and godowns and get monetary benefits. All these allegations have been stoutly denied explained by the respondents landlord in their reply to the application for leave to defend. 25. The impugned order rightly holds that other than making bald averments without filing any documents the petitioner tenant has failed to plead any fact which would throw doubt on the bona fide requirement of the In the present case it is manifest that the requirement spelt out by the respondents landlord is a bona fide requirement. It is an honest requirement and not tainted with any oblique motive and is not a mere wish or desire. RC. REV. 146 2020 The petitioner has made bald averments stating that five properties are available with the respondents landlord but has failed to give details in regard to them whatsoever. 27. Another plea that was raised by the petitioner is that the respondents are not in the business of manufacturing sweets and that the business is being carried on by the enterprise M s Chaina Ram Sindhi Confectioners. This plea is contradictory as different pleas are taken in the eviction petition which are contrary. Further the respondents have placed on record the partnership deed which clearly shows that it is the respondents who are working under the name and style of M s Chaina Ram Sindhi Confectioners. It is manifest that the petitioner has failed to make out any triable issue the impugned order has rightly dismissed the application for leave to defend of the petitioner. 29. There are no reasons to interfere in the finding made by Ld. ARC. Petition is dismissed. All other pending applications if any are also JAYANT NATH J SEPTEMBER 07 2021 n RC. REV. 146 2020

Jurisdiction under S.482 Cr.P.C to quash proceedings under S.307/308 IPC: High Court of Delhi

The Inherent power of High Courts under Section 482 Cr.P.C can be exercised with caution keeping in mind the particular facts of the case for quashing the proceedings arising out of offenses punishable under Section 307/308 IPC. This was decided in the case of MAHENDER SINGH ALIAS SUNNY & ANR V. THE STATE & ORS [CRL.M.C.852/2021] in the High Court of Delhi by single bench consisting of Hon’ble Justice Subramonium. The petitioners had started a fight with the respondents, kicked their bike to the ground, physically attacked  the two respondents with kicks. The fight ended with the petitioner abusing and hitting one of the respondent on the head with a danda causing a minor head injury. Charge-sheet was filed against the accused. On intervention of the parents petition for quashing the criminal proceedings was filed. The High Court while discussing the inherent power of court referred to conflicting opinions in various judgments by the Supreme Court as to whether an offense under Section 307 IPC could be quashed and addressed the difference between the power of compounding of offenses conferred on a court under Section 320 Cr.P.C and the powers conferred under Section 482 Cr.P.C for quashing of criminal proceedings.  The Court relied on the on the Supreme Court Judgement of  State of M.P. v. Laxmi Narayan, (2019) 5 SCC 688, wherein it was held that, “While exercising the power under Section 482 of the Code to quash the criminal proceedings in respect of non-compoundable offenses, which are private in nature and do not have a serious impact on society, on the ground that there is a settlement/compromise between the victim and the offender, the High Court is required to consider the antecedents of the accused; the conduct of the accused, namely, whether the accused was absconding and why he was absconding, how he had managed with the complainant to enter into a compromise, etc.”

IN THE HIGH COURT OF DELHI AT NEW DELHI CRL.M.C.852 2021 & CRL.M.A.4232 2021Date of decision: 17th March 2021 IN THE MATTER OF: MAHENDER SINGH ALIAS SUNNY & ANR .....Petitioners Through Mr. Satish Kumar Advocate along with petitioners in person. THE STATE & ORS ..... Respondents Through Mr. Hirein Sharma APP for the State Respondents No.2 and 3 in person HON BLE MR. JUSTICE SUBRAMONIUM PRASAD SUBRAMONIUM PRASAD J. The present petition under Section 482 of the Code of Criminal Procedure has been filed for quashing FIR No.46 2018 dated 27.01.2018 registered in Police Station Neb Sarai Delhi for offence under Section 308 34 IPC. FIR No.46 2018 has been registered on the complaint of respondent No.2. In the complaint it is stated that on 26.01.2018 when the complainant and his friend Dheeraj respondent No.3 herein were returning from their coaching on his Splendor Bike at about 8:00 8:15 PM they were stopped by the accused near Sona Public School. It is stated that Sunny petitioner No.2 kicked the bike and the complainant and his friend fell down from the bike and the petitioners started beating Dheeraj respondent No.3. It is stated that when the complainant respondent No.2 tried to stop the accused the CRL.M.C. 852 2021 accused started abusing the complainant and started fighting with him. It is stated that the accused Sunny petitioner No.1 picked up a danda and hit the complainant on his head and the complainant fell on the ground. When people gathered there the accused threatened the complainant of dire consequences and left. It is stated that the brother of the complainant came there and called the Police. A PCR Van came and took the victims to the AIIMS Trauma Centre. In the MLC the doctor recorded the nature of injury and it was opined that the victim had sustained minor head injury with left periorbital swelling. Charge sheet has been filed against the accused. The accused petitioner No.2 has been granted anticipatory bail on 04.02.2018. This petition has been filed on the ground that after the intervention of the parents and well wishers the parties have stated to settle their disputes. A settlement deed dated 16.02.2021has been filed. The present case is for quashing the criminal proceedings for offences under Section 308 IPC. There was a conflict of opinion in various judgments by the Supreme Court as to whether an offence under Section 307 IPC could be quashed by the High Court while exercising its power under Section 482 Cr.P.C. The Supreme Court in State of Rajasthan v. Shambhu Kewat 4 SCC 149 held that an offence under Section 307 IPC cannot be quashed by the High Court while exercising its powers under Section 482 Cr.P.C on the ground that the parties have settled their disputes. The Supreme Court observed as under: “15. We are not prepared to say that the crime alleged to have been committed by the accused persons was a crime against an individual on the other hand it was a crime against the society at large. Criminal law is designed as a mechanism for achieving social control CRL.M.C. 852 2021 and its purpose is the regulation of conduct and activities within the society. Why Section 307 IPC is held to be non compoundable is because the Code has identified which conduct should be brought within the ambit of non compoundable offences. Such provisions are not meant just to protect the individual but the society as a whole. The High Court was not right in thinking that it was only an injury to the person and since the accused personshad received the monetary compensation and settled the matter the crime as against them was wiped off. Criminal justice system has a larger objective to achieve that is safety and protection of the people at large and it would be a lesson not only to the offender but to the individuals at large so that such crimes would not be committed by any one and money would not be a substitute for the crime committed against the society. Taking a lenient view on a serious leave a wrong impression about the criminal justice system and will encourage further criminal acts which will endanger the peaceful co existence and welfare of the society at large.” the present will On the other hand the Supreme Court in Narinder Singh v. State of Punjab 2014) 6 SCC 466 after noticing the judgment in State of Rajasthan v. Shambhu Kewat quashed the proceedings under Section 307 IPC and observed as under: the offence “22. Thus we find that in certain circumstances this Court has approved the quashing of proceedings under Section 307 IPC whereas in some other cases it is held that as is of serious nature such proceedings cannot be quashed. Though in each of the aforesaid cases the view taken by this Court may be justified on its own facts at the same time this Court owes an explanation as two different approaches are adopted in various cases. The law to why CRL.M.C. 852 2021 declared by this Court in the form of judgments becomes binding precedent for the High Courts and the subordinate courts to follow under Article 141 of the Constitution of India. Stare decisis is the fundamental principle of judicial decision making which requires “certainty” too in law so that in a given set of facts the course of action which law shall take is discernible and predictable. Unless that is achieved the very doctrine of stare decisis will lose its significance. The related objective of the doctrine of stare decisis is to put a curb on the personal preferences and priors of individual Judges. In a way it achieves equality of treatment as well inasmuch as two different persons faced with similar circumstances would be given treatment at the hands of law. It has therefore support from the human sense of justice as well. The force of precedent in the law is heightened in the words of Karl Llewellyn by “that curious almost universal sense of justice which urges that all men are to be treated alike in like circumstances”. 23. As there is a close relation between equality and justice it should be clearly discernible as to how the two prosecutions under Section 307 IPC are different in nature and therefore are given different treatment. With this ideal objective in mind we are proceeding to discuss the subject at length. It is for this reason we deem it appropriate to lay down some distinct definite and clear guidelines which can be kept in mind by the High Courts to take a view as to under what circumstances it should accept the settlement between the parties and quash the proceedings and under what circumstances it should refrain from doing so. We make it clear that though there would be a general discussion in this behalf as well the matter is examined in the context of the offences under Section 307 IPC. CRL.M.C. 852 2021 24. The two rival parties have amicably settled the disputes between themselves and buried the hatchet. Not only this they say that since they are neighbours they want to live like good neighbours and that was the reason for restoring friendly ties. In such a scenario should the court give its imprimatur to such a settlement The answer depends on various incidental aspects which need serious discourse. The legislators have categorically recognised that those offences which are covered by the provisions of Section 320 of the Code are concededly those which not only do not fall within the category of heinous crimes but also which are personal between the parties. Therefore this provision recognises where there is a compromise between the parties the court is to act at the said compromise and quash the proceedings. However even in respect of such offences not covered within the four corners of Section 320 of the Code the High Court is given power under Section 482 of the Code to accept the compromise between the parties and quash the proceedings. The guiding factor is as to whether the ends of justice would justify such exercise of power both the ultimate consequences may be acquittal or dismissal of indictment. This is so recognised in various judgments taken note of above.” A larger Bench of Supreme Court in State of M.P. v. Laxmi Narayan 5 SCC 688 resolved the conflict by observing as under: “14. Now so far as the conflict between the decisions of this Court in Narinder Singh6 SCC 466 :3 SCC54] and Shambhu Kewat4 SCC 149 :4 SCC781] is concerned Rajasthan v. Shambhu Kewat 4 SCC 149 : 2014) 4 SCC 781] this Court has noted the Kewat6 SCC 466 :3 SCC54] the very Bench ultimately concluded in para 29 as under:“ xxxxx 29.6. Offences under Section 307 IPC would fall in the category of heinous and serious offences and therefore are to be generally treated as crime against the society and not against the individual alone. However the High Court would not rest its decision merely because there is a mention of Section 307 IPC in the FIR or the charge is framed under this provision. It would be open to the High Court to examine as to whether incorporation of Section 307 IPC is there for the sake of it or the prosecution has collected sufficient evidence which if proved would lead to proving the charge under Section 307 IPC. For this purpose it would be open to the High Court to go by the nature of injury sustained whether such injury is inflicted on the vital delicate parts CRL.M.C. 852 2021 of the body nature of weapons used etc. Medical report in respect of injuries suffered by the victim can generally be the guiding factor. On the basis of this prima facie analysis the High Court can examine as to whether there is a strong possibility of conviction or the chances of conviction are remote and bleak. In the former case it can refuse to accept the settlement and quash the criminal proceedings whereas in the latter case it would be permissible for the High Court to accept the plea compounding the offence based on complete settlement between the parties. At this stage the Court can also be swayed by the fact that the settlement between the parties is going to result in harmony between them which may improve their future relationship. 29.7. While deciding whether to exercise its power under Section 482 of the Code or not timings of settlement play a crucial role. Those cases where the settlement is arrived at immediately after the alleged commission of offence and the matter is still under investigation the High Court may be liberal in accepting the settlement to quash the criminal proceedings investigation. It is because of the reason that at this stage the investigation is still on and even the charge sheet has not been filed. Likewise those cases where the charge is framed but the evidence is yet to start or the evidence is still at infancy stage the High Court can show benevolence in exercising its powers favourably but after prima facie assessment of the circumstances material mentioned above. On the other hand where the prosecution evidence is almost complete or after the conclusion of the evidence the matter is at the stage of argument normally the High Court should refrain from exercising its power under Section 482 of the Code as in such cases the trial court would be in CRL.M.C. 852 2021 a position to decide the case finally on merits and to come to a conclusion as to whether the offence under Section 307 IPC is committed or not. Similarly in those cases where the conviction is already recorded by the trial court and the matter is at the appellate stage before the High Court mere compromise between the parties would not be a ground to accept the same resulting in acquittal of the offender who has already been convicted by the trial court. Here charge is proved under Section 307 IPC and conviction is already recorded of a heinous crime and therefore there is no question of sparing a convict found guilty of such a crime.” therefore 15.4. Offences under Section 307 IPC and the Arms Act etc. would fall in the category of heinous and serious offences and therefore are to be treated as crime against the society and not against individual alone and the criminal proceedings for the offence under Section 307 IPC and or the Arms Act etc. which have a serious impact on the society cannot be quashed in exercise of powers under Section 482 of the Code on the ground that the parties have resolved their entire dispute amongst themselves. However the High Court would not rest its decision merely because there is a mention of Section 307 IPC in the FIR or the charge is framed under this provision. It would be open to the High Court to examine as to whether incorporation of Section 307 IPC is there for the sake of it or the prosecution has collected sufficient evidence which if proved would lead to framing the charge under Section 307 IPC. For this purpose it would be open to the High Court to go by the nature of injury sustained whether such injury is inflicted on the CRL.M.C. 852 2021 investigation. Therefore vital delicate parts of the body nature of weapons used etc. However such an exercise by the High Court would be permissible only after the evidence is collected after investigation and the charge sheet is filed charge is framed and or during the trial. Such exercise is not permissible when the matter is still the ultimate conclusion in paras 29.6 and 29.7 of the decision of this Court in Narinder Singh6 SCC 466 :3 SCC54] should be read harmoniously and to be read as a whole and in the circumstances stated hereinabove 15.5 . While exercising the power under Section 482 of the Code to quash the criminal proceedings in respect of non compoundable offences which are private in nature and do not have a serious impact on society settlement compromise between the victim and the offender the High Court is required to consider the antecedents of the accused the conduct of the accused namely whether the accused was absconding and why he was absconding how he had managed with the complainant to enter into a compromise etc.” A perusal of the above judgments would show that the Courts must be slow in exercising their jurisdiction under Section 482 for quashing the proceedings arising out of offences punishable under Section 307 308 IPC. The parameters laid down in State of M.P. v. Laxmi Narayanstate that the powers conferred on the High Courts under Section 482 Cr.P.C can be exercised keeping in mind the injuries sustained nature of weapons used etc. CRL.M.C. 852 2021 6. The facts of the present case disclose that the injuries sustained by the complainants are simple and minor in nature. Mr. Satish Kumar learned counsel for the petitioners state that the parties are related to each other and for peace in the family the FIR be quashed. The petitioners are accused of committing an offence punishable under Section 308 IPC and this petition has been filed on the basis of a compromise arrived at between the parties. Keeping in mind the fact that the petitioners are youngsters petitioner No.1 is about 22 years old and the petitioner No.2 is about 25 years old having entire life ahead of them the fact that the parties are related to each other and the injury sustained by the complainant is only minor in nature this Court is inclined to quash the FIR exercising its jurisdiction under Section 482 Cr.P.C. The petitioners have to understand that anger does not give a license to take law in their hands. In order to sober down the petitioners this Court feels that they should do some community service for at least one month. Accordingly petitioners are directed to do community service at Dr. Ram Manohar Lohia Hospital for a period of one month i.e. from 28.03.2021 to 28.04.2021. This Court is also inclined to impose cost of Rs.25 000 each on the petitioner No.1 and the petitioner No.2. The amount shall be paid to the ‘Army Welfare Fund Battle Casualties’. Copy of the receipts be filed with the Registry within three weeks from today to show compliance of the order. 10. After completion of one month a certificate from Medical Superintendent Dr. Ram Manohar Lohia Hospital be also filed to show compliance of the order. In case of any absenteeism default on the part of CRL.M.C. 852 2021 the petitioner the same shall be conveyed immediately by the Medical Superintendent Dr. Ram Manohar Lohia Hospital to the concerned SHO who shall in turn inform the learned APP for the State for bringing the same to the notice of the Court and for seeking recall of the orders passed today. 11. With the above directions the petition is disposed of along with the pending applications if any. 12. A copy of this order be transmitted to Dr. Ram Manohar Lohia SUBRAMONIUM PRASAD J MARCH 17 2021 CRL.M.C. 852 2021

Union Of India V/S Ogilvy Mather Ltd &Anr

“The courts are not powerless to condone the delay in the facts and circumstances of the case merely because it is a case of the re-filing of the documents” It is contended by the applicant that the impugned award was passed on 2nd June, 2007 by the learned sole Arbitrator in Arbitration Application No. 241/03 wherein the learned Arbitrator passed an award of Rs. 52,05,367/- with interest @ 12% p.a. thereon from 2nd June, 2007 till date of payment as per terms of the award.The petition under Section 34 of the Act was initially filed in the court on 9th August, 2007 vide diary No. 103209 which is within the time period prescribed under the Act. The Dealing Assistant on 13 th August, 2007 raised certain objections that (a) Caveat report be obtained; (b) Memo of Party be filed ; and (c) Urgent application not signed.The objections were removed and it was re-filed again on 31st October, 2007. It was mentioned that the urgent petition was not being filed and the petition may be listed on ordinary basis. However, the registry again raised the objection that the application for condonation of delay in re-filing be filed giving the details of the delay in filing of the petition.The petition was again refiled only in the second week of April, 2008 and again an objection was raised by the registry that the caveat report had not been taken and the details of the delay in re-filing of the petition were not correct.On 23rd May, 2008 the registry again raised the objections that the objections already raised have not been removed and on 26th May, 2008 the petition was re-filed again and came up before court on 28th May, 2008, whereby notice was issued in I.A. No.6734/08 under Section 5 of the Limitation Act for condonation of delay.ISSUE BEFORE THE COURT:Whether the provisions of Section 5 of Limitation Act are applicable while considering the delay in re-filing the petition/objections/documents?Whether the caveat report had not been taken and the details of the delay in re-filing of the petition were not correct?RATIO OF THE COURT:The court stated that the application under Section 5 of the Limitation Act is not maintainable and the delay of more than 30 days after the expiry of the prescribed period of 90 days cannot be condoned. It is also contended that Section 5 of the Limitation Act does not apply to the petition under Section 34 of the Act. The application lacks in detail as it does not give the dates of surgery undergone by the counsel and his recovery from it nor it is explained why the alternative counsel was not engaged earlier as was done later and mixing of files is not a ground for condonation of delay. The delay must be explained day-by-day. It is alleged that it is irrelevant whether the delay is intentional or unintentional as the court does not have the power to extend the time limit prescribed by section 34 of the Act and the delay under any circumstances cannot be condoned.The court refered to the section 34 of arbitration and conciliation act, 1996 that  Application for setting aside arbitral award. xxxxx (3) An application for setting aside may not be made after three months have elapsed from the date on which the party making that application had received the arbitral award or if a request had been made under Section 33 from the date on which that request had been disposed by the arbitral tribunal: Provided that if the Court is satisfied that the applicant was prevented by sufficient cause from making the application within the said period of three months it may entertain the application within a further period of thirty days, but not thereafter.” The court stated that the award was passed by the learned arbitrator on 02.06.2007 and the present petition under section 34 of the Act for setting aside of the part of the award was filed on 09.08.2007. As per the provisions of Section 34(3) of the Arbitration & Conciliation Act, 1996, an application for setting aside may not be made after 3 months from the date on which the party making that application had received the arbitral award. Thus the application under Section 34 of the Act had been filed by the petitioner within the prescribed time.The court observed that in the Act of 1996, there is no express provision excluding application of the provisions of Section 14 of the Limitation Act to an application filed under Section 34 of the Act for challenging an award. Further, there is fundamental distinction between the discretion to be exercised under Section 5 of the Limitation Act and exclusion of the time provided in Section 14 of the said Act. The power to excuse delay and grant an extension of time under Section 5 is discretionary whereas under Section 14, exclusion of time is mandatory, if the requisite conditions are satisfied. Section 5 is broader in its sweep than Section 14 in the sense that a number of widely different reasons can be advanced and established to show that there was sufficient cause in not filing the appeal or the application within time. The ingredients in respect of Section 5 and 14 are different. The effect of Section 14 is that in order to ascertain the date of expiration of the prescribed period, the days excluded from operating by way of limitation have to be added to what is primarilythe period of limitation prescribed.The court contended that the provisions of Section 5 of Limitation Act are neither applicable while adjudicating the condonation of delay in filing the objections u/S 34 nor in the case wherein they were filed within the prescribed time but refiled at the later date. Following the judgment of the Apex Court in the case of Consolidated Engg.’s case (supra) which says that mere inapplicability of Section 5 of Limitation Act will not debar the Court from looking into any other circumstance or extra ordinary circumstance wherein the delay can be condoned. In the case of re-filing, the provisions of Section 5 of the Limitation Act, are not applicable, therefore, the case of re-filing will not be covered under the provisions of Section 5 ofLimitation Act and in such case, the rigours of Section 5 of Limitation Act and the explanation therein shall not be of any assistance while condoning the delay and the delay will be looked into considering the circumstances in hand. It, however, does not make the Court powerless to reject the petition of a person who is totally negligent, reckless or erratic, but surely the said case of re-filing will be excluded from Section 5 of Limitation Act.The court observed that when the said case of re-filing is excluded from Section 5 of Limitation Act, that the Court can look into the facts and circumstances of each case and condone the delay as it will not be covered by Section 5 of Limitation Act but the court cannot look into any circumstances which are covered under Section 5 of Limitation Act while seeing the delay in filing the objections. The case of re-filing is clearly not covered by Section 5 of Limitation Act.The ground of condonation of delay has to be looked into in the backdrop of the fact that this court is dealing with the objections for challenge of Award under section 34 of the Arbitration and Conciliation Act, 1996. This Act is a special law, consolidating and amending the law relating to arbitration and matters connected therewith or incidental thereto. The Act does not prescribe the period of limitation, for various proceedings under that Act, except where it intends to prescribe a period different from what is prescribed in the Limitation Act. The interference of the court in the arbitral award has been limited by prescribing the period of limitation under Section 34 of the Act.The objections for challenging the award are a valuable right of the parties and if they are not filed within time, it takes away the said right to the benefit of the other. It is pertinent to mention here that although the Court can look into the issue of re-filing for condoning the delay and is not powerless under those circumstances to reject an application seeking condonation and may decline to condone the delay as held by Division Bench of this Court in S.R. Kulkarni’s case (supra).The court observed that in this present case, the delay of 258 days is exorbitant and the said delay cannot be condoned as it would amount to delaying the very object and purpose of prescribing the limitation for challenging the Award under section 34 of the Act and frustrating the scheme of the Act. The circumstances of condonation of delay in re-filing therein have to be in consonance with the aims and objects of the Act. The period of 258 days delay is too excessive to be condoned on the ground pleaded by the petitioner. The re-filing circumstance gives the court power to condone the delay in special circumstances, but the said aspect cannot give any party a leverage period of limitation for filing the objections against the award.The court stated that the issue of re-filing also looked into the question of sufficient cause and good grounds for condoning the delay. The illness of the counsel can be a good ground to condonereasonable delay but cannot be overstretched to condone the excessive delay of 258 days, especially where the defects in objections are not vital in character and can be easily handled by the associate counsel having vakalatnama in their favour.DECISION HELD BY COURT:The court stated that this court no merit in the contention of the petitioner. The application IA No.6734/2008 under Section 5 of Limitation Act is dismissed.

Union of India HIGH COURT OF DELHI : NEW DELHI IA No. 6734 2008 in OMP No.291 2008 Judgment reserved on: 12th January 2009 Judgment decided on : 13th March 2009 Through : Mr. Parag Tripathi Addl. Solicitor General with Ms. Arti Gupta Ms. Prem Lata Bansal and Mr. Sanjeev Rajpal Advocates Ogilvy & Mather Ltd. & Anr. Through: Mr. Vinoo Bhagat with Mr. Amiet Andlay Advs. Respondents HON BLE MR. JUSTICE MANMOHAN SINGH 1. Whether the Reporters of local papers may be allowed to see the judgment 2. To be referred to Reporter or not 3. Whether the judgment should be reported in the Digest MANMOHAN SINGH J. 1. By this order I shall dispose of application under Section 5 of the Limitation Act read with Section 151CPC being I.A. No. 6734 08 for condonation of delay in re filing of the petition under Section 34 of the Arbitration and Conciliation Act 1996 for setting aside the award dated 2nd June 2007 passed by the learned arbitrator. It is contended by the applicant that the impugned award was passed on 2nd June 2007 by the learned sole Arbitrator in Arbitration Application No. 241 03 wherein the learned Arbitrator passed an award of Rs. 52 05 367 with interest @ 12% p.a. thereon from 2nd June 2007 OMP No.291 2008 till date of payment as per terms of the award. 3. The petition under Section 34 of the Act was initially filed in the court on 9th August 2007 vide diary No. 103209 which is within the time period prescribed under the Act. The Dealing Assistant on 13th August 2007 raised certain objections: a) Caveat report be obtained b) Memo of Party be filed and c) Urgent application not signed 4. The objections were removed and it was re filed again on 31st October 2007. It was mentioned that the urgent petition was not being filed and the petition may be listed on ordinary basis. However the registry again raised the objection that the application for condonation of delay in re filing be filed giving the details of the delay in filing of the petition. The petition was again refiled only in the second week of April 2008 and again an objection was raised by the registry that the caveat report had not been taken and the details of the delay in re filing of the petition were not correct. On 23rd May 2008 the registry again raised the objections that the objections already raised have not been removed and on 26th May 2008 the petition was re filed again and came up before court on 28th May 2008 whereby notice was issued in I.A. No.6734 08 under Section 5 of the Limitation Act for condonation of delay. In the instant application under Section 5 of the Limitation Act condonation of delay has been sought in re filing of original miscellaneous petition filed against the award dated 2nd June 2007 in respect of 258 days delay beyond the period of 90 days on the ground OMP No.291 2008 that the senior Standing counsel looking after the matter had to undergo surgery followed by prolonged recovery period seeking constant attention and the file was also mixed up with other files in his office and the said delay which occurred in re filing is bonafide and unintentional and the same be condoned. In reply to the application by the respondent it is stated that the application under Section 5 of the Limitation Act is not maintainable and the delay of more than 30 days after the expiry of the prescribed period of 90 days cannot be condoned. It is also contended that Section 5 of the Limitation Act does not apply to the petition under Section 34 of the Act. The application lacks in detail as it does not give the dates of surgery undergone by the counsel and his recovery from it nor it is explained why the alternative counsel was not engaged earlier as was done later and mixing of files is not a ground for condonation of delay. The delay must be explained day by day. It is alleged that it is irrelevant whether the delay is intentional or unintentional as the court does not have the power to extend the time limit prescribed by section 34 of the Act and the delay under any circumstances cannot be It is argued by learned counsel for the respondent that Section 34 of the Arbitration & Conciliation Act does not refer to different kinds of delay some that can and others that cannot be condoned beyond the time limit prescribed in it. Even one day‟s delay beyond 30 days‟ delay condonable under the said Section) cannot be condoned. Decisions of the Supreme Court for a liberal approach to OMP No.291 2008 condoning the delay do not apply to matters governed by the special provisions of Section 34 of the Act. In rejoinder to the reply it is stated by the petitioner that only when the Execution petition No. 6 08 was listed and came up for hearing before the court the petitioner enquired about the application filed by him under Section 34 of the Act for setting aside of the award. The matter was re filed after removing the objections along with the application praying for condonation of delay. However by this process the delay of 258 days occurred which was not intentional but was caused due to circumstances beyond the control of the petitioner and his It is again stated that the petitioner has filed the application under section 34 within the limitation period prescribed under the Act. The delay was only with respect to re filing of the said application and therefore liberal approach may be taken by the Court. I have heard learned counsel for the parties and also gone through the record of the case. The case in hand is considered by me while looking into the two propositions of law which are as under: a) Exclusion of Section 5 of Limitation Act from the purview of Section 34 of the Arbitration and Conciliation Act 1996. b) Exclusion of Section 5 of Limitation Act while considering the case of re filing. At the outset it would be appropriate to consider the law in relation to Section 34 of the Arbitration and Conciliation Act 1996 OMP No.291 2008 which is as under: “34. Application for setting aside arbitral award. xxxxx 3) An application for setting aside may not be made after three months have elapsed from the date on which the party making that application had received the arbitral award or if a request had been made under Section 33 from the date on which that request had been disposed by the arbitral tribunal: Provided that if the Court is satisfied that the applicant was prevented by sufficient cause from making the application within the said period of three months it may entertain the application within a further period of thirty days but not thereafter.” A bare reading of Section 34(3) with the proviso makes it abundantly clear that the application for setting aside the award on the grounds mentioned in Sub Section of Section 34 will have to be made within three months. The period can further be extended on sufficient cause being shown by another period of 30 days but not thereafter. It means that as far as application for setting aside the award is concerned the period of limitation prescribed is three months which can be extended by another period of 30 days on sufficient cause being shown to the satisfaction of the Court. In the present case the award was passed by the learned arbitrator on 02.06.2007 and the present petition under section 34 of the Act for setting aside of the part of the award was filed on 09.08.2007. As per the provisions of Section 34(3) of the Arbitration & Conciliation Act 1996 an application for setting aside may not be made after 3 months from the date on which the party making that application had received the arbitral award. Thus the application under Section 34 of the Act had been filed by the petitioner within the prescribed time. OMP No.291 2008 14. Learned counsel for the respondent relied upon the case of Union of India v. Popular Construction8 SCC 470 to contend that Section 5 of the Limitation Act does not apply to petitions under Section 34 of the Arbitration & Conciliation Act 1996. Under the Act the Court has power to condone delay of only 30 days. Relevant paras are reproduced herein below: “12. As far as the language of Section 34 of the 1996 Act is concerned the crucial words are “but not thereafter” used in the proviso to sub section of the Limitation Act and would therefore bar the application of Section 5 of that Act. Parliament did not need to go further. To hold that the court could entertain an application to set aside the award beyond the extended period under the proviso would render the phrase “but not thereafter” wholly otiose. No principle of interpretation would justify such a result. Apart from the language express exclusion may 13. follow from the scheme and object of the special or local law. Even in a case where the special law does not exclude the provisions of Sections 4 to 24 of the Limitation Act by an express reference it would nonetheless be open to the Court to examine whether and to what extend the nature of those provisions or the nature of the subject matter and scheme of the special law exclude their operation". 14. Here the history and scheme of the 1996 Act support the conclusion that the time limit prescribed under Section 34 to challenge an award is absolute and unextendible by court under Section 5 of the Limitation Act. The Arbitration and Conciliation Bill 1995 which preceded the 1996 Act stated as one of its main objectives the need “to minimise the supervisory role of courts in the arbitral process”. This objective has found expression in Section 5 of the Act which prescribes the extent of judicial intervention in no uncertain terms: “5. Extent of anything contained in any other law for the time being in force in matters governed by this Part no judicial authority shall intervene except where so provided in this Part.” 15. The Part referred to in Section 5 is Part I of the 1996 Act which deals with domestic arbitrations. Section 34 is contained in Part I and is therefore subject to the sweep of the prohibition contained in Section 5 of the 1996 Act. OMP No.291 2008 16. Furthermore section 34(1) itself provides that recourse to a court against an arbitral award may be made only by an application for setting aside such award "in accordance with" sub Section 2 and sub Section 3. Sub Section 2 relates to grounds for setting aside an award and is not relevant for our purposes. But an application field beyond the period mentioned in Section 34 sub sectionwold not be an application "in accordance with" that sub section. Consequently by virtue of Section 34(1) recourse to the court against an arbitral award cannot be made beyond the period prescribed. The importance of the period fixed under Section 34 is emphasised by the provisions of Section 36 which provide that "where the time for making an application to set aside the arbitral award under Section 34 has expired...the award shall be enforced and the Code of Civil Procedure 1908 in the same manner as if it were a decree of a court". This is a significant departure form the provisions of the Arbitration Act 1940. Under the 1940 Act after the time to set aside the award expired the court was required to "proceed to pronounce judgment according to the award and upon the judgment so pronounced a decree shall follow". Now the consequence of the time expiring under Section 34 of the 1996 Act is that the award becomes immediately enforceable without any further act of the Court. If there were any residual doubt on the interpretation of the language used in Section 34 the scheme of the 1996 Act would resolve the issue in favour of curtailment of the Court s powers by the exclusion of the operation of Section 5 of the Limitation Act.” He also relied upon the case of Damodaran Pillai v. South Indian Bank Ltd. 7 SCC 300 wherein the Supreme Court held as under: “It is also trite that the civil court in absence of any express power cannot condone the delay. For the purpose of condonation of delay in absence of applicability of the provisions of Section 5 of the Limitation Act the court cannot invoke its inherent power. …. …. The principles underlying the provisions prescribing limitation are based on public policy aiming at justice the principles of repose and peace and intended to induce claimants to be prompt in claiming relief.” There can be no doubt in respect of the legal proposition that the term „sufficient cause‟ in proviso to sub section to section 34 OMP No.291 2008 deserves to be liberally construed so as to advance substantial justice. The question of condonation of delay in re filing of an application has to be considered from a different angle and viewpoint as compared to consideration of condonation of delay in initial filing. The delay in re filing is not subject to the rigorous tests which are usually applied in excusing the delay in a petition filed under Section 5 of the Limitation Act 1963. The Apex Court while interpreting Section 34 and the objections therein has held in the case of Popular Construction case supra) that the limitation prescribed under the provision of Section 34 is of sacrosanct nature and the expression used in Section 34 is “not thereafter”. It is clearly laid down that the delay in filing the objection u S 34 of the Arbitration and Conciliation Act 1996 cannot exceed the limit of three months from the date of passing of award and one month afterwards and not thereafter. Thus the law in relation to objections against the award is clear to the extent that the provisions of Section 5 of Limitation Act will not be invoked while considering the delay in filing the objections u S 34 of the Act. Recently the Hon‟ble Apex Court had occasion to discuss the provisions of Section 5 of Limitation Act and its interplay with the provisions of Section 34 of the Arbitration and Conciliation Act 1996 in the case of Consolidated Engg. V. Principal Secy reported in 2008 Vol 7 SCC 169 wherein the Apex Court has taken the view that the provisions of Section 5 of Limitation Act are not applicable with OMP No.291 2008 respect to the delay in filing the objections and the said Section 5 of the Limitation Act is not applicable because of the provisions of Section 29 of the Limitation Act which clarifies that when there is a special law and a general law prescribing the limitation the provisions of special law will prevail. The Apex Court has discussed this point in great detail and has come to the conclusion that although the provisions of Section 5 of Limitation Act will not be applicable while adjudicating upon the delay in filing the objections that will not take away the applicability of entire Limitation Act for considering the delay in filing the objections u S 34 of the Limitation Act. In other words any other circumstance which is not covered u S 5 of the Limitation Act but covered in other provisions of the Limitation Act can be looked into by the Court while adjudicating upon the delay in filing the objections and while holding this view the Apex Court was of the opinion that although the provisions of Section 5 are not applicable but the provisions of Section 14 of the Limitation Act will be applicable. The relevant paragraphs of the judgment are reproduced as under: “10. ….When any special statute prescribes certain period of limitation as well as provision for extension upto specified time limit on sufficient cause being shown then the period of limitation prescribed under the special law shall prevail and to that extent the provisions of the Limitation Act shall stand excluded. As the intention of the legislature in enacting Sub sectionof Section 34 of the Act is that the application for setting aside the award should be made within three months and the period can be further extended on sufficient cause being shown by another period of 30 days but not thereafter this Court is of the opinion that the provisions OMP No.291 2008 of Section 5 of the Limitation Act would not be applicable because the applicability of Section 5 of the Limitation Act stands excluded because of the provisions of Section 29(2) of the Limitation Act. 11. However merely because it is held that Section 5 of the Limitation Act is not applicable to an application filed under Section 34 of the Act for setting aside an award one need not conclude that provisions of Section 14 of the Limitation Act would also not be applicable to an application submitted under Section 34 of the Act of As noticed earlier in the Act of 1996 there is no express provision excluding application of the provisions of Section 14 of the Limitation Act to an application filed under Section 34 of the Act for challenging an award. Further there is fundamenetal distinction between the discretion to be exercised under Section 5 of the Limitation Act and exclusion of the time provided in Section 14 of the said Act. The power to excuse delay and grant an extension of time under Section 5 is discretionary whereas under Section 14 exclusion of time is mandatory if the requisite conditions are satisfied. Section 5 is broader in its sweep than Section 14 in the sense that a number of widely different reasons can be advanced and established to show that there was sufficient cause in not filing the appeal or the application within time. The ingredients in respect of Section 5 and 14 are different. The effect of Section 14 is that in order to ascertain the date of expiration of the „prescribed period‟ the days excluded from operating by way of limitation have to be added to what is primarily the period of limitation prescribed. The above discussion makes it clear that although the provisions of Section 5 of the Limitation Act are not applicable while OMP No.291 2008 adjudicating upon the delay in filing the objections u S 34 of the Act however that will not debar the Court from looking into any other circumstance which may be incidental in nature which may not be covered u S 5 of the Limitation Act. In the case in hand the second issue which requires consideration is as to whether the provisions of Section 5 of Limitation Act are applicable while considering the delay in re filing the petition objections documents. In the case of Smt. Parvati & Ors. v. Shri Anand Parkash alias Nand Lal AIR 1987 Delhi 90 this Court has held that Section 5 of the Limitation Act would not be attracted to a case wherein appeal and objections have been initially filed within the prescribed period of limitation and the same does not suffer from any infirmity of vital nature is a delay in refiling appeal objections after removing the defects. The relevant portion of the judgment is reproduced as under: “Section 5 of the Limitation Act would not be attracted to a case where an appeal objection has been initially filed within the prescribed of limitation and the same does not suffer from any infirmity of a vital nature but there is delay in re filing the appeal after removing the defects as pointed out by the Deputy Registrar. The rigours of law of limitation regarding condonation of delay would not apply to such a situation and the court has simply to satisfy itself that there is a plausible explanation for the delay. But it cannot be said that there is no sanction behind R 5(1) of Punjab High Court Rules and Orders memorandum of appeal or impose any other appropriate penalty if the appellant behaves in a totally negligent reckless or erratic manner in not re filing the appeal after removing the defects within a reasonable time ” the Court will be powerless This leads me to consider the case in hand wherein the OMP No.291 2008 objections were filed within the prescribed period of time and the same did not suffer from any discrepancy infirmity of vital nature. Therefore the provisions of Section 5 of the Limitation Act will not be applicable to the objections which were initially filed within the prescribed time but later on re filed after removing the defects beyond the prescribed time. Precisely it means that while seeing the condition of delay in re filing the provisions of Section 5 of Limitation Act and rigours of law of Limitation will not be applicable. Coming back to the earlier discussion of Arbitration Act and while seeing the same in consonance with the case in hand it can easily be gauged that the provisions of Section 5 of Limitation Act are neither applicable while adjudicating the condonation of delay in filing the objections u S 34 nor in the case wherein they were filed within the prescribed time but refiled at the later date. Following the judgment of the Apex Court in the case of Consolidated Engg.’s casewhich says that mere inapplicability of Section 5 of Limitation Act will not debar the Court from looking into any other circumstance or extra ordinary circumstance wherein the delay can be condoned. In the case of re filing the provisions of Section 5 of the Limitation Act are not applicable therefore the case of re filing will not be covered under the provisions of Section 5 of Limitation Act and in such case the rigours of Section 5 of Limitation Act and the explanation therein shall not be of any assistance while condoning the delay and the delay will be looked into considering the circumstances in hand. It however does not make the Court powerless to reject the petition of a person who is OMP No.291 2008 totally negligent reckless or erratic but surely the said case of re filing will be excluded from Section 5 of Limitation Act. When the said case of re filing is excluded from Section 5 of Limitation Act I am of the view that the Court can look into the facts and circumstances of each case and condone the delay as it will not be covered by Section 5 of Limitation Act but the court cannot look into any circumstances which are covered under Section 5 of Limitation Act while seeing the delay in filing the objections. The case of re filing is clearly not covered by Section 5 of Limitation Act. In the case of S.R Kulkarni v. Birla VXL Limited 1998 V AD634 following observations are made in para 8: “8. Notwithstanding which of the aforesaid Rules are applicable the question of condonation of delay in re filing of an application has to be considered from a different angle and viewpoint as compared consideration of condonation of delay in initial filing. The delay in re filing is not subject to the rigorous tests which are usually applied in excusing the delay in a petition filed under Section 5 of the Limitation Act.......... On the facts of the case the effect of negligence or „casual approach‟ which would be appropriate term to be used here of the counsel on his client does not deserve to be so rigorous so as to deny condition of delay in re filing the application. The casual approach of the counsel is evident as no timely efforts were made firstly to find out after filing application on 19th August 1995 as to whether the Registry had raised any objection or not. Secondly despite order of the Joint Registrar dated 9th January 1996 the objection was removed only on 4th March 1996 i.e. after the date which the Joint Registrar had fixed for the application being posted for hearing OMP No.291 2008 before the Court............ When there is negligence or casual approach in a matter like this in re filing of an application though the Court may not be powerless to reject an application seeking condonation and may decline to condone the delay but at the same time passing of any other appropriate order imposition of cost can be considered by the court to compensate the other party from delay which may occur on account of re filing of the application.” The discussion above makes it clear that the court can look into any circumstance other than the circumstances falling under section 5 of the Limitation Act to condone the delay and certainly the case of re filing of the objections is not falling under section 5 and can be looked into by the court. The courts have time and again stated that the question of re filing of the objections is not subject to strict rigours of the law of limitation. However the courts have also reminded themselves that they are not powerless to condone the delay in the facts and circumstances of the case merely because it is a case of the re filing of the documents. Learned counsel for the respondent has argued on the point of condonation of delay in re filing of the petition under Section 34 of the Arbitration and Conciliation Act 1996 and stressed that the delay in re filing of the petition be not allowed because of the following reasons: a) That there is no whisper in the application filed by the petitioner as to why the two other Advocates on record did not cure the defects for 258 days and it shows that it is a case of gross negligence on the part of the petitioner. OMP No.291 2008 b) That the main reason given the application for condonation is delay is the surgery undergone by Senior Standing Counsel but the Vakalatnama on behalf of the petitioner has been filed and re filed by other two advocates also. The illness of the counsel other than the one handling the case cannot be an excuse for condonation of delay and no ground in this regard has been stated in the application for condonation of delay. c) That the petitioner has also failed to give any relevant dates of the illness of counsel and even after the surgery was conducted on him the dates of his illness and resumption of work subsequently are not given in the application. d) That the petition under Section 34 of the Act was filed initially on 9th August 2007 and returned under objections on 13th August 2007. The first re filing of the petition was on 31st October 2007 i.e. 80 days after it was returned as defective. Under Sub Rule of Rule 5 of Chapter I of Delhi High Court Rules and Orders the first re filing after more than 30 days in the aggregate is to be construed as a case of fresh institution. In view of sub rule the petitioner‟s application was barred by limitation. 29. In reply to sub ruleof Rule 5 Chapter I of the Delhi High Court Rules and Orders learned senior counsel has made his submission that the said Chapter I and Rule 5 is applicable only regarding filing of the appeal against the order or judgment and not the petition filed on the OMP No.291 2008 Original Side. Learned counsel for the petitioner has relied on Rule 2 of Chapter IV of Delhi High Court Rules which read as under: “ If on scrutiny the document is found to be defective the said document shall after notice to the party filing the same be placed before the Registrar. The Registrar may for sufficient cause return the said document for rectification or amendment to the party filing the same and for this purpose may allow to the party concerned such reasonable time as he may consider 30. These rules have also been discussed in the case of S.R.Kulkarni‟s case wherein the Division Bench has observed that the question of condonation of delay in re filing of the application has to be considered from a different angle and view point as compared to consideration of condonation of delay initial filing and notwithstanding which of the aforesaid Rules are applicable. It needs no mention that the ground of illness of the Senior Standing counsel stated in the application for condonation of delay seems to be good reason for the Court for condoning the delay. However it cannot lose sight of the fact that the application under Section 34 of the Arbitration & Conciliation Act 1996 was filed on 9th August 2007. The dealing assistant of the Registry had first time raised the objection on 13th August 2007. The details of the said objections are mentioned in para 3 of the judgment. The said objections are stated to have been removed on 30th October 2007. But it appears from the record that all the objections raised by the Registry were not removed and the application under Section 34 was again returned. The petitioner this time re filed the petition on 10th April 2008 i.e. after more than five OMP No.291 2008 months. On the same date objections were raised again for the third time by the dealing assistant of the Registry stating that objections were not removed by the petitioner. The petition was again re filed on 25th April 2008. On re filing the petition again on 23rd May 2008 the dealing assistant of the Registry fourth time returned the petition stating that objections were not removed. The said process of removing the objections ended ultimately on 28th May 2008 when the petition was re filed. The sequence of events in re filing of the petition several times and nature of the objections raised by the registry reveals that the objections were not very vital in character and were merely relating to “Caveat report not obtained Memo of party not signed and Urgent application not signed”. The said objections being merely minor in nature and non vital could have been removed by the other two counsel without any instructions from the counsel looking after the matter especially since they were already holding vakalatnama in their favour. The ground of condonation of delay has to be looked into in the backdrop of the fact that this court is dealing with the objections for challenge of Award under section 34 of the Arbitration and Conciliation Act 1996. This Act is a special law consolidating and amending the law relating to arbitration and matters connected therewith or incidental thereto. The Act does not prescribe the period of limitation for various proceedings under that Act except where it intends to prescribe a period different from what is prescribed in the Limitation Act. The interference of the court in the arbitral award has been limited by prescribing the period of limitation under Section 34 of the Act. OMP No.291 2008 33. The objections for challenging the award are a valuable right of the parties and if they are not filed within time it takes away the said right to the benefit of the other. It is pertinent to mention here that although the Court can look into the issue of re filing for condoning the delay and is not powerless under those circumstances to reject an application seeking condonation and may decline to condone the delay as held by Division Bench of this Court in S.R. Kulkarni’s case (supra). I am of the view that in the present case the delay of 258 days is exorbitant and the said delay cannot be condoned as it would amount to delaying the very object and purpose of prescribing the limitation for challenging the Award under section 34 of the Act and frustrating the scheme of the Act. The circumstances of condonation of delay in re filing therein have to be in consonance with the aims and objects of the Act. The period of 258 days delay is too excessive to be condoned on the ground pleaded by the petitioner. The re filing circumstance gives the court power to condone the delay in special circumstances but the said aspect cannot give any party a leverage period of limitation for filing the objections against the award. The court in the issue of re filing also looked into the question of sufficient cause and good grounds for condoning the delay. The illness of the counsel can be a good ground to condone reasonable delay but cannot be overstretched to condone the excessive delay of 258 days especially where the defects in objections are not vital in character and can be easily handled by the associate counsel having vakalatnama in their favour. I find no merit in the contention of the petitioner. The OMP No.291 2008 application IA No.6734 2008 under Section 5 of Limitation Act is In view of the order passed in IA No.6734 2008 this OMP No.291 2008 is also dismissed being time barred. MANMOHAN SINGH J dismissed. OMP No. 291 2008 No costs. March 13 2009 OMP No.291 2008

Concept of bail found its place within the human rights. : Gauhati High Court

It should also be remembered that the legislature used, for the purposes of the bail, ‘reasonable reasons for believing’ rather than ‘evidence’ to mean that the court dealing with the bail can only satisfy it as to whether a genuine case against the accused exists and that the prosecution can produce prima facie evidence in support. At this stage, it is not exempt from having proof that the accused is guilty beyond a reasonable doubt, was referred by Justice Parthivjyoti Saikia of the Gauhati High Court in the matter of Saroj Sharma versus State of Assam [Bail Appln./399/2021] The following order was passed for the facts relating to the arrest of petitioners as a publicity advertisement was published by the State Level Police Recruitment Board requesting an online application for 597 police S.I. positions in Assam Police from the eligible candidates. Some 66,000 candidates have downloaded E-Admit cards for examination, but the question papers have previously been leaked and circulated in WhatsApp which has resulted in the cancellation of the written test. The President of the Recruitment Board for State Police has submitted the FIR, alleging the above. In the FIR, the informant said he had received the leakage information via a WhatsApp message from Sri Gautam Mech. An inquiry was carried out by the police. Several people have been detained. Finally, the charging sheet was filled by the police. It may be pointed out that certain people who are indicated on Page No. 4/15 as being charged in the indictment have never been arrested by the police. They were summoned by the following court and released under bail. Indeed, Special Judge Assam has already released 26 people charged under bail. Saroj Sarma, the petitioner’s bail application was dismissed by the following court. Since the specific allegations were Sri Saroj Sharma has found himself to be one of the leading defendants along with defendants Rubul Hazarika, Prasanta Kumar Dutta, Kumar Sanjit Krishna and others who have involved themselves, by way of Whatsapp messages and other means, in the offence of leaking from the question paper the SI(UB) written exam for police officers. On behalf of the present petitioners, learned counsel relied upon the following decisions: (2014) 8 SCC 273: Arnesh Kumar Vs. State of Bihar & Anr. (2020) 10 SCC 616: Bikramjit Singh Vs. State of Punjab (2002) 9 SCC 372: Laloo Prasad @ Laloo Prasad Yadav Vs. State of Jharkhand 2020 SCC Online SC 964: Arnab Manoranjan Goswami Vs. State of Maharashtra & Ors. (2019) 14 SCC 599 : Achpal @ Ramswaroop & Anr. Vs. State of Rajasthan (2012) 1 SCC 40: Sanjay Chandra Vs. Central Bureau of Investigation  Learned State Counsel, Assam relied upon the following decisions: (1989) 1 SCC 235: Sube Singh & Ors. Vs. State of Haryana & Ors. (1969) 3 SCC 429: Mohd. Hussain Umar Kochra & Ors. Vs. K.S. Dalipsinghji & Ors. AIR 1961 SC 1241: The State of Andhra Pradesh Vs. Kandimalla Subbaiah & Ors.  By keeping in consideration the case of R v Hildebrandt, the Court of Appeal of the Supreme Court of Victoria, Australia has noted: “Judicial exposures are not fully uniform about the meaning of the parity principle. The word “principle of parity” is used by the authorities concerned in at least two ways. First, to acknowledge that cases like this should be treated equally (itself an emanation of equal justice). In this sense, it comprises a mirror statement that should also be treated as such, and that disparate culpability or circumstances may impose a different provision. Second, the phrase used is the obligation to consider the ‘appropriate comparability’ of  frauds.”

Saroj Sarma vs The State Of Assam on 25 June 2021 Gauhati High Court Saroj Sarma vs The State Of Assam on 25 June 2021 Page No.# 1 15 THE GAUHATI HIGH COURT of Police and circulated the leaked question papers through Whatsapp messages and by other means to candidates in exchange of huge sum of money. In furtherance of the conspiracy he along with Rubul Hazarika met Kumar Sanjit Krishna the then Superintendent of Police Karimganj &amp Chairman District Level Selection Committee at Karimganj on 12 09 2020. They conspired thereto leak the question paper prior to the scheduled examination date i.e 20 09 2020 from the custodian of question papers i.e. Kumar Sanjit Krishna. As desired by Kumar Sanjit Krishna he arranged secret mobile handsets and fake SIM card for use by Kumar Sanjit Krishna and other perpetrators to keep their conspiracy as secret. He also provided his white colour Google mobile phone and necessary materials like sealing wax blade cutter adhesive tape etc. for opening and resealing the packets of question papers to Rubul Hazarika on 18 09 2020 at the time of proceeding from Guwahati to Karimganj. Accused Rubul Hazarika took photograph of the leaked question papers from the custodian i.e. Kumar Sanjit Krishna the then Superintendent of Police Karimganj &amp Chairman District Level Selection Committee Karimganj in exchange of rupees forty lakhs. As per the instruction of Saroj Sarma his employee Jitul Jyoti Sandilya delivered the money as demanded by Kumar Sanjit Page No.# 5 15 Krishna in a backpack to Subrata Sarkar husband of Sukanya Sarkar near Chung fa restaurant on Mother Teressa Road Geetanagar at the night of 18 09 2020 On receipt of the leaked question papers from Nipu Phukan he got the answers of the questions Indian Kanoon Saroj Sarma vs The State Of Assam on 25 June 2021 papers printed in the house of Hira Choudhury. At the instruction of Saroj Sarma his employee. Jitu Jyoti Shandilya shared the leaked question papers with tick marks on the correct answers with perpetrators including Rakibul Islam of Barpeta. Saroj Sarma and his associates in connivance with Prasanta Kumar Dutta arranged provided rooms &amp leaked question papers to several candidates at Hotel Bhargav Grand in the night of 19 09 2020 where mock test was held for candidates with leaked question papers. In order to conceal the design Saroj Sarma kept back the mobile phone of Rubul Hazarika with him for the period from 18 09 2020 morning to 19 09 2020 morning as an alibi whereas Rubul Hazarika proceeded to Karimganj on 18 09 2020 morning and returned to Guwahati 19 09 2020 morning. Saroj Sarma used his employees namely Jitul Jyoti Shandilya Nipu Phukan and Imran Hussain to execute the conspiracy. A copy of Admit Card in the name of a candidate of SI(UB) exam was recovered from his rented house. He collected huge sum of money in inducing various candidates through his network of middlemen including Rakibul Islam Kumud Kalita and Hira Choudhury etc. The evidence gathered during the course of investigation shall establish the complicity of the accused in the crime Sri Diban Deka He got a set of leaked question papers from his close associate Saroj Sarma. He prepared model question papers by including the actual questions from the leaked question paper He cleverly added some additional questions in the model question papers to avoid drawing of undue attention and to conceal his criminal activity. The model question papers were handed over by him to Pranab Bora and Pranjal Sarma who are partners of Thank You Lodge. With these model question papers mock test was held in the Thank You Lodge on 19 th Sep. 2020. He has induced several candidates by promising them job of SI(UB) of Police in exchange of huge amount money He was constant touch with the other conspirators of this crime. Arrested accused Sanjib Kumar Sarma had approached Dibon Deka for providing job of SI(UB) to few candidates and Page No 6 15 Dibon Deka had linked Sanjib Kumar Sarma with Saroj Sarma for the purpose of providing job illegality. Dibon Deka also disposed his mobile phone with malafide intention to destroy evidence The evidence gathered during the course of investigation shall establish the complicity of the accused in the crime 7. Both the petitioners namely Saroj Sarma and Diban Deka have pleaded that their period of detention already undergone in judicial custody deserves to be taken as a ground for releasing them 8. On behalf of the present petitioners learned counsel relied upon the following decisions 2014) 8 SCC 273 : Arnesh Kumar Vs. State of Bihar & Anr 2020) 10 SCC 616 : Bikramjit Singh Vs. State of Punjab9 SCC 372 : Laloo Prasad @ Laloo Prasad Yadav Vs. State of Jharkhand 2020 SCC Online SC 964 Arnab Manoranjan Goswami Vs. State of Maharashtra & Ors 2019) 14 SCC 599 : Achpal @ Ramswaroop & Anr. Vs. State of Rajasthan1 SCC 40 : Sanjay Chandra Vs. Central Bureau of Investigation Indian Kanoon 9. Mr. D. Das learned Addl. P.P. Assam relied upon the following decisions Saroj Sarma vs The State Of Assam on 25 June 2021 1989) 1 SCC 235 : Sube Singh & Ors. Vs. State of Haryana & Ors 1969) 3 SCC 429 : Mohd. Hussain Umar Kochra & Ors. Vs. K.S. Dalipsinghji Page No.# 7 15 & Ors AIR 1961 SC 1241 : The State of Andhra Pradesh Vs. Kandimalla Subbaiah & Ors 10. I have given my anxious consideration to the submissions made by the learned counsel for both 11. In Kalyan Chandra Sarkar Vs. Rajesh Ranjan reported in2 SCC 42 the Supreme Court has observed that "under the criminal laws of this country a person accused of offences which are non bailable is liable to be detained in custody during the pendency of trial unless he is enlarged on bail in accordance with law. Such detention cannot be questioned as being violative of Article 21 since the same is authorised by law. But even persons accused of non bailable offences are entitled for bail if the court concerned comes to the conclusion that the prosecution has failed to establish a prima facie case against him and or if the court is satisfied for reasons to be recorded that in spite of the existence of prima facie case there is a need to release such persons on bail where fact situations require it to do so 12. Now let me have a discussion on the issue of bail under Section 439 CrPC. In Prahlad Singh Bhati Vs. NCT. Delhi & Anr reported in4 SCC 280 the Supreme Court has held as under The jurisdiction to grant bail has to be exercised on the basis of well settled principles having regard to the circumstances of each case and not in an arbitrary manner. While granting the bail the court has to keep in mind the nature of accusations the nature of evidence in support thereof the severity of the punishment which conviction will entail the character behaviour means and standing of the accused circumstances which are peculiar to the accused Page No.# 8 15 reasonable possibility of securing the presence of the accused at the trial reasonable apprehension of the witnesses being tampered with the larger interests of the public or State and similar other considerations. It has also to be kept in mind that for the purposes of granting the bail the Legislature has used the words "reasonable grounds for believing" instead of "the evidence" which means the court dealing with the grant of bail can only satisfy it as to whether there is a genuine case against the accused and that the prosecution will be able to produce prima facie evidence in support of the charge. It is not excepted at this stage to have the evidence establishing the guilt of the accused beyond reasonable doubt 13. In Ram Govind Upadhyay Vs. Sudarshan Singh & Ors. reported in3 SCC 598 the Supreme Court has observed as under Indian Kanoon Saroj Sarma vs The State Of Assam on 25 June 2021 3. Grant of bail though being a discretionary order but however calls for exercise of such a discretion in a judicious manner and not as a matter of course. Order for Bail bereft of any cogent reason cannot be sustained. Needless to record however that the grant of bail is dependent upon the contextual facts of the matter being dealt with by the Court and facts however do always vary from case to case. While placement of the accused in the society though may be considered but that by itself cannot be a guiding factor in the matter of grant of bail and the same should and ought always be coupled with other circumstances warranting the grant of bail. The nature of the offence is one of the basic consideration for the grant of bail more heinous is a crime the greater is the chance of rejection of the bail though however dependent on the factual matrix of the matter 4. Apart from the above certain other which may be attributed to be relevant considerations may also be noticed at this juncture though however the same are only illustrative and nor exhaustive neither there can be any. The considerations a) While granting bail the Court has to keep in mind not only the nature of the accusations but the severity of the punishment if the accusation entails a conviction and the nature of evidence in support of the accusations b) Reasonable apprehensions of the witnesses being tampered with or the apprehension of there being a threat for the complainant should also weigh with the Court in the matter of grant of bail c) While it is not accepted to have the entire evidence establishing the guilt of the accused beyond reasonable doubt but there ought always to be a prima facie satisfaction of the Court in support of the charge d) Frivolity in prosecution should always be considered and it is only the Page No 9 15 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 14. In Vaman Narain Ghiya Vs. State of Rajasthan reported in2 SCC 281 the Supreme Court has observed as under Bail" remains an undefined term in the Cr.P.C. Nowhere else the term has been statutorily defined. Conceptually it continues to be understood as a right for assertion of freedom against the State imposing restraints since the U.N. Declaration of Human Rights of 1948 to which Indian is a signatory the concept of bail has found a place within the scope of human rights. The dictionary meaning of the expression `bail denotes a security for appearance of a prisoner for his release Indian Kanoon Saroj Sarma vs The State Of Assam on 25 June 2021 Etymologically the word is derived from an old French verb `bailer which means to give or `to deliver although another view is that its derivation is from the Latin term baiulare meaning `to bear a burden . Bail is a conditional liberty. Strouds Judicial Dictionaryspells out certain other details. It states When a man is taken or arrested for felony suspicion of felony indicated of felony or any such case so that he is restrained of his liberty And being by law bailable offence surety to those which have authority to bail him which sureties are bound for him to the Kings use in a certain sums of money or body for body that he shall appear before the Justices of Goale delivery at the next sessions etc. Then upon the bonds of these sureties as is aforesaid he is bailed that is to say set at liberty until the day appointed for his appearance." Bail may thus be regarded as a mechanism whereby the State devolutes upon the community the function of securing the presence of the prisoners and at the same time involves participation of the community in administration of justice 15. In Prasanta Kumar Sarkar Vs. Ashis Chatterjee reported in14 SCC 496 the Supreme Court has observed as under 9. We are of the opinion that the impugned order is clearly unsustainable. It is trite that this Court does not normally interfere with an order passed by the High Court granting or rejecting bail to the accused. However it is equally incumbent upon the High Court to exercise its discretion judiciously cautiously and strictly in compliance with the basic principles laid down in a plethora of Page No.# 10 15 decisions of this Court on the point. It is well settled that among other circumstances the factors to be borne in mind while considering an application for bail are i) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence nature and gravity of the accusation severity of the punishment in the event of conviction danger of the accused absconding or fleeing if released on bail character behaviour means position and standing of the accused likelihood of the offence being repeated reasonable apprehension of the witnesses being influenced andAnr. reported in 2021 SCC OnLine SC 335 the Supreme Court has held as under Indian Kanoon Saroj Sarma vs The State Of Assam on 25 June 2021 42. ................................ The grant of bail is a matter which implicates the liberty of the accused the interest of the State and the victims of crime in the proper administration of criminal justice. It is a well settled principle that in determining as to whether bail should be granted the High Court or for that matter the Sessions Court deciding an application under Section 439 of the CrPC would not launch upon a detailed evaluation of the facts on merits since a criminal trial is still to take place These observations while adjudicating upon bail would also not be binding on the outcome of the trial. But the Court granting bail cannot obviate its duty to apply a judicial mind and to record reasons brief as they may be for the purpose of deciding whether or not to grant bail. The consent of parties cannot obviate the duty of the High Court to indicate its reasons why it has either granted or refused bail. This is for the reason that the outcome of the application has a significant bearing on the liberty of the accused on one hand as well as the public interest in the due enforcement of criminal justice on the other. The rights of the victims and their families are at stake as well. These are not matters involving the private rights of two individual parties as in a civil proceeding. The proper enforcement of criminal law is a matter of public Page No.# 11 15 17. In paragraph 43 of Ramesh Bhavan Rathodthe Supreme Court has observed as under 43. Grant of bail under Section 439 of the CrPC is a matter involving the exercise of judicial discretion. Judicial discretion in granting or refusing bail as in the case of any other discretion which is vested in a court as a judicial institution is not unstructured. The duty to record reasons is a significant safeguard which ensures that the discretion which is entrusted to the court is exercised in a judicious manner The recording of reasons in a judicial order ensures that the thought process underlying the order is subject to scrutiny and that it meets objective standards of reason and justice. This Court in Chaman Lal v. State of U.P.8 in a similar vein has held that an order of a High Court which does not contain reasons for prima facie concluding that a bail should be granted is liable to be set aside for non application of mind. This Court observed 8. Even on a cursory perusal the High Court s order shows complete non application of mind. Though detailed examination of the evidence and elaborate documentation of the merits of the case is to be avoided by the Court while passing orders on bail applications. Yet a court dealing with the bail application should be satisfied as to whether there is a prima facie case but exhaustive exploration of the merits of the case is not necessary. The court dealing with the application for bail is required to exercise its discretion in a judicious manner and not as a matter of course Indian Kanoon Saroj Sarma vs The State Of Assam on 25 June 2021 9. There is a need to indicate in the order reasons for prima facie concluding why bail was being granted particularly where an accused was charged of having committed a serious offence 18. The learned counsel for the petitioners tried to compare the present allegation against the petitioners with the infamous scams that have taken place in our country The learned Sr. Counsel Mr. Dutta as well as Mr. Mahajan have similarly submitted that some persons who are charge sheeted have been released on bail and the petitioners are not released on bail Page No.# 12 15 19. Regarding the principle of parity the Supreme Court in Neeru Yadav Vs. State of U.P. reported in16 SCC 508 has held that while applying the principle of parity the High Court cannot exercise its powers in a capricious manner and has to consider the totality of circumstances before 20. In the case in hand dozens of persons are booked as each of them had played different roles in the alleged act. So if one person is released on bail the other is not entitled to claim a similar view 21. In Ajmer Singh Vs. State of Haryana reported in3 SCC 746 the Supreme Court has held 23. The principle of parity in criminal case is that where the case of the accused is similar in all respects as that of the co accused then the benefit extended to one accused should be extended to the co accused. With regard to this principle it is important to mention the observation of this court in the case of Harbans Singh v State of Uttar Pradesh and Ors. 2 SCC 101]. In that case it was held that in view of commutation of death sentence of one of the accused who was similarly placed as that of appellant award of death sentence to appellant was unjustified and hence the death sentence of the appellant was stayed till the decision of the President on commutation of sentence 26. The Court of Appeal Albert Canada in R. v. Christiediscussed the meaning of the principle in connection with sentencing in criminal cases. The Court of Appeal stated 40. Parity is a principle which must be taken into account in any sentence and particularly where the offence was a joint venture. There will of course be cases where the circumstances of the co accused are sufficiently different to warrant significantly different sentences such as where one co accused has a lengthy related criminal record or played a much greater role in the commission of the offence Thus expressing its view on `parity in sentencing the Court observed Indian Kanoon Saroj Sarma vs The State Of Assam on 25 June 2021 Page No.# 13 15 "43. What we must strive for is an approach to sentencing whereby sentences for similar offences committed by similar offenders in similar circumstances are understandable when viewed together particularly in cases involving joint ventures 28. The Court of Appeal of the Supreme Court of Victoria Australia in the case of R v HildebrandtVSCA 142] observed Judicial expositions of the meaning of the parity principle are not entirely uniform The term "the parity principle" is used in at least two senses in the relevant authorities. First to express the recognition that like cases should be treated alike itself an emanation of equal justice). Secondly the phrase is used to describe the requirement to consider the "appropriate comparability" of co offenders and in that sense comprehends the mirror propositions that like should be treated alike and that disparate culpability or circumstances may mandate a different disposition 29. In the case Postiglione v The Queen189 CLR 295 94 A Crim R 397 Dawson and Gaudron JJ stated The parity principle upon which the argument in this Court was mainly based is an aspect of equal justice. Equal justice requires that like should be treated alike but that if there are relevant differences due allowance should be made for them In the case of co offenders different sentences may reflect different degrees of culpability or their different circumstances. If so the notion of equal justice is not violated Discrepancy or disparity is not simply a question of the imposition of different sentences for the same offence. Rather it is a question of due proportion between those sentences that being a matter to be determined having regard to the different circumstances of the co offenders in question and their different degrees of The Court therefore concluded the principle to mean it the concept simply is that when two or more co offenders are to be sentenced any significant disparity in their sentences should be capable of a rational 23. What can be inferred from the above decision is that for applying the principle of parity both the accused must be involved in same crime and must be convicted in single trial and consequently a co accused is one who is awarded punishment along with the other accused in the same proceedings 22. The law on the point is clear. It is extremely difficult to apply the principle of parity in law in the matters relating to bail applications filed under Section Page No 14 15 439 CrPC Indian Kanoon Saroj Sarma vs The State Of Assam on 25 June 2021 23. Therefore it can be culled out among other relevant circumstances the factors to be borne in mind while considering an application for bail under Section 439 CrPC are:whether there is any prima facie or reasonable ground to believe that the accused had committed the offence nature and gravity of the accusation severity of the punishment in the event of conviction danger of the accused absconding or fleeing if released on bail character behavior means position and standing of the accused likelihood of the offence being repeated reasonable apprehension of the witnesses being influenced anddanger of course of justice being thwarted by grant of 24. Unlike Section 437(i) there is no specific bar in Section 439of the CrPC. This is a special power of the High Court and the Court of Sessions. While exercising this special power the High Court or the Court of Sessions has to exercise judicial discretion 25. There is no specific definition of the phrase "judicial discretion". The famous American Judge Benjamin Cardozo in his book "The Nature of the Judicial Process" has explained the phrase judicial discretion" as under Judicialdiscretion is a discretion which is informed by tradition methodized by analogy and disciplined by system and subordinated to primordial necessity of order in the social life 26. I have carefully considered all the materials before me. Question paper Page No.# 15 15 leak damages the future of our young generation. This act cannot be compared with the scams involves millions of rupees. Question paper leak is an organized crime. This is an offence against the society at large. This court is satisfied that there are prima facie materials against the present petitioners Therefore this court finds no reason to agree with the prayer made by the petitioners. Accordingly the bail applications of Saroj Sarma and Diban Deka are rejected 27. All the bail applications are disposed of JUDGE Mkk Comparing Assistant Indian Kanoon

Private company outlaws the benefit of the Moratorium Policy: Bombay High Court

The Court refused to grant the benefit of the Moratorium Policy to the petitioner on the grounds that they approached the court late and only when the NCLAT refused their application and the contentions made by them were faulty. The plea was filed by a private company against a loan transaction that they believed to fall under Moratorium Policy. This ardent judgement was passed by Justice Nitin Jamdar and Justice Milind Jadhav in the matter of Wavell Investments Private Limited versus IL & FS Financial Services Ltd. (IFIN) and ors. [Writ petition (L) No.-2572 of 2020]. The petitioner took three loans from the respondent and requested to extend the benefit of the Moratorium Policy in respect of term Loan no.-1 & 2. Later the petitioner challenged the respondent’s reply which stated that ‘since the account in respect to loan transaction no. 3 of Rs. 100 crores were classified as a Non- Performing Asset by communication, the benefit of the moratorium could not be extended’. The Court questioned the credibility of the petitioner’s act stating that “the foundation of the petitioner’s case that the Petitioner agreed to be a part of the back-to-back transaction placing good faith and on the assurance of senior leadership of IL&FS group that the Back-to-Back transaction was bonafide and permissible. The Petitioner Company learned of the malpractices through reports of Serious Fraud Investigation Officer. IL&FS duped the Petitioner into believing that transaction was bona fide and permissible. To grant relief to the Petitioner in the Writ Petition, we will have to accept this version of the Petitioner. The moot question is, can we do so.” The Court refused to accept the contentions laid down by the petitioner stating that “On the charge of the Respondents that there is a delay in challenging the classification of the account as Non-Performing Asset, the Petitioner contends that the Petitioner applied before NCLT and NCLAT and bonafide believed that, that aspect would be decided. In these circumstances, since the NCLAT refused to lift the embargo, the Petitioner has approached the Court. This cannot be a satisfactory explanation. If the Petitioner is of the opinion that the NCLAT would give the very same relief, then the application of the Petitioner is still pending. The petitioner could have approached the writ jurisdiction much earlier. It was only when IFIN refused to extend the benefit of the moratorium because of the account of the Petitioner as NPA, a challenge is raised in August 2020. There is a substance in the contention of the Respondent of delay and latches by the Petitioner. However, even otherwise, we have examined the petition on merits as follows”. The Court contended that “A prerogative writ is not granted as a matter of course. The Writ Court intervenes where justice, equity, and good conscience require its intervention. Considering the totality of the circumstances, the simplistic foundation of the Petitioner’s case cannot be accepted. We are not convinced of the bonafides of the petitioner, as asserted in the petition. That being so, we refuse to exercise our equity jurisdiction”. Thus the Court rejected the petition on the facts as stated: “The argument of the Respondents of maintainability is kept open to be urged in another case. It clarified that the observations on the role of the Petitioner are in the context of refusal to exercise the writ jurisdiction”. Click here to read the judgement

WPL 2572 20_6.doc IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITIONNO.2572 OF 2020 Wavell Investments Private Limited Versus 1. IL & FS Financial Services Ltd.(IFIN) and ors Mr. Navroz Seervai Senior Advocate with Mr. Amit Sibal Senior Advocate Jayashree Shukla Dasgupta Ashish Pyasi Saloni Chowdhary Dinesh Jadhwani and Zaid Mansuri i b Dhir & Dhir Associates for the Petitioner Dr. Birendra Saraf Senior Advocate with Rohan Savant Sachin Chandarana Mayur Bhojwani Ms. Dhruti Doctor i b Manilal Kher Ambalal and Co. for Respondent No.1 Mr. Vaibhav Bhure i b Rahul Singh for Respondent No.2 Coram : Nitin Jamdar Milind Jadhav JJ 29 October 2020 Through Video Conferencing Order: is the holding company of Respondent Nos.1 and 2 i.e. IL & FS Financial Services Limitedand IL R. S. Karve 1 20 WPL 2572 20_6.doc FS Transportation Network Limited of the Companies Act 2013 in the National Company Law Tribunal Mumbai the NCLT stating that the directors were mismanaging the functioning of IL & FS group and there was a large scale fraud. The NCLT by order dated 1 October 2018 superseded the Board of Directors and appointed a new Board of Directors. The Union of India filed Application No.1173 2020 seeking comprehensive moratorium regarding IL & FS group companies. NCLT rejected this application by order dated 12 October 2018. The Union of India filed Company R. S. Karve 2 20 WPL 2572 20_6.doc AppealNo.346 2018 in the National Company Law Appellate Tribunal. The NCLAT by order dated 15 October 2018 placed an embargo to institute and continue proceedings against IL & FS Limited and its group companies and issued various other directions 3. The Loan Facility no. III became due on 28 September 2018 and IFIN issued demand notice to the Petitioner on 2 November 2018 demanding repayment of Rs.100 crores in respect of loan transaction No. III. Under the Master Direction Non Banking Financial Company Systemically Important Non Deposit taking Company and Deposit taking CompanyDirections 2016 as amended an account is declared as NPA after ninety days. The Petitioner wrote to IFIN on 22 November 2018 seeking to square off the loan and discharge the Petitioner. The Petitioner also sought repayment of the outstanding facility in respect of the Loan transaction No. I and II. the account was declared as NPA on 25 December 2018. By letter 7 May 2019 Petitioner was informed that default under any one of the three accounts would be considered as default for all. On 12 July 2019 the Petitioner received a notice from Directorate of Enforcement pertaining to investigation under the Prevention of Money Laundering Act 2002 against the IL & FS group The Petitioner was called upon to provide complete information. The promoter of the Petitioner appeared before the Serious Fraud Investigation Office Mumbaion 8 March 2019 regarding the R. S. Karve 3 20 WPL 2572 20_6.doc investigation qua affairs of IL & FS and its subsidiaries. The Petitioner filed a criminal complaint with the Economic Offence Wing on 17 May 2019 and an additional complaint on 16 December 2019 In view of COVID 19 pandemic Reserve bank of India has issued circulars on 27 March 2020 17 April 2020 and 23 May 2020 dealing with the moratorium for the payment of instalments during this period. IFIN also issued IFIN COVID 19 Relief Policy. Both lay down that the benefit of the moratorium is extended to such borrower whose account is not classified as NPA before 1 March 2020. Pursuant to the request made by the petitioner IFIN on 11 February 2020 for a no objection to dispose of the properties and utilize the sale proceeds of the said towards repayment of its loan transaction Nos. I and II IFIN granted NOC to the Petitioner on 4 June 2020. According to the Petitioner due to COVID 19 pandemic created situation the transaction was not completed. The Petitioner by letter dated 6 June 2020 requested IFIN to grant moratorium of 6 months in payment of interest and the principal falling due between 1 March 2020 and 31 August 2020. By impugned letter dated 23 June 2020 IFIN rejected the request of the Petitioner on the ground that the Petitioner does not fall under the category of “Eligible Borrowers” as defined under IFIN COVID 19 Relief policy It was informed that the loan transaction No.III was already declared as Non Performing Asset. The Petitioner reiterated its request by letter R. S. Karve 4 20 WPL 2572 20_6.doc dated 11 July 2020 which was rejected by IFIN by letter dated 5 August 2020. The Petitioner has approached this Court challenging the letters dated 23 June 2020 and 5 August 2020 issued by IFIN The Petitioner has sought a writ to IFIN to grant moratorium to the Petitioner regarding term loan agreement No. I and II and also challenged the letter dated 7 May 2019 declaring the account of the Petitioner regarding Loan transaction No.III as NPA Respondents have filed reply affidavits and the Petitioner has filed a We have heard Mr. Navroz Seervai with Mr. Amit Sibal Senior Advocates for the Petitioner and Dr. Birendra Saraf Senior Advocate for Respondent No.1and Mr. Vaibhav Bhure i b Rahul Singh for Respondent No.2 The Petitioner’s contentions in brief are: The IFIN has refused to extend the benefit of a moratorium to the Petitioner in respect of loan transaction Nos. I and II. There were back to back loan agreements whereby Respondent No.1 transferred an amount of Rs.100 Crores to the Petitioner by sanction letter dated 23 March 2018. This Term Loan Facility III was in turn transferred by the Petitioner to Respondent No.2 under a Loan Agreement executed between the Petitioner and Respondent No.2. The loan transaction No.III was wrongly classified as NPA as this loan was only back to back R. S. Karve 5 20 WPL 2572 20_6.doc transaction between the IL& FS and its subsidiaries as part of alleged mismanagement and the Petitioner is an innocent victim thereto. The declaration of the Petitioner’s account as NPA for repayment of Term Loan Facility III is arbitrary and unreasonable because of the default of Respondent No.2 in not making payments to the Petitioner. By the order dated 15 October 2018 passed by NCLAT and since Term Loan Facility III was a back to back transaction the Petitioner should be discharged from its obligation to repay Term Loan Facility III. Neither in the proceeding before NCLT and NCLAT or during an investigation by SFIO anything adverse is recorded against the Petitioner. Not only there is nothing adverse but even the assertions made in the Petition also have not explicitly been controverted. There is an embargo imposed by NCLAT to proceed against IL & FS and its group and the Petitioner is therefore remedy less. During the pendency of this petition an application filed before the NCLAT to revoke the embargo has been rejected by the order dated 12 March 2020. The amount of Rs.100 crores has been returned and the Petitioner cannot be considered as debtor in respect of this loan account. Once that position is clear there is no impediment to grant the benefit of the moratorium to the Petitioner regarding loan transaction No. I and II Respondents in short contended the petitioner s claim that loan transaction No.III is wrongly classified as NPA occurred on 28 September 2018 and the petition is filed in August 2020 only when the Respondent refused to extend the benefit of the moratorium. There R. S. Karve 6 20 WPL 2572 20_6.doc was large scale fraud in IL & FS group which is being investigated and at this stage no finding can be given that the Petitioner was an innocent victim. There is no finding by any authority that the Petitioner was innocent. It is not believable that the Petitioner received the amount of Rs.100 crores executed the documents and claims to be not part of the bogus back to back transactions. In the record the loan has been given to the Petitioner of Rs.100 crores and the Petitioner has not repaid the same. The Petitioner has filed an application in NCLT for the same relief which is pending. All these submissions are without prejudice to the preliminary objection that the writ is not maintainable against Respondent Nos.1 to 3 as they cannot be considered as state instrumentalities. The Board of Directors is not appointed by this Government but by the NCLT under its power to rectify the As regards the preliminary objection on the maintainability of the writ petition the Petitioner contends that government officers are appointed on the Board of directors. It is contended that the instrumentalities of the Central Government substantially hold the shareholding of IL & FS. Central Government is promoting IL & FS by awarding major infrastructure contracts. There is a deep pervasive and effective control. Learned counsel for the Respondents however agree that merits of the matter can be considered first and in case the Court rejects the petition on merits the arguments of maintainability be kept open to be urged in other cases. On this basis we have proceeded to R. S. Karve 7 20 consider the petition WPL 2572 20_6.doc The Petitioner has raised a dispute regarding Loan transaction No. III. The dispute is also not that loan was not received. It is also not the case of the Petitioner that the Petitioner has repaid the loan. The case is that it was a back to back transaction in which Petitioner was used and the money went back to the lender through its The Petitioner’s case is pleaded in the Petition as follows In March 2018 IFIN requested the Petitioner Company to provide a bridge loan for an interim period of not more than 6 months to ITNL one of IL&FS s group company. When the Petitioner Company expressed its inability to lend that kind of large sums the senior leadership team of IL&FS group explained that no funds are required to be arranged and that liquidity shall be provide to it under a back to back transaction whereby IFIN will grant Rs.100 Crores to the Petitioner Company by way of loan agreement and the said loan proceeds can thereafter be given by the Petitioner Company to ITNL for its requirement under a loan agreement between ITNL and the Petitioner Company. Placing its good faith in a lender who is presumed to act in the welfare of a Borrower the Petitioner Company agreed to the request to IFIN on assurance of senior leadership of IL&FS group that the Back to Back transaction was bona fide and permissible and will be i) fully financed and secured by IL&FS group with no liability to the Petitioner Company ii) independent and not connected with the Secured Term R. S. Karve 8 20 WPL 2572 20_6.doc Loan Agreements and securities granted thereunder iii) squared off within a quarter and not later than 6 months iv) on a no profit no loss basis to WIPL On 26th March 2018 the Petitioner Company received INR 100 Crores from IFIN and within an hour returned the entire INR 100 Crores to IL&FSas per IFIN’s instructions. The Petitioner Company became aware of the several malpractices at IL&FS in September 2018 through reports of Serious Fraud Investigation Officer and the Enforcement Directoratein the pending investigation against IL&FS group. The Petitioner Company has provided complete evidence of the transaction to the SFIO and ED in the said investigation and with the emergence of critical documents and facts it is evident that IL&FS had misrepresented to the Petitioner Company at the time of executing the Back to Back Loan Agreements and duped them into believing that it was bona fide and permissible. 8 SCC 396 R. S. Karve 11 20 WPL 2572 20_6.doc correspondence on record. It is contended that this statement amounts to perjury. The Petitioner contended that Respondent Nos.1 to 3 who are part of IL & FS group know the money is returned back and therefore demanding money from the Petitioner is unfair and is in breach of Article 14 of the Constitution of India 18. There is no merit in this contention. The replies draw a clear distinction between the erstwhile Board of Directors separate from the entity. The Respondent contends that the erstwhile Board of Directors committed fraud and these were not the genuine transaction on behalf of the legal entity. Respondent Nos.1 to 3 have explained that they represent the Board of Directors appointed by NCLT because of the mismanagement by the earlier directors and they have a different role to perform. Therefore there is no unfairness in Respondent Nos.1 to 3 going by the records and not supporting the actions of the displaced Board of directors. The stand taken by the Respondents is to be understood in this context. There is no case of forgery by the Petitioner submits there are bank statements and documents which evidence that Rs.100 crores received by ITNL from the Petitioner and were transferred to ILFS Airports Ltd. subsidiary company of IFIN. The Petitioner contends there is nothing against the Petitioner in the SFIO report and therefore there is no impediment in issuing the direction as sought for. Reliance was sought to be placed on R. S. Karve 12 20 WPL 2572 20_6.doc the statement of Subhash Chandra of IL & FS made in the investigation before SFIO. It is contended that there is no specific role attributed to The portions of the investigation report of IL & FS Financial Services Ltd. and its subsidiaries under Section 212 of the Companies Act 2013 by the Serious Fraud Investigation Office Ministry of Corporate Affairs New Delhi dated 28 May 2019 is placed on record. The Investigation revealed that IFIN from November 2017 onwards instead of directly lending to group companies deceptively lent loans to external parties which were transferred to the IFIN s Group companies mainly IL&FS Transportation Networks Limited to circumvent RBI directives and exposure to group companies with no fresh lending. The Report refers to the movement Rs.100 crores from IFIN to ITNL through the Petitioner. The Report reveals that the Credit Approval Memorandum and other documents of Petitioner identified the amount receivable from ITNL group which exceeded the loan amount. SFIO report states that the purpose of this loan is shown as Working Capital requirement General Corporate Purposes Refinance of existing loans and Extending loans and advances etc. The Report states that Rs.100 crore given to Petitioner eventually turned to be NPA. Further loans were approved even when adverse comments were mentioned in the CAM. Statement of Udayant Malhoutra Managing Director and Promoter of Petitioner on 8 March 2019 was recorded. Statement of Subhash Chandra the main R. S. Karve 13 20 WPL 2572 20_6.doc accused was recorded on 24 October. The Report mentions that from the working papers and emails examined by the investigation team it is evident that the Engagement Team knew the fraudulent funding of borrowers. Most of these entities were the entities used for layering of loans to be given to ITNL and its subsidiaries associates. This modus was adopted to avoid the RBI direction regarding lending to the group companies. Nothing turns on the statement of Subhash Chandra regarding the Petitioner s role. The SFIO report nowhere indicates that the Petitioner was not part of the deception and was not aware of the implications. Nowhere from the report we get that SFIO has concluded the investigation regarding how third parties were involved Petitioners next contention is that the Division Bench of this Court in the case of N. Sampath Ganesh Vs. Union of India & Ors. has observed that SFIO report is the final report. The Respondent contends this report is not final and the investigation is going on and the Division Bench of this Court has not observed that the report is In the case of N. Sampath Ganesh Vs. Union of India & Ors the auditors of IL & FS had challenged the directions and the prosecution against them under section 212(14) of the Companies Act 2013. One of the question before the Division Bench was whether the SFIO Report was an interim report. This question arose before the Division Bench in the context of the Petitioners therein that is the R. S. Karve 14 20 WPL 2572 20_6.doc auditors. Division Bench observed report pertaining to IL & FS only and the transaction with third parties had not been looked into. It also observed that this report is not a standalone and further investigation into affairs would affect findings in the report. Therefore merely based on the observations rendered in the context of petitioners before the Division Bench it cannot be held there is nothing to be investigated further. There is no categorical finding by the Division Bench that SFIO report regarding the larger fraud was final. The observations indicate to the contrary that various aspects are yet to be looked into Petitioners oral arguments are contrary to its stand in the rejoinder. Petitioner has pleaded thus “.... till date there is no adverse finding in any of the reports. Furthermore the said investigation is going on for the last 2 years and till date there is no adverse finding by any of the Authorities against the Petitioner company The Petitioner Company is fully cooperating with all Authorities. However the Petitioner Company cannot be made to suffer such an investigations will take indefinite time specifically in the situation when there are no preliminary and adverse findings against the Petitioner Company any of the Investigating Reports and hence the Petitioner Company has been exonerated in the preliminary inquiries. Meanwhile the Petitioner Company is suffering as its account has been illegally classified as NPA and request for grant of moratorium has also been arbitrarily rejected.” Therefore by the Petitioner s own case the investigation is going on and the Petitioner is co operating with the investigation. No argument R. S. Karve 15 20 is made before us that pending investigation against the Petitioner be expeditiously disposed of WPL 2572 20_6.doc A copy of the complaint filed by SFIO in the year 2019 in the Court of Sessions Judge Mumbai is placed on record. The complaint indicates that the transaction of which the Petitioner claims to be innocent was done in a highly irregular manner. Loans were given based on Letters of Comfort and without securities. Lending was done without any due diligence without the actual requirement of funds Most of the intermediaries were transferring the funds in the same way There was a fraudulent modus operendi of giving loans to defaulting borrowers. Accounts are placed on record to demonstrate how the transaction took place. The complaint clearly shows that the entire transaction of which the Petitioner was a part was questionable. In the order dated 12 March 2020 the NCLAT has indicated the extent of the alleged fraud. The matter involved far more than merely three group companies. The fraud came to light through various reports that IL & FS had defaulted on debt obligations. The default is of almost Rs 91000 crores. It was noted that IL & FS management was suppressing information about its financial solvency There were various cases of commission and omissions. There was widespread mismanagement of funds not only by the management of IL & FS but throughout IL & FS group and in unscrupulous manner public money was being mismanaged R. S. Karve 16 20 WPL 2572 20_6.doc We note that the Petitioner has filed an interim intervention application before NCLAT. The Petitioner sought a declaration that the Petitioner does not owe the Rs.100 crores as claimed by the Respondent to them. The prayers are to modify the order of embargo to refrain IFIN from taking any steps regarding Loan Agreement No.III discharge the Petitioner from loan agreement No.III. In this application the Petitioner has narrated the history and the same assertion is made that the Petitioner placed full trust and confidence in the senior management of IL & FS. It is asserted that the facility sanctioned in favour of the Petitioner by IFIN was at the request of IFIN and it was availed for a private loan to ITNL. Several parties are appearing before NCLAT and NCLT. Application filed by other entities for lifting the grant of the moratorium was rejected by the NCLAT by detailed order on 12 March 2020. Petitioner s application is still pending in NCLAT and it is not rejected. If it is rejected the Petitioner can challenge the rejection. The Petitioner has also lodged its claim with M s. Grant Thornton an agency appointed to review and admit the claims of the creditors of the group companies of Respondent No.3 which also includes Respondent No.2. All these claims are under consideration before appropriate authorities The petitioner contends that the writ petition be entertained and merely because there is a fraud by IF& LS group the Court should not proceed on the basis that the Petitioner is guilty. It is contended R. S. Karve 17 20 WPL 2572 20_6.doc that there is nothing against the Petitioner as on date and the assertion of the Petitioner that the Petitioner was innocent third party needs to be accepted and direction to grant moratorium should be given Though the Petitioner has urged that the Petitioner is not seeking clean chit from the Court indirectly the Petitioner is doing the same. The Petitioner s claim can be examined from a common sense point of view. No prudent commercial entity would enter into a transaction of such a large amount without making necessary enquiries regarding bonafides and legality of the transactions. This is not a case of an innocent individual investor. Petitioner urged that it has suffered a loss in this transaction. The obvious question arises why then the Petitioner chose to be part of the transaction Why would a commercial entity enter into a transaction of Rs.100 crores and then suffer loss willingly The simplistic explanation of the Petitioner is that it innocently believed the words of the leadership of the IL & FS. The Petitioner s behaviour is contrary to ordinary commercial prudence. It is not possible to believe that the Petitioner was not aware of the implications of the transactions. We find it difficult to believe that the Petitioner would be commercially so naive to simply rely on the assurance and accept the liability of Rs.100 crores. The mismanagement of IL & FS group is looked into by NCLT and NCLAT. SFIO is conducting its own investigation. The proceedings before us do not arise from the investigation carried out by R. S. Karve 18 20 WPL 2572 20_6.doc SFIO nor from the orders passed by NCLAT. We do not have the inputs from the investigating agency. Based on the documents placed before us the Petitioner wants us to uphold it’s innocence. The new Board of Directors’ on 28 January 2019 appointed External Auditors to examine the loan given by the superseded Board. The interim report by the Forensic Auditor on 20 February 2019 has indicated that loans of approximately Rs. 2270 Crores were routed to the group companies with third parties like the Petitioner. There are various other companies with a similar role like the Petitioner. The exact role of all the parties is still unclear. The finding sought by the Petitioner will be relied upon by such other similarly situated companies to contend that they all were innocent third parties. Any finding given by us accepting the involvement of the petitioner as innocent will have ramifications on the A prerogative writ is not granted as a matter of course. The Writ Court intervenes where justice equity and good conscience require its intervention. Considering the totality of the circumstances the simplistic foundation of the Petitioner s case cannot be accepted We are not convinced of the bonafides of the petitioner as asserted in the petition. That being so we refuse to exercise our equity jurisdiction The argument of the Respondents of maintainability is kept open to be urged in another case. It clarified that the observations on the role of the Petitioner are in the context of refusal to exercise the writ R. S. Karve 19 20 WPL 2572 20_6.doc 32. The Writ Petition is rejected This judgment order will be digitally signed by the Personal Assistant Private Secretary of this Court. All concerned to act on production by fax or email of a digitally signed copy of this order MILIND JADHAV J (NITIN JAMDAR J R. S. Karve 20 20

The state has the power to pass an Externment order or a direction barring certain people entry to the specified area should be exercised only in “Exceptional cases”: Bombay High Court

  The Externment proceedings initiated against any person should necessary to scrupulously follow the procedure as held by the Hon’ble Bombay High Court before the Hon’ble S. S. Shinde & N.J. Jamadar, JJ in the matters of Shri Arshad Sahil Khan v. State of Maharashtra [Criminal Writ Petition No.2603 of 2021].   The facts of the case related to the Criminal writ petitioner wherein the respondent issued a show-cause notice to the petitioner and specific materials against the petitioner is not proven in the notice due to lack of evidence, on this count the notice is legally unsustainable. Petitioner submitted that there is no live link between the alleged commission of offenses and passing of Externment order by the Respondent authority. No such material evidence against the Petitioner and the Externment order passed by the respondent authority is unsustainable in law and the Appeal needs to be quashed.    Eventually, it was figured out numerous Offences are registered against the petitioner by different persons. It is proven that petitioners have a habit of assaulting common citizens by using sharp weapons residing in the same territory. Additional petitioner was involved in the Extortion of money from citizens. In the camera statement of witnesses ‘A’ and ‘B’ were recorded by the Police officer. The statement prescribed by the witness demonstrates all the activities of the petitioner. With the assistance of learned counsel of the state with the proven pleadings and grounds concerning the Externment proceeding initiated against the petitioner.  The offense mentioned in the show-cause notice is true and punishable under Section 392, 504, 506 read with 34 of the Indian Penal Code of 1860. The Externing authority has not specifically recorded the findings that the witness is unwilling to come forward in public to give evidence against the petitioner because of apprehension to the safety of the witness, persona, and property. Under Section 56 of Maharashtra Police Act, 1951, it is necessary to record specific findings that the witnesses are unwilling to come forward in public to give evidence against the petitioner so the Externment order is not legally sustained.    The Hon’ble Bombay High Court held that Externment order is not legally sustainable then the person is externed then the fundamental right to stay at the place of his choice or to move from one place to another will not be curtailed. “The impugned order of externment cannot be legally sustained and the writ petition is allowed”.   Click Here to read Judgement.

on 18 09 2021 on 18 09 1 10WP 2603 202157022006 EQ0 158032001 EQ262442005 2 MH.L.J. 384.Bhagyawant Punde on 18 09 2021 on 18 09 4 10WP 2603 2021in the case of Yashwant Damodar Patil Vs. Hemant Karkare Deputy Commissioner of Police Thane & Anr5 relying upon thejudgment of Hon’ble Supreme Court in the case of PandharinathShridhar Vs. Deputy Commissioner of Police6 in paragraphs 9 and11 held thus: “9. We have already after examining theprovisions of section 56(1) of theBombay Police Act held that in everycase of acts involved on the part of theproposed externee where an order ofexternment is proposed to be passed itis necessary that the offcer concernedmust be satisfed that witnesses are notwilling to come forward to give evidenceagainst him. Notice of such satisfactionmust also necessarily be given to theproposed externee under section 59 ofthe Bombay Police Act. In the presentcase though notice of the fact thatwitnesses are not coming forward to give51989 Mh.L.J. 11116AIR 1973 SC 630Bhagyawant Punde on 18 09 2021 on 18 09 8 10WP 2603 2021is concerned no suchnotice has been given in so far as theground mentioned in the second part ofsection 56(1)(b) is concerned. In otherwords when the authority proceeded togive notice to the proposed externee onthe ground that he is engaged in thecommission of offences punishableunder Chapter XVI of the Indian PenalCode he failed to mention also that thewitnesses are not coming forward to giveevidence against him.11.Before parting with thisjudgment it would not be inappropriateto mention a couple of facts which wehave noticed while dealing with orders ofexternment passed by the authorities inthis part of Maharashtra and especiallyby the authorities in Thane District.While giving notice under section 59 ofthe Act the clear distinction betweenclauseand the frst part of clauseis not always borne inmind. Vague words mentioning that thepetitioner is involved in the activitiescausing alarm or danger and also inacts of violence etc. are freely used.Though the law does not require theauthorities under the Bombay Police Actto give the details of the activities of theproposed externee it is still necessary as required by section 59 of the Act togive to the proposed externeeinformation about the general nature ofthe material allegation against him.What the general nature of the materialallegation against the proposed externeeis has been explained by the SupremeCourt in Pandharinath Shridhar Vs.Bhagyawant Punde on 18 09 2021 on 18 09 9 10WP 2603 2021 (J).docDeputy Commissioner of Police AIR1973 SC 630. Some of the orders ofexternment have been set aside on theground that the allegations against theproposed externee mentioned in thenotices are too vague to enable theproposed externee to represent againstthe proposed orders of externment. Itmay also be noted that very often theperiod during which the prejudicialactivities of the proposed externee arecommitted is also not mentioned. In ouropinion this is absolutely necessarybecause without the notice of the periodwith reference to which action isproposed to be taken the proposedexternee obviously cannot defendhimself properly.”[Emphasis supplied]11.In an externment proceedings initiated against anyperson it is necessary to scrupulously follow the procedure andmandate of said sections. Once the person is externed hisfundamental right to stay at the place of his choice or to move fromone place to another gets curtailed.12.Learned counsel for the petitioner during the course ofhearing submitted that the wife of the petitioner is illiterate andchildren are dependent upon the petitioner. The said ground in thefacts of the present case cannot be overlooked.Bhagyawant Punde on 18 09 2021 on 18 09 10 10WP 2603 2021 (J).doc13.In view of discussion in foregoing paragraphs we are ofthe opinion that the impugned order of externment cannot be legallysustained and the writ petition deserves to be allowed. Accordingly the writ petition is allowed.14.The impugned order of externment dated 23rd March 2021 passed by Divisinal Commissioner Konkan Division inCriminal Appeal No. 21 2021 is quashed and set aside.15.Rule is made absolute to above extent.16.The writ petition stands disposed of.17.It is made clear that this order is passed in the peculiarfacts and circumstances of this case and the petitioner will not beable to derive any beneft out of it in other proceedings initiatedagainst him including trials arising out of the offences registeredagainst the petitioner.18.Parties to act upon an authenticated copy of this order.( N. J. JAMADAR J.)(S. S. SHINDE J.)Bhagyawant Punde

No reduction in the imprisonment for the offence under Section 498-A: Cuttack High Court

The appellant faces the trial for the offence punishable under Section 498-A read with Section 34 of the Indian Penal Code and sentenced to undergo R.I. for one year held by Hon’ble Mr Justice D. Dash in the matters of Dhuleswar @Dhula Mohapatra v. the State of Orissa. [CRA NO.11 OF 1999]. The facts of the case arise from the instance where Appellant had married Annapurna and during the marriage dowry was demanded in the form of cash, gold ornament, brass and bell metal utensils and other household articles has been given to the matrimonial home. After seven months of the marriage, the accused demanded more dowry and was compelled to get TV from their parent’s house and to fulfil that mission accuse left Annapurna in parents’ home. After few days, Annapurna returned to the matrimonial home and finds out all her gold ornaments are sold by the accused. Subsequently, Annapurna was tortured by not providing food and with no choice have to go parents house being not able to tolerate the situation anymore in the house of accuse.  Without any due respect to bring wife back to the matrimonial home and accepted another wife in the same house and begot two children. For this Annapurna had initiated a proceeding claiming maintenance. On such notice accuse bring Annapurna back home which the second wife denied. Eventually, the parents of Annapurna were informed that their daughter has died so rushed to the house of the accused. The reason for the death of the Annapurna stated by the accused that ‘drinking tea met with death’ by the time of the arrival of the parents the dead body is cremated. Being suspicious of the death of the Annapurna, FIR was lodged at the Police station and started with the investigation. Upton the investigation completion the accuse with five other family members were placed for trial by submission of Charge sheet for Commission of the offence under Section 498-A read with Section 34 of Indian Penal code.  For the Trail, the Prosecution has examined a total of five witnesses. From the side of the defence, one witness has been examined. On examining the evidence of the prosecution witness, held that the accused was guilty of commission of an offence under Section 498- A of the IPC and acquitted from other changes. All other accused persons stood acquitted of the charges. The accused was subjected to tortured, harassed and cruelty. Appellant filed the appeal to modify the sentence imposed by the Trail court, reducing the rigorous imprisonment for one year to the period already undergone as that in the facts and circumstance would meet the ends of justice.  The Hon’ble Court held “that conviction recorded against the Appellant by the Trail court for Commission of Offence is punishable under Section 498- A IPC being maintained. Appellant was sentenced to the period already undergone. Bail bonds executed by the accused shall stand discharged”. 

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

Jiwan Dass, Mittar Pal Yadav Vs. State of Haryana

To bring home a charge under Section 409, what is necessary to be proved is that the accused is a public servant and in such capacity he was entrusted with the property in question or with dominion over it and that he committed criminal breach of trust in respect of it. The accused persons were posted in the office of Government Heat Treatment Centre at Bahadurgarh and on 23.2.82, they were authorized to bring 10,000 liters of light diesel oil from the Indian Oil Corporation, Delhi. For that purpose, the letter of authority as well as the bank draft to the tune of Rs. 28,275.83 were given to them. The said two accused persons deposited the bank draft with Indian Oil Corporation and took delivery of 10,000 liters of light diesel oil but ultimately the quantity of diesel was found to be less by 4300 liters, the value of which was Rs. 12,160/-. It is the prosecution case that both the accused persons committed the embezzlement of oil in question.The Learned Sub Divisional Judicial Magistrate, held that the prosecution has been able to establish the charges beyond reasonable doubt against both the accused persons and accordingly convicted them under Section 409 IPC and sentenced them to undergo rigorous imprisonment for three years and imposed a fine of Rs.3000/-, in default to further undergo imprisonment for three months.The accused persons appealed before the Sessions Judge and the learned Sessions Judge affirmed the conviction and sentence passed by the learned Magistrate and dismissed the appeal. The matter was then carried to High Court in revision and the High Court by the impugned Judgment having dismissed the said revision, the present appeals have been preferred. ISSUE BEFORE THE COURT: Whether both the accused persons or any one of them committed the offence under Section 409 IPC. RATIO OF THE COURT Court laid down that to bring home a charge under Section 409, what is necessary to be proved is that the accused is a public servant and in such capacity he was entrusted with the property in question or with dominion over it and that he committed criminal breach of trust in respect of it. The necessary elements constituted in the offence must be strictly proved by the prosecution. It is true that prosecution need not prove the actual mode of misappropriation and once entrustment of or dominion over the property is established, then it would be for the accused to explain as to how the property was dealt with.It has been elicited from the evidence of PW-1, Senior Technical Officer at Bahadurgarh the conclusion is irresistible that delivery of diesel oil had been given to accused Mittar Pal Yadav, who in token thereof, had signed not only on the cash memo but also on the register itself. In the absence of any other material produced by the prosecution it is difficult for us to hold that either there was any entrustment of the diesel to accused Jiwan Dass or he had any dominion over the same.The gravamen of the charge being misappropriation of 4300 liters of diesel oil which was found to be in shortage while measuring the diesel that had been brought and the said diesel having been delivered to Mittar Pal Yadav, who had signed the relevant documents in token thereof, the entrustment to or dominion over the diesel by Jiwan Dass has not been established and as such the prosecution has not been able to establish the charge under Section 409 IPC beyond reasonable doubt as against accused Jiwan Dass in respect of the shortage of diesel to the tune of 4300 litres.With the oral and documentary evidence, it is established that delivery of diesel oil had been given to accused Mittar Pal Yadav, who in token thereof, had signed not only on the cash memo but also on the register itself. Jiwan Dass being a senior officer may only be responsible for dereliction of his duty in not taking delivery of the diesel himself. DECISION HELD BY COURT: The conviction of Jiwan Dass under Section 409 IPC cannot be sustained and court  accordingly set aside the conviction and sentence against the accused Jiwan Dass and acquit him of the charge levelled against and Criminal Appeal No. 990 of 1995 was accordingly allowed and his bail bonds stand discharged.Court did not find an justification in interfering with the conviction and sentence passed against the accused Mittar Pal Yadav and consequently, Criminal Appeal No. 991 of 1995 stands dismissed. His bail bonds also stand cancelled and he must surrender to serve the balance period of sentence.

JIWAN DASS MITTAR PAL YADAV Vs STATE OF HARYANA DATE OF JUDGMENT: 26 02 1999 G.B.Pattanaik M.B.Shah Both these appeals are directed against the Judgment of a learned Single Judge of Punjab & Haryana High Court in Criminal Revision No. 245 of 1992. By the impugned Judgment the High Court has upheld the conviction and sentence against the two appellants under Section 409 of the Indian Penal Code for having committed criminal breach of trust in respect of 4300 litres of diesel oil The prosecution case in nutshell is that both the accused persons were posted in the office of Government Heat Treatment Centre at Bahadurgarh and on 23.2.82 they were authorised to bring 10 000 litres of light diesel oil from the Indian Oil Corporation Delhi. For that purpose the letter of authority as well as the bank draft to the tune of Rs.28 275.83 were given to them. The said two accused persons deposited the bank draft with Indian Oil Corporation and took delivery of 10 000 litres of light diesel oil but ultimately the quantity of diesel was found to be less by 4300 litres the value of which was Rs.12 160 . It is the prosecution case that both the accused persons committed the embezzlement of oil in question. The prosecution examined as many as eight witnesses to establish the case against the accused persons. The accused persons also examined two defence witnesses. The learned Sub Divisional Judicial Magistrate who tried this case by his Judgment dated 25.7.91 came to hold that the prosecution has been able to establish the charges beyond reasonable doubt against both the accused persons and accordingly convicted them under Section 409 IPC and sentenced them to undergo rigorous imprisonment for three years and imposed a fine of Rs.3000 in default to further undergo imprisonment for three months. The accused persons preferred appeal before the Sessions Judge and the learned Sessions Judge affirmed the conviction and sentence passed by the learned Magistrate and dismissed the appeal. The matter was then carried to High Court in revision and the High Court by the impugned Judgment having dismissed the said revision the present appeals have been preferred Mr. R.K. Jain the learned Senior Counsel appearing for accused Jiwan Dass appellant in Criminal Appeal No 9995 contended that the bank draft in question which was handed over to accused Jiwan Dass having been duly deposited with the Indian Oil Corporation and thereafter the diesel in question having been entrusted to accused Mittar Pal Yadav and there being no entrustment of the said diesel to accused Jiwan Dass which is the gravamen of the charge in the present case the courts below committed error in convicting accused Jeewan Dass under Section 409 IPC. Mr Jain also further contended that Jeewan Dass being a senior officer had been sent with the bank draft as the amount was a heavy amount. Any dereliction on his part in not himself taking delivery of the diesel but the diesel having been entrusted to accused Mittar Pal Yadav Jiwan Dass might have been negligent in discharging official duty but that would not tantamount to commission of offence under Section 409 IPC and therefore the conviction and sentence passed against Jiwan Dass is liable to be set aside Mr. Ranbir Yadav the learned counsel appearing for Mittar Pal Yadav on the other hand submitted that accused Mittar Pal Yadav was a junior officer and he acted at the behest of accused Jiwan Dass and in fact signed the documents and the register without even verifying the contents thereof and therefore offence if any was committed by Jiwan Dass and not by Mittar Pal Yadav Mr. Ajay Siwach the learned counsel appearing for the State of Haryana on the other hand contended that both the accused persons having been sent with the money with the direction to bring diesel and both of them having proceeded both of them are liable for the commission of offence and the courts below therefore were justified in convicting them under Section 409 IPC. The learned counsel also contended that Jiwan Dass being the person who was authorised to take delivery of diesel cannot be exonerated of his liability even factually delivery was taken by Mittar Pal Yadav inasmuch as in eye of law it must be held that entrustment was to Jiwan Dass. The learned counsel further contended that even if it is held that there has been no entrustment of diesel to Jiwan Dass but yet it must be held that Jiwan Dass held the dominion over the diesel and therefore he has committed an offence under Section 409 IPC for shortage of the diesel oil In view of the rival submissions the question that arises for consideration is whether both the accused persons or any one of them committed the offence under Section 409 IPC. At the outset it must be stated that there was no charge under Section 34 and both the accused persons were charged under Section 409 IPC alone. To bring home a charge under Section 409 what is necessary to be proved is that the accused is a public servant and in such capacity he was entrusted with the property in question or with dominion over it and that he committed criminal breach of trust in respect of it. The necessary elements constituted in the offence must be strictly proved by the prosecution. It is true that prosecution need not prove the actual mode of misappropriation and once entrustment of or dominion over the property is established then it would be for the accused to explain as to how the property was dealt with In Exhibit PE on the basis of which the Police registered the case and started investigation it was specifically mentioned that Jiwan Dass and Mittar Pal Yadav were authorised to take 10 000 litres of light diesel oil from Indian Oil Corporation and a bank draft amounting to Rs.28 275.83 had been given to Jiwan Dass which draft he deposited. Thereafter they took delivery of 10 000 litres of light diesel oil but on actual measurement it was found to be less by 4300 litres. On an inquiry from Indian Oil Corporation it was reported that delivery of 10 000 litres of diesel had been given and in token thereof Mittar Pal Yadav has put his signature. It was further stated in the said letter that Jiwan Dass on 2.3.82 gave a writing that he would make up the deficiency. On the basis of the aforesaid letter and after completion of investigation the Police filed Challan and the Magistrate took cognizance and charge that was framed on 26.3.84 was to the following effect "That on 26.2.82 in the area of Bahadurgarh you being a servant in the employment of Govt Heat Treatment Centre Bahadurgarh as Superintendent and Store Keeper respectively and in such capacity entrusted with a bank draft of Rs.28 275.83 for purchase of 10 000 litres of high diesel oil and you committed criminal breach of trust in respect of 4300 litres of high diesel oil worth Rs. 12 158.60 and thereby committed an offence punishable under Section 409 of the IPC which is within the cognizance of this court Thus the gravamen of the charge is commission of criminal breach of trust in respect of 4300 litres of diesel oil. That the bank draft in question was duly deposited with the office of the Indian Oil Corporation and there is no dispute over the same. The question that arises for consideration therefore is whether the diesel oil which was in fact found to be less by 4300 litres can be said to have been entrusted to Jiwan Dass or Jiwan Dass had any dominion over the same. It has been elicited from the evidence of PW 1 Senior Technical Officer at Bahadurgarh that accused Mittar Pal Yadav was authorised by the establishment to take delivery of oil from Shakurbasti Depot of Indian Oil Corporation and his attested signatures were in the office of the Indian Oil Corporation. The said witness in further cross examination also stated "I have sent accused Mittar Pal Yadav because his signatures were there and he could take delivery PW 4 the Depot Manager of the Indian Oil Corporation stated in his evidence "I have seen the cash memo Exhibit PB which bears my signature which was given to Mittar Pal Yadav who had signed in my presence In view of the aforesaid positive evidence both oral and documentary the conclusion is irresistible that delivery of diesel oil had been given to accused Mittar Pal Yadav who in token thereof had signed not only on the cash memo but also on the register itself. In the absence of any other material produced by the prosecution it is difficult for us to hold that either there was any entrustment of the diesel to accused Jiwan Dass or he had any dominion over the Mr. Ajay Siwach the learned counsel appearing for the State of Haryana however very strenuously argued that Jiwan Dass being a senior officer and having been deputed with the bank draft for the purpose of taking delivery of the oil and the letter of authority being in favour of Jiwan Dass it must be held that the entrustment of diesel had been made to Jiwan Dass or at least he had the dominion over the same. Mere fact that Jiwan Dass had taken the bank draft and that an authorisation had been given in his favour by his superior officers to take delivery of the diesel cannot be the basis for coming to a conclusion that in fact the diesel had been entrusted to said accused Jiwan Dass or he had dominion over the same. When in point of fact it is established beyond reasonable doubt that delivery had been taken by accused Mittar Pal Yadav and in token of the same he had signed the relevant papers and register Jiwan Dass being a senior officer may be responsible for dereliction of his duty in not taking delivery of the diesel himself. But on that score it cannot be said that in fact the prosecution has been able to establish that diesel had been entrusted to Jiwan Dass and there has been shortage of the said diesel to the tune of 4300 litres. In our considered opinion the gravamen of the charge being misappropriation of 4300 litres of diesel oil which was found to be in shortage while measuring the diesel that had been brought and the said diesel having been delivered to Mittar Pal Yadav who had signed the relevant documents in token thereof the entrustment to or dominion over the diesel by Jiwan Dass has not been established and as such the prosecution has not been able to establish the charge under Section 409 IPC beyond reasonable doubt as against accused Jiwan Dass in respect of the shortage of diesel to the tune of 4300 litres. It is no doubt true that Jiwan Dass appears to have given in writing on 2.3.82 that he would be completing the quantity of 10 000 litres of oil but that writing neither can be held to be a confession or admission of the guilt on the part of the accused Jiwan Dass nor that can form the basis of convicting the accused Jiwan Dass for an offence under Section 409 IPC. In a prosecution for offence of criminal breach of trust if there is absence of legal and independent evidence with regard to the entrustment then it would be improper either to put a question with regard to the entrustment to the accused and if put and an answer is obtained partially admitting entrustment the same does not establish the case of entrustment. In the aforesaid premises and in view of our conclusion that the prosecution has failed to establish entrustment of diesel to accused Jiwan Dass the conviction of Jiwan Dass under Section 409 IPC cannot be sustained and we accordingly set aside the conviction and sentence against the accused Jiwan Dass and acquit him of the charge levelled against and Criminal Appeal No. 9995 is accordingly allowed and his bail bonds stand discharged So far as accused Mittar Pal Yadav is concerned as has been discussed earlier there is conclusive oral and documentary evidence that it is he who took delivery of 10 000 litres of diesel from the Depot of Indian Oil Corporation and the said diesel on actual measurement being found to be in short no explanation has been offered by him except telling that he did so at the behest of the superior officer Jiwan Dass. In view of his signature available on several documents indicating the fact that he took delivery of 10 000 litres of diesel the explanation offered by the said accused Mittar Pal Yadav that he had signed being told by Jiwan Dass cannot be accepted and therefore the prosecution case about embezzlement of 4300 litres of diesel has been established beyond reasonable doubt against accused Mittar Pal Yadav. We therefore do not find any justification in interfering with the conviction and sentence passed against the accused Mittar Pal Yadav and consequently Criminal Appeal No. 991 of 1995 stands dismissed. His bail bonds also stand cancelled and he must surrender to serve the balance period of sentence

Predeceased brothers of a deceased muslim have no right to property of deceased: High Court of Jammu and Kashmir

As per muslim inheritance laws in India, the predeceased brother of a deceased man does not have any rights over the property in the presence of living siblings. This was held by a single member bench of the High Court of Jammu and Kashmir consisting of Justice Vinod Chatterji Kaul in the case of Mohammad Syed Allie v Mst Zeeba [MA no. 139/2015] on 22nd June 2021. A muslim man, Ghulam Mohammad Allie died issueless on 2013 without any children. Principal District Judge, Anantnag passed an order granting the succession certificate of the deceased man to his sisters Hajira and Zeeba. However, Mohammad Syed Allie, the son of the deceased man’s predeceased brother was not allowed any share in the property. Aggrieved by the Principal District Judge’s order, Mohammad Syed Allie who is the petitioner in this case, prayed for it to be set aside on the grounds that the order was passed without taking into consideration the shariat act or the opinion of any scholar on record. The petitioner claimed that as per these personal laws, he should also be entitled to a share of the deceased man’s property. The High Court noted that as per the Muslim Law of Succession practiced in India, when a muslim man has died without a spouse or children, preference is given to his siblings who are still alive. Any siblings who died before the deceased man have no rights to the property at all in the presence of the living siblings. This implies that the children of pre-deceased siblings cannot be considered as the legal heirs. The grant of succession certificate is regulated by the Sucession Certificate Act, Svt. 1977. Section 7(3) of this act states that when a court cannot decide the right to certificate without determining questions of law which seem to be too intricate, it may grant a certificate to application if he appears to have the prima facie best title as the deceased person’s heir. The High Court declared that as the present case could be considered as intricate, the District Court was completely justified in granting the succession certificate to Hajira and Zeeba.

HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR MA no.139 2015 Reserved on: 05.04.2021 Pronounced on: 22.06.2021 Through: Mr G.N.Sofi Advocate Through: None Mohammad Syed Allie and another Mst Zeeba and others CORAM: HON’BLE MR JUSTICE VINOD CHATTERJI KOUL JUDGE 1. Aggrieved of Order dated 30th May 2015 passed by Principal District Judge Anantnag on a Petition for grant of Succession Certificate bearing File no.398 2013 titled Hajira v. Zeeba and others appellants seek its setting aside on the grounds mentioned in the present memo of appeal. 2. Heard and considered. 3. A petition for grant of Succession Certificate was filed by one Mst Hajira D o Assadullah Allie R o Shamsipora Anantnagbefore the court below. Abovenamed Mst Hajira and Mst Zeeba were found to be real sisters of deceased Ghulam Mohammad Allie and petitioners herein were found remoters. According to the court below brother’s son cannot claim inheritance in presence of a brother or sister and consequently the court below held respondent no.2 and mother of MA no.139 2015 respondents 6 to 14 entitled to the amount in question in equal shares. It is this order of which petitioners are aggrieved. 4. Petitioners claim that deceased Ghulam Mohammad Allie died issueless on 19th September 2013. It is averred that court below has passed impugned order without taking into account the Shariat Act and that no evidence of any Scholar or Mufti was taken on record who would have given opinion on the subject and that opinion of one of Muftis was taken by appellants on record before the court below and as per Shariat Act they are entitled to 1 3rd share and respondents 1&2 are entitled to two shares of debts and securities of deceased but the same has not been taken into consideration by court below. 5. Grant of succession certificate is governed and regulated by the Succession Certificate Act Svt. 1977 (for short “Act”). It has been enacted aiming at facilitating collection of debts on succession and afford protection to parties paying debts to the representatives of deceased persons. Section 4 of the Act says that no court shall pass a decree against a debtor of a deceased person for payment of his debt to a person claiming on succession to be entitled to the effects of deceased person or to any part thereof or proceed upon an application of a person claiming to be so entitled to execute against such a debtor a decree or order for the payment of his debt except on the production by the person so claiming of a probate or letters of administration evidencing the grant to him of administration to the estate of deceased or a certificate granted under the Act. Section 5 of the Act provides that District Court within the jurisdiction of which deceased ordinarily resided at the time of his death or if at that time he had MA no.139 2015 no fixed place of residence then within jurisdiction of which any part of the property of deceased may be found may grant a certificate under the Act. An application for a certificate as is envisioned in Section 5 of the Act must be made to District Court by a petition signed and verified by or on behalf of applicant in the manner prescribed by the Code of Civil Procedure for signing and verification of a plaint by or on behalf of a plaintiff and setting forth the particulars like the time of death of deceased ordinary residence deceased family or other near relatives of deceased right in which petitioner claims absence of any impediment under any other provision of the Act or any other enactment to the grant of certificate or to the validity thereof if it were granted. If the District Court is satisfied that there is ground to entertain application it shall fix a day for hearing thereof and cause notice of application and of the day fixed for hearing to be served on any person to who in the opinion of the Court special notice of application should be given and to be posted on some conspicuous part of courthouse and published in such other manner if any as the Court subject to any rules made by the High Court in this behalf thinks fit and upon the day fixed or as soon thereafter as may be practicable shall proceed to decide in a summary manner the right to the certificate it is so provided in Section 7(1) of the Act. Subsectionof Section 7 of the Act says that when the court decides the right thereto to belong to applicant it shall make an order for grant of certificate to him. 6. It is pertinent to mention here that Subsectionof Section 7 of the Act envisages that if the court cannot decide the right to certificate without determining questions of law or fact which seem to be too intricate and MA no.139 2015 difficult for determination in a summary proceeding it may nevertheless grant a certificate to application if he appears to be the person having prima facie the best title thereto. Thus provisions of Subsectionof Section 7 of the Act provides that even if the District Court would not be in a position to decide the right to certificate without determining question of law or fact which appear to be intricate and difficult for determination in summary proceeding yet it may grant certificate in favour of applicant. 7. In the present case prima facie entitlement has been rightly found by the court below in favour of Mst Hajira and Mst Zeeba. It is evident from impugned order that Mst Hajira and Mst Zeeba were are real sisters of deceased whereas other persons claiming persons including appellants herein have been found sons of predeceased brother sister of the deceased Ghulam Mohammad Allie inasmuch as court below has correctly placed reliance upon the law of the land that predeceased brothers of a deceased Muslim have no right to property of deceased which exclusively devolves on surviving brother. In that view of matter impugned order need not be interfered with and consequently appeal on hand is liable to be dismissed. 8. For the reasons discussed the Appeal is dismissed with connected CM(s). Interim direction if any shall stand vacated. 9. Copy be sent down. Ajaz Ahmad PS Judge Whether the order is reportable: Yes No.

Respondent guides the appellant for accessing the information which is available in the public domain.: Orders of AA under the RTI Act.

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 Geeta Khattar v CPIO, SEBI, Mumbai (Appeal No. 4321 of 2021) dealt with an issue in connection with Section 2 (f) of the Right to Information Act, 2005. The appellant, Ms Geeta Khattar had filed an application via RTI MIS Portal on the 15th of May, 2021 under the Right to Information Act, 2005. The respondent responded to the application by a letter on the 10th of June, 2021, filed by the appellate. After receiving a letter from the respondent on 10th of June, 2021, on her application, the appellate decided to file an appeal on the 16th of June, 2021. In her application, the appellate was seeking the following information: The respondent, in response to the query numbers 1,2,3,5,6 and7, observed that the queries are in the nature of seeking clarification/opinion and accordingly, cannot be construed as, “information”, as defined under section 2(f) of the RTI Act, 2005. In response to query number 4, the respondent informed that the appellant should refer to SCORES FAQs. The respondent also provided the weblink for accessing the same. The appellant filed the appeal on the grounds of that the information was refused. The appellant, in her appeal, reiterated the query raised in her application. For the queries, the appellate authority, Mr Anand Baiwar, made reference to the matter of Hon’ble CIC, in the matter of Vineet Pandey vs. CPIO, United India Insurance Company Limited (Judgment dated January 21, 2021), wherein similar observations were made by the Hon’ble CIC. Further, in the matter of Shri Shantaram Walavalkar vs. CPIO, SEBI (Decision dated January 17, 2013), it was noted that the Hon’ble CIC held: “… we would also like to observe that, under the Right to Information (RTI) Act, the citizen has the responsibility to specify the exact information he wants; he is not supposed to seek any opinion or comments or clarifications or interpretations from the CPIO…”. In view of the said observations, I do not find any deficiency in the response. In view of these observations, the appellate authority found no deficiency in the response.

Appeal No. 43221 BEFORE THE APPELLATE AUTHORITY Under the Right to Information Act 2005) SECURITIES AND EXCHANGE BOARD OF INDIA Appeal No. 43221 Geeta Khattar CPIO SEBI Mumbai The appellant had filed an application dated May 15 2021under the Right to Information Act 2005 of the RTI Act 2005. In response to query number 4 the respondent informed that the appellant should refer to SCORES FAQs. The respondent also provided the weblink for accessing the same. 4. Ground of appeal The appellant has filed an appeal on the ground that access to the requested information was refused. The appellant in her appeal has reiterated the queries raised in her application. 5. Query numbers 1 2 3 5 6 and 7 On consideration I agree with the observation of the respondent that the queries are in the nature of seeking clarification opinion from the respondent. It is understood that the respondent is not supposed to create information or to interpret information or to furnish clarification to the appellant under the ambit of the RTI Act. I find that the said queries cannot be construed as seeking ‘information’ as defined under section 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 mater of Vineet Pandey vs. CPIO United India Insurance Company Limitedwherein similar observations were made by the Hon’ble CIC. Further in the matter of Shri Shantaram Walavalkar vs. CPIO SEBII note that the Hon’ble CIC held: “... we would also like to observe that under the Right to InformationAct the citizen has the responsibility to specify the exact information he wants he is not supposed to seek any opinion or comments or clarifications or interpretations from the CPIO...”. In view of the said observations I do not find any deficiency in the 6. Query number 4 On perusal of the query and the response provided thereto I find that the respondent has adequately guided the appellant for accessing the information which is available in the public domain. I find that the query has been adequately addressed. Accordingly I do not find any deficiency in the response. 7. 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. 43221 Place: Mumbai Date: July 14 2021 ANAND BAIWAR APPELLATE AUTHORITY UNDER THE RTI ACT SECURITIES AND EXCHANGE BOARD OF INDIA

Views of the Financial Creditors in Class should be elicited by the Authorized Representative prior to CoC meetings in letter and spirit of Section 25A of IBC: National Company Law Appellate Tribunal, Principal Bench, New Delhi

Whether the actions of the Respondent contravened the requirements of Section 25 of the Insolvency and Bankruptcy Code, 2016, was a question considered by the NATIONAL COMPANY LAW APPELLATE TRIBUNAL, PRINCIPAL BENCH, NEW DELHI, before a bench consisting of Justice Ashok Bhushan, Chairperson; Justice Jarat Kumar Jain, Member (Judicial); Dr. Alok Srivastava, Member (Technical), in the matter of Amit Goel vs. Piyush Shelters India Private Ltd. and Ors. [Company Appeal (AT) (Ins) No. 700 of 2021], on 18.01.22. The facts of the case are that the Corporate Insolvency Resolution Process was initiated with respect to the corporate debtor Piyush Shelters India Pvt. Ltd. vide order of Adjudicating Authority on 03.12.2018 and Shri Swami Deen Gupta was appointed as the Insolvency Resolution Professional (RP). In August 2019 the final resolution plan was submitted and before the e-voting could take place on 25.08.2018 the Maya Group withdrew its resolution plan citing some defects in the lease deed that would hamper the execution of the resolution plan, if approved. The RP thereafter filed application before the Adjudicating Authority for rejection of this resolution plan. The present appeals have been filed under Section 61(1) of the Insolvency and Bankruptcy Code, 2016 assailing the judgment dated 14.7.2021 passed by the Adjudicating Authority (National Company Law Tribunal, Allahabad Bench). All the three appeals have been filed against and assailing the common Impugned Order. By the Impugned Order dated 14.7.2021, the Adjudicating Authority has approved the resolution plan submitted by Mr. Naveen Kumar Gupta as lead member of the consortium of Maya Buildcon Private Ltd., Geotech Homz Private Ltd. and Naveen Kumar Gupta, which is the successful resolution applicant. The Learned Counsel for the Appellants, assailed the impugned order on, among others, the grounds that firstly, that no prior voting by the financial creditors in class was organized by the authorized representative, thereby contravening provisions of Section 25A of the IBC in letter and spirit; secondly that the Impugned Order had been passed while an earlier appeal filed by the Resolution Applicant for consideration of his resolution plan was pending before the Adjudicating Authority. Since no orders have been passed with regards to it, the Committee of Creditors (CoC) could not have considered the resolution plan submitted by the consortium. The National Company Law Appellate Tribunal, Principal Bench, New Delhi, in light of the facts, submissions, and consideration of precedents and legal provisions, set aside the impugned order dated 14.7.2021 and directed that the process be started afresh with claims of homebuyers or allottees accepted by the Resolution Professional by giving them realistic time limit for submission of claims, in keeping with the order of the Adjudicating Authority, leading to a revised information memorandum, which should then be used for inviting Expressions of Interest. In the CIRP, it was directed that the views of the financial creditors in class should be elicited by the Authorized Representative prior to CoC meetings in letter and spirit of section 25A of IBC. Thereafter, it was mandated that the CoC shall consider the resolution plans so received in accordance with the provisions laid down in law. For this entire exercise, the Tribunal allowed a period of 90 days to the CoC from the date of the order to complete the entire exercise, and accordingly disposed of the appeals.

NATIONAL COMPANY LAW APPELLATE TRIBUNAL PRINCIPAL BENCH NEW DELHI Company Appeal(Ins) No. 7021 IN THE MATTER OF: … Respondent No.1 Amit Goel Through Power of Attorney Holder Ms. Pooja Chaudhary D o Mahipal Singh R o 176m Shyam Colony Ballabhgarh Piyush Shelters India Private Ltd. Through Resolution Professional Shri Swami Deen Gupta Registered Office: 2 64 VisheshKhand Gomti Nagar Committee of Creditors M s. Piyush Shelters India Private Ltd. Service to be effected through Resolution Professional Shri Swami Deen Gupta Registered Office: 2 64 Vishesh Khand Gomti Nagar Shri Naveen Kumar Gupta R o H. No. 744 Pocket E Mayur Vihar Phase II Patparganj Delhi. M s. Maya Buildcon Private Limited … Respondent No.4 Registered Office: H. No. 744 Pocket E Mayur Vihar Phase II Patparganj Delhi. Authorized Signatory Shri Naveen Kumar Gupta … Respondent No.3 … Respondent No.2 Company Appeal(Ins) Nos. 700 761 & 9221 … Respondent No.5 R o H. No. 744 Pocket E Mayur Vihar Phase II Patparganj Delhi. Geotech Homz Private Limited Having its Registered Office at: H. No. 744 Pocket E Mayur Vihar Phase II Patparganj Delhi 110092. Authorized Signatory Shri Naveen Kumar Gupta R o H. No. 744 Pocket E Mayur Vihar Phase II Patparganj Delhi. For Appellant: For Respondent: Mr. Sanchit Garg Advocate Ms. Babita Jain AdvocateMr. Sanjeev Panda AdvocateCompany Appeal(Ins) No. 7621 IN THE MATTER OF: Harjeet Kaur W o Sh. S. Sukhwant Singh Financial Creditor of Piyush Shelters India Private Limited R o 5 B 1N.I.T. Faridabad. Mr. Swami Deen Gupta Resolution Professional Piyush Shelters India Private Limited R o 2 64 Vishesh Khand Gomti Nagar Lucknow. Uttar Pradesh 226010. Shri Naveen Kumar Gupta R o H. No. 744 Pocket E Mayur Vihar Phase II Patparganj Delhi 110091. ….Respondent No. 1 ….Respondent No. 2 Company Appeal(Ins) Nos. 700 761 & 9221 ….Respondent No. 3 Respondent No. 4 M s. Maya Buildcon Pvt. Ltd. Having its Registered Office at: 744 Pocket E Mayur Vihar II New Delhi 110092. Geotech Homz Private Limited Having its Registered Office at: H. No. 744 Pocket E Mayur Vihar Phase II Patparganj Delhi 110092. For Appellant: For Respondent: Dr. Amit Geroge Mr. Piyo Harold Mr. Amol Acharya Mr. Bharat Mr. Sahil Garg and Mr. Prateek Vats Advocates Ms. Babita Jain AdvocateMr. Sanjeev Panda AdvocateCompany Appeal(Ins) No. 9221 ….Appellant No. 1 ….Appellant No. 2 ….Appellant No.3 …. Respondent No.1 IN THE MATTER OF: Shri Bala Pareek H.NO. 1361 Sector 9 Faridabad 121006 Shri Yogesh Chandan R O 882 Sector 21 C PART II Faridabad 121001. Ms. Pushpa Dwivedi R O A 403 Kesar Garden Sector 48 NOIDA 201301 Mr. Swami Deen Gupta Resolution Professional Piyush Shelters India Private Limited Address : 2 64 Vishesh Khand Gomti Nagar Lucknow 226010 UP Company Appeal(Ins) Nos. 700 761 & 9221 ….Respondent No. 2 CONSORTIUM OF MEMBERS Represented by Lead Authorized Representative Naveen Kumar Gupta) Address : H.No. 744 Pocket E Mayur Vihar Phase II Patparganj Delhi 110091 For Appellant: For Respondent: Mr. Jayprakash B Somani Mr. Videh Vaish and Mr. Lalit Mohan Advocates Ms. Babita Jain AdvocateMr. Sanjeev Panda AdvocateJUDGMENT Date: 18.01.2022) Virtual Mode) Dr. Alok Srivastava MemberThis judgment relates to three appeals namely Company Appeal No.700 2021 Company Appeal No. 761 2021 and Company Appeal No. 925 2021 which have been filed under Section 61(1) of the Insolvency and Bankruptcy Code 2016 assailing the judgment dated 14.7.2021 passed in CA No. 371 2019 in Company Petition No.322 ALD 2018 by the Adjudicating Authority Company Law Tribunal Allahabad Bench). All the three appeals have been filed against and assailing the common Impugned Company Appeal(Ins) Nos. 700 761 & 9221 Order. Therefore these appeals are being disposed off through this common judgment. By the Impugned Order dated 14.7.2021 the Adjudicating Authority has approved the resolution plan submitted by Mr. Naveen Kumar Gupta as lead member of the consortium of Maya Buildcon Private Ltd. Geotech Homz Private Ltd. and Naveen Kumar Gupta which is the successful resolution applicant. The brief facts of the case as presented and argued by the appellants is that CIRP was initiated with respect to the corporate debtor Piyush Shelters India Pvt. Ltd. vide order of Adjudicating Authority on 03.12.2018 and Shri Swami Deen Gupta was appointed as the IRP. In August 2019 the final resolution plan was submitted and before the e voting could take place on 25.08.2018 the Maya Group withdrew its resolution plan citing some defects in the lease deed that would hamper the execution of the resolution plan if approved. The RP thereafter filed application before the Adjudicating Authority for rejection of this resolution plan. The Appellants have stated that later in the 8th CoC meeting which took place on 25.09.2019 it was decided to publish Company Appeal(Ins) Nos. 700 761 & 9221 the 4th Expression of Interest which was published in Jansatta and Financial Express newspapers on 01.10.2019 with last date for submitting EOI on 07.10.2019. It is claimed by the appellants that Maya Buildcon which had earlier withdrawn its resolution plan filed CA no. 282 2019 before Adjudicating Authority that it be allowed to submit a revised resolution plan. This application remained pending but the RP allowed a consortium which included Maya Buildcon to submit a resolution plan and place it before the CoC for consideration. A revised plan was subsequently approved by the CoC in e voting held on 6 7 November 2019. While the resolution plan was pending consideration of the Adjudicating Authority an applicant Vishal Saxena who could not file his claim in time. obtained order of the Adjudicating Authority in CA No. 12 2020 on 3.2.2020 for admission and consideration of his claim. The appellants have further stated that while Vishal Saxena‟s claim and other claims that were filed after delay were admitted accepted by the RP the resolution plan approved by the CoC and the Adjudicating Authority the Impugned Order has created two separate categories of financial creditors in class one of „claimants who filed their claims in time and the other of „non claimants‟ who could not file their claims in time. The two categories have received different shares in the approved resolution plan and so while the Company Appeal(Ins) Nos. 700 761 & 9221 „claimants‟ have received possession of the booked properties the „non claimants‟ have got just 10% of their booked amount after verification of their claims within one month and thereafter all such claims would stand extinguished. The appellants have also stated that the Authorized Representative of the Homebuyers allottees who are financial creditors in class did not seek the views of the allottees prior to CoC meeting as is required in Section 25A but the voting by allottees took place alongside the e voting on the resolution plan in CoC thereby flouting the provision of section 25A in letter and spirit and as a result the interests of the majority of homebuyers allottees have been compromised. 6. The Appellants in the three appeals have assailed the Impugned Order on the following grounds: The Learned Adjudicating Authority has passed the Impugned Order in CA No. 371 2019 while an earlier CA No. 282 2019 filed by the Resolution Applicant for consideration of his resolution plan was pending before the Adjudicating Authority. Since no orders have been passed in CA No. 282 2019 the Committee of Creditors could not have considered the Company Appeal(Ins) Nos. 700 761 & 9221 resolution plan submitted by the consortium. In the ninth meeting of CoC held on 1.11.2019 the CoC failed to consider the circumstances under which the earlier resolution plan of the Maya Group was withdrawn and revised resolution plan was being considered iii) Section 25A of the IBC clearly stipulates that the authorized representative of the financial creditors in class shall attend the meeting of CoC on their behalf and vote in accordance with prior instructions of the financial creditors in class. In the present case the evoting of the financial creditors in class took place along with e voting on the resolution plan by the CoC which is evident from the results of e voting. Thus no prior voting by the financial creditors in class was organized by the representative provisions of Section 25A of the IBC. The Resolution Professional should have considered maximization of value of the assets of the Corporate Company Appeal(Ins) Nos. 700 761 & 9221 Debtor which was not done and the liquidation value is not sufficient to cover the amounts owed to financial creditors and other creditors. v) Only 222 homebuyers allottees out of a total of 473 homebuyers allottees have filed claims before the RP and claims of remaining 251 allottees have been almost extinguished with the approval of resolution plan. The 251 homebuyers allotees could not file their claims because wide publicity was not given to the CIRP as the newspapers in which the public notices appeared are published from New Delhi the project in District Faridabad(Haryana) and registered office of Corporate Debtor is in Meerut(INS) No. 761 of 2021 is an allottee in the project of the Corporate Debtor. Similarly the Appellant in Company Appeal(Ins) No. Company Appeal(Ins) Nos. 700 761 & 9221 9221 Shri Bala Pareek and others are also allottees of the Corporate Debtor. The Learned Counsels for Appellants in CA 761 of 2021 and CA 925 of 2021 have claimed that the approved resolution plan gives unequal treatment to the same category of financial creditors thus discriminating between financial creditors of the same class. The final resolution plan provides as follows in its Para V(7) (Ins) Nos. 700 761 & 9221 between themselves various aspects of the proposed resolution plan as a class of financial creditors. They have also argued that CoC in the ninth meeting while considering the revised resolution plan submitted by the resolution applicant issued notice on 5thNovember 2019 for e voting to take place on 6th and 7th November 2019 and thus there was insufficient time provided to the financial creditors in class for giving due consideration to various aspects of the resolution plan. He has also argued that the resolution plan is based on liquidation value of Rs. 40 Crores which is approximately 30% of the total resolution debt and therefore insufficient to cover the amount owed to financial creditors in full and any payments to operational creditors or other creditors including statutory due holders would be nil. Such meager or no payments would be gross injustice to the creditors. 10. Thus The Ld. Counsels for Appellants Harjeet Kaur Bala Pareek and others have claimed the plan imposes a 90% haircut on the legitimate claims of Appellant Harjeet Kaur and 33 similarly based allottees solely on the ground that the claims of the Appellant were received after approval of the resolution plan by the CoC. He has also claimed that even though the Appellants Harjeet Kaur Bala Pareek and others had filed their claim belatedly they were accepted and admitted by the Resolution Company Appeal(Ins) Nos. 700 761 & 9221 Professional and included in the list of claims of financial creditors. He has further adverted to the order dated 3.2.2020 passed by the Adjudicating Authority in CA No. 12 2020 which is an application filed by an investor Vishal Saxena whose claim had earlier been rejected by the Resolution Professional on the ground of delay by which the Adjudicating Authority directed the RP to admit and consider the claim stating that a claim cannot be rejected by RP solely on the ground of delay by the Applicants in filing their claim. He has argued that all similarly situated claimants should be get their due claims. 11. The Ld. Counsel for Appellants in CA No. 761 2021 has further claimed that thus no information was given to the Appellants regarding the CIRP and moreover the approved resolution plan is not fair and equitable to financial creditors of the same class and unequal treatment has been meted out to them. He has referred to the judgment of Hon‟ble Supreme Court in Committee of Creditors of Essar Steel India Limited versus Satish Kumar Gupta that equitable treatment has to be given to creditors who are similarly 12. The Learned Counsels for Appellants Harjeet Kaur Bala Company Appeal(Ins) Nos. 700 761 & 9221 Pareek and others have also claimed that the publication of the public announcement was done in two newspapers namely „Financial Express‟ and „Jansatta‟ both published from New Delhi which do not have wide circulation in either Meerut or Faridabad where the project under question was being developed) and therefore more than 50% of the homebuyers allottees could not file their claims before the Resolution Professional in time. While clarifying he has further stated that out of 473 number of allottees only 222 have filed their claims before the RP while the claims of 251 allottees could not be filed in time leading to the extinguishing of their claims in the resolution plan. He has also claimed that the e voting of the financial creditors in class has taken place along with e voting on the resolution plan on 6th and 7th of November 2019 which is not in accordance with the requirement of Section 25A of the IBC where financial creditors in class have to be consulted „prior‟ to the actual voting in the CoC where the Authorized Representative has to present the views of the financial creditors in class. Since all the financial creditors voted alongside the CoC members a legal fiction was created which was against the spirit of Section 25A. Therefore grave injustice will be caused to the large number of homebuyers allottees who have more than 79% vote share in the CoC and Company Appeal(Ins) Nos. 700 761 & 9221 hence the Impugned Order should be set aside. In arguments the Learned Counsel for RP has claimed that the appeals have been filed after the stipulated period of 30 days after passing of the Impugned Order on 14.7.2021 and therefore they are barred by limitation. The Learned Counsel for the Resolution Professional has also argued that the Appellant Amit Goel(in Company Appeal No. 700 of 2021) is not an aggrieved person as he is a suspended director of the erstwhile Corporate Debtor and hence does not have locus standi for filing this appeal. She has further claimed that Impugned Order approving the resolution plan can only be appealed against under Section 61(3) of the IBC on grounds of material irregularity but the Appellant has not been able to show any material irregularity in the resolution plan. She has further argued that the extended CIRP period was coming to end on 13th November 2019 and therefore the resolution process had to be completed within this time period.She has added that the reason why the CoC did not await the decision of the Learned Adjudicating Authority in CA No. 2819 filed by Maya Buildcon was because RP‟s efforts were focused on obtaining a workable resolution plan rather than to put the corporate debtor in liquidation and RP was working under constraint of time in the extended CIRP. She has further claimed Company Appeal(Ins) Nos. 700 761 & 9221 that the resolution plan has been approved by the CoC in its commercial wisdom and therefore such action of CoC is beyond judicial review. In support of this contention she has cited the judgment of Hon‟ble Supreme Court in the case of Committee of Creditors of Essar Steel India Limited versus Satish Kumar GuptaLtd. versus Union of Indiato emphasize that liquidation of the Corporate Debtor should be allowed only as a last resort and all efforts should be made for obtaining a successful resolution plan. 15. The Learned Counsel for Resolution Professional has further stated that after the approval of the resolution plan by the CoC it has been accorded approval by the Adjudicating Authority and hence all claims that are not included in the resolution plan stand extinguished as has been held by the Hon‟ble Apex Court in Ghanshyam Mishra and Sons Pvt. Ltd. versus Edelweiss Asset Reconstruction Company Ltd.(Ins) Nos. 700 761 & 9221 Limited" and “APM Infrastructure Private Limited” and not submitted by the Maya Group as has been alleged by the Appellant and hence no special favour is being shown to the Maya 16. The Learned Counsel for the Resolution Professional has with regard to appeals CA Nos. 761 of 2021 and 925 of 2021 stated that the CoC which includes real estate allottees being creditors in class has approved the resolution plan by giving more than 50% votes in e voting held on 6 7th November 2019 and so the creditors in class do not now have any locus to challenge the approved plan as has been held by Hon‟ble Supreme Court in the matter of JP Kensington Boulevard Apartments Welfare Association and Others versus NBCC Limited and Others (Ins) Nos. 700 761 & 9221 17. He has also urged that the Adjudicating Authority in application CA 12 2020 filed by Vishal Saxena has directed that the claim of Applicant was to be accepted and verification and determination based on material produced before it was to be done by the Resolution Professional. Thus 33 belated claims including the claim of the Appellant was accepted by the Resolution Professional as per directions of Adjudicating Authority in order dated 3.2.2020 in application CA 12 2020. But since they were included as non claimants in the information memorandum which was the basis for preparation of resolution plan the Resolution Professional offered 10% of the claim amount and this provision was approved by the CoC in its commercial wisdom in e voting held on 6 7.11.2019. 18. All the three appeals under consideration assail the Impugned Order dated 14.7.2021 and all were filed before 2.10.2021. Hon‟ble Supreme Court in Miscellaneous Application No. 665 2021 in SMWNo. 3 2020 has passed a suo moto order that in computing the period of limitation for any suit appeal application or proceeding the period from 15.3.2020 till 2.10.2021 shall stand excluded from limitation period. Since the Impugned Order was passed on 14.7.2021 and all the appeals were filed Company Appeal(Ins) Nos. 700 761 & 9221 before 2.10.2021 therefore they are all within limitation by virtue of the above stated suo moto order of Hon‟ble Supreme Court. 19. It is admitted by the Resolution Professional in its reply to Company Appeal AT)(Ins) 700 2021 that even though the Resolution Applicant(Consortium led by Naveen Kumar Gupta) had not submitted its resolution plan within the stipulated time limit the Resolution Professional went ahead to seek CoC approval of its resolution plan through e voting on 6 7 November 2019 since the CIRP period was to come to an end on 13.11.2019.He has also admitted in sub para that CA 282 2019 which was filed by Maya Buildcon seeking permission to submit a resolution plan since it had not participated in the process of invitation of EOI was pending before the Adjudicating Authority. Thus it is quite clear that having once refused to allow the consortium of which Maya Buildcon was a partner to participate in the resolution process and on which Maya Buildcon filed CA282 2019to seek Adjudicating Authority‟s order permission to participate in the resolution process the Resolution Professional decided on his own to obtain resolution plan from a consortium which had not through the EOI route in time and place it before the CoC for consideration. This plan was later approved Company Appeal(Ins) Nos. 700 761 & 9221 by the CoC vide voting on 6th and 7th November 2019. Thus we do not think that the way this entire process was carried out was in accordance with legal provisions. We feel that a new round of Expressions of Interest should have been invited which should have been done after wide publicity with sufficient time for resolution applicants to apply. Short circuiting the process to include an applicant who did not apply in the EOI stage is not in accordance with legal provisions. 20. We also consider the objections raised by the Learned Counsel for Resolution Professional regarding there being no locus or entitlement of the suspended director Amit Goel who is Appellant in CA No. 7021 in preferring the appeal. We feel that a suspended director of the former Corporate Debtor does have interest in the successful resolution of the corporate debtor with which he was earlier connected. Company Appeal No. 761 of 2021 and Company Appeal No. 9221 both of which are filed by the homebuyers allottees who are financial creditors in class but whose claims have not been accepted are interested parties who have stake in successful resolution of the Corporate Debtor and therefore they are entitled to prefer appeal. In Company Appeal Nos. 761 2021 and 925 of Company Appeal(Ins) Nos. 700 761 & 9221 2021 the Appellants Harjeet Kaur Bala Pareek and others are Memorandum of Understanding holdersof the erstwhile Corporate Debtor and Shri Bala Pareek has been appointed as authorized representative of the Appellants for filing the appeal. The Appellants have claimed that as MoU holders of the Corporate Debtor they have been placed in the category of „Non Claimants‟ in the approved resolution plan. Their claim is that the „Non Claimants‟ category has been decided without the Appellants being made a part of the resolution process. Thus their claim as well as debt owed by the Corporate Debtor has been extinguished in the successful resolution plan. They have further claimed that the effect of the approved resolution plan would be that the Appellants shall lose their right over the properties which were supposed to be handed over to Appellants as the documents such as the MoU executed by the Corporate Debtor and the amounts received by the Appellants for depositing various amounts have been declared null and void with the approval of the resolution plan and within one month the properties that were supposed to be handed over to the Appellants will automatically become an asset of the Successful Resolution Applicant. Even otherwise if the non claimants submit their documents for verification within one month of the approval of plan they will receive just 10% of their deposited amount. The Appellants have Company Appeal(Ins) Nos. 700 761 & 9221 claimed that this is denial of natural justice to them as the rights for their properties called their properties has been extinguished without hearing them in the preparation approval of the resolution plan. The Appellants have further claimed that there has been a differential treatment in the resolution plan wherein claimants have been given their properties subject to certain conditions and MoU holders have been made non claimants with just no requests to the properties booked by them. 22. We now examine the allegation of the Appellants that the provisions of Section 25A were not complied with in letter and spirit of the IBC. Section 25A of the IBC is as hereunder “Section 25A: Rights and duties of authorised representative of financial creditors. 25A. The authorised representative under sub section or sub section of section 21 or sub section of section 24 shall have the right to participate and vote in meetings of the committee of creditors on behalf of the financial creditor he represents in accordance with the prior voting instructions of such creditors obtained through physical or electronic means. 2) It shall be the duty of the authorised representative to circulate the agenda and minutes of the meeting of the committee of creditors to the financial creditor he represents. 3) The authorised representative shall not act against the interest of the financial creditor he represents and shall always act in accordance with their prior instructions: Provided that if the authorised representative represents several financial creditors then he shall cast his vote in in accordance with respect of each financial creditor Company Appeal(Ins) Nos. 700 761 & 9221 instructions received from each financial creditor to the extent of his voting share: Provided further that if any financial creditor does not give prior instructions through physical or electronic means the authorised representative shall abstain from voting on behalf of such creditor. 3A) Notwithstanding anything to the contrary contained in sub section the authorised representative under sub section of section 21 shall cast his vote on behalf of all the financial creditors he represents in accordance with the decision taken by a vote of more than fifty per cent. of the voting share of financial creditors he represents who have cast their vote: Provided that for a vote to be cast in respect of an application under section 12A the authorised representative shall cast his vote in accordance with the provisions of sub section4) The authorised representative shall file with the committee of creditors any instructions received by way of physical or electronic means from the financial creditor he represents for voting in accordance therewith to ensure that the appropriate voting instructions of the financial creditor he represents is correctly recorded by the interim resolution professional or resolution professional as the case may be. Explanation. For the purposes of this section the “electronic means” shall be such as may be specified.” 23. The Insolvency and Bankruptcy Board of India Regulations 2016 hereafter called “Insolvency Process Regulations”) lays down the following regarding Authorised Representative circulation of agenda to creditors in a class and Meetings of the Committee of Company Appeal(Ins) Nos. 700 761 & 9221 “16A. Authorised representative Xxx xxxxxx 5) The interim resolution professional or the resolution professional as the case may be shall provide an updated list of creditors in each class to the respective authorized representative as and when the list is updated. Clarification: The authorized representative shall have no role in receipt or verification of claim of creditors of the class he represents. xxx xxxxxx 9) The authorized representative shall circulate the agenda to creditors in a class and announce the voting window at least twenty hours before the window opens for voting instructions and keep the voting window open for at least twelve hours. 19. Subject to this Regulation a meeting of the committee shall be called by giving not less than five days‟ notice in writing to every participant at the address it has provided to the resolution professional and such notice may be sent by hand delivery or by post but in any event be served on every participant by electronic means accordance with Regulation 20.” 24. As the provision under sub section 3 of section 25A clearly lays down the Authorized Representative shall always act with the „prior instructions‟ of the financial creditors he represents. Furthermore sub section 4 of section 25A provides that the Authorized Representative shall file with the Committee of Creditors any instructions received from Financial Creditors to Company Appeal(Ins) Nos. 700 761 & 9221 ensure that appropriate instructions of the financial creditors he represents is correctly recorded by the Resolution Professional. The import of sub sections 3 and 4 of section 25A is very clear that the views of financial creditors in class should be sought in an appropriate manner by the Authorized Representative prior to the CoC Meeting. Provision for receiving “prior instructions” and filing them with the Committee of Creditors beforehand so that it is recorded properly is included in the procedure to ensure that the views of creditors in class are appropriately sought received and conveyed to the Committee of Creditors through the Resolution Professional. Furthermore the use of word “prior‟ also implies that the financial creditors in class shall have sufficient time to consider collectively the issue s before them and after voting which is recorded by the Authorized Representative the result is conveyed to the Committee of Creditors. In the present case we further find that the instructions for e voting on the agenda item relating to the approval of the resolution plan was sent by the RP vide e mail dated November 5 2019 addressed to the Authorized Representative of financial creditors in class (Ins) Nos. 700 761 & 9221 November 2019 at 6 pm and close on 7th November 2019 at 1 pm page 249 of appeal paper book Company Appeal 700 2021). Thus an e mail was sent to the Authorised Representative by the RP at 4:35 pm on November 5 2019 informing of the start of voting on 6thNovember at 6 pm was hardly 25.5 hours in advance. Regulation 19 of Insolvency Process Regulations stipulates that notice of the CoC meeting shall be given at least five days in advance which was not done in the present case. Furthermore sub regulation of Regulation 16A requires the authorized representative to circulate the agenda and give voting instructions to creditors in class he represents at least twenty hours in advance and keep the voting window for creditors in class open for at least twelve hours. In the present case separate voting among the financial creditors in class was not organized by the authorized representative. Thus the provisions laid down for organizing voting among financial creditors in class of homebuyers allottees were not followed. We thus find that neither the RP organized the CoC meeting in the manner laid down in Insolvency Process Regulations and the Authorized Representative also failed to organize prior consultation with the homebuyers allottees as is required under Section 25A. 26. We find that on the contrary the e voting on the proposed Company Appeal(Ins) Nos. 700 761 & 9221 resolution plan by the financial creditors in class was held simultaneously with the e voting on the resolution plan by the members of the CoC as is clear from pp. 238 240 of the Appeal paperbook in Company Appeal of 700 2021. The e voting among homebuyers allottees was thus carried out but not in accordance with the provisions of Insolvency Process Regulations in a fashion which can be called vitiated and against the letter and spirit of law. It did not provide sufficient time to the financial creditors to consider the various aspects of the proposed resolution plan meet together to discuss and vote upon it and thereafter for the Authorized Representative to present the views of financial creditors in class to the CoC. Moreso when the financial creditors in class constitute more than 79% of total voting rights in the CoC following such a slipshod procedure is nothing short of creating a legal fiction without conforming to the letter and spirit of section 25A of IBC and Insolvency Process 27. We now turn our attention to the allegation of the Appellants that due to inadequate publicity regarding the initiation of CIRP of the Corporate Debtor they were not aware of the public announcement and hence could not file their claims with Resolution Professional in time. The replies on behalf of Resolution Company Appeal(Ins) Nos. 700 761 & 9221 Professional submitted in CA No. 7021 at page 26 para 30 mentions that “That it is respectfully submitted that the erstwhile resolution professional did not get any cooperation from the Appellant as was statutorily required from him for discharge of duties by the resolution professional during the CIRP of Corporate Debtor further the registered office of the Corporate Debtor at Meerut was closed and the only principal place of business at Faridabad as per MCA records Piyush Global situated at Plot 5 YMCA Chowk Delhi Mathura Road Faridabadwhich was sealed by the secured financial creditor HDB Financial Services Limited under SARFAESI Act 2002 and Municipal Corporation of Faridabadsince prior to start of CIRP on 3rd December 2018. Further all the employees of the Corporate Debtor had left and no employees of the Corporate Debtor were on the rolls of the corporate debtor as on insolvency commencement date on 3rdDecember 2018. All the business operation of the Corporate Debtor was also 28. Thus we see that the homebuyers allottees could not have had access to either the registered office of the corporate debtor or Company Appeal(Ins) Nos. 700 761 & 9221 the principal place of business at Faridabad since both were closed. Moreover without the meeting getting together by the homebuyers allottees it was not easy for them to discuss and convey their views to the Authorized Representative who would then represent their views in the CoC. When we see that out of a total of 473 home buyers allottees only 222 allottees could file claims in time before the Resolution Professional and 251 allottees could either not do so or did so belatedly we feel that exclusion of more than 251 i.e. about 53% of total homebuyers allottees cannot lead to a fair and just resolution of the Corporate Debtor. We also feel that the providing 10% of the claimed amounts to homebuyers allottees who could not file their claims in the circumstances of this case is an unfair and inadequate treatment of the financial creditors. 29. The Learned Counsel for Appellant in Company Appeal No. 761 of 2021 has stated that the Adjudicating Authority had through an order dated 3.2.2020 in CA No. 12 2020 in CPIB 322 ALD 2018 directed the Resolution Professional to accept the claim of the Applicants and consider them on merits subject to proper verification. He has further claimed that since this order was not appealed against it has become final and therefore it was incumbent upon the Resolution Professional to admit claims which Company Appeal(Ins) Nos. 700 761 & 9221 had been submitted with delay for consideration. The Learned Counsel has also contended that the approved resolution plan considers such financial creditors in class who have filed claim within the prescribed time limit and those financial creditors in class who could not for various reasons file their claims inside as claimants and non claimants” and such a discrimination is not in keeping with the judgment passed by this Hon‟ble Tribunal in the matter of Rajputana Properties Pvt. Ltd versus Ultratech Cements Ltd. and Otherswherein it is held that the resolution plan that discriminates some of the financial creditors were equally situated and not balance the other stakeholders such as operational creditors is discriminatory and therefore liable to be rejected. 30. A perusal of the order dated 3.2.2020 in CA No. 120 in CP322 ALD 2018(INS) No. 761 of 2021) that the Adjudicating Authority has passed an order as follows: “7. In view of the facts of the case on hand and of the judgments referred this Adjudicating Authority is of the view that it is the settled law that a claim cannot be rejected by RP solely on the ground of delay by the Applicants in filing their claims. Moreover sufficient reason has been shown for delay occurred in filing claim by the Applicants before RP and the RP can be directed to accept claim of the Applicants to be its merits and subject to proper considered by it on Company Appeal(Ins) Nos. 700 761 & 9221 verification which will only be in consonance with purpose sought to be achieved by the IBC." This Tribunal has taken the view in the matter of Rajputana Properties Pvt. Limitedwhich is as follows: “43. From the two „resolution plans‟ it will be clear that the „Rajputana Properties Pvt. Ltd.‟ in its „resolution plan‟ has dissimilated some of the „financial creditors‟ who are equally situated and not balanced the other stakeholders such as „operational creditors‟. Therefore the Adjudicating Authority has rightly held the „resolution plan‟ submitted by „Rajputana Properties Pvt. Ltd‟ to be discriminatory.” 31. A perusal of the resolution plan shows MoU agreement holders who could not file their claim within the prescribed time have been labeled as „non claimants‟ whereas those that have filed their claims in time have been labeled as „claimants‟. It is also clear that both these categories of financial in class homebuyers allottees) have been treated differently in that the claimants have been offered possession of the allotted premises whereas non claimants have been given only 10% of their total amount deposited that too after due verification and within one month of the approval of the resolution plan. 32. The order of the Adjudicating Authority dated 3.2.2020 supra) and the treatment meted out to the claimants and non Company Appeal(Ins) Nos. 700 761 & 9221 homebuyers allottees we find that the order of 3.2.2020 has not been complied with by the Resolution Professional in an appropriate manner. The claims that were filed belatedly were admitted and considered but thereafter the „claimants‟ and „non claimants‟ have been accorded different treatment under the resolution plan. If the claims filed with delay had been admitted and considered in the spirit of order dated 32.2020 in CA No. 12 2020 different treatment of two different categories i.e. claimants and non claimants in the approved resolution plan would not have resulted. The judgment of this Hon‟ble Tribunal in the matter of Rajputana Properties Pvt. Limitedalso lays down that there should be no discrimination between financial creditors belonging to the same class. Hence once the question of filing claims even with delay is accepted there should not be two different categories of claimants and non claimants. This issue also gains significance because only 222 out of 473 homebuyers allottees have filed their claims in time whereas 251 allottees have seen their claim being extinguished with the approval of the resolution plan as their claims were either not filed or filed with delay. When more than 53% of homebuyers allottees are thus left out we cannot consider the resolution of the Corporate Debtor to be done in the spirit of the IBC. Company Appeal(Ins) Nos. 700 761 & 9221 33. The Learned Counsel of Resolution Professional has cited the judgments of Hon‟ble Supreme Court in the following cases: i) Committee of Creditors Essar Steel India Limited versus Satish Kumar Guptaii) Kridhan Infrastructure Private Limitedand iii) K Sashidhar versus Indian Overseas Bank and Ors wherein the principle that the commercial wisdom of CoC is not subject to judicial review and shall be binding and applicable on the other creditors is laid down. In the instant case we are not questioning or reviewing the commercial decision of the CoC but rather the procedure adopted by the Resolution Professional in organizing e voting as well as eliciting the views of the financial creditors in class on the revised resolution plan by the Authorized Representative. We have also noted that since the e voting of the financial creditors in class which is a requirement of section 25A and the evoting by the CoC have taken place simultaneously we do not feel such a procedure takes care of the use of the financial creditors in an appropriate and adequate manner. 34. The Ld. Counsel for RP has cited the judgment of Hon‟ble Supreme Court in India Resurgence ARC Private Limited vs M S Amit Metaliks Limited &Anr (Ins) Nos. 700 761 & 9221 2021) wherein it is held that „what amount is to be paid to different classes or sub classes of creditors in accordance with provisions of the Code and the related Regulations is essentially the commercial wisdom of the Committee of Creditors and a dissenting secured creditor like the appellant cannot suggest a higher amount to be paid to it with reference to the value of the security interest.‟ This judgment can be distinguished from the present case in that we are not questioning the payments to be made in the approved resolution plan to various creditors but the question raised in these appeals is about Section 25A and how it was put in operation. We have found lacunae in the way the provision of Section 25A was operationalized. Therefore what has resulted from the erroneous operation of Section 25A has been found to be erroneous. Thus we have found the actions of the RP and Authorized Representative of Financial Creditors in Class falling foul of law and we are not questioning the commercial decision of the CoC. 35. We also note the judgment of Hon‟ble Supreme Court in Ghanshyam Mishra and Sons Private Limited (Ins) Nos. 700 761 & 9221 the Section 25A was operationalized and submission of claims by financial creditors took place leading to simultaneous e voting on the final resolution by the financial creditors in class and the members of CoC we feel that due procedure was not followed. Thus the process was vitiated and what has resulted out of such vitiated procedure as approved resolution plan cannot be termed as fair and just to the creditors. 36. The Ld. Counsel for RP has also cited the judgment of Hon‟ble Apex Court in Maharashtra Seamless Limited vs Padmanabhan Venkatesh & Orswherein it is held as follows: “28 Here we feel the Court ought to cede ground to the commercial wisdom of the creditors rather than assess the resolution plan on the basis of quantitative analysis. Such is the scheme of the Code. Section 31(1) of the Code lays down in clear terms that for final approval of a resolution plan the Adjudicating Authority has requirement of sub section of Section 30 of the Code has been complied with. The proviso to Section 31(1) of the Code stipulates the other point on which the Adjudicating Authority has to be satisfied. That factor is that the resolution plan has provisions for its implementation….” to be satisfied 37. The Maharashtra Seamless distinguished on the basis that there were flaws in operationalizing the provision of Section 25Awhich is for the benefit of financial creditors in class when the Authorized Representative did not do Company Appeal(Ins) Nos. 700 761 & 9221 „prior consultation‟ with the homebuyers allottees who he sought to represent. Thereafter the RP allowed e voting on the final resolution plan wherein all the homebuyers participated not as a class represented by the Authorized Representative alongwith the other members of CoC. All this means that section 30(2)(e) of the IBC was infringed and the resolution plan is therefore liable to be rejected on such a ground. 38. The argument of the Learned Counsel of Resolution Professional that liquidation of the Corporate Debtor which implies corporate death should be the last resort as is held by Hon‟ble Apex Court in the matter of Swiss Ribbons Pvt. Ltd. Supra). We therefore feel that once the procedure is properly followed there is a realistic possibility of getting a successful resolution which would take care of the interests of the stakeholders and creditors leading to avoidance of liquidation of the corporate debtor and hence there is no conflict with the Swiss Ribbons judgment. 39. In light of the aforementioned discussion we set aside the impugned order dated 14.7.2021 and direct that the process be started afresh with claims of homebuyers allottees accepted by the Resolution Professional by giving them realistic time limit for Company Appeal(Ins) Nos. 700 761 & 9221 submission of claims in keeping with the order of the Adjudicating Authority in CA 12 2020 leading to a revised information memorandum which should then be used for inviting Expressions of Interest. In the CIRP the views of the financial creditors in class should be elicited by the Authorized Representative prior to CoC meetings in letter and spirit of section 25A of IBC. Thereafter the CoC shall consider the resolution plans so received in accordance with the provisions laid down in law. For this entire exercise we allow a period of 90 days to the CoC from the date of this order to complete the entire exercise. 40. With the above stated directions to the Committee of Creditors these appeals are disposed off. No order as to costs. Justice Ashok Bhushan] Justice Jarat Kumar Jain] MemberDr. Alok Srivastava] MemberNew Delhi 18th January 2022 Company Appeal(Ins) Nos. 700 761 & 9221

There can be no second FIR and no fresh investigation in respect of the same cognizable offence or same occurrence giving rise to one or more cognizable offences: The Delhi High Court

In a suit filed under the purview of the Prevention of Damage to Public Property Act, 1984, the Delhi High Court held that the court shall not entertain any second FIR or any form of another investigation for the same offence. The above was ordained in the case of ATIR v. State of NCT Delhi [CRL.M.C. 1197/2021 & CRL.M.A. 6104/2021] which was presided by a single judge bench of Justice Subramonium Prasad on September 1st 2021. The facts of the above cases are perplexed due to the obscurity highlighted by multiple FIRs of same facts. The complainant came back home to his house in the evening, after work, and found his house on Arson. The house was located in Maujpur Area, Delhi. Furthermore, it was also claimed that a Fire Brigade was called to the site to put the fire off. In the same FIR, he also claimed that he bore a loss of 7-10 lakhs of rupees. To his astonishment, the perpetrator of the offence was unknown. In furtherance to the above FIR, the complainant filed multiple FIRs bearing same facts. Only changes were of the value of the things that were compromised as the result of the arson. While the case being heard, many landmark judgments of T.T. Antony v. State of Kerela [2001 6 SCC 181], Babubhai v. State of Gujarat [(2010) 12 SCC 254], Anju Chaudhary v. State of U.P. [(2013) 6 SCC 384] were quoted in order to put emphasize on the pertinent case.

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

If student has withdrawn from course, college not entitled to full fees : Karnataka High Court

The petitioner’s in this case secured a order from the court where respondent college had to return the petitioner’s original documents and return the course fee paid on the grounds that the petitioner had withdrawn from the course prior to commencement was upheld by the High Court of Karnataka at Bengaluru through the learned division bench led by HONOURABLE MR.JUSTICE ALOK ARADHE and HONOURABLE MR.JUSTICE MGS KAMAL in the case of Vaibhav Khosla v. State of Karnataka and Ors. W.P. No.30619 OF 2018 (EDN-MED-ADM). Brief facts of the case that the petitioner in this case appeared for the 2018 Post Graduation National Eligibility cum Entrance Test by the Karnataka Examination Authority after completing the MBBS course. A seat in MD Psychiatry was allocated by the defendant college and deposited ₹7,74,500 for it and all original documents with Karnataka Examination Authority. But later, accepted into Christian Medical College in Ludhiana in MS Orthopedics. So, defendant’s medical school seat was surendered and asked them to return their original documents. This was done long before the consultation deadline and the start of the course. After the petitioner submitted his seat, the college asked him to deposit ₹25.32,000, the fee for the entire three-year program and they would not return their original documents. The counsel for petitioner contended that they had surrendered his seat just before the deadline for consultation and long before the start of the Course. After the petitioner submitted the seat, Karnataka Examination Authority held another consultation tour on 30.05.2018. The Defendant then sent a notice to the petitioner to deposit an amount of Rs 25.32,000. The defendant is not entitled to demand the full course fee for a period of three years because he has renounced the seat long before the counseling deadline and start of the course. The counsel for respondent contended if the original documents are returned, the college will not be able to recover the full course fee from the petitioner as he had withdrawn from the course, the college was deprived of enrolling another person on the course and it was therefore argued that it was entitled to a full refund of the course fee for itself. The Karnataka High Court held the college had no legal right to charge the full course fee and ordered the defendant to return the petitioner’s original documents to him and not to insist on the full 3-year course fee of ₹25.32,000 as the petitioner has withdrawn from the program. before starting. The Court, Islamic Education Academy and Anr. v. State of Karnataka and Ors (2003) 6 SCC 697, where the Supreme Court says educational institutions can only charge prescribed fees for one semester or one year. If the institution is concerned that a student may be let down, it requires at most students to provide a security or bank guarantee for their balance fees. may request. The court did not accept the college’s claims, considering that the petitioner had withdrawn from the school. course before the deadline for consultation. According to the Islamic Education Academy and another, the Supreme Court, institutions have no legal right to charge full course fees from students leaving the program. On 24 September 2019, the Court granted an interim injunction to the applicant and instructed the institution to return the original documents. The petitioner agreed not to claim the refund of ₹7,74,500 deposited with the institution and disposed off the petition.

IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 27TH DAY OF JANUARY 2022 THE HON’BLE MR. JUSTICE ALOK ARADHE THE HON’BLE MR.JUSTICE M.G.S.KAMAL W.P. No.30619 OF 20181. THE STATE OF KARNATAKA REPRESENTED BY ITS ADDITIONAL CHIEF SECRETARY HEALTH & FAMILY WELFARE MEDICAL EDUCATION DEPARTMENT) VIKASA SOUDHA DR. B.R. AMBEDKAR VEEDHI BENGALURU 560001. PETITIONER 2 2. 3. 4. 5. THE DIRECTORATE OF MEDICAL EDUCATION IN KARNATAKA ANAND RAO CIRCLE BENGALURU 560 009 REPRESENTED BY ITS DIRECTOR. KARNATAKA EXAMINATION AUTHORITY SAMPIGE ROAD 18TH CROSS MALLESWARAM BENGALURU 560012 REPRESENTED BY ITS EXECUTIVE DIRECTOR. RAJIV GANDHI UNIVERSITY OF HEALTH SCIENCES 4TH T BLOCK JAYANAGAR BENGALURU 560041 REPRESENTED BY ITS REGISTRAR. RAJARAJESHWARI MEDICAL COLLEGE AND HOSPITAL 202 KAMBIPURA MYSURU ROAD BENGALURU 560074 REPRESENTED BY ITS DEAN. 6. MEDICAL COUNCIL OF INDIA POCKET 14 SECTOR 8 DWARAKA NEW DELHI 110077 REPRESENTED BY ITS SECRETARY. ... RESPONDENTS BY MR. LAXMI NARAYANA AGA FOR R1 & R2 MR. N.K. RAMESH ADV. FOR R3 & R4 MR. CHANDRAKANTH R. GOULAY ADV. FOR R5 MR. N. KHETTY ADV. FOR R6) THIS W.P. IS FILED UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA PRAYING TO DIRECT R 2 3 AND 5 TO RETURN ALL THE ORIGINAL DOCUMENTS SUBMITTED BY THE PETITIOENR TO R 3 KEA AT THE TIME OF ISSUANCE OF THE ADMISSION ORDER DATED 16.5.2018 AT ANNEX H. 3 DIRECT R 5 NOT TO INSIST ON PAYMENT OF THE TUITION FEE OF RS.25 32 000 FOR THE ENTIRE DURATION OF THREE YEARS OF THE MD PSYCHIATRY COURSE AND RETURN ALL THE ORIGINAL DOCUMENTS OF THE PETITIONER IN ITS CUSTODY TO THE PETITIONER. DIRECT R 3 AND 5 TO REFUND THE FEE OF RS. 7 74 500 COLLECTED FROM THE PETITIONR AT THE TIME OF ISSUANCE OF THE ADMISSION ORDER DATED 16.5.2018 AT ANNEX H & ETC. THIS W.P. COMING ON FOR PRELIMINARY HEARING IN B GROUP THIS DAY ALOK ARADHE J. DELIVERED THE In this writ petition the petitioner inter alia seeks a writ of mandamus directing respondent Nos.2 3 & 5 to return the original documents submitted by the petitioner to Karnataka Examination Authority at the time of issuance of order of admission dated 16.05.2018 as well as a direction to respondent No.5 not to insist on payment of tuition fee of Rs.25 32 000 for the entire duration of three years of MD Psychiatry course. The petitioner also seeks a writ of mandamus directing the Karnataka Examination Authority and respondent No.5 to refund the fee of Rs.7 74 500 deposited by the petitioner at the time of admission to the aforesaid course on 16.05.2018. 4 Facts leading to filing of this petition briefly stated are that the petitioner completed the MBBS course from Government Medical College Amritsar in the State of Punjab and has been conferred the medical degree by the Baba Farid University of Health Sciences Punjab. The petitioner appeared in the Post Graduate National eligibility cum Entrance Test 2018. The petitioner was registered with Karnataka Examination Authority which is designated authority for conducting counseling for admission to P.G. Medical Courses in the State of Karnataka. The petitioner was not allotted any seat in the first and second round of counseling conducted by the Karnataka Examination Authority. The petitioner had also applied for admission to P.G.Medical Course in Baba Farid University of Health Sciences Punjab. The candidature of the petitioner was not considered for admission. Therefore he filed a writ petition before the High Court of Punjab and Haryana for a direction to the University to consider his case for admission to PG Medical course as per his ranking in P.G.NEET Examination 5 In pursuance to the direction issued by the High Court of Punjab and Haryana the petitioner was granted in Christian Medical College Ludhiana M.S.Orthopedics and was admitted to the course on 24.05.2018. The petitioner had also participated in the mop up round and counseling conducted by the Karnataka Examination Authority on 16.05.2018 and was allotted a seat in M.D.Psychiatry course in the college run by respondent No.5. The petitioner thereupon deposited a sum of Rs.7 74 500 as well as all his original documents with Karnataka Examination Authority. However subsequently when the petitioner was admitted in the Christian Medical College Ludhiana in MS Orthopedics Course the petitioner immediately informed the Karnataka Examination Authority as well as the respondent No.5 College by an e mail dated 29.05.2018 that he is surrendering his seat in MD Psychiatry Course in respondent No.5 Medical College. It is pertinent to note that the last date for counseling to the PG Course was 31.05.2018. The petitioner thereafter visited Bangalore and submitted a communication to respondent No.2 stating that he is surrendering the seat and requested for handing over 6 the original documents. The petitioner thereafter submitted a representation on 28.05.2018. It is pertinent to mention here that the petitioner had surrendered his seat immediately prior to the last date of counseling and much before commencing of the Course. After the petitioner had surrendered the seat the Karnataka Examination Authority had conducted another round of counseling on 30.05.2018. The respondent No.5 thereafter sent a communication dated 03.06.2018 to the petitioner to deposit a sum of R.25 32 000 . In the aforesaid obtaining factual matrix the petitioner has approached this court seeking the reliefs as stated supra. Learned counsel for the petitioner while inviting the attention of this court by an interim order dated 24.04.2019 passed by Division Bench of this court fairly stated that in compliance of the aforesaid order the original documents have already been returned to the petitioner and the petitioner has already given up the relief of refund of Rs.7 74 500 which was deposited by the petitioner. It is further submitted that the respondent No.5 is not entitled to 7 seek the payments of the entire course fee for a period of three years from the petitioner as the petitioner had given up the seat much prior to the last date of counseling and much before the commencement of the course. the other hand learned counsel respondent No.5 submitted that if the original documents are returned to the petitioner the right of the management to recover the fee for three years would not be frustrated. It is further admitted by learned counsel for respondent No.5 that after the petitioner had surrendered the seat another round of counseling was held on 30.05.2018 by Karnataka Examination Authority. It is urged that since the petitioner had not prosecuted the course therefore the respondent No.5 was deprived from admitting any person to the Course in question and therefore is entitled to recover the course fee of entire three years course from the petitioner. In support of his submissions learned counsel for respondent No.5 has placed reliance on division bench decision of this court dated 18.03.2014 in the case of MISS SMRUTHY B.S. 8 VS. D.A.PANDU MEMORIAL R.V.DENTAL COLLEGE & HOSPITAL & OTHER. 7. We have considered the submissions made on both the sides and have perused the record. Para 8 of the decision of Supreme Court in ISLAMIC ACADEMY OF EDUCATION AND ANOTHER VS. STATE OF KARNATAKA AND OTHERS 6 SCC 697 in para 8 is extracted below for the facility of reference: It must be mentioned that during arguments it was pointed out to us that some institutions are collecting advance the fees for the entire course i.e. for all the years. It was submitted that this was done because the institute was not sure whether the student would leave the institute midstream. It was submitted that if the student left the course in midstream then for the remaining years the seat would lie vacant and the institute would suffer. In our view an prescribed fees for one semester year. If an institution feels that any particular student may leave in midstream then at the highest it may require that student to give a bond bank 9 guarantee that the balance fees for the whole course would be received by the institute even if the student left in midstream. If any educational institution has collected fees in advance only the fees of that semester year can be used by the institution. The balance fees must be kept invested in fixed deposits in a nationalized bank. As and when fees fall due for a semester year only the fees falling due for that semester year can be withdrawn by the institution. The rest must continue to remain deposited till such time that they fall due. At the end of the course the interest earned on these deposits must be paid to the student from whom the fees were collected in advance. The supreme court in the aforesaid decision held that the educational institution can only charge prescribed fees for one semester year. If an institution feels that any particular student may leave in midstream then at the highest it may require that student to give a bond bank guarantee that the balance fees for the whole course would be received by the institute even if the student left in midstream. If any educational institution has collected fees in advance only the fees of that semester year can be used by the institution. 10 Thus it is evident that the institution has only a right to recover the prescribed fee for one semester year. In the instant case the petitioner has not left the course midstream. The petitioner has admittedly surrendered the seat on 24.05.2018 before the last date of counseling. It is also not in dispute that after the petitioner had surrendered the seat another round of counseling was held on 30.05.2011 by the Karnataka Examination Authority. It is not the case of the Respondent No.5 that the petitioner has left the course midstream. Therefore in view of the law laid in ISLAMIC ACADEMY OF EDUCATION AND ANOTHER supra the respondent No.5 has no right in law to demand the remaining course fee of three years course from the petitioner. Admittedly in compliance of the order dated 24.04.2019 the original documents have been returned to the petitioner. The interim order has already been given effect to. Therefore the prayer for return or original documents does not survive. The petitioner has already given up the right to seek refund of Rs.7 74 500 deposited by 11 him as is recorded in the aforesaid order sheet. Therefore no orders are required to be passed with regard to prayer clause (c). Thus for the aforementioned reasons the writ petition is disposed of in terms indicated above. Sd Sd

The powers under Section 254(2) of the Act are only to rectify/correct any mistake apparent from the record: Supreme Court of India

While considering the application under Section 254(2) of the Act, the Appellate Tribunal is not required to revisit its earlier order and to go into detail on merits. The powers under Section 254(2) of the Act are akin to Order XLVII Rule 1 CPC. In exercise of powers under Section 254(2) of the Act, the Appellate Tribunal may amend any order passed by it under sub-section (1) of Section 254 of the Act with a view to rectifying any mistake apparent from the record only. Such an observation was made by the Hon’ble Supreme Court of India before Hon’ble Justice M.R. SHAH & Hon’ble Justice B.V. NAGARATHNA in the matter of Commissioner of Income Tax (IT-4) vs M/s Reliance Telecom Limited [CIVIL APPEAL NO. 7110 OF 2021] on 03.12.2021. The facts arising to the present appeal were that the respondent company entered into a supply contract with  Ericsson A.B. The respondent company filed an application under Section 195(2) of the Act before the Assessing Officer, to make payment to the non-resident company for the purchase of software without TDS. It was contended by the Assessee that it was for the purchase of software and Ericsson A.B. had no permanent establishment in India and in terms of the DTAA between India and Sweden & USA, the amount paid is not taxable in India. The same was rejected by the Assessing Officer and directed the respondent company to deduct tax at the rate of 10% as royalty. The respondent appealed before the Commissioner of Income Tax (Appeals). The CIT vide order dated 27.05.2008 was held in favour of the respondent. Aggrieved by the said order Revenue appealed before the ITAT and by a detailed judgment and order dated 06.09.2013, the ITAT allowed the Revenue’s appeal. The respondent filed a miscellaneous application for rectification under Section 254(2) of the Act. Simultaneously, the respondent also filed the appeal before the High Court against the ITAT order dated 06.09.2013.vide common order dated 18.11.2016, the ITAT allowed the respondent’s miscellaneous application filed under Section 254(2) of the Act and recalled its original order dated 06.09.2013. Feeling aggrieved and dissatisfied with the order passed by the ITAT allowing the miscellaneous application under Section 254(2) of the Act and recalling its earlier order dated 06.09.2013, the Revenue preferred writ petition before the High Court, which the High Court dismissed. Thus, the present appeal was preferred by the Revenue. The Hon’ble Supreme Court of India observed that “While allowing the application under Section 254(2) of the Act and recalling its earlier order dated 06.09.2013, it appears that the ITAT has re-heard the entire appeal on merits as if the ITAT was deciding the appeal against the order passed by the C.I.T. In exercise of powers under Section 254(2) of the Act, the Appellate Tribunal may amend any order passed by it under sub-section (1) of Section 254 of the Act with a view to rectifying any mistake apparent from the record only” Furthermore, the Hon’ble Supreme Court of India held that the power under Section 254(2) of the Act is akin to Order XLVII Rule 1 CPC. the Appellate Tribunal is not required to revisit its earlier order and to go into detail on merits. The powers under Section 254(2) of the Act are only to rectify/correct any mistake apparent from the record. The only remedy available to the respondent was to prefer the appeal before the High Court. Finally, the Hon’ble Supreme Court of India disposed of the present appeal with leave to the respondent to file afresh before the Hon’ble High Court who shall decide the matter afresh looking into the merits of the case. Click Here To Read The Judgment. Judgment Reviewed by: Rohan Kumar Thakur The facts arising to the present appeal were that the respondent company entered into a supply contract with  Ericsson A.B. The respondent company filed an application under Section 195(2) of the Act before the Assessing Officer, to make payment to the non-resident company for the purchase of software without TDS. It was contended by the Assessee that it was for the purchase of software and Ericsson A.B. had no permanent establishment in India and in terms of the DTAA between India and Sweden & USA, the amount paid is not taxable in India. The same was rejected by the Assessing Officer and directed the respondent company to deduct tax at the rate of 10% as royalty. The respondent appealed before the Commissioner of Income Tax (Appeals). The CIT vide order dated 27.05.2008 was held in favour of the respondent. Aggrieved by the said order Revenue appealed before the ITAT and by a detailed judgment and order dated 06.09.2013, the ITAT allowed the Revenue’s appeal. The respondent filed a miscellaneous application for rectification under Section 254(2) of the Act. Simultaneously, the respondent also filed the appeal before the High Court against the ITAT order dated 06.09.2013.vide common order dated 18.11.2016, the ITAT allowed the respondent’s miscellaneous application filed under Section 254(2) of the Act and recalled its original order dated 06.09.2013. Feeling aggrieved and dissatisfied with the order passed by the ITAT allowing the miscellaneous application under Section 254(2) of the Act and recalling its earlier order dated 06.09.2013, the Revenue preferred writ petition before the High Court, which the High Court dismissed. Thus, the present appeal was preferred by the Revenue. The Hon’ble Supreme Court of India observed that “While allowing the application under Section 254(2) of the Act and recalling its earlier order dated 06.09.2013, it appears that the ITAT has re-heard the entire appeal on merits as if the ITAT was deciding the appeal against the order passed by the C.I.T. In exercise of powers under Section 254(2) of the Act, the Appellate Tribunal may amend any order passed by it under sub-section (1) of Section 254 of the Act with a view to rectifying any mistake apparent from the record only” Furthermore, the Hon’ble Supreme Court of India held that the power under Section 254(2) of the Act is akin to Order XLVII Rule 1 CPC. the Appellate Tribunal is not required to revisit its earlier order and to go into detail on merits. The powers under Section 254(2) of the Act are only to rectify/correct any mistake apparent from the record. The only remedy available to the respondent was to prefer the appeal before the High Court. Finally, the Hon’ble Supreme Court of India disposed of the present appeal with leave to the respondent to file afresh before the Hon’ble High Court who shall decide the matter afresh looking into the merits of the case. Click Here To Read The Judgment. Judgment Reviewed by: Rohan Kumar Thakur The Hon’ble Supreme Court of India observed that “While allowing the application under Section 254(2) of the Act and recalling its earlier order dated 06.09.2013, it appears that the ITAT has re-heard the entire appeal on merits as if the ITAT was deciding the appeal against the order passed by the C.I.T. In exercise of powers under Section 254(2) of the Act, the Appellate Tribunal may amend any order passed by it under sub-section (1) of Section 254 of the Act with a view to rectifying any mistake apparent from the record only” Furthermore, the Hon’ble Supreme Court of India held that the power under Section 254(2) of the Act is akin to Order XLVII Rule 1 CPC. the Appellate Tribunal is not required to revisit its earlier order and to go into detail on merits. The powers under Section 254(2) of the Act are only to rectify/correct any mistake apparent from the record. The only remedy available to the respondent was to prefer the appeal before the High Court. Finally, the Hon’ble Supreme Court of India disposed of the present appeal with leave to the respondent to file afresh before the Hon’ble High Court who shall decide the matter afresh looking into the merits of the case. Click Here To Read The Judgment. Judgment Reviewed by: Rohan Kumar Thakur Furthermore, the Hon’ble Supreme Court of India held that the power under Section 254(2) of the Act is akin to Order XLVII Rule 1 CPC. the Appellate Tribunal is not required to revisit its earlier order and to go into detail on merits. The powers under Section 254(2) of the Act are only to rectify/correct any mistake apparent from the record. The only remedy available to the respondent was to prefer the appeal before the High Court. Finally, the Hon’ble Supreme Court of India disposed of the present appeal with leave to the respondent to file afresh before the Hon’ble High Court who shall decide the matter afresh looking into the merits of the case. Click Here To Read The Judgment. Judgment Reviewed by: Rohan Kumar Thakur Finally, the Hon’ble Supreme Court of India disposed of the present appeal with leave to the respondent to file afresh before the Hon’ble High Court who shall decide the matter afresh looking into the merits of the case.

IN THE CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 7110 OF 2021 Commissioner of Income TaxM s Reliance Telecom Limited CIVIL APPEAL NO. 7111 OF 2021 Commissioner of Income TaxM s Reliance Communications Limited JUDGMENT M.R. SHAH J Feeling aggrieved and dissatisfied with the impugned common judgment and order dated 08.08.2017 passed by the High Court of Judicature at Bombay in Writ Petition No. 1432 2017 and Writ Petition No. 1406 2017 by which the High Court has dismissed the aforesaid writ petitions preferred by the Commissioner of Income TaxMumbai and has confirmed the order passed by the Income Tax Appellate Tribunal Bench at Mumbai hereinafter referred to as the ‘ITAT’) dated 18.11.2016 passed in Miscellaneous Application Nos. 261 M 2014 and 419 M 2013 by which the ITAT in exercise of powers under Section 254(2) of the Income Tax Act has recalled its earlier order dated 06.09.2013 passed in ITA No. 5096 Mum 2008 and ITA No 837 Mum 2007 the Revenue has preferred the present appeals The facts leading to the present appeals in a nutshell are as under For the sake of convenience the facts in Civil Appeal No. 71121 arising from Special Leave PetitionNo.13963 2018 in the case of M s Reliance Telecom Limitedof the Act before the Assessing Officer to make payment to the non resident company for purchase of software without TDS. It was contended by the Assessee that it was for the purchase of software and Ericsson A.B. had no permanent establishment in India and in terms of the DTAA between India and Sweden & USA the amount paid is not taxable in India 2.2 The Assessing Officer passed an order dated 12.03.2007 rejecting the Assessee’s application holding that the consideration for software licensing constituted under Section 9(1)(vi) of the Act and under Article 12(3) of the DTAA is liable to be taxed in India and accordingly directed the assessee to deduct tax at the rate of 10% as royalty 2.3 The Assessee after deducting the tax appealed before the Commissioner of Income Tax of the Act. Simultaneously the Assessee also filed the appeal before the High Court against the ITAT order dated 06.09.2013. 2.4 That vide common order dated 18.11.2016 the ITAT allowed the Assessee’s miscellaneous application filed under Section 254(2) of the Act and recalled its original order dated 06.09.2013. Immediately on passing the order dated 18.11.2016 by the ITAT recalling its earlier order dated 06.09.2013 the Assessee withdrew the appeal preferred before the High court which was against the original order dated 06.09.2013 2.5 Feeling aggrieved and dissatisfied with the order passed by the ITAT allowing the miscellaneous application under Section 254(2) of the Act and recalling its earlier order dated 06.09.2013 the Revenue preferred writ petition before the High Court. By the impugned common judgment and order the High Court has dismissed the said writ petition s. Hence the Revenue is before this Court by way of present 3. We have heard Shri Balbir Singh learned Additional Solicitor General of India appearing on behalf of the Revenue and Shri Anuj Berry learned Advocate appearing on behalf of the Resolution Professional of the respondent company. At this stage it is required to be noted that the respondent company companies respective assessees currently are undergoing corporate insolvency resolution process and the Resolution Professional is appointed. We have heard learned counsel for the Resolution Professional of the respondent 3.1 We have considered the order dated 18.11.2016 passed by the ITAT allowing the miscellaneous application in exercise of powers under Section 254(2) of the Act and recalling its earlier order dated 06.09.2013 as well as the original order passed by the ITAT dated 06.09.2013. 3.2 Having gone through both the orders passed by the ITAT we are of the opinion that the order passed by the ITAT dated 18.11.2016 recalling its earlier order dated 06.09.2013 is beyond the scope and ambit of the powers under Section 254(2) of the Act. While allowing the application under Section 254(2) of the Act and recalling its earlier order dated 06.09.2013 it appears that the ITAT has re heard the entire appeal on merits as if the ITAT was deciding the appeal against the order passed by the C.I.T. In exercise of powers under Section 254(2) of the Act the Appellate Tribunal may amend any order passed by it under sub section 1) of Section 254 of the Act with a view to rectifying any mistake apparent from the record only. Therefore the powers under Section 254(2) of the Act are akin to Order XLVII Rule 1 CPC. While considering the application under Section 254(2) of the Act the Appellate Tribunal is not required to re visit its earlier order and to go into detail on merits The powers under Section 254(2) of the Act are only to rectify correct any mistake apparent from the record In the present case a detailed order was passed by the ITAT when it passed an order on 06.09.2013 by which the ITAT held in favour of the Revenue. Therefore the said order could not have been recalled by the Appellate Tribunal in exercise of powers under Section 254(2) of the Act If the Assessee was of the opinion that the order passed by the ITAT was erroneous either on facts or in law in that case the only remedy available to the Assessee was to prefer the appeal before the High Court which as such was already filed by the Assessee before the High Court which the Assessee withdrew after the order passed by the ITAT dated 18.11.2016 recalling its earlier order dated 06.09.2013. Therefore as such the order passed by the ITAT recalling its earlier order dated 06.09.2013 which has been passed in exercise of powers under Section 254(2) of the Act is beyond the scope and ambit of the powers of the Appellate Tribunal conferred under Section 254 of the Act Therefore the order passed by the ITAT dated 18.11.2016 recalling its earlier order dated 06.09.2013 is unsustainable which ought to have been set aside by the High Court From the impugned judgment and order passed by the High Court it appears that the High Court has dismissed the writ petitions by observing thatthe Revenue itself had in detail gone into merits of the case before the ITAT and the parties filed detailed submissions based on which the ITAT passed its order recalling its earlier order the Revenue had not contended that the ITAT had become functus officio after delivering its original order and that if it had to relook revisit the order it must be for limited purpose as permitted by Section 254(2) of the Act andthat the merits might have been decided erroneously but ITAT had the jurisdiction and within its powers it may pass an erroneous order and that such objections had not been raised before ITAT None of the aforesaid grounds are tenable in law. Merely because the Revenue might have in detail gone into the merits of the case before the ITAT and merely because the parties might have filed detailed submissions it does not confer jurisdiction upon the ITAT to pass the order de hors Section 254(2) of the Act. As observed hereinabove the powers under Section 254(2) of the Act are only to correct and or rectify the mistake apparent from the record and not beyond that Even the observations that the merits might have been decided erroneously and the ITAT had jurisdiction and within its powers it may pass an order recalling its earlier order which is an erroneous order cannot be accepted. As observed hereinabove if the order passed by the ITAT was erroneous on merits in that case the remedy available to the Assessee was to prefer an appeal before the High Court which in fact was filed by the Assessee before the High Court but later on the Assessee withdrew the same in the instant case In view of the above and for the reasons stated above the impugned common judgment and order passed by the High Court as well as the common order passed by the ITAT dated 18.11.2016 recalling its earlier order dated 06.09.2013 deserve to be quashed and set aside and are accordingly quashed and set aside. The original orders passed by the ITAT dated 06.09.2013 passed in the respective appeals preferred by the Revenue are hereby restored Considering the fact that the Assessee had earlier preferred appeal s before the High Court challenging the original order passed by the ITAT dated 06.09.2013 which the Assessee withdrew in view of the subsequent order passed by the ITAT dated 18.11.2016 recalling its earlier order dated 06.09.2013 we observe that if the Assessee s prefers prefer appeal s before the High Court against the original order dated 06.09.2013 within a period of six weeks from today the same may be decided and disposed of in accordance with law and on its their own merits and without raising any objection with respect to limitation Both the appeals are accordingly allowed in the aforesaid terms However there shall be no order as to costs NEW DELHI DECEMBER 03 2021

Order of assessment by the assessing officer violating principles of natural justice is void and bound to be set aside: Rajasthan High Court.

Assessing Officer’s (AO) order for re-assessment is void and set to be revoked if it violates the principles of natural justice is upheld by the Jaipur bench of Rajasthan High Court through a division bench of Hon’ble Chief Justice Mr. Akil Kureshi and Hon’ble Mr. Justice Sudesh Bansal in the case of Rati Ram Bambelwal v. Pr. CIT and Others. The brief facts of the case are that petitioner is an individual engaged in the business of trade of jewel commodities. For the assessment year 2013-14 the petitioner declared total income of Rs.2,41,610/-. The return was taken up for scrutiny and the assessing officer issued a notice under Section 148 of the IT Act, 1960. This was followed by notices   issued   under   Section   142(1)   of   the   Act.   Since   the petitioner did not reply to these notices, the Assessing Officer issued a final notice under Section 144 of the Act and stating that the Assessing Officer desired to complete the assessment by way of best judgment as he has not replied to earlier notices. Further, he mentions that assessee should response through registered e-mail account. The assessee replied to the said notice which is accepted by the AO. Despite this, the assessment which was carried out through faceless assessment system, did not acknowledge such reply and the contents thereof. The AO made 7 additions to the tune of Rs. 72,14,490/- and proposed penalty. The Court held that the order of assessment suffers from violation of principles of natural justice. As noted in response to the notice issued by the Assessing Officer under Section 144 the petitioner had filed a response within time permitted wherein he opposed the proposal for making any addition to his declared income. He also disputed the statements of persons on which the Assessing Officer wanted to rely upon. He asked for their cross-examination. It was open for the Assessing Officer to accept or to reject the stand of the petitioner including his request for cross-examination of the witnesses. However he could not have ignored the reply and proceeded to finalize the assessment as if there was no response from the petitioner whatsoever. Since the AO ignored the reply filled by the assessee the Court held that the assessment order violates the principles of natural justice that is right to be heard under the principle “audi alteram partem and on this ground we are inclined to set aside the order of assessment.” Ordinarily when against an order statutory appeal is available, the Court would be slow in interfering in a writ petition bypassing such appeal route. This is more so in fiscal matters. However when it   comes to the clear cut case of breach of principles of natural justice and denial of fair hearing, this self-imposed restriction is not applied. Therefore, the order of assessment suffers from violation of principles of natural justice, is void, and bound to be set aside.

on 17 02 2022 at 04:03:58 PM HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPURD.B. Civil Writ Petition No. 11053 2021Rati Ram Bambelwal S o Prabhati Lal Bambelwal Aged About55 Years R o 0578 Malpura Krishi Upaj Mandi Malpura Tonk 304502 Rajasthan. PetitionerVersus1. National Faceless Asessment Centre Delhi Through ItsIncome Tax Officer.2. Principal Chief Commissioner Of Income Tax Delhi Room No 356 C.r.Building Ip Estate New Delhi Delhi 110002.3. Income Tax Officer Ward Tonk Malpura Gate Kala Baba Tonk Rajasthan 304001. RespondentsFor Petitioner(s) : Mr. Javed Khan For Respondent(s): Mr. Nikhil Simlote on behalf of Mr.R.B.Mathur(Sr.Advocate) through VCHON BLE THE CHIEF JUSTICE MR. AKIL KURESHI HON BLE MR. JUSTICE SUDESH BANSALJudgment15 02 20221.Heard learned counsel for the parties. 2.Petitioner has challenged an order of assessment dated15.09.2021 passed by the Assessing Officer for the assessmentyear 2013 14. Briefly stated the facts are as under: 3.The petitioner is an individual and is engaged in the businessof trade of jewel commodities. For the assessment year 2013 14the petitioner had filed return of income on 19.08.2013 declaringtotal income of Rs.2 41 610 . The return filed by the petitionerwas taken in scrutiny. The assessing officer passed an order of[CW 11053 2021]assessment under Section 143(3) of the Income Tax Act 1961(for short the Act ) accepting the assessee s declared income. 4.To reopen such assessment the Assessing Officer had issueda notice under Section 148 of the Act. This was followed bynotices issued under Section 142(1) of the Act. Since thepetitioner did not reply to these notices the Assessing Officerissued a final notice on 03.09.2021 under Section 144 of the Actand put the petitioner to notice that since he had not responded tothe earlier notices the Assessing Officer desired to complete theassessment by way of best judgment. He also outlined his broadproposals for completing such assessment and in paragraph 6 ofthe notice stated that the assessee should submit the responsethrough registered e mail account by 10.09.2021 and as perparagraph 7 of the notice in case the assessee failed to make sucha response the assessment shall be finalized under Section 144 ofthe Act. 5.The assessee replied to the said notice dated 03.09.2021under a response dated 10.09.2021. This is borne out from a copyof the e proceedings response acknowledgment produced by thepetitioner at Annexure 8. This document indicates the name of thepetitioner the assessment year concerned it refers to noticeunder Section 144 of the Act dated 03.09.2021 and records10.09.2021 as due date for submission. In response it indicatesthat the reply was received. 6.We may therefore proceed on the basis that petitioner hadfiled reply to the last notice issued by the Assessing Officer on03.09.2021. Despite this the assessment which was carried outthrough faceless assessment system did not acknowledge suchreply and the contents thereof. This is clear from a bare perusal of[CW 11053 2021]the order of assessment in which the Assessing Officer hasindicated that there was no response from the petitioner to thenotice under Section 148 under Section 142(1) as well as hisnotice issued under Section 144 of the Act. He thereforeproceeded to complete the assessment by making certain additionand assessing total income of the petitioner to Rs.72 14 490 with the proposal to initiate penalty proceedings. 7.Having heard learned counsel for the parties and havingperused the documents on record the order of assessment suffersfrom violation of principles of natural justice. As noted in responseto the notice issued by the Assessing Officer under Section 144the petitioner had filed a response within time permitted. Perusalof the reply of the petitioner would show that he opposed theproposal for making any addition to his declared income. He alsodisputed the statements of persons on which the Assessing Officerwanted to rely upon. He asked for their cross examination. It wasopen for the Assessing Officer to accept or to reject the stand ofthe petitioner including his request for cross examination of thewitnesses. However he could not have ignored the reply andproceeded to finalize the assessment as if there was no responsefrom the petitioner whatsoever. Unfortunately this is what theAssessing Officer has done and in process caused injustice. 8.Only on this ground we are inclined to set aside the order ofassessment. Ordinarily when against an order statutory appeal isavailable the Court would be slow in interfering in a writ petitionbypassing such appeal route. This is more so in fiscal matters.However when it comes to the clear cut case of breach ofprinciples of natural justice and denial of fair hearing this self imposed restriction is not applied. [CW 11053 2021]9.Under the circumstances the impugned order of assessmentdated 15.09.2021 is set aside. The assessment is reopened andshall be completed by the respondents after taking into accountthe response of the petitioner dated 10.09.2021 to the noticeissued by the Assessing Officer under Section 144 of the Act. 10.The petition is disposed of accordingly.J(AKIL KURESHI) CJKAMLESH KUMAR 4

Presence of police during test identification parade is a flaw u/s 162 CrPC: Supreme Court

The court recalled the section 162 of CrPC and stated that the presence of police during the test identification parades happen to fall within the ban of this section. This exceptional judgement was passed by the Supreme Court by the Hon’ble Justice Sanjay Kishan Kaul, Justice Krishna Murari and Justice Hrishikesh Roy in the matter of Chunthuram versus State of Chattisgarh [Criminal Appeal No.- 1392 of 2011]. The presence of police only creates communications tantamount to statements made by the identifiers to a police officer during the investigation process which fall within the ambit of ban under section 162 of the CrPC. This case where the accused Chunthuram and others were accused of murder. After relying on the eye witness after he identified the ‘lungi’ as an evidence the other accused were acquitted by the high court. The amicus curie of the appellant stated that “the evidence on record to firstly point out that recovery of the weapons of assault from the house of the accused, was never linked to the crime and therefore the recovered articles can be of no use for the prosecution.” Also “The credibility of the sole eye-witness Bhagat Ram (PW-4) with his poor eyesight (inability to see anything beyond a distance of two feet) coupled with his weak hearing is challenged by the learned advocate by highlighting the fact that the incident occurred on a cloudy evening”. The court after the discussion concluded that “The alleged weapons of assault recovered on the basis of statement of the accused could be a key evidence to support the prosecution, but unfortunately, the recovered articles were never linked to the crime. The police sent them to the CHC for examination and the CHC Doctor (PW-7) had stated that the injuries found on the body could have been caused by those weapons. However, in his cross-examination, the Doctor admitted that bloodstains or other marks on the exhibits could not be seen.” Further stating that “to establish the presence of Chunthuram at the place of incident, the Courts relied on the Test Identification Parade and the testimony of Filim Sai (PW-3). The Test Identification evidence is not substantive piece of evidence but can only be used, in corroboration of statements in Court.”

IN THE CRIMINAL APPELLATE JURISDICTION Criminal Appeal No.13911 State of Chhattisgarh Hrishikesh Roy J The present Appeal challenges the judgment and order dated 15.2.2008 of the Chhattisgarh High Court whereby the Criminal Appeal No.513 2002 was disposed of upholding the conviction of the appellant in terms of the conclusion reached by the learned Additional Sessions Judge Jashpurnagar in Sessions Case No.149 2001 The trial Court convicted the appellant and co accused Jagan Ram under Sections 302 34 of the Indian Penal Code 1860and sentenced them to undergo life imprisonment and fine of Rs.500 each and for the conviction under Sections 201 34 IPC three years imprisonment and fine of Rs.500 each was ordered. The co accused Jagan Ram was however acquitted by the High Court The case of the prosecution is that on 14.6.2001 at 1900 hours when the deceased Laxman was returning from Tamta market to Pandripani village the appellant Chunthuram and the co accused Jagan Ram assaulted him with axe and stick and Laxman died on the spot. The FIR was lodged by Mahtoram the father of the deceased stating therein that when his son did not return home from Tamta market at night and enquiries were made in the village his grandson Santram informed him that Chunthuram and Jaganram had killed Laxman and concealed his dead body in a pit. The informant rushed to the location and found the injury inflicted dead body of his son. The FIR mentioned a land dispute between the accused and the victim as also the fact that the deceased Laxman was charged with murder of one Sildhar the brother of the two co accused and because of this animosity the accused had murdered Laxman Following the investigation charges were framed and the case was committed for trial. The prosecution examined seven witnesses to prove the charges. The accused in their Section 313 CrPC statements pleaded innocence and alleged false implication On evaluation of the evidence the trial Court reached a guilty verdict and sentenced both accused In the resultant criminal appeal the High Court referred to the testimony of Bhagat Ram who admitted that he could not recognize the second person at the spot and could identify only Chunthuram. On this testimony of the eyewitness the co accused Jagan Ram was acquitted. The High Court however upheld the conviction of Chunthuram referring to the testimony of the eye witness Bhagat Ram as it was corroborated by other evidence We have heard Mr. Yashraj Singh Deora the learned Amicus Curiae for the appellant. The learned counsel has painstakingly taken us through the evidence on record to firstly point out that recovery of the weapons of assault from the house of the accused was never linked to the crime and therefore the recovered articles can be of no use for the prosecution. The so called identification of the lungi by Filim Saiwhose testimony is made the basis of establishing the presence of Chunthuram at the site of the incident is next questioned by Mr. Deora. The credibility of the sole eye witness Bhagat Ram with his poor eyesight coupled with his weak hearing is challenged by the learned advocate by highlighting the fact that the incident occurred on a cloudy evening According to the learned counsel the past land dispute does not provide a direct motive for the murder since the said dispute was finally resolved more than two years prior to the incident and the murder of Sildhar was allegedly related to the said dispute. Explaining the simple injuries found on the two accused Mr. Deora reads Doctor P Sutharu’s evidence who in his cross examination admitted that the simple injuries on Chunthuram could be due to thorny shrubs In his turn Mr. Nishanth Patil the learned counsel for the State adverts to the land dispute and the fact that deceased Laxman was tried for murder of Sildhar the brother of the accused to argue that the appellant had the motive for the crime. The State counsel then refers to the weapons of assault and the recovery of those from the place pointed out by the accused. According to Mr Patil the eye witness Bhagat Ram heard the deceased cry out and saw him being assaulted by Chunthuram and another which establishes the presence of the accused and this evidence must be given due weightage. The State therefore argues that prosecution has discharged its burden to sustain the conviction through projection of motive recovery of the murder weapons and wearing articles the testimony of the eye witness and other related evidence. DISCUSSION AND CONCLUSION 8.1 The alleged weapons of assault recovered on the basis of statement of the accused could be a key evidence to support the prosecution but unfortunately the recovered articles were never linked to the crime The police sent them to the CHC for examination and the CHC Doctorhad stated that the injuries found on the body could have been caused by those weapons However in his cross examination the Doctor admitted that bloodstains or other marks on the exhibits could not be seen. The weapons were reportedly sent for chemical examination and although the trial Court had referred to the report of chemical analyst to conclude the presence of blood on the exhibits but the purported chemical analyst report is not found available with the case records. Moreover there is no mention of any such report in the High Court’s judgment. This would suggest that the prosecution did not produce any chemical analyst report in the case 8.2 The relevant forensic evidence for the seized shirt supposedly worn by the co accused Jagan Ram acquitted by High Court) was withheld by the prosecution. When such vital forensic evidence is kept away an adverse inference will have to be drawn against the prosecution. To establish the presence of Chunthuram at the place of incident the Courts relied on the Test Identification Parade and the testimony of Filim Sai PW 3). The Test Identification evidence is not substantive piece of evidence but can only be used in corroboration of statements in Court. The ratio in Musheer Khan vs. State of Madhya Pradesh1 will have a bearing on this issue where Justice A.K. Ganguly writing for the Division Bench succinctly summarised the legal position as follows 12 SCC 748 “24. It may be pointed out that identification test is not substantive evidence. Such tests are meant for the purpose of helping the investigating agency with an assurance that their progress with the investigation into the offence is proceeding on right lines. 10. The infirmities in the conduct of the Test Identification Parade would next bear scrutiny. The major flaw in the exercise here was the presence of the police during the exercise. When the identifications are held in police presence the resultant communications tantamount to statements made by the identifiers to a police officer in course of investigation and they fall within the ban of section 162 of the Code. 1 SCR 903 therefore render the TIP unworthy of acceptance for supporting the prosecution 12. Inconsistencies are also found in the statement of PW 3 as regards the spot inspection report prepared by the police and the recovery of the lungi. The PW 3 stated that lungi was found 10 12 steps from the dead body. However the spot report noted that the lungi was found at a distance of 150 feet from the body and in a plastic bag. In any case the material exhibit may have no bearing since Filim Sai admitted that similar lungi is worn by many farmers in the village. No distinguishing factor to link the exhibit to accused Chunthuram is presented except a vague averment that the appellant was seen wearing lungi on many occasions. Therefore it would be unsafe in our view to link the appellant with the exhibit relied upon by the prosecution 13. The testimony of the eye witness Bhagat Ramcan be treated as a reliable eye witness of the incident. The witness Bhagat Ram admitted to having poor eyesight and through his cross examination it was elicited that witness is incapable of seeing things beyond one or two feet. The witness also admitted that when he left Tamta market it was dark and cloudy as it was raining on that day Besides he claimed to have heard the deceased cry out for help while being attacked. The record indicates that PW4 was at a distance of 200 yards when he heard the cry. However Taj Khanwho was only around 54 yards away from the place of the incident and was expected to better hear the victim’s cry never heard anything. This would render the testimony of Bhagat Ram unreliable particularly because of the poor vision and hearing capacity of the witness. 14. Next the unnatural conduct of PW4 will require some scrutiny. The witness Bhagat Ram was known to the deceased and claimed to have seen the assault on Laxman by Chunthuram and another person. But curiously he did not take any pro active steps in the matter to either report to the police or inform any of the family members. Such conduct of the eyewitness is contrary to human nature. In Amar Singh v. the State that Sildhar was murdered when the said land dispute was still pending. If this be the situation without any further material to show any proximate and immediate motive for the crime it would be difficult to accept the cited motive to support the 16. We might also reiterate the well established principle in criminal law which propagates that if two views are possible on the evidence adduced in a case one pointing to the guilt of the accused and the other to their innocence the view favourable to the accused should be adopted. 17. With the above understanding of the law and the re lated discussion on the infirmities in the prosecution evidence the appellant according to our assessment has made out a case for interference. The appeal therefore is allowed and the judgment of the trial Court as also of the High Court are consequently set [SANJAY KISHAN KAUL [KRISHNA MURARI [HRISHIKESH ROY OCTOBER 29 2020 Page 1

Threat to any Person Acquainted with the Facts so as to Dissuade him from Disclosing such Facts to Police would Cancel the Bail: High Court of Shimla

Directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to Court or to any police officer or tamper with the evidence would lead to cancellation of bail. This honorable judgement was passed by High Court of Shimla in the case of Bhupender Versus State of H.P. [Cr.M.P.(M) No. 337 of 2021] by The Hon’ble Mr. Justice Vivek Singh Thakur, Judge. The petitioner was seeking regular bail under Section 439 Code of Criminal Procedure, registered in Police Station Barmana, District Bilaspur, H.P., under Sections 363, 366, 376, 506 and 201 of the Indian Penal Code and Sections 4 and 6 of the Protection of Children from Sexual Offences Act, 2012. The father of victim had approached Police Station Barmana with a written complaint stating therein that his elder daughter, less than 18 years of age, is studying in 10+2 in Panjgain was vanishded whereupon, they had searched her, on Motorcycle, up till Bairi, but their daughter was not found. Lastly, it was suspected that daughter of the complainant had been kidnapped by some unknown person by alluring her with intention to marry her. The complainant had received a call from his daughter on his Mobile from the mobile of an unknown person wherein victim had disclosed that she was standing at Bus Stand Piplughat and had asked him to take her home. According to her, she had resisted to accompany him, but petitioner had taken her from Panjgain to his home at Bhajolu (Arki) forcibly under threat taken her to Temple of Naina Mata situated on the hill near his house and kept her sitting there till evening whereas her Mobile was taken and switched off by petitioner at Panjgain itself. When it came in the knowledge of the petitioner that parents of victim had lodged a complaint in Police Station and police was searching for victim. Whereupon, petitioner pressurized her to go back to home with threat that in case she would disclose the episode to anyone. The learned council submitted that, “since last two years and her active role to accompany petitioner from leaving her house to moving from one place to another and spending nights with him, it is evident that it is not a case of kidnapping and violating the victim against her will, but something else there is no material on record so as to construe that petitioner was having knowledge of minority of victim and further that entire material on record clearly reflect consensual behaviour of victim and, therefore, petitioner deserves to be enlarged on bail.”

Hig h C o urt of H.P on 07 04 HCHP 1 IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr.M.P.(M) No. 3321 Reserved on: 24.03.2021 Date of Decision: April 7 2021 Bhupender …Petitioner. Versus State of H.P. ..Respondent. Coram: The Hon’ble Mr. Justice Vivek Singh Thakur Judge. Whether approved for reporting 1 For the Petitioner: Mr. Anirudh Sharma Advocate. For the Respondent: Mr.Raju Ram Rahi Deputy Advocate General. Vivek Singh Thakur JBy way of this petition petitioner is seeking regular bail under Section 439 Code of Criminal Procedurein case FIR No.121 dated 31.01.2021 registered in Police Station Barmana District Bilaspur H.P. under Sections 363 366 376 506 and 201 of the Indian Penal Codeand Sections 4 and 6 of the Protection of Children from Sexual Offences Act 2012forcibly under threat where they had reached at 4.00 a.m. on next morning i.e. on 31.01.2021 wherefrom driver with car was sent back after making payment of fare to him and petitioner had taken her to his room and despite her resistance petitioner had violated her. In the morning petitioner had taken her to Temple of Naina Mata situated on the hill near his house and kept her sitting there till evening whereas her Mobile was taken and switched off by petitioner at Panjgain itself. 5. It is further stated by victim that in the evening at 4.30 5.00 p.m. petitioner had called some vehicle through a Hig h C o urt of H.P on 07 04 HCHP 4 Mobile call and had brought her on the road where the same vehicle and driver were there in which she had been brought from Panjgain. Petitioner made her to sit in the vehicle and had taken her to Tutikandi Shimla and had sent the driver alongwith vehicle back after making payment of fare and thereafter had taken her to Quarter rented room of his friend where no one was there and on that night also despite her resistance petitioner had violated her twice. They stayed in the same room during night of 01.02.2021. 6. It is further recorded in statement of victim that on 02.02.2021 it came in the knowledge of the petitioner that parents of victim had lodged a complaint in Police Station and police was searching for victim. Whereupon petitioner pressurized her to go back to home with threat that in case she would disclose the episode to anyone he shall kill her and thereafter petitioner hired a taxi from Shimla and came alongwith her to Piplughat and left her there. It is further recorded that victim had contacted her father through phone of taxi driver whereafter police alongwith her parents reached Piplughat and recovered her. 7. It is further reported that challan in present case has been prepared and presented in the Special Court on 03.03.2021. As per complaint Date of Birth of victim is 08.06.2003. 8. Learned counsel for the petitioner has submitted that even if Date of Birth of victim as claimed by Investigating Hig h C o urt of H.P on 07 04 HCHP 5 Agency is taken to be correct then also victim was 17 years 7 months and 22 days of age on the date of alleged incident. Further that it is not a case of kidnapping and violating the victim against her wishes and will but victim was in contact of the petitioner since last more than two years and she had left her house without informing anybody at home in order to accompany petitioner in a taxi wherein third person i.e. driver of taxi was also present and according to statement of driver recorded under Section 161 Cr.P.C. victim was not resistant to accompany the petitioner rather he has stated that both of them kept quiet during the entire travel and it was informed by petitioner that victim was his wife. It is also stated by the victim in her statement that she accompanied the petitioner not only from Panjgain to Bhajolu but also from Bhajolu to Tutikandi in broad daylight at 4.30 5.00 p.m. that too after spending one night with him at his home where allegedly petitioner had violated her and thereafter she accompanied the petitioner from Shimla to Piplughat again despite having knowledge that her parents have lodged a complaint about her missing and she instead of seeking help of any person in thickly populated and crowded City like Shimla accompanied the petitioner to Piplughat and from there informed her father about her location. Accordingly all this clearly indicate that victim who is only 4 months short to attain age of discretion was roaming with petitioner voluntarily. 9. It is further canvassed that entire episode appears to be consensual and keeping in view age of the victim and her Hig h C o urt of H.P on 07 04 HCHP 6 acquaintance with petitioner since last two years and her active role to accompany petitioner from leaving her house to moving from one place to another and spending nights with him it is evident that it is not a case of kidnapping and violating the victim against her will but something else. 10. Lastly it is submitted that there is no material on record so as to construe that petitioner was having knowledge of minority of victim and further that entire material on record clearly reflect consensual behaviour of victim and therefore petitioner deserves to be enlarged on bail. 11. Without commenting on merit regarding statements of complainant victim and plea taken by learned counsel for the petitioner however considering entire facts and circumstances of the case I am of the opinion that at this stage it would not be appropriate to continue detention of the petitioner and accordingly he is entitled for bail. 12. Accordingly petition is allowed and petitioner is ordered to be released on bail in case FIR No.121 dated 31.01.2021 registered in Police Station Barmana District Bilaspur H.P. on his furnishing personal bond in the sum of `50 000 with one surety in the like amount to the satisfaction of the trial Court within two weeks from today upon such further conditions as may be deemed fit and proper by the trial Court including the conditions enumerated hereinafter so as to ensure the presence of petitioner accused at the time of trial and also subject to following conditions: Hig h C o urt of H.P on 07 04 HCHP 7That the petitioner shall make himself available to the police or any other Investigating Agency or Court in the present case as and when required that the petitioner shall not directly or indirectly make any inducement threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to Court or to any police officer or tamper with the evidence. He shall not in any manner try to overawe or influence or intimidate the prosecution witnesses that the petitioner shall not obstruct the smooth progress of the investigation trial that the petitioner shall not commit the offence similar to the offence to which she is accused or suspected that the petitioner shall not misuse his liberty in any manner that the petitioner shall not jump over the bail that in case petitioner indulge in repetition of similar offence(s) then his bail shall be liable to be cancelled on taking appropriate steps by prosecution and that the petitioner shall not leave the territory of India without prior information. that the petitioner shall inform the Police Court his contact number and shall keep on informing about change in address and contact number if any in future. 13. It will be open to the prosecution to apply for imposing and or to the trial Court to impose any other condition on the petitioner as deemed necessary in the facts and circumstances of the case and in the interest of justice and Hig h C o urt of H.P on 07 04 HCHP 8 thereupon it will also be open to the trial Court to impose any other or further condition on the petitioner as it may deem necessary in the interest of justice. 14. In case the petitioner violates any condition imposed upon him his bail shall be liable to be cancelled. In such eventuality prosecution may approach the competent Court of law for cancellation of bail in accordance with law. 15. Trial Court is directed to comply with the directions issued by the High Court vide communication No.HHC.VIG. Misc. Instructions 93 IV.7139 dated 18.03.2013. 16. Observations made in this petition hereinbefore shall not affect the merits of the case in any manner and are strictly confined for the disposal of the bail application. 17. Petition is disposed of in aforesaid terms. 18. Copy dasti. 19. Petitioner is permitted to produce a copy of this judgment downloaded from the web page of the High Court of Himachal Pradesh before the authorities concerned and the said authorities shall not insist for production of a certified copy. Judge. April 7 2021

Where the material facts and identity of the accused are known, complainant should lead evidence before the trial court U/S. 200 Cr.P.C: High Court of Delhi

In the facts and circumstances of a particular case, Magistrate may take cognizance on the basis of the complaint instituted before him and may adopt the procedure provided under sections 200, 202 of Cr.P.C. and if there is no substance in the prima-facie evidence adduced by the complainant, the complaint may be dismissed under section 203 Cr.P.C. This was held in KUSUM LATA v.  STATE OF NCT OF DELHI & ORS[CRL.M.C. 1880/2020] in the High Court of Delhi by single bench consisting of JUSTICE SURESH KUMAR KAIT Facts are that the petitioner is the mother-in-law of respondent and owner of the property, son of the petitioner and his wife were residing at the first floor of the said property. Petitioner had filed a complaint U/S.200 Cr.P.C. along with an application U/S.156(3) Cr.P.C against respondents alleging that they forcibly entered into the house of the petitioner and threatened them of dire consequences, which was dismissed. A revision petition U/S.397 Cr.P.C. was also dismissed. The counsel for the petitioner submits that learned ASJ has not taken into consideration the fact that respondent vacated the house voluntarily along with her husband, and later forcibly entered the property in possession of the petitioner or broke locks, damaged CCTV camera and unlawfully restrained the petitioner, evidence for the same is available. Thus the same being a cognizable offence as held by the Hon’ble Apex Court in Lalita Kumari vs. Govt. of U.P. & Ors.: (2014) 2 SCC 1,  FIR ought to have been registered in the instant case. The prosecution for State has relied upon the ATR submitted by SI Ashok Kumar of Police Station Sagarpur, that there was a matrimonial dispute between respondent no.2 and her in-laws. As per available records no PCR call was received from petitioner herein and her husband. He further relied upon the case of Gulab Chand Upadhyaya vs. State of UP & Ors, where in it was held that where no witness need to be examined and neither recovery is needed nor any such material evidence is required to be collected which can be done only by the police, no “investigation” would normally be required and the procedure of complaint case should be adopted. The court referred to the order of  Court of Learned Metropolitan Magistrate., and made following observations, “Learned Metropolitan Magistrate has dismissed the application of the petitioner under section 156(3) Cr.P.C. by observing that all the facts leading to the complaint are within the knowledge of the complainant. Even identity of the accused is known to the complainant, evidence is within reach and no custodial interrogation is required.”

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

Once a student has opted to take the examination, it is for him to take all the measures: Bombay High Court

The Court mandated that all students who are planning on taking up their respective examinations, must be go through an RT-PCR test withing a period of 72 hours prior to the examination. A single-judge bench of Justice Avinash G Ghargote, while adjudicating the matter in HERD Foundation v. UOI; [PUBLIC INTEREST LITIGATION ST. NO.6466/2021]; dealt with the issue conducting offline examinations. The petitioners submits that the ensuing examinations for the Under Graduate (UG) Courses i.e. I, II and III years and university UG/PG/Certificate Courses (Winter-2020 Medical Examination) to commence from 10/06/2021, conducted by the respondent no.4 – MUHS, offline, are required to be postponed till such period that each of the students entitled to hold the examination is fully vaccinated or in the alternative they be held online. They submit that the decision dated 19/05/2021, directing the examinations to be held offline i.e. by a physical mode, be quashed and set aside. They submit, that considering the present situation of the Covid-19 pandemic, any assembly of persons for the above said examinations would create a situation where there would be an explosion of the virus again and since the same can be avoided by postponing the examination, it ought to be done as it is the fundamental duty of the Union and the State to protect the life of each and every citizen. The learned counsel for petitioner, submits that every life has an equal inherent value, which is recognized by Article 21 of the Constitution and the Court is duty bound to save that life. He submits that even the teachers and support staff who would be deployed for conducting the examination would be at risk. He submits that when earlier in 2020, the Post Graduate Examinations were conducted in the first phase, the aspirants were vaccinated, being frontline workers in the medical field and were therefore protected. The earlier examinations were conducted before the second wave of Covid-19 pandemic erupted. He submits that any congregation/assembly of a number of persons will aid in the hastening of the third wave. He submits that the petitioners are not frontline workers, and are therefore, incapable of being vaccinated as per the present policy of the Union of India and thus the examinations be postponed to a period after the petitioners get themselves vaccinated, whatsoever time it may take. He submits that neither the respondents, nor the Court can call upon the petitioner no.2 nor students similarly situated to him to put their life at stake merely for the sake of undertaking an examination, which can always be postponed and taken later on.

on 05 06 2021 on 05 06 0506pilst64621.odt1 IN THE HIGH COURT OF JUDICATURE AT BOMBAYNAGPUR BENCH AT NAGPURPUBLIC INTEREST LITIGATION ST. NO.6466 2021PETITIONERS : 1. HERD Foundation a company registered under the Companies Act 1965 as a not for profit organisation through its Managing Director Amol s o Ranjeet Deshmukh having its office at 3rd Floor Near Coffee House Square Dharampeth Nagpur 440010 Maharashtra Mail id amol.deshmukh@herdfound.org.2. Nitesh Dhanraj Tantarpale student of Niharika college of physiotherapy aged 31 yrs. Occ Student R o Plot no.169 Ayyapa nagar New Gorewada Ring road Near Shyam lawn Nagpur 13. Phone no 8999799440 Mail id drniteshtantarpale@gmail.com....Versus…RESPONDENTS :1. Union of India Ministry of Health & Family Welfare through its secretary having office at Room No.348 A Wing Nirman Bhavan New Delhi 110011. & Ministry of Education through its Minister of State Education having its office at Shastri Bhawan New Delhi. 2. The State of Maharashtra Through Government of Maharashtra Ministry of Health & Family Welfare on 05 06 2021 on 05 06 0506pilst64621.odt2 having its office at 3rd Floor Arogya Bhavan St. George s Hospital Compound Premises P.D. Mello Road Mumbai 400001 & Ministry of Higher & Technical Education Maharashtra having its office at 4th Floor Mantralaya Annex Madam Cama Road Nirman Point Mumbai 400032.3. National Medical Commission Through its Chairman having its registered office at Pocket 14 Sector 8 Dwarka Phase 1 New Delhi 110077.4. Maharashtra University of Health SciencesThrough its Acting Vice Chancellor having its registered office at Mhasrul Vani Dindori Road Nashik 422004 Office Notes Office Memoranda of Coram Court s or Judge s ordersappearances Court s orders or directionsand Registrar s orders Mr. Rahul M. Bhangde Advocate for petitioners Mr. Ulhas M. Aurangabadkar ASGI for respondent no.1Mrs. Ketki S. Joshi G.P. for respondent no.2Mrs. Radhika Bajaj Advocate for respondent no.3Mr. Abhijit Deshpande Advocate for respondent no.4 CORAM : AVINASH G. GHAROTE J. Order reserved on : 04 06 2021 Order pronounced on : 05 06 20211.Heard learned Counsel for the respective parties.The respondents have appeared suo motu through theirrespective Counsels as they were served an advance copy of on 05 06 2021 on 05 06 0506pilst64621.odt3 the petition by the Counsel for the petitioners and Mr. AbhijitDeshpande the learned Counsel for the respondent no.4 MUHS has also placed on record his detailed reply opposingthe petition itself as well as the plea seeking interim relief. 2. Mr. Rahul Bhangde learned Counsel for thepetitioners on the issue of locus standi of the petitioner no.1 to file the present petition submits that it is an NGO workingfor socio economic needs of the underprivileged people since2006 and is a non profit organisation registered under theCompanies Act. A writeup of the social activities of thepetitioner no.1 has been given at Annexure A and thelearned Counsel submits that the petitioner no.1 is involvedin various social activities in the field of providing medicalbenefit to the poor. The petitioner no.2 is a studentundergoing the course of physiotherapy and is currently is inthe third year. Learned Counsel Mr. Rahul Bhangde submitsthat both the petitioners have a locus standi to file a presentpetition which he submits be treated as one in publicinterest as the public cause is being espoused. 3.Mr. Rahul Bhangde learned Counsel for thepetitioners submits that the ensuing examinations for theUnder GraduateCourses i.e. I II and III years anduniversity UG PG Certificate Coursesto commence from 10 06 2021 conducted by on 05 06 2021 on 05 06 0506pilst64621.odt4 the respondent no.4 MUHS offline are required to bepostponed till such period that each of the students entitledto hold the examination is fully vaccinated or in thealternative they be held online. He therefore submits that thedecision dated 19 05 2021 directing the examinations to beheld offline i.e. by a physical mode be quashed and set aside.He submits that considering the present situation of theCovid 19 pandemic any assembly of persons for the abovesaid examinations would create a situation where therewould be an explosion of the virus again and since the samecan be avoided by postponing the examination it ought to bedone as it is the fundamental duty of the Union and the Stateto protect the life of each and every citizen. He submits thatevery life has an equal inherent value which is recognized byArticle 21 of the Constitution and the Court is duty bound tosave that life by placing reliance on Aarushi Dhasmana Vs.Union of India and others9 SCC 475. He submits thateven the teachers and support staff who would be deployedfor conducting the examination would be at risk. He submitsthat when earlier in 2020 the Post Graduate Examinationswere conducted in the first phase the aspirants werevaccinated being frontline workers in the medical field andwere therefore protected. The earlier examinations wereconducted before the second wave of Covid 19 pandemicerupted. He submits that any congregation assembly of anumber of persons will aid in the hastening of the third on 05 06 2021 on 05 06 0506pilst64621.odt5 wave. He submits that the petitioners are not frontlineworkers and are therefore incapable of being vaccinated asper the present policy of the Union of India and thus theexaminations be postponed to a period after the petitionersget themselves vaccinated whatsoever time it may take. Hesubmits that neither the respondents nor the Court can callupon the petitioner no.2 nor students similarly situated tohim to put their life at stake merely for the sake ofundertaking an examination which can always be postponedand taken later on. Mr. Rahul Bhangde learned Counsel forthe petitioners further submits that the CBSE HSSC and SSCexaminations have already been postponed. He furtherinvites the Court s attention to the statement of the Hon blePrime Minister to the effect that the health of the students ismore important than conducting examinations. He furthersubmits that as of date there are 20% deaths in the State onaccount of mucormycosis which enhances the risk to thestudents if they are to undertake the examinations. Thestudents will have to go back to the hostels stay 4 in a room which would again increase the risk of the infection. Hetherefore submits that this is a fit case where by way of aninterim order the examinations to commence from10 06 2021 and end on 30 6 2021 either be postponed orbe held online. on 05 06 2021 on 05 06 0506pilst64621.odt6 4.Mr. Abhijit Deshpande learned Counsel for therespondent no.4 MUHS who has filed a detailed replyopposing the petition submits that the petition is clearlymisconceived and is not tenable at the behest of thepetitioner no.1 as it has no locus whatsoever to challengeany decision regarding holding of examinations. He furthersubmits that the petitioner no.2 is a singular person astudent of third year of physiotherapy and cannot be said torepresent the cause of the entire students who are slated totake the examination from 10 06 2021 onwards till30 06 2021. He submits that the petition is hopelesslybelated as everyone was aware as far back as 06 10 2020that the examinations were going to be held offline forwhich he invites my attention to the Circular No.69 2020dated 06 10 2020 issued by the Controller of Examinations MUHS. He further submits that the first phase of theWinter 2020 Health Sciences Courses Examinationwas conducted from 04 01 2021 andthereafter by offline mode in which 8000 students of variousPost Graduate Health Sciences Courses appeared results ofwhich have already been declared between 08 02 2021 to15 03 2021 course wise. He further points out that thesecond phase of Winter 2020 examination in which about9000 final year students of various Under Graduate HealthSciences Courses participated was conducted between08 03 2021 to 01 04 2021 offline which results were also on 05 06 2021 on 05 06 0506pilst64621.odt7 declared between 22 04 2021 to 15 03 2021 course wise.He submits that now the third and last phase of Winter 2020examination is scheduled from 10 06 2021 in which about40 000 students of Ist IInd and IIIrd year of various UnderGraduate Health Sciences Courses and Certificate Coursesare expected to participate. He submits that initially theseexaminations were scheduled from 23 03 2021 however onaccount of second wave of Covid 19 they were initiallyrescheduled on 19 04 2021 to 15 05 2021 thereafter againrescheduled from 02 06 2021 in view of the State widelockdown and now have been rescheduled from 10 06 2021.He therefore submits that the petitioners if at all the causecould be said to be genuine to them could have approachedthe Court earlier and not at the last moment days before theexamination is scheduled to begin. He submits that the entirepreparation for the examinations have already beencompleted even the question papers have been dispatched tothe various centers. The respondent no.4 has been fullyaware of the extent and nature of the pandemic andconsidering its intensity in the earlier period has taken duecare to postpone it from time to time. He submits thatconsidering the present position regarding vaccination in thecountry no special group can be carved out such as thestudents taking the examinations and the examinationscannot be indefinitely postponed. He further submits that itis not as if the students are being forced to take the on 05 06 2021 on 05 06 0506pilst64621.odt8 examinations rather on the contrary a choice has been givento them either to take the examinations now or at a laterstage and if any student felt apprehensive about his health hehad the choice not to take the examinations now and to optfor taking them later for which purpose he invites myattention to the Advisory dated 19 04 2021 issued by theUnder Graduate Medical Education Board National MedicalCommission which specifically deals with the option given tothe studentslays down that every life is valuable and needs to beprotected. However in view of what has been stated above itcannot be said that the respondent nos.1 and 2 are notmaking any attempt at saving the lives of citizens. It wouldbe material to note that given the present state of affairs even vaccination has been found to be not affording fullprotection from Covid 19 as the efficacy of various vaccines on 05 06 2021 on 05 06 0506pilst64621.odt12 is not 100 % but varies from vaccine to vaccine and noneclaims to be 100% effective. There have been reported caseswhere even vaccinated persons have been found to beCovid 19 positive. Thus vaccination alone cannot be said tobe a panacea for Covid 19 though largely it may have aneffect. It is equally the responsibility of every citizen tostrictly adhere to the social distancing norms and theStandard Operating Procedureprescribed in thisregard. There is also no guarantee that by sitting home aperson may not contract Covid 19.9. As rightly pointed out by Mr. Abhijit Deshpande learned Counsel for the respondent no.4 there are about40 661 examinees who are slated to take the examinationsin 173 centres throughout the State and except for thepetitioner no.2 none has joined the petitioner no.2 in thepresent petition requesting for a postponement of theexaminations for the reasons canvassed. Though Mr. RahulBhangde learned Counsel for the petitioners submits thatthe petitioner no.1 has the consent of approximately 300 to400 students nothing has been placed on record to indicatethis. That apart even if this is presumed to be true thiswould constitute a minuscule percentage of the total numberof students slated to take the examination on 10 06 2021.As observed in the order dated 14 08 2020 in AkashUdaysing Rajput and othersthere could be on 05 06 2021 on 05 06 0506pilst64621.odt13 examinees other than the petitioners who might be willingand prepared to write the examinations even physically andstay of the examinations behind the back of such examineeswould be detrimental to their interests. In the instant casealso there is nothing on record to indicate that the majorityof the examinees are not willing to take the examination forthe grounds as stated in the petition and therefore anypostponement of the examination at the behest and instanceof the petitioners is clearly not possible.10. This is also specifically so when the Advisorydated 19 04 2021 issued by the Under Graduate MedicalEducation Board National Medical Commission makes theappearance at such examination optional. It would benecessary to quote the relevant clause in the said Advisory which is as under : “5. All students who are unable to appear for theexaminations for whatever reasons may take up theexaminations with the supplementary batches. Thiswill not be counted as an additional attempt forthem.” The Advisory is thus clear and specific and doesnot make it compulsory for any student to appear in the saidexaminations if such student is apprehensive of his her on 05 06 2021 on 05 06 0506pilst64621.odt14 safety. Not only this it also indicates that if the student isunable to appear in the ensuing examination for whatsoeverreason absence of such an attempt will not be counted as anattempt at all and such student will be entitled to take up theexaminations with the supplementary batches. Thus anyapprehension which a student may have about his her safety has been duly addressed by the above Advisory by givingsuch student a choice in the matter. 11.It would further be material to note theobservations of the Hon ble Apex Court in Sayantan Biswasand others Vs. National Testing Agencyand others asquoted in Namrata Ashok Karadewhile consideringa plea seeking postponement of NEET UG 2020 andJEEApril 2020 where it was observed that thoughthere is a pandemic situation but ultimately life has to go onand the career of the students cannot be put on peril for along and full academic year cannot be wasted. ThoughMr. Rahul Bhangde learned Counsel for the petitionerssubmits that this was a situation before the second wave ofthe Covid 19 pandemic struck the nation which was multipletimes severe than the first one however the situation as itnow prevails clearly appears to be normalizing consideringthe figures of infected persons available as of date. The pleaof the threat of mucormycosis as raised by Mr. RahulBhangde learned Counsel for the petitioners does not on 05 06 2021 on 05 06 0506pilst64621.odt15 appeal to me for the reason that mucormycosis is a falloutof the reduced immunity of a person due to administration ofsteroids during the treatment of Covid 19 and is not adisease akin to Covid 19. 12.That apart it would be material to note that it isnot a case as if the entire lot of examinees are beingexamined at one place thereby creating a crowd of morethan 40 000 persons. As pointed out by Mr. AbhijitDeshpande learned Counsel for the respondent no.4 about40 661 examinees are slated to take the examinations in173 centers throughout the State which would mean thatthere is no single congregation but the examinees are spreadout there being not more than approximately 250 examineesat one center with all the SOP being in place. It is quite adifferent case in CBSE HSSC and SSC examinations whichlacs of students undertake and it in this context that thestatement of the Hon ble Prime Minister has to be construed.The examinees it is material to note are undertaking theexaminations in various medical courses and uponsuccessfully completing the courses would be working in thefield of medicine handling patients with various infections some of which may be communicable and it does not augerwell for such medical professionals to harbour suchinsecurities. on 05 06 2021 on 05 06 0506pilst64621.odt16 13.Even otherwise as already indicated above achoice has been given to the examinees and it is open foreach of the examinees given the situation in which he or sheconsiders himself herself to exercise the choice either bygiving the ensuing examination or undertaking theexamination at a later date as indicated in the Advisory dated19 04 2021 and no prejudice would be caused to suchexaminees as failure to appear at the ensuing examinationshall not be counted as an additional attempt. 14.All the preparations for conducting theexaminations w.e.f. 10 6 2021 are in place which is a date5 days hence. The petitioners and all the students wereaware since 6 10 2020 that the examinations would be heldoffline. The examinations in the earlier two phases wereconducted offline in January February 2021 and March April2021 of which also the examinees were aware and it wouldnot now be justifiable to stay the conduct of theexaminations even on the plea that it should be conductedonline as such conduct may not be advisable in view of therespondent no.4 which is the authority in this regard andalso in view of the preparations involved for such a course. 15. Thus for the reasons stated above I am notinclined to grant any interim relief to the petitioners. Theprayer for interim relief is therefore rejected. The matter be on 05 06 2021 on 05 06 0506pilst64621.odt17 placed before the First Division Bench on 14 06 2021.Needless to mention that the issue regarding themaintainability of the petition on account of absence of locusof the petitioner no.1 and so also its maintainability on behalfof the petitioner no.2 are kept open. (AVINASH G. GHAROTE J.)At this stage Mr. Rahul Bhangde learned Counselfor the petitioners makes a request that at least conduct ofan RT PCR test by every student who undertakes theexamination should be made compulsory and such studentshould have a report of the RT PCR test conducted upon him within a period of 72 hours and should produce the same forthe verification of the authorities at the examination hall andin case any RT PCR report is positive the student should notbe permitted to enter into the examination hall. He submitsthat this would be necessary to prevent any spread ofCovid 19 virus in case any examinee is found to be infected. Mr. Abhijit Deshpande learned Counsel for therespondent no.4 submits that the MUHS is not opposed toany safety measure however he will have to take on 05 06 2021 on 05 06 0506pilst64621.odt18 instructions in this regard from the authorities and wouldrevert back by 1:15 p.m. (AVINASH G. GHAROTE J.)At 1:20 p.m.Mr. Abhijit Deshpande learned Counsel for therespondent no.4 upon having taken instructions from hisclient submits that neither the National Medical Commissionnor the University Grants Commission has issued anydirection to conduct RT PCR test before the examinee entersthe examination hall he further submits that it is difficult tocommunicate to near about 40 000 students any suchrequirement if it is made compulsory now. He submits thatthere are only two modes of communication one is by e mailto the Principals of the respective Colleges who in turn would have to ensure communication to the students and thesecond is by public notice on the website. He submits thatsince the examinations are commencing on 10 06 2021 aperiod of three days commencing from 07 06 2021 is tooless a time to ensure that all the students are made aware ofthe additional conditions if at all imposed. He thereforesubmits that imposing such a condition which has not beenfelt necessary by either the National Medical Commission or on 05 06 2021 on 05 06 0506pilst64621.odt19 the University Grants Commission is not justified orwarranted. He further submits that in case any suchcondition is being put then reasonable time of seven days begranted.None appears for the respondent no.2 State ofMaharashtra. Generally speaking it would be for theexaminees as responsible citizens to have themselves testedfor the Covid 19 virus by conducting an RT PCR test uponthemselves before they leave their residence either for thehostel or for the examination hall. It goes without saying that any examinee who tests positive then has to quarantinehimself herself and there is no question of such examineereporting to the examination centre. The contention of Mr. Rahul Bhangde learnedCounsel for the petitioners that the conduct of the RT PCRtest upon the examinees cannot be left to themselves but hasto be made compulsory would amount to imposing anadditional condition upon the examinees which was notthere in the SOP and in such a case it may so happen thatan examinee may be deprived of appearing in theexaminations for want of RT PCR test report and thereforecannot be made compulsory. on 05 06 2021 on 05 06 0506pilst64621.odt20 However as a safety measure it would beadvisable for each examinee to have conducted the RT PCRtest upon himself and only in case where such examineefinds that the test is negative that he may attend theexamination. The respondent no.4 MUHS therefore isdirected to issue an Advisory to the Principals of the variousColleges and also to publish it on its website indicating thatit would be desirable that each examinee should havehimself tested for Covid 19 and produce the negative reportto the hall examiner along with his hall ticket on10 06 2021. In case an examinee is not having such a RT PCR certificate he can have report of a Rapid Antigen testand be permitted to appear in the examination on its basis but may also be asked to get an RT PCR test conducted uponhimself herself and produce a report in that regard on thenext date of the examination and preferably by 15 06 2021.Needless to say that in case the RT PCR report is foundpositive such an examinee would not be in a position toundertake the examination in order to avoid spread of theinfection. This is all however subject to the directions andinstructions as may be contained in the SOP issued by therespondent no.2 as prevailing on 07 06 2021 or thereafter. (AVINASH G. GHAROTE J.)Wadkar

Section 354A (2) provides that any man who commits offence under Section 354A IPC shall be punished with rigorous imprisonment: Sikkim High Court

Section 354 IPC provides that whoever assaults or uses criminal force to any woman, intending to outrage or knowing it to be likely that he will thereby outrage her modesty, shall be punished with imprisonment. Such an opinion was held by The Hon’ble High Court of Sikkim before The Hon’ble Mr. Justice Bhaskar Raj Pradhan in the matter of Padam Bahadur Bardewa Vs. State of Sikkim [Crl. Rev. P. No. 03 of 2021].  The facts of the case were associated with an application under Sections 397 and 401 of the Cr.PC. It was stated by the advocate representing the revisionist that there was a delay in lodging the FIR. It was also submitted by him that there were material contradictions. The case of Santosh Prasad vs. The State of Bihar [2020 3 SCC 443] was referred to wherein material contradictions were found and the way the alleged incident had taken place according to the prosecutrix was not probable, thus in such a situation the Supreme Court held that the evidence of the prosecutrix did not withstand the test of a sterling witness. All the submissions of the defence regarding the contradictions were extensively examined by the Trial Court and Appellate Court and concluded that no material contradictions were found. It was reported that the revisionist asked the victim to touch the steering and when she did the revisionist came close to her sniffed and smelled her and eventually touched her inappropriately. The evidence of the victim was found to be natural and probable. The revisionist was convicted under Section 354 and 354A of the IPC, 1860 by the trial court and sentenced him to rigorous imprisonment of 1 year and a fine of 5,000/- under Section 354A IPC. The victim’s testimony had satisfied the ingredients of Section 354 as well as 354A(1)(i) IPC. It was pretty evident that it was a singular incident that led to the prosecution. The learned trial court as well as the learned appellate court found the revisionist guilty of the offences under Section 354 and 354A IPC. Considering all the submissions, The Hon’ble Court stated that “In view of the clear provision of the Section 71 IPC this court is of the view that the sentence meted out to the convict under Section 354 IPC which is the lesser of the two offences cannot stand. It is set aside. The conviction of the revisionist are upheld; the sentences are revised as above. The revisionist is in custody. He shall continue there until the completion of the sentence.”

THE HIGH COURT OF SIKKIM: GANGTOK Criminal Revisional Jurisdiction) SINGLE BENCH: THE HON’BLE MR. JUSTICE BHASKAR RAJ PRADHAN JUDGE Crl. Rev. P. No. 021 Padam Bahadur Bardewa S o Kharka Bahadur Bardewa R o Upper Temi P.O & P.S. Temi South Sikkim. Presently serving sentence at State Jail Rongyek East Sikkim) ….. Petitioner State of Sikkim Application under Section 397 and 401 of the Code of Criminal Procedure Code 1973. Mr. N. Rai Senior Advocate with Ms. Malati Sharma and Mr. Yozan Rai Advocates for the petitioner. Mr. Sudesh Joshi Public Prosecutor with Mr. Thinlay Dorjee Bhutia and Mr. Yadev Sharma Additional Public Prosecutors for the State respondent. Date of judgment: 25.11.2021. JUDGMENTBhaskar Raj Pradhan J. 1. Heard Mr. N. Rai Learned Senior Advocate for the revisionist and Mr. Sudesh Joshi Learned Public Prosecutor for the State of Sikkim. 2 Crl. Rev. P. No. 021 Padam Bdr. Bardewa vs. State of Sikkim This is an application under Section 397 and 401 of the Code of Criminal Procedure 1973 and sentenced him to undergo simple imprisonment for a term of one year under Section 354 IPC and further to undergo rigorous imprisonment for a term of one year and pay a fine of ₹ 5 000 under Section 354A IPC. In default of payment of fine the revisionist was to undergo simple imprisonment of one month. The learned appellate court declined to interfere with the conviction and sentence passed by the learned trial court. As the learned trial court had not specified the relevant clause of Section 354A IPC the learned appellate court held that the prosecution had been able to establish the case of the revisionist under Section 354A(1)(i) of IPC 1860. In the circumstances none of the points urged by Mr. N. Rai would amount to incorrectness illegality or impropriety of the appellate court. Section 354 IPC provides that whoever assaults or uses criminal force to any woman intending to outrage or knowing it to be likely that he will thereby outrage her modesty shall be punished with imprisonment of either description for the term which shall not be less than one year but which may extend to five years and shall also be liable to fine. 5 Crl. Rev. P. No. 021 Padam Bdr. Bardewa vs. State of Sikkim Section 354A IPC relates to sexual harassment and punishment for sexual harassment. Sub section thereof provides that a man committing any of the following acts i) physical contact and advances involving unwelcome and explicit sexual overtures or ii) a demand or request for sexual favours or iii) showing pornography against the will of a woman or iv) making sexually coloured remarks shall be guilty of the offence of sexual harassment. 10. Section 354Aprovides that any man who commits the offence specified in clauseor clauseor clauseof sub section shall be punished with rigorous imprisonment for a term which may extend to three years or with fine or with 11. The testimony of the victim satisfies the ingredients of Section 354 as well as 354A(1)(i) IPC. The learned trial court as well as the learned appellate court found the revisionist guilty of the offences under Section 354 and 354A IPC. The learned court not only convicted the revisionist for the offences but also sentences him separately for the offences. The evidence of the victim makes it clear that it was a singular incident which led to the prosecution. The same set of facts constituted both the offences. In such circumstance Section 71 of the IPC would come into play. It provides that: “Where anything which is an offence is made up of parts any of which parts is itself an offence the offender shall not be punished with the punishment of more than 6 Crl. Rev. P. No. 021 Padam Bdr. Bardewa vs. State of Sikkim one of such his offences unless it be so expressly Where anything is an offence falling within two or more separate definitions of any law in force for the time being by which offences are defined or punished or where several acts of which one or more than one would by itself or themselves constitute an offence constitute when combined a different offence the offender shall not be punished with a more severe punishment than the Court which tries him could award for any one of such offences.” 12. In view of the clear provision of the Section 71 IPC this court is of the view that the sentence meted out to the convict under Section 354 IPC which is the lesser of the two offences cannot stand. It is set aside. The conviction of the revisionist are upheld the sentences are revised as above. The revisionist is in custody. He shall continue there until completion of the Approved for reporting : Yes : Yes Internet Bhaskar Raj Pradhan) Judge

“Appellate Authority is of the opinion that no interference of this forum is warranted…”: SEBI, Part 2.

The respondent, in response to query number 1, informed that the recovery proceedings in the matter has been initiated by the Recovery and Refund Department of Eastern Regional Office, by issuing recovery certificate on 9th of April, 2021. The appellant, in his appeal, submitted that only partial information with respect to query number 1 has been provided. On perusal of the query and the response provided thereto, it was noted that the respondent has addressed the first part of the query, by providing the information available with him. Further, it was also noted that the appellant has not made any specific submission regarding the same. Accordingly, no deficiency was found in the response. Mr Baiwar also noted that the appellant, vide second part of query number 1, sought information regarding the time to be taken for the recovery proceedings to be settled. He 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. In this regard, it was noted that the Hon’ble CIC, in the matter of Shri Shantaram Walavalkar vs. CPIO, SEBI (Decision dated January 17, 2013), held: “… we would also like to observe that, under the Right to Information (RTI) Act, the citizen has the responsibility to specify the exact information he wants; he is not supposed to seek any opinion or comments or clarifications or interpretations from the CPIO…”. In view of the same, it was found that the respondent did not have an obligation to provide such clarification or opinion under the Right to Information Act, 2005. Accordingly, he is of the opinion that no interference of this forum is warranted at this stage. The respondent, in response to query number 3, informed that SEBI, in compliance with the order dated 31st of October, 2018, had forwarded the aforesaid order to the Director General & Inspector General of Police, West Bengal, for information.

Appeal No. 43521 BEFORE THE APPELLATE AUTHORITY Under the Right to Information Act 2005) SECURITIES AND EXCHANGE BOARD OF INDIA Appeal No. 43521 Dahyalal Ganeshbhai Panchal CPIO SEBI Mumbai The appellant had filed an application dated May 03 2021under the Right to Information Act 2005against the said response dated June 01 2021. I have carefully considered the application the response and the appeal and find that the matter can be decided based on the material available on record. 2. Grounds of appeal On perusal of the appeal it appears that the appellant is not satisfied with the reply to query numbers 1 3 4 and 5. In view of the submissions of the appellant I am only dealing with the said queries in this appeal. 3. Query number 1 The appellant vide query number 1 inter alia sought the following information pertaining to Sahara India Commercial Corporation Ltd.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 same I find that the respondent did not have an obligation to provide such clarification or opinion under the RTI Act. Accordingly I am of the opinion that no interference of this forum is warranted at this stage. 7. Query number 3 The appellant vide query number 3 inter alia sought the following information 3. With respect to his complaint number 1…7 2020 filed before CID crime office Gandhinagar the appellant sought information whether investigation in this office has been entrusted by SEBI. If the same is entrusted by SEBI whether an inquiry is made in writing by SEBI about the progress of this investigation. The respondent in response to query number 3 informed that SEBI in compliance with the order dated October 31 2018 had forwarded the aforesaid order to the Director General & Inspector General of Police West Bengal for information. The respondent also informed that the query with regard to whether there is a provision for sending a reminder is in the nature of enquiry inquisition and thus cannot be construed as seeking “information” as defined under Section 2(f) of the RTI Act. 9. On perusal of the first part of the query I note that the respondent has categorically informed that the copy of the order dated October 31 2018 passed in the matter of SICCL has been forwarded to Director General & Inspector General of Police West Bengal for information. I note that the respondent has adequately addressed the query by providing the information available with him. Accordingly I do not find any deficiency in the response. 10. Further on perusal of the second part of the query and the response provided thereto I agree with the observation of the respondent that the same is in the nature of enquiry inquisition. I find that the said Appeal No. 43521 queries cannot be construed as seeking ‘information’ as defined under section 2of the RTI Act. In view of the said observations I do not find any deficiency in the response. 11. Query numbers 4 and 5 The appellant vide query numbers 4 and 5 inter alia sought the following 4. Whether SEBI can hand over the investigation against this company to the CBI to help in getting the refund of the deposits of the investors stuck in the company. 5. Whether SEBI can file a case against SICCL in the Economic Offence Bench of the Supreme Court or in the Economic Offence Bench of any High Court of the State to help the investors in getting refund of the deposits stuck in the company. 12. The respondent in response to query numbers 4 and 5 observed that the queries are in the nature of enquiry inquisition and thus cannot be construed as “information” as defined under section 2(f) of the RTI Act. 13. On consideration I agree with the response provided by the respondent and I also find that the same is that nature of seeking clarification opinion of the respondent. In this context reference is made to the matter of Parvinder Singh vs. Public Information Officer under RTI wherein the Hon’ble CIC held that “12. Nevertheless Commission has gone through the case records and on the basis of proceedings observes the information sought by the appellant is clarificatory in nature and thus doesn t qualify as information as per Section 2(f) of the RTI Act 2005. Further PIO is required to provide information as available with them in form of records documents memos emails opinions advises press releases circulars orders log books contracts reports papers samples models data material held in any form and not supposed to create information or interpret information in respect of clarifications hypothetical & futuristic queries.” In view of the said observations 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: July 27 2021 ANAND BAIWAR APPELLATE AUTHORITY UNDER THE RTI ACT SECURITIES AND EXCHANGE BOARD OF INDIA

The theory of equality is an essential in State’s policy formation. : Jharkhand High Court

 The principle of equality is no longer integrated, and the view of the State is to be found in Articles 38, 39, 39A, 43 and 46 of Part III of the Constitution. This theory is an essential input in the formulation of every policy of the state. These articles of the Constitution of India require that, through the reduction, amongst other things, of monetary inequalities, and the right to adequate livelihood and to provide for appropriate wages, the State has a constitutional obligation to ensure social, economic and political justice and to ensure the right to adequate living conditions and to promote the economic interest of weaker sections, Justice Deepak Roshan of the Jharkhand High Court referred to in the matter of Niranjan Kumar versus State of Jharkhand [ W.P.(S) No. 6404 of 2014 ] The facts are that, on 13 February 2002, on the appointment of personnel assistants (PAs), in Jharkhand State Legal Services Authority (in short, JHALSA) the secretary, the Department of Staff, Administrative Reforms & Rajbhasha, the Jharkhand government, Ranchi, wrote to the General Registrar and Jharkhand High Court that there are a lack of PAs in the Joint Sector.All these petitioners took part in the selection process and have been declared successful in accordance with that announcement. Furthermore, on 31 May 2002 the Jharkhand High Court of Registrar Establishment sent a letter to the Secretariat member JHALSA sending a list of 3 selected candidates as a Personal Assistant and requested that all the candidates and petitioners selected be given appointment letters within 3 days of receipt of the letter. The Member Secretary issued a letter of appointment, in payment scale of Rs. 5,500-175- 9,000/, in accordance with the above mentioned provisions, as Personal Assistant under JHALSA for petitioners. The learned counsel relied on Pratap Narain Chaddha & Ors vs State of UP where the Hon’ble Supreme Court held that although there were differences in education qualifications, but once a diploma holder had served Rs. 1600-2660, in five years, they should be treated on a level with the Polytechnic’s graduate teachers with the same pay. He also relied on the judgement in the case of Gupta & Ors, Vs. Lt. Governor, Delhi Administration & Ors., which concluded with the same advertising from the High Court appointed petitioners.the High Court could not have allowed a different pay-scale because the petitioners were originally posted at JHALSA.  The learned counsel of the defendant-high Court submitted that, in accordance with Schedule- I of the 2001 Rules of the Jharkhand State Legal Services Authority, the Member Secretary-JHALSA requested an amendment to the High Court in order to match the pay scale of personal assistants to PAs and Jharkhand High Court assistants. The High Court of Jharkhand subsequently sent the request from JHALSA to the State Government with the consent of Hon’ble Chief Justice. He further submits that the claim of the petitioners is based upon a presumption that the employees of JHALSA are at par with the employees of the State Government and Hon’ble High Court which is misconceived. 

Niranjan Kumar vs The State Of Jharkhand Through The ... on 25 March 2021 Jharkhand High Court Niranjan Kumar vs The State Of Jharkhand Through The ... on 25 March 2021 1 IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P.(S) No. 64014 Niranjan Kumar ..... Petitioner Versus 1. The State of Jharkhand through the Chief Secretary Government of Jharkhand having office at Project Bhavan P.O. & P.S. Dhurva District Ranchi 2. The Principal Secretary Department of Finance Government of Jharkhand having office at Project Bhavan P.O. & P.S. Dhurva District Ranchi 3. The Principal Secretary Department of Personnel Administrative Reforms & Rajbhasha Government of Jharkhand having office at Project Bhavan P.O & P.S. Dhurva District Ranchi 4. The Principal Secretary LawDepartment Government of Jharkhand having office at Project Bhavan P.O. & P.S. Dhurva District Ranchi 5. The Registrar General Jharkhand High Court at Ranchi P.O. & P.S. Doranda District Ranchi 6. The Registrar Establishment Jharkhand High Court at Ranchi P.O. & P.S. Doranda District Ranchi 7. The Member Secretary Jharkhand State Legal Services Authority Ranchi having office at Nyaya Sadan P.O. P.S. Doranda District Ranchi 8. The Secretary High Court Legal Services Committee Ranchi having office at Nyaya Sadan P.O. & P.S Doranda Town and District Ranchi. ..... Respondents With W.P.(S) No. 64014 Roshan Lal ..... Petitioner Versus 1. The State of Jharkhand through the Chief Secretary Government of Jharkhand Project Bhawan P.O. Project Bhavan P.S. Dhurva District Ranchi 2. The Principal Secretary Department of Finance Government of Jharkhand Project Bhawan P.O. Project Bhavan P.S. Dhurva District Ranchi 3. The Principal Secretary Department of Personnel Administrative Reforms & Rajbhasha Government of Jharkhand Project Bhavan P.O. Project Bhavan P.S Dhurva District Ranchi 2 4. The Law Secretary Government of Jharkhand Project Bhavan P.O. Project Bhavan P.S. Dhurva District Ranchi 5. The Registrar General Jharkhand High Court at Ranchi Indian Kanoon Niranjan Kumar vs The State Of Jharkhand Through The ... on 25 March 2021 P.O. & P.S. Doranda District Ranchi 6. The Registrar Establishment Jharkhand High Court at Ranchi P.O. & P.S. Doranda District Ranchi 7. The Member Secretary Jharkhand State Legal Services Authority Ranchi P.O. & P.S. Doranda District Ranchi ..... Respondents With W.P.(S) No. 64314 Ravindra Lal Sahu ..... Petitioner Versus 1. The State of Jharkhand through the Chief Secretary Government of Jharkhand Project Bhavan P.O. Project Bhavan P.S. Dhurva District Ranchi 2. The Principal Secretary Department of Finance Government of Jharkhand Project Bhavan P.O. Project Bhavan P.S. Dhurwa District Ranchi 3. The Principal Secretary Department of Personnel Administrative Reforms & Rajbhasha Government of Jharkhand Project Bhavan P.O. Project Bhavan P.S Dhurwa District Ranchi 4. The Law Secretary Government of Jharkhand Project Bhavan P.O. Project Bhavan P.S. Dhurwa District Ranchi 5. The Registrar General Jharkhand High Court at Ranchi P.O. & P.S. Doranda District Ranchi 6. The Registrar Establishment Jharkhand High Court at Ranchi P.O. & P.S. Doranda District Ranchi 7. The Member Secretary Jharkhand State Legal Services Authority Ranchi P.O. & P.S. Doranda District Ranchi ..... Respondents With W.P.(S) No. 64914 Asha Agrawal ..... Petitioner Versus 1. The State of Jharkhand through the Chief Secretary Government of Jharkhand Project Bhavan P.O. Project Bhavan P.S. Dhurwa District Ranchi 3 2. The Principal Secretary Department of Finance Government of Jharkhand Project Bhavan P.O. Project Bhavan P.S. Dhurwa District Ranchi 3. The Principal Secretary Department of Personnel Administrative Reforms & Rajbhasha Government of Jharkhand Project Bhavan P.O. Project Bhavan P.S Dhurwa District Ranchi 4. The Law Secretary Government of Jharkhand Project Bhavan P.O. Project Bhavan P.S. Dhurwa District Ranchi 5. The Registrar General Jharkhand High Court at Ranchi P.O. & P.S. Doranda District Ranchi Indian Kanoon Niranjan Kumar vs The State Of Jharkhand Through The ... on 25 March 2021 6. The Registrar Establishment Jharkhand High Court at Ranchi P.O. & P.S. Doranda District Ranchi 7. The Member Secretary Jharkhand State Legal Services Authority Ranchi P.O. & P.S. Doranda District Ranchi ..... Respondents With W.P.(S) No. 65014 Mukesh Singh ..... Petitioner Versus 1. The State of Jharkhand through the Chief Secretary Government of Jharkhand Project Bhavan P.O. Project Bhavan P.S. Dhurwa District Ranchi 2. The Principal Secretary Department of Finance Government of Jharkhand Project Bhavan P.O. Project Bhavan P.S. Dhurwa District Ranchi 3. The Principal Secretary Department of Personnel Administrative Reforms & Rajbhasha Government of Jharkhand Project Bhavan P.O. Project Bhavan P.S Dhurwa District Ranchi 4. The Law Secretary Government of Jharkhand Project Bhavan P.O. Project Bhavan P.S. Dhurwa District Ranchi 5. The Registrar General Jharkhand High Court at Ranchi P.O. & P.S. Doranda District Ranchi 6. The Registrar Establishment Jharkhand High Court at Ranchi P.O. & P.S. Doranda District Ranchi 7. The Member Secretary Jharkhand State Legal Services Authority Ranchi P.O. & P.S. Doranda District Ranchi ..... Respondents 4 CORAM: HON BLE MR. JUSTICE DEEPAK ROSHAN For the Petitioners : Mr. A.K.Das Advocate For the Respondents 1 to 4 : Mr. Rahul Kamlesh A.C. to S.C. IV For the Respondents 5 to 8 : Mr. S. Srivastava Advocate JUDGEMENT C.A.V. On 07.01.2021 Delivered on 25 03 2021 Heard learned counsel for the parties through V.C 2. Since common issue is involved in all the aforesaid writ applications as such all are being heard together and disposed of by this common judgment 3. The writ applications have been preferred by the petitioners praying therein for following reliefs Indian Kanoon Niranjan Kumar vs The State Of Jharkhand Through The ... on 25 March 2021 I) To grant pay scale of Rs. 6 500 200 10 500 to the petitioner w.e.f. 15.09.2006 notionally) and for monetary benefit w.e.f. 01.03.2007 in view of Memo no 599 Finance dated 06.03.2007 issued by the Department of Finance Government of Jharkhand Ranchi as the same is being paid to the other similarly situated employees like the petitioner in the State Government or appointed before the Hon ble Jharkhand High Court Ranchi To grant Grade pay of Rs. 4 600 in view of Memo no. 2954 dated 30th October 2010 issued by the Finance Department Government of Jharkhand Ranchi w.e.f. 01.01.2006 as the same is being paid to the similarly situated employees appointed and posted at Jharkhand Secretariat or the Hon ble Jharkhand High Court Ranchi iii) To grant arrears of the dues along with interest owing to non payment of pay scale of Rs.6500 200 10500 w.e.f. 1.3.2007 and also Grade Pay of Rs. 4600 w.e.f 01.01.2006 along with interest and all consequential benefits And or For issuance of any other appropriate writ order direction to which petitioner is legally entitled for as pecuniary financial loss is caused to the petitioner 4. The facts of the case is that on 13.02.2002 the Secretary Department of Personnel Administrative Reforms & Rajbhasha Government of Jharkhand Ranchi addressed to the Registrar General Jharkhand High Court Ranchi on the subject of appointment of Personal Assistantsstating therein that there is shortage of PAs in the Joint Secretariat Cadre and appointment of PAs in JHALSA may be considered by way of deputation from the pool of PAs of Jharkhand High Court It further appears that vide letter dated 17.04.2002 the Law Secretary addressed to the Member Secretary JHALSA annexing the copy of aforesaid letter dated 13.02.2002 addressed to the Registrar General Jharkhand High Court Ranchi requesting therein to fill up the post from the cadre of Jharkhand High Court in Class III and Class IV post. Thereafter on 22.02.2002 the Jharkhand High Court issued the advertisement for appointment on the post of Personal Assistant in the pay scale of Rs. 5500 175 9000 All these petitioners participated in the selection process pursuant to the said advertisement and were declared successful. It further appears that on 31.05.2002 the Registrar Establishment Jharkhand High Court wrote a letter to the Member Secretary JHALSA sending list of 3 selected candidates for appointment as Personal Assistant and also requested to issue appointment letters to all the selected candidates including these petitioners within three days from the date of receipt of letter. Pursuant thereto the Member Secretary JHALSA issued appointment letters to the petitioners as Personal Assistant under JHALSA in the pay scale of Rs. 5 500 175 9 000 Indian Kanoon Niranjan Kumar vs The State Of Jharkhand Through The ... on 25 March 2021 It was further stated in the appointment letter that the candidates would be governed by the Jharkhand Service Code and the Rules and Circulars applicable to the State Government employees On 19.06.2002 the Member Secretary JHALSA placed the services of the petitioners to the Jharkhand High Court Legal Services Committee. Since then the petitioners are working as Personal Assistant in Jharkhand High Court Legal Services Committee 5. It further appears that on 06.03.2007 pursuant to the recommendations made by the Fitment Committee the Finance Department vide its resolution placed the Assistant of Secretariat Cadre and Personal Assistant of Joint Cadre in the scale of Rs. 6 500 200 10 500 w.e.f. 15.09.2006 notionally) and monetary benefits w.e.f. 01.03.2007 On 27.04.2007 the Registrar General Jharkhand High Court issued office order wherein pursuant to aforesaid resolution dated 06.03.2007 PAs were granted revised pay scale of Rs 6 500 200 10 500 . These PAs who were granted revised pay scale included the PAs who were appointed under the same advertisement as the petitioners On 21.05.2007 JHALSA also vide its office order revised pay scale of PAs in JHALSA including the petitioners to Rs. 6 500 200 10 500 as per aforesaid resolution dated 06.03.2007 6. However on 20.06.2007 the Member Secretary JHALSA as per order of Hon ble Executive Chairman issued an office order cancelling the earlier office order dated 21.05.2007. Pursuant thereto on 10.07.2007 petitioners preferred representation to the Member Secretary JHALSA on account of non granting of revised pay scale stating therein that the petitioners are suffering financial loss and the same will also have a bearing on their retiral benefits On 30.10.2010 the Finance Department vide its resolution enhanced grade pay of Assistants and PAs of Secretariat cadre from Rs. 4 200 to Rs. 4 600 w.e.f. 01.01.2006. However despite the fact that petitioners were getting the same grade pay of Rs 4 200 they were not granted such The reason for not granting the enhanced pay scale and grade pay to the petitioners appears to be due to some confusion as to whether petitioners are employee of State Government or of the Jharkhand High Court. However it is pertinent to mention here that persons who were appointed along with the petitioners by the Jharkhand High Court pursuant to the aforementioned advertisement are getting the enhanced pay scale and grade pay 7. Mr. A.K. Das learned counsel for the petitioners submits that the State Government vide Indian Kanoon Niranjan Kumar vs The State Of Jharkhand Through The ... on 25 March 2021 Annexure 1 dated 17.04.2002 and Annexure 1 1 dated 13.02.2002 had expressed their inability to post senior Personal Assistants and Personal Assistants from the Secretariat of JHALSA and requested for either deputing the said employees from the High Court pool or making appointments at their level He further submits that all the petitioners have applied for the said post pursuant to the advertisementissued by the High Court for the post of Personal Assistant in the pay scale of Rs. 5500 175 9000 . The petitioners were selected from the panel of the selected candidates and posted at JHALSA for the appointment to the post of Personal Assistant in the pay scale of Rs. 5500 175 9000 . At the time of appointment the pay scale of the petitioners was at par with their counterparts who were appointed at High Court and the Secretariat He further submits that when the petitioners were appointed through the same advertisement as were their counterparts in High Court from the same panelthe questions of allowing different pay scale to the petitioners do not arise 8. Mr. Das further draws attention of this Court towards the affidavit filed by the Jharkhand High Court dated 27.11.2015 which specifically mentions that the Ex Chairman JHALSA had proposed that the pay scale of the Personal Assistants and Assistants of JHALSA should be at par with that of the same at High Court vide letter bearing No. 205 dated 11.5.2010 and an amendment was sought in Schedule I at Sl. 5 & 6 of the Jharkhand State Legal Services Authority Rules 2001 wherein the pay scale of the Personal Assistants and Assistants of JHALSA should be at par with their counterparts in the High Court. He submits that the Hon ble Acting Chief Justice was pleased to accord his consent to the proposal and directed the Registrar General for making the necessary amendments. Thus there remains no ambiguity that the petitioners were entitled to the pay scale and allowance as that of his counterparts in the High Court 9. He further submits that the State Government is raising objections one or the other as would be apparent from Para 10 and 11 of their Counter affidavit. All queries and objections raised by the Finance Department were duly replied by the High Court and the Member Secretary vide letter dated 09.08.2011. But despite thereof the State authorities have kept the matter pending and in such circumstances allowing the pay scale at a lower scale than what has been allowed to the Personal Assistants and Assistants of the High Court would be discriminatory and illegal 10. Learned counsel further submits that during the pendency of the litigation the State Government has brought the Jharkhand Gazette Rules 2016 where the pay scale of the JHALSA Personal Assistants and Assistants has been brought at par with that of the High Court. Therefore the dispute remains to the previous period from 2007 to 2016 11. In support of his contention Mr. Das relied upon the judgment passed in the case of State of UP Ors. Vs. Pratap Narain Chaddha & Ors reported in9 SCC 310 wherein the Hon ble Supreme Court has held that though there was difference in educational qualifications but once the diploma holders had put in 5 years of service in the grade of Rs. 1600 2660 they should be treated at par with the graduate lecturers of the Polytechnic with the same pay scale Indian Kanoon Niranjan Kumar vs The State Of Jharkhand Through The ... on 25 March 2021 Learned counsel further relied upon the judgment passed in the case of R.D Gupta & Ors. Vs. Lt Governor Delhi Administration & Ors reported in4 SCC 505 wherein this case the Supreme Court held that that the three wings of NDMC are interchangeable posts. The Hon ble Court further held that the mere fact that the persons belong to different departments of Government holding identical posts may not be treated differentially in the matter of their way 12. Learned counsel for the petitioners lastly submits that in the present case the petitioners who were appointed pursuant to the same advertisement issued by the High Court the High Court could not have allowed a different pay scale because the petitioners were originally posted at JHALSA Once the petitioners were allowed the benefits of the revised pay scale vide Annexure 8 then the same benefit cannot be withdrawn In support of this contention learned counsel relied upon another judgment of the Hon ble Apex Court in the case of Bhagwan Shukla Vs. Union of India & Ors reported in6 SCC 154 wherein it has been stated that if the employer has served no notice for the reduction of pay or granted no opportunity to show cause against the reduction of basic pay and the order was made behind back of the petitioners without following any procedure of law the same is not sustainable in the eye of law Learned counsel concluded his argument by submitting that there has been a flagrant violation of principles of natural justice and the petitioners have suffered financial loss without being heard. Fair play in action warrants that no such order which has the effect of an employee suffering civil consequences should be passed without putting the petitioner to notice and giving them a hearing 13. Mr. Sudarshan Srivastava learned counsel for the respondent High Court submits that the Member Secretary JHALSA has requested the High Court for amendment in Schedule I at sl.nos. 5 6 of the Jharkhand State Legal Services Authority Rules 2001 so as to bring the pay scale of Personal Assistants and Assistants at par with PAs and Assistants of Jharkhand High Court Thereafter Jharkhand High Court has forwarded the said request of JHALSA with concurrence of Hon ble the Chief Justice to the State Government He further submits that the Law Secretary vide his letter dated 08.07.2011 made certain queries regarding PAs of JHALSA from Jharkhand High Court which was in turn forwarded by Jharkhand High Court to JHALSA. Pursuant thereto JHALSA replied to the queries of State Government vide its letter dated 09.08.2011 sent to Jharkhand High Court wherein it was clearly stated that PAs of JHALSA have been selected along with other PAs of Jharkhand High Court and appointment orders have been issued stating that they shall be guided by Rules as applicable to PAs of Jharkhand High He lastly submits that the Jharkhand High Court sent a reminder to Law Secretary vide its letter dated 20.07.2012 and also sent a letter to JHALSA stating that JHALSA must take up the matter with State Government 14. Mr. Rahul Kamlesh learned counsel for the respondent State submits that the petitioners are the Personal Assistant of JHALSA appointed by the Secretary JHALSA. As per schedule I of the Indian Kanoon Niranjan Kumar vs The State Of Jharkhand Through The ... on 25 March 2021 JHALSA Rules 2001 the said authority has a separate cadre of Personal Assistants to which the petitioners belong and the petitioners do not belong to the Secretariat Personal Assistant Joint Cadre which is administered and regulated presently by Jharkhand Secretariat Stenographers Service Rules 2011 He further submits that the claim of the petitioners is based upon a presumption that the employees of JHALSA are at par with the employees of the State Government and Hon ble High Court which is misconceived. He contended that the mode of appointment of employees of JHALSA and State Government is different. The Memo No. 599 dated 06.03.2007 relates to the employees of the State Government and its allied offices and not to the employees of Corporations or Authorities and since JHALSA is not an allied office of the Jharkhand Secretariat and hence the benefit of the same does not automatically applicable to the employees of JHALSA Mr. Rahul Kamlesh further submits that at the time when the petitioners were appointed the recruitment rule for JHALSA was not framed. Now recruitment rules for JHALSA have been framed in the year 2016 and are applicable from the date of notification publication of the said rules. Hence the petitioners cannot claim the benefits of the same retrospectively He lastly submits that the JHALSA is an Authority constituted under Jharkhand State Legal Services Authority Rules 2001 an autonomous body having separate cadre of employees now guided by separate rules i.e. JHALSA Rules 2016 and the petitioners contention that they are at par with the employee of High Court is also misconceived. This fact is apparent from Annexure A to the counter affidavit filed by High Court whereby the Registrar General has been requested to obtain concurrence of Hon ble the Chief Justice of the Jharkhand High Court for application of Jharkhand High Court Rules on the Assistants Personal Assistants of JHALSA meaning thereby till date they were not at par with High Court Employees. Therefore amendment in Rule 6 of Jharkhand State Legal Services Authority Rules 2001 was proposed and matter was pursued with the State Government. Subsequently in 2016 Recruitment Rules for employees of JHALSA were framed and now they are guided by this Rule In support of his contention learned counsel for the respondent State relied upon the Hon ble Division Bench of Delhi High Court s judgment passed in case of Union of India & Anr. VS Association of the Employees of Indian Institute of Mass Communication& Ors.wherein the Delhi High Court has held as under: 43. As mentioned in the discussion herein above in view of this Court the employees of ABs are not at par with the employees of Central Government and OM dated 1st May 1987 does not automatically cover employees of ABs and where there is no concurrence of the Ministry of Finance in that case the benefit of the GPF cum Pension Scheme cannot be extended to the employees of ABs in lieu of the CPF Scheme already prevailing there 15. Having heard learned counsel for the parties and after going through the documents annexed and the averments made in the respective affidavits it appears that the State Government vide letter Indian Kanoon Niranjan Kumar vs The State Of Jharkhand Through The ... on 25 March 2021 dated 17.04.2002 and 13.02.2002had expressed their inability to post senior Personal Assistants and Personal Assistants from the Secretariat to JHALSA and requested for either deputing the said employees from the High Court pool or making appointments at their level It also appears from the fact that petitioners have applied for the said post pursuant to the advertisementissued by the High Court for the post of Personal Assistant in the pay scale of Rs. 5500 175 9000 and they were duly selected from the panel of the selected candidates and posted at JHALSA for the appointment to the post of Personal Assistant in the pay scale of Rs 5500 175 9000 At this stage it is pertinent to mention here that at the time of appointment the pay scale of the petitioners were at par with their counterparts who were appointed at High Court and the Secretariat. It is a settled principle of law that if the pre revised pay scale is same then on revision there cannot be any discrimination when the pay scale is revised. In the instant case when the petitioners were appointed through the same advertisement as were their counterparts in High Court from the same panelthe question of allowing different pay scale to the petitioners do not arise It further appears that the affidavit filed by the Jharkhand High Court dated 27.11.2015 specifically mentions that the then Chairman JHALSA had proposed that the pay scale of the Personal Assistants and Personal Assistants of JHALSA should be at par with that of the same at High Court and pursuant thereto an amendment was sought in Schedule I at Sl. 5 & 6 of the Jharkhand State Legal Services Authority Rules 2001 in order to make the pay scale of the Personal Assistants and Personal Assistants of JHALSA at par with their counterparts in High Court. It also appears that the Hon ble Acting Chief Justice has accorded his consent to the proposal and directed the Registrar General for making the necessary amendments. Thus there remains no ambiguity that the petitioners were entitled to the pay scale and allowance as that of their counterparts in the High It further transpires that the objections of the State Government raised by the Finance Department were duly replied by the High Court and the Member Secretary vide letter dated 09.08.2011. But despite thereof the State authorities have kept the matter pending for years together and finally came with the Jharkhand Gazette Rules 2016 where the pay scale of the JHALSA Personal Assistants and Assistants has been brought at par with that of the High Court. Therefore the dispute remains to the previous period from 2007 to 2016 16. In such circumstances allowing the pay scale at a lower scale than what has been allowed to the Personal Assistants and Assistants of the High Court would be discriminatory and illegal due to following reasons: i) The State Government itself has expressed their inability to post senior Personal Assistants and Personal Assistants from the Secretariat to JHALSA since there was shortage of PAs in the Joint Secretariat Cadre and requested for either deputing the said employees from the High Court pool or making appointments at their level Indian Kanoon Niranjan Kumar vs The State Of Jharkhand Through The ... on 25 March 2021 ii) These petitioners have been duly selected pursuant to the same advertisement issued by the High Court for the post of Personal Assistant in the pay scale of Rs. 5500 175 9000 and posted at JHALSA and persons who were appointed along with the petitioners by the Jharkhand High Court pursuant to the aforementioned advertisement are getting the enhanced pay scale and grade pay iii) At the time of appointment the pay scale of the petitioners was at par with their counterparts who were appointed at High Court and the Secretariat iv) It is a settled principle of law that if the pre revised pay scale is same then on revision there cannot be any discrimination when the pay scale is revised v) The State Government itself in the later stage came with Jharkhand Gazette Rules 2016 where the pay scale of the JHALSA Personal Assistant and Assistants has been brought at par with that of the High Court vi) The delay in framing and implementing the Jharkhand Gazette Rules 2016 cannot be attributed to these petitioners and they cannot be penalized for that as admittedly the request for amendment in Schedule I at Sl. no. 5 & 6 of the Jharkhand State Legal Services Authority Rules 2001 so as to bring the pay scale of Personal Assistants and Assistants at par with PAs and Assistants of Jharkhand High Court was made immediately after the Registrar General Jharkhand High Court issued office order wherein pursuant to resolution of the Government dated 06.03.2007 PAs were granted revised pay scale of Rs. 6 500 200 10 500 for the sole reason that all of them were appointed from the same advertisement. Further all the queries were replied way back in the year 17. It is now no more res integra that the theory of equality is an essential ingredient in formulation of any policy by the State and the glance of the same can be found in Articles 38 39 39A 43 and 46 embodied in Part IV of the Constitution of India. These Articles of the Constitution of India command that the State is under a constitutional obligation to guarantee a social order providing justice social economic and political by inter alia minimizing monetary inequalities and by securing the right to sufficient means of livelihood and by providing for adequate wages so as to ensure an appropriate standard of life and by promoting economic interests of the weaker sections In other words if the State is giving some economic benefits to one class while denying the same to other then the onus of justifying the same lies on the State specially in the circumstances when both the classes or group of persons were treated as same in the past by the State. Since these petitioners have been duly selected pursuant to the same advertisement issued by the High Court and at the time of appointment the pay scale of the petitioners was at par with their counterparts who were appointed at High Court and the Secretariat there is no justification in denying them the same 18. It is by now well settled that no orders causing civil consequences can be passed without observing rules of natural justice as it was held in Bhagwan Shukla vs. Union of India & Ors. AIR Indian Kanoon Niranjan Kumar vs The State Of Jharkhand Through The ... on 25 March 2021 1994 SC 2480 wherein it was held as under 3. We have heard learned counsel for the parties. That the petitioner s basic pay had been fixed since 1970 at Rs 190 p.m. is not disputed. There is also no dispute that the basic pay of the appellant was reduced to Rs. 181 p.m. from Rs. 190 pan. in 1991 retrospectively w.e.f. 1812.1970. The appellant has obviously been visited with civil consequences but he had been granted no opportunity to show cause against the reduction of his basic pay. He was not even put on notice before his pay was reduced by the department and the order came to be made behind his back without following any procedure known to law. There has thus been a flagrant violation of the principles of natural justice and the appellant has been made to suffer huge financial loss without being heard. Fair play in action warrants that no such order which has the effect of an employee suffering civil consequences should be passed without putting the concerned to notice and giving him a hearing in the matter 19. The argument of the learned counsel for the Respondent State that when the petitioners were appointed the recruitment rule for JHALSA was not framed and petitioners contention that they are at par with the employee of High Court is misconceived is not acceptable to this Court for the sole reason that all these petitioners were duly selected pursuant to the same advertisement issued by the High Court for the post of Personal Assistant in the pay scale of Rs. 5500 175 9000 and posted at JHALSA and that too when State Government itself has expressed their inability to post senior Personal Assistants and Personal Assistants from the Secretariat to JHALSA since there was shortage of PAs in the Joint Secretariat Cadre and requested for either deputing the said employees from the High Court pool or making appointments at their level. The judgment cited by the learned counsel for the State is not applicable in the facts and circumstances of this case and for the reasons stated herein above 20. In view of the aforesaid discussion all these writ applications are allowed and it is held that all these petitioners are entitled for the pay scale of Rs. 6 500 200 10 500 w.e.f. 15.09.2006 notionally) and for monetary benefit w.e.f. 01.03.2007 and Grade pay of Rs. 4 600 in view of Memo no. 2954 dated 30th October 2010 issued by the Finance Department Government of Jharkhand Ranchi w.e.f. 01.01.2006 till the enactment of Jharkhand Gazette Rules 2016 It goes without saying that the concerned respondents are directed to calculate the arrears and pay the same within a period of 16 weeks from the date of receipt production of copy of this order 21. With the aforesaid terms these writ applications stands disposed of Deepak Roshan J.) Jharkhand High Court Dated 25 03 2021 Amardeep AFR Indian Kanoon

The court rejected the prayer for agricultural parole as the petitioner was a hardcore prisoner and did not complete the requisite custody period: High court of Punjab and Haryana at Chandigarh

A criminal writ petition (it is an order given by the higher courts to a lower court directing them to act or stop them from certain activity) under certiorari (writ, where a higher court reviews an order given in the lower court) was filed. However, the request for agricultural parole was rejected by the courts. This judgment and final order were given on 2/07/2021 by the high court of Punjab and Haryana at Chandigarh consisting of Hon’ble MR. Justice Jaswant Singh and Hon’ble MR. justice Rajesh Bhardwaj, in the case Rahul vs. state of Haryana and others CRWP-1572-2020 the court proceedings were held through a virtual platform due to COVID -19. A prayer was given to the courts for quashing the order dated 18/11/2019.  Mr. Rahul (the petitioner) had filed for a criminal writ petition under article 226/227 of the constitution of India in the nature of certiorari.   An order was passed on 18/11/2019 where respondent No. 4 declined the prayer to grant six weeks parole to the petitioner. The petitioner here further prayed for the courts to grant six-week agriculture parole for maintaining and harvesting the wheat crop. According to the petition filed, An FIR No. 28 was filed on 09/02/2016   where the petitioner (Rahul) was convicted and sentenced to 12 years rigorous imprisonment under section 363 of the Indian penal code i.e., Kidnapping and maiming a minor for purposes of begging and under section 376 IPC which states the punishment for rape. Also, under section 6 of the POCSO Act (POCSO Act,2012 is a comprehensive law to provide protection for the children from the offenses of sexual assault and harassment and safeguarding the interest of the children) section 6 of the POCSO Act, punishment for aggravated penetrative sexual assault. He was also convicted under section 3(1)(xii) of the SC/ST act registered in the police station. The father of the petitioner filed an application to grant six weeks of parole for his convicted son (Rahul, the present petitioner). The petitioner further placed a record wherein the gram panchayat and Namberdar have supported the prayer laid by the petitioner. The case further reveals that an FIR was filed against the petitioner at the police station in the city Jagadhri, under Section 42 of the prisoner’s act (Penalty for introduction or removal of prohibited articles into or from prison and communication with prisoners) because, during the imprisonment of the petitioner, the custody of a mobile phone was recovered from the petitioner. The order made by the previous court has mentioned that according to the parole amened act,2015 the petitioner falls in the category of hardcore prisoners.  In view of the Haryana good conduct prisoners (temporary release) amended act,2015, a prisoner can be released only after the completion of two years of custody as under trial and three years of custody after conviction therefore a total of five years of custody must be completed by the prisoner. Here the petitioner (Rahul) had completed only two years under trial and hence short of three years after conviction.

on 05 07 CRWP 1572 20201206 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CRWP 1572 2020Date of decision : 02.07.2021Rahul ..... PetitionerVersusState of Haryana and others ..... RespondentsCORAM :HON BLE MR.JUSTICE JASWANT SINGH HON BLE MR.JUSTICE RAJESH BHARDWAJ Present:Mr. Akshaydeep Singh Advocate for Mr. Ravinder Bangar Advocate for the petitioner.Mr. Vivek Saini Addl. AG Haryana.[ The aforesaid presence is being recorded through video conferencingsince the proceedings are being conducted in virtual court ] RAJESH BHARDWAJ J. The petitioner has filed the present criminal writ petition underArticle 226 227 of the Constitution of India in the nature of certioraripraying for quashing the impugned order dated 18.11.2019 annexed asAnnexure P 1 wherein the prayer for grant of six weeks parole to thepetitioner was declined by respondent No.4. It has been further prayed thatthe petitioner be granted six weeks agriculture parole for maintaining andharvesting the wheat crop.As per the facts narrated in the petition the petitioner wasconvicted and sentenced for 12 years rigorous imprisonment in FIR No.28dated 09.02.2016 under Sections 363 376 of Indian Penal Code Section 6POCSO Act and Section 3(1)of SC ST Act registered at Police StationRadaur District Yamuna Nagar vide order dated 24.09.2018 by AdditionalSessions Judge Yamuna Nagar. The petitioner preferred an appeal bearing on 05 07 CRWP 1572 20202No.CRA D 6999 2018 before this Hon ble Court which is “Admitted” andpending adjudication. The father of the petitioner filed an application(Annexure P 2) for grant of six weeks parole for his son i.e. the presentpetitioner. It was received in the office of the respondent authorities on13.11.2019 and a conscious decision was taken on the application filed bythe father of the petitioner. For the endorsement of prayer in question thepetitioner has also placed on record Annexure P 3 wherein the GramPanchayat and Namberdar have also supported the prayer in question.We have heard counsel for the petitioner and perused the recordof the case.The order dated 18.11.2019 impugned by the petitioner has beenperused by this Court. A perusal of the same reveals that during the custody a mobile phone was recovered from the petitioner on account of which FIRNo.8919 under Section 42 of Prison Act and FIR No.7917 under Section 42 Prison Act were registered against him at Police StationCity Jagadhri. It has been mentioned in the order that on account of thesame the petitioner falls in the category of Hardcore Prisoners as per ParoleAmended Act 2015. In addition to this it has been further mentioned thatin view of The Haryana Good Conduct Prisonersno more survives as on today. The petitioner if so advised can move the authority concerned with a fresh application. In view of the observations made hereinabove we find itappropriate to dismiss the petition as infructuous however with liberty tothe petitioner to approach the appropriate authority for the redressal of hisgrievances in accordance with law. ( RAJESH BHARDWAJ ) JUDGE JUDGE 02.07.2021 m. sharmaWhether speaking reasonedYes No Whether Reportable Yes No

Timelines in designating EWS certificates should be viewed from a prism of pragmatism and not dogmatic fervour: High Court of Delhi

If delayed submission of the Income and Asset Certificate/EWS certificate does not harm or cause detriment to anyone’s interest, some slack can be cut  as held by the Hon’ble High Court of Delhi through the learned bench lead by Justice Rajiv Shakdher in the case of Northern Coalfields Limited v. Chaman Gupta & Anr. (LPA 364/2021 and CM Nos. 35520-21/2021) The brief facts of the case are that this appeal is directed against the judgment passed by the learned single judge. The issue, which arose for consideration before the learned single judge, was, as to whether respondent no.1 ought to be given leeway for production of the Income and Asset Certificate, concerning the relevant financial year. It is not in dispute that, respondent no.1 qualified the written LPA examination, and was issued a provisional appointment letter, against the subject post reserved for Economically Weaker Section (EWS) category. Mr. Vikramjeet Banerjee, learned Additional Solicitor General (ASG), who appears on behalf of the appellant, submitted that, the learned single judge erred in directing the concerned authority, working under the sway of the Government of NCT of Delhi to examine the representation filed by respondent no.1 for issuance of Income and Asset Certificate concerning the relevant FY i.e., 2019-2020. The appellant is aggrieved by the direction issued by the learned single judge, whereby it has been provided that respondent no.1 will continue to work with the appellant till such time, respondent no.1’s representation is considered by GNCTD. After hearing both the parties at length, the Hon’ble High Court held, “ The inaction of GNCTD i.e., respondent no.3 in the writ in not processing respondent’s request to issue an Income and Asset Certificate/EWS certificate for the relevant FY i.e., 2019-2020—did furnish a cause of action in favour of the respondent. Therefore, it is not a case where courts in Delhi could not have exercised jurisdiction. The failure on the part of the appellant to press the objection at the appropriate stage has denuded the appellant of the right to question the institution of the action in this court. The objection with regard to territoriality, in law, is markedly different from objection concerning subject matter jurisdiction. The latter can be raised, at any stage. Therefore, for the aforesaid reasons, we are not inclined, as noted above, to interdict the judgment of the learned single judge. The appeal is, accordingly, dismissed.”

54IN THE HIGH COURT OF DELHI AT NEW DELHI LPA 364 2021 and CM Nos. 35520 21 2021 NORTHERN COALFIELDS LIMITED Date of Decision: 7.10.2021 ..... Appellant Through: Mr. Vikramjeet Banerjee ASG with Mr. Ashwani Dubey Adv. .....Respondents CHAMAN GUPTA & ANR. Through: Nemo. HON BLE MR. JUSTICE RAJIV SHAKDHER HON BLE MR. JUSTICE TALWANT SINGH RAJIV SHAKDHER J.Court hearing convened via video conferencing on account of COVID 19] This appeal is directed against the judgment dated 10.08.2021 passed by the learned single judge in W.P.(C) No.4059 2021. The only issue which arose for consideration before the learned single judge was as to whether respondent no.1 ought to be given leeway for production of the Income and Asset Certificate concerning the relevant financial yeari.e. 2019 It is not in dispute that respondent no.1 had applied for the post of Technician (Trainee) T&S Grade C vide Employment Notification dated 25.01.2020 category. 3.2 What is also not in dispute is that when the verification of documents was carried out respondent no.1 discovered after it was pointed out to him that he had produced the Income and Asset Certificate concerning FY 2020 2021 whereas he was required as indicated above to produce the said certificate for FY 2019 2020. 3.3. Mr. Vikramjeet Banerjee learned Additional Solicitor General ASG) who appears on behalf of the appellant says that the learned single judge erred in directing the concerned authority working under the sway of the Government of National Capital Territory of Delhito examine the representation dated 10.03.2021 filed by respondent no.1 for issuance of Income and Asset Certificate concerning the relevant FY i.e. 2019 2020 albeit in accordance with Rules Regulations and instructions issued in that behalf within a timeframe of four weeks from the date of the impugned judgment. It is Mr. Banerjee’s submission that the “crucial date” for determining the eligibility of a candidate as provided in the 2020 notification is concededly 10.03.2020 and therefore the Income and Asset Certificate which respondent no.1 was required to obtain was for FY 2019 2020. It is also Mr. Banerjee’s contention that the appellant is aggrieved by the direction issued by the learned single judge whereby it has been provided that respondent no.1 will continue to work with the appellant till such time respondent no.1’s representation is considered by GNCTD. LPA 364 2021 Digitally Signed By:PREMMOHAN CHOUDHARYSigning Date:13.10.202116:58:48Signature Not Verified 4.2 Besides this Mr. Banerjeehas also made a very emphatic submission that as per the 2020 notification the jurisdiction lay with the Principal Bench of the High Court of Madhya Pradesh at Jabalpur. 5. We have heard Mr. Banerjee at great length. Before we proceed further we may note that due to some strange reason GNCTD has not been arrayed as a party in the present appeal although it was a party before the learned single judge and was arrayed as respondent no.3. Be that as it may as noted above the following facts are not disputed: 7.1. Respondent no.1 i.e. Chaman Gupta sat for the written examination. 7.2. Respondent no.1 passed the written examination and was issued a provisional appointment letter on 24.02.2021 qua the subject post reserved for EWS category. It is when verification of documents was carried out that respondent no.1 discovered he had in his possession Income and Asset Certificate concerning FY 2020 21. 7.4. The crucial date provided in the 2020 notification for this purpose was 10.03.2020 and if this crucial date is taken into account respondent no.1 was required to produce the Income and Asset certificate concerning FY 2019 20. 7.5. No sooner this anomaly was pointed out that is at the stage of verification of documents respondent no. 1 preferred a representation dated 10.03.2021 to the Sub Divisional MagistrateKanjhawala GNCTD. 7.6. Prior to this respondent no.1 had written to the appellant on 04.03.2021 that he be accorded time to produce an Income and Asset LPA 364 2021 Digitally Signed By:PREMMOHAN CHOUDHARYSigning Date:13.10.202116:58:48Signature Not Verified Certificate for the relevant period i.e. F.Y. 2019 20. In response to the letter dated 04.03.2021 the appellant wrote back to respondent no.1 vide communication dated 12.03.2021 whereby the appellant was granted a month’s leeway to obtain Income and Asset certificate for the relevant FY i.e. FY 2019 20. It was made clear in the said communication that if respondent no. 1 did not produce the Income and Asset certificate for FY 2019 20 his candidature would be cancelled. 7.8. As noticed above even before the appellant issued the communication dated 12.03.2021 the appellant having discovered the error made a representation to the SDM Kanjhawala GNCTD for issuance of the Income and Asset certificate concerning FY 2019 20. It would therefore be relevant to extract the contents of the communication dated 12.3.2021: T&S Gr. C “To Shri Chaman Gupta S O Sri Lal Ji Roll No: 10630563 Post Applied: TECHNICIAN (TRAINEE) Subject: Regarding desired EWS certificate valid as on the crucial date i.e. 10 03 2020 Dear Candidate This is to inform you that you have been provisionally selected for the post of TECHNICIAN TRAINEE) T&S Gr C and your merit position is Gen EWS 1. The Provisional appointment is subject to the fulfillment of prescribed eligibility criteria as per the concerned Employment Notification bearing reference NCL IIQ PD Manpower DR 2019 20 109 Date 25 01 2020. The crucial date for determining the eligibility in all respecthas been notified as 10th March 2020. the EWS certificate produced by you bearing reference: EWS Central & Delhi Govt. SDM K 58 dated LPA 364 2021 Digitally Signed By:PREMMOHAN CHOUDHARYSigning Date:13.10.202116:58:48Signature Not Verified terms of 15 12 2020 is valid for the year 2020 21. On account of above you are advised to produce EWS certificate valid on the crucial date i.e. 10 03 2020 for fulfilling the the above referred Employment In case you are unable to produce the desired certificate within one month issuance of provisional offer of appointment to you your provisional appointment will be cancelled without further notice to you for non fulfilment of eligibility for the post applied. s d Deputy ManagerNCL HQ” It is in this background that the learned single judge having considered the matter thought it fit to issue for the reasons given in the impugned judgment the following operative observations: “6. There is no dispute that the petitioner had applied for the post of Technician (Trainee) in a Northern Coal Limited a Government of India undertaking. Being eligible and successful he was issued an appointment letter. When he went to the office of respondent No.2 he was not given permission for join the duties only for the reason that his EWS certificate was not of the Financial year 2019 20. Though it is the case of respondent No.2 that the eligibility need to be seen as on March 10 2020 the plea of the learned counsel for the petitioner that it is only when his name has been short listed for the said post did he realise that he should apply for the EWS certificate from the authority of GNCTD which he did and got the same on December 15 2020. The plea of the learned counsel for the petitioner is that the father of the petitioner has also been issued EWS certificates in the years 2017 2019 and 2020. The stand of the respondent No.3 GNCTD is that the petitioner having not applied in the Financial year 2019 20 he cannot get a certificate for that year. In other words he having applied for the Financial year 2020 2l he was given the certificate of that year on December 15 2020. 7. The stand of respondent No.3 though appealing but that cannot be a reason to deny a certificate to the petitioner if he is LPA 364 2021 Digitally Signed By:PREMMOHAN CHOUDHARYSigning Date:13.10.202116:58:48Signature Not Verified otherwise eligible for grant of the same more particularly when he is only 23 years of age and has secured an appointment in a Govt. of India Undertaking. I am of the view that it is a fit case when this Court must exercise its extraordinary jurisdiction under Article 226 of the Constitution and direct the respondent No.3 to consider the application representation filed by the petitioner on March 10 2021 for issuance of EWS certificate for the Financial year 2019 20 in accordance with the Rules Regulations and instructions within a period of four weeks from today. It is ordered accordingly. peculiar facts of the case and shall not be treated as precedent. It goes without saying if the petitioner is issued a certificate 9. by the concerned authority under GNCTD he shall submit the same to the respondent No.2 within three weeks thereafter who shall consider and act accordingly. Till such time the respondent No.2 shall allow the petitioner to continue to perform his duties.” It is Mr. Banerjee’s contention that since respondent no.1 failed to It is made clear that this order has been passed in the fulfill the eligibility criteria as on the crucial date i.e. 10.03.2020 his candidature for provisional appointment is liable to be cancelled. 9.1 To our minds this argument may have had weight had not the appellant on 12.03.2021 granted time to respondent no.1 to obtain the Income and Asset Certificate for the relevant period i.e. FY 2019 20. 9.2. As noticed above respondent no.1 took all steps within his power and capacity to obtain the Income and Asset certificate EWS certificate. It is evident from the extract set forth above that the only reason that the SDM GNCTD declined to conduct the exercise of issuing of the Income and Asset Certificate qua respondent no.1 was that the application was not made in respect of the relevant financial year i.e. FY 2019 20. This reason did not obviously find favour with the learned single judge and therefore he proceeded to issue the operative directions to which we have made reference above. LPA 364 2021 Digitally Signed By:PREMMOHAN CHOUDHARYSigning Date:13.10.202116:58:48Signature Not Verified 9.4. In our view no interference is called for with the order of the learned single judge on this score. In our opinion whether or not a person falls in the EWS category in a defined period is a fact that gets established by production of certificate from the designated authority. It is because generation of an Income and Asset Certificate EWS certificate is only a consequential act which follows an enquiry made to ascertain the economic status of the applicant that often timelines for obtaining such certificates are extended. In the instant case concededly the appellant to enable respondent no.1 to obtain the requisite certificate from the concerned SDM granted a month’s leeway to respondent no.1. Although respondent no.1 did everything in his power to make a course correction the said Certificate could not be obtained by him within the extended time. The moot question which arises for consideration is: Can respondent no.1 be denied the fruits of his labour in such circumstances We think not. This is not to say that there should not be an end date for submission of such Certificate in our view there should be one. However that being said timelines in such circumstances should be viewed from a prism of pragmatism and not dogmatic fervour. Well earned appointments cannot be denied even though there is scope for repair. If delayed submission of the Income and Asset Certificate EWS certificate does not harm or cause detriment to anyone’s interest some slack can be cut as was done by the appellant in this case. Therefore to pull the rug from underneath the feet of respondent no.1 when he is on the threshold of obtaining an appointment would be both unjust and 10. Before we conclude we would like to deal with the submission made inequitable. LPA 364 2021 Digitally Signed By:PREMMOHAN CHOUDHARYSigning Date:13.10.202116:58:48Signature Not Verified by Mr. Banerjee that the writ petition should not have been entertained as the jurisdiction lay with the Principal Bench of the High Court of Madhya Pradesh at Jabalpur. 10.1 Obviously this objection with regard to the territorial jurisdiction was not pressed before the learned single judge. 10.2. In support of his plea Mr. Banerjee has drawn our attention to ground M of the appeal and the counter affidavit filed by the appellant in the writ petition. A close perusal of ground M of the appeal would show that it is not the assertion of the appellant that even though the said ground was pressed the learned single judge failed to deal with the same. 10.3. Hence in effect what follows as a logical sequitur is that this objection was not pressed on behalf of the appellant. 10.4. Insofar as the objection with regard to the territorial jurisdiction is concerned if the same is not pressed in the first instance and it does not lead to failure to justice then on that score the order assailed cannot be set aside. 10.5. We may also note that in paragraph 23 of the writ petition respondent no.1 has made assertions as to why jurisdiction lay with this Court. For the sake of convenience assertions made therein are extracted “23. The Petitioner resides within the territorial jurisdiction of this Hon ble Court. The Petitioner has applied for the post in the Respondent No. 2 from Delhi. The appointment letter has been issued to the Petitioner by the Respondent in Delhi. The Respondent Nos. 1 and 3 are situated in Delhi. The Petitioner has made representations to the Respondent No. 3 to issue an appropriate EWS certificate in Delhi. Therefore this Hon ble Court has territorial jurisdiction to adjudicate the Writ LPA 364 2021 Digitally Signed By:PREMMOHAN CHOUDHARYSigning Date:13.10.202116:58:48Signature Not Verified Petition.” 10.6 A careful perusal of the aforesaid extract would show that if not fully at least a part of cause of action lies in Delhi. The inaction of GNCTD i.e. respondent no.3 in the writ petition in not processing respondent’s request to issue an Income and Asset Certificate EWS certificate for the relevant FY i.e. 2019 2020—did furnish a cause of action in favour of the respondent. Therefore it is not a case where courts in Delhi could not have exercised jurisdiction. 10.7. The failure on the part of the appellant to press the objection at the appropriate stage has denuded the appellant of the right to question the institution of the action in this court. The objection with regard to territoriality in law is markedly different from objection concerning subject matter jurisdiction. The latter can be raised at any stage. 11. We may also record that we are informed that the concerned SDM has issued an Income and Asset Certificate to respondent no.1 for the relevant FY i.e. FY 2019 20. 12. Therefore for the aforesaid reasons we are not inclined as noted above to interdict the judgment of the learned single judge. 13. The appeal is accordingly dismissed. Consequently pending applications shall also stand closed. RAJIV SHAKDHER J OCTOBER 7 2021 pmc Click here to check corrigendum if any TALWANT SINGH J LPA 364 2021 Digitally Signed By:PREMMOHAN CHOUDHARYSigning Date:13.10.202116:58:48Signature Not Verified

Taparia Tools Limited V. Joint Commissioner of Income Tax Special Range- I, Nasik

Once the genuineness is proved and the interest is paid on the borrowing, it is not within the powers of the AO to disallow the deduction either on the ground that rate of interest is unreasonably high or that the Assessee had himself charged a lower rate of interest on the monies which he lent. Case Name: Taparia Tools Limited V. Joint Commissioner of Income Tax Special Range- I, Nasik Case Number: C.A. No.-006366-006368 / 2003 Court: The Hon’ble Supreme Court Bench: A.K. SIKRI J., ROHINTON FALI NARIMAN J. Decided on: 23/03/2015 Relevant Act/Sections: DIRECT TAXES MATTERS – DEDUCTIONS / EXEMPTIONS The Appellant-Taparia Tools Limited (hereinafter referred to as the ‘Assessee’) came before the court having lost in the courts below.There were six appeals between the same parties and the necessity of six appeals was because of the reason that the same dispute pertains to three assessment years, namely, assessment years 1996-97, 1997-98 and 1998-99.The Assessee had claimed deduction of revenue expenditure on account of interest payment in the sum of 2,72,25,000 paid to one M/s. Maliram Makharia Stock Brokers Pvt. Ltd. and 55,00,000 on account of interest payment given to M/s. Sharp Knife Company Pvt. Ltd. This was on account of upfront payments of interest given to the aforesaid two debenture holders in the assessment years 1996-97 and 1997-98 respectively.The Assessing Officer (for short, the ‘AO’), however, treated it as the ‘deferred revenue expenditure’, to be written off over a period of five years and, therefore, in these assessment years he allowed only 1/5th of the payment made, though the entire payment was made in the assessment year 1996-97.In the debenture issue of the Assessee two options as regards payment of interest there upon were given to the subscribers/debenture holders. They could either receive interest periodically, that is every half yearly @ 18% per annum over a period of five years, or else, the debenture holders could opt for one time upfront payment of 55 per debenture. In the second alternative, 55 per debenture was to be immediately paid as upfront on account of interest. At the end of five years period, the debentures were to be redeemed at the face value of 100.On February 14, 1996, M/s. Maliram Makharia Stock Brokers Pvt. Ltd. gave their letter of acceptance opting for upfront payment of interest. Likewise, vide letter of acceptance dated May 24, 1996, M/s. Sharp Knife Company Pvt. Ltd. exercised similar option. As these parties, mentioned at  S. Nos. 1 and 6, had opted for one time upfront payment towards interest, they were paid interest in the sum of 2,72,25,000 and 55,00,000 respectively.In the assessment orders passed by the AO, the Assessee’s claim for deduction of upfront interest payment was denied. Instead, the AO chose to spread it over a period of five years thereby giving deduction only to the extent of 1/5th each in the respective assessment years. The order of the AO was challenged by the Assessee in appeals preferred before the Commissioner of Income Tax (Appeals). The Commissioner, however, dismissed the appeals thereby sustaining the orders passed by the AO. The assessee then approached the Income Tax Appellate Tribunal and thereafter the High Court of Bombay but was unsuccessful as the appeals preferred by him before the two fora have been dismissed maintaining the method of deduction adopted by the AO. ISSUES: Whether the liability of the assessee to pay the interest upfront to the debenture holder is allowable as a deduction in the first year itself or it is to be spread over a period of five years, being the life of the debentures?Whether deduction of the entire amount of interest paid should be allowed or the stance of Revenue needs to be affirmed?Whether the Assessee was estopped from claiming deduction for the entire interest paid in the year in which it was paid merely because it had spread over this interest in its books of account over a period of five years. RATIO OF THE COURT: The court observed that the Assessee follows mercantile system of accounting and one time upfront interest of an amount mentioned above was actually paid as well in the Accounting Years 1995-96 and 1996-97 respectively and clarified that insofar as the Assessee’s claim for deduction of premium payable on redemption is concerned, the same was claimed in the return on a spread over basis covering a period of five years.The court observed that there is no quarrel, in the present case, that the money raised on account of issuance of the debentures would be capital borrowed and the debentures were issued for the purpose of the business of the Assessee and opined that the Assessee would be entitled to deduction of full amount in the assessment year in which it is paid.It later added that while examining the allowability of deduction of this nature, the AO is to consider the genuineness of business borrowing and that the borrowing was for the purpose of business and not an illusionary and colourable transaction. Once the genuineness is proved and the interest is paid on the borrowing, it is not within the powers of the AO to disallow the deduction either on the ground that rate of interest is unreasonably high or that the Assessee had himself charged a lower rate of interest on the monies which he lent.The court explained, the AO did not dispute that the expenditure on account of interest was genuinely incurred observed that there is no dispute that interest has, in fact, been ‘paid’ during the year of accounting.The court observed that Since the Assessee was following mercantile system of accounting, the amount of interest could be claimed as deduction even if it was not actually paid but simply ‘incurred’.The court observed that on exercise of the option of upfront payment of interest by the subscriber in the very first year, the Assessee paid that amount in terms of the debenture issue and by doing so he was simply discharging the interest liability in that year thereby saving the recurring liability of interest for the remaining life of the debentures because for the remaining period the Assessee was not required to pay interest on the borrowed amount.The contention of the learned counsel for the Assessee was that assessment was to be made in accordance with the provisions of the Act and not on the basis of entries in the books of accounts to which the court opined that the High Court has taken into consideration the provisions of Section 36(1)(iii) of the Act and chose to decline the whole deduction in the year of payment, thereby affirming the orders of the authorities below, by invoking the ‘Matching Concept’.The court opined that the High Court has gone wrong and the approach of Matching Concept resulted in wrong application. The court also emphasized that as per the terms of issue, the interest could be paid in two modes. As per one mode, interest was payable every year and in that case it was to be paid on six monthly basis @ 18% per annum. However, in the second mode of payment of interest, which was at the option of the debenture holder, interest was payable upfront, which means insofar as interest liability is concerned, that was discharged in the first year of the issue itself.The court stated that the moment second option was exercised by the debenture holder to receive the payment upfront, liability of the Assessee to make the payment in that very year, on exercising of this option, has arisen and this liability was to pay the interest @ 55 per debenture and not only the liability had arisen in the assessment year in question, it was even quantified and discharged as well in that very accounting year.The court reffered to the cases of -Kedarnath Jute Manufacturing Co. Ltd. v. Commissioner of Income Tax (Central), Madras v. Commissioner of Income Tax and stated that it has been held repeatedly by this Court that entries in the books of accounts are not determinative or conclusive and the matter is to be examined on the touchstone of provisions contained in the ActThe court stated that the income tax return filed by the Assessee, it chose to claim the entire expenditure in the year in which it was spent/paid by invoking the provisions of Section 36(1)(iii) of the Act and observed that  once a return in that manner was filed, the AO was bound to carry out the assessment by applying the provisions of that Act and not to go beyond the said return. There is no estoppel against the Statute and the Act enables and entitles the Assessee to claim the entire expenditure in the manner it is claimed. DECISION HELD BY COURT: The court held that that the judgment and the orders of the High Court and the authorities below do not lay down correct position in law.It was also held that The Assessee would be entitled to deduction of the entire expenditure of 2,72,25,000 and 55,00,000 respectively in the year in which amount was actually paid.The appeals were allowed in the aforesaid terms with no orders as to costs.

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(cid:30)(cid:29)%%(cid:29)(cid:6) # !(cid:27)(cid:29 E+ &(cid:28) !(cid:6)$(cid:27)#.(cid:27)(cid:6)"(cid:28)(cid:31)#(cid:29) .(cid:28)(cid:6)(cid:6) 1(cid:6)!(cid:27)(cid:28)(cid:6)(cid:31)(cid:28)(cid:29)"(cid:6).$+ %(cid:28)(cid:31)(cid:6 cid:27)(cid:28)(cid:6)(cid:4)(cid:28)+(cid:28)(cid:6)(cid:27)(cid:28)"%(cid:28)(cid:31 H29(cid:13)(cid:13)(cid:6)(cid:1)(cid:27)(cid:28)(cid:6)(cid:28)"(cid:25)(cid:6)(cid:6) !(cid:27)(cid:29)!%# .(cid:28)!(cid:27)(cid:28 cid:28) !#"(cid:28)(cid:6)(cid:31)#(cid:29) #(cid:31)#!1(cid:6)!$(cid:6)(cid:30)(cid:29)1(cid:6)!(cid:27)(cid:28)(cid:6) #%.$+ !(cid:6)(cid:27)(cid:29)(cid:28)(cid:28)(cid:6) !(cid:27)(cid:28)(cid:29)..$+ !# 1(cid:28)(cid:29)"# >+(cid:28)%!#$(cid:6) !(cid:27)(cid:28)(cid:29)%%(cid:28)%%(cid:28)(cid:28 cid:29)%(cid:28) !#!(cid:31)(cid:28) !$(cid:28) +.!!(cid:27)(cid:28)(cid:28) !#"(cid:28)(cid:29)&$+ !cid:4)%(cid:13)A(cid:25)::(cid:25) # !(cid:27)(cid:29)!(cid:29)..$+ !# 1(cid:28)(cid:29)"(cid:13)$(cid:28)%(cid:6) $!(cid:6)(cid:29)(cid:30)(cid:30)(cid:28)(cid:29)"(cid:6)!$(cid:6)(cid:6)(cid:31)$$<# !(cid:27)(cid:28)(cid:29)!+"(cid:28)$(!(cid:27)(cid:28)(cid:31)#(cid:29) #(cid:31)#!1(cid:13)(cid:6)#%!"+(cid:28)!(cid:27)(cid:29)!!(cid:27)(cid:28 cid:31)#(cid:29) #(cid:31)#!1(cid:6)(cid:27)(cid:29)%(cid:6)(cid:6)# .+""(cid:28)!(cid:27)(cid:28)(cid:31)#(cid:29) #(cid:31)#!1#%(cid:29).$ !# +# (cid:31)#(cid:29) #(cid:31)#!1(cid:27)#.(cid:27 cid:28)!.(cid:27)(cid:28)%(cid:6)$(cid:6)#(cid:31)#!1%(cid:30)"(cid:28)(cid:29) $(cid:29)(cid:30)(cid:28)"#$ $(281(cid:28)(cid:29)"%(cid:13 cid:7)" #"(cid:28)+(cid:28)(cid:28)0(cid:30)(cid:28) #!+"(cid:28)(cid:27)#.(cid:27)#%# .+""(cid:28) cid:27)$(cid:31)(cid:31)1(cid:6)(cid:29) +%#(cid:28)(cid:6)(cid:29)(cid:31)(cid:31)$(cid:6)#!#"(cid:28)!1(cid:6)#(cid:27)#.(cid:27)(cid:6 cid:6)# .+""(cid:28)$!(cid:6)(cid:6)$+&(cid:28)"#!!(cid:28)(cid:6)G$(cid:28)"(cid:25)(cid:6)!(cid:27)(cid:28)(cid:6)((cid:29 cid:29)1E+%!#(1(cid:29) (cid:29)%%(cid:28)%%(cid:28)(cid:28)(cid:27)$(cid:27)(cid:29)%# .+""(cid:28) cid:28)0(cid:30)(cid:28) #!+"(cid:28)(cid:6)#(cid:6)(cid:29) %+# (cid:6)((cid:29).!(cid:25)(cid:6)(cid:29)(cid:31)(cid:31)$ # 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Tax levied on land depends upon the nature of practice: Kerala High Court

The tax to be levied upon the owner of the land depends upon the nature of practice being carried out on the land. If by default, the property covered by application filed under Sec.6A of the Kerala Land Tax Act, is the same or part of the property covered by statutory order passed under Rule 6(2) of the KLU Order by the RDO, then fresh assessment of the subject property be made, so as to make correction showing the changed nature of the land. This proclamation was made by the Kerala High Court presided by J. ALEXANDER THOMAS in the case of JAVAD K. HASSAN vs. DR.HAARIS RASHEED [Con.Case(C).No.9 OF 2021 IN WP(C).14486/2020]. The contempt of court case has been filed alleging non-compliance of the directions issued by this Court in judgment of W.P(C)No.14486/2020. Learned Special Government Pleader submits that from the pleadings and materials on record, it appears that the petitioner has already secured proceedings issued by the respondent-Revenue Divisional Officer granting statutory permission for change of user of the land for any non-agricultural purposes in respect of the subject property, in terms of the provisions contained in Rule 6(2) of the Kerala Land Utilization Order. Therefore, consequential action is to be taken under Sec.6A of the Kerala Land Tax Act, for fresh assessment of the subject property, so as to make additional entries in the Basic Tax Register had to be taken by the Tahsildar concerned and not by the RDO. Tahsildar though a party, had not been made a party in the contempt case and further that strict instructions and directives will be given to the Tahsildar concerned to immediately ascertain, as to whether the subject property covered by application filed under Sec.6A of the Kerala Land Tax Act before the Tahsildar is the same or part of the property covered by statutory order passed by the RDO under Rule 6(2) of the KLU Order. It must also be ensured that if the property in both cases was found to be the same, then strict instructions will be given to the Tahsildar to ensure that orders are passed under Sec.6A of the Kerala Land Tax Act, so as to effectuate additional entries to show correctly the changed nature of the land as ‘purayidam/garden land’, etc.

IN THE HIGH COURT OF KERALA AT ERNAKULAM THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS FRIDAY THE 19TH DAY OF FEBRUARY 2021 30TH MAGHA 1942 Con.Case(C).No.9 OF 2021 IN WP(C).14486 2020 AGAINST THE JUDGMENT IN WP(C) 14486 2020(I)DATED 27.07.2020 OF HIGH COURT OF KERALA JAVAD K. HASSAN S O LATE NAGOOR RAWTHER MACKER MANZIL THYNOTHIL LANE ALUVA ERNAKULAM DISTRICT 683101. REPRESENTED BY HIS POWER OF ATTORNEY HOLDER NAGOOR JEHANGIR RAWTHER AGED 62 S O LATE NAGOOR RAWTHER RESIDING AT MACKER MANZIL THYNOTHIL LANE ALUVA ERNAKULAM DISTRICT 683101 BY ADV. SHRI.ESM.KABEER RESPONDENT 1ST RESPONDENT IN THE WRIT PETITION DR.HAARIS RASHEED AGE AND FATHER S NAME NOT KNOWN TO THE PETITIONER) THE REVENUE DIVISIONAL OFFICER FORT KOCHI 682001 SRI.K.J.MOHAMMED ANZAR SPL.GP(REVENUE THIS CONTEMPT OF COURT CASE HAVING COME UP FOR ADMISSION ON 19.02.2021 THE COURT ON THE SAME DAY DELIVERED THE Cont.CaseNo.21 ALEXANDER THOMAS J Cont.CaseNo.21 arising out of judgment dated 27.07.2020 in W.P(C) No.14486 2020 Dated this the 19th day of February 2021 The aforecaptioned contempt of court case has been filed alleging non compliance of the directions issued by this Court in Annexure A1 judgment dated 27.07.2020 in W.P(C)No.14486 2020 filed by the Heard Sri.E.S.M.Kabeer learned counsel appearing for the petitioner and Sri.K.J.Mohammed Anzar learned Special Government Pleaderappearing for the respondent Sri.K.J.Mohammed Anzar learned Special Government Pleadersubmits that from the pleadings and materials on record it appears that the petitioner has already secured Ext.P2 proceedings dated 02.03.1996 issued by the 1st respondent Revenue Divisional Officer granting statutory permission for change of user of the land for any non agricultural purposes in respect of the subject property in terms of the provisions contained in Rule 6(2) of the Kerala Cont.CaseNo.21 Land Utilization Order and that therefore the consequential action is to be taken under Sec.6A of the Kerala Land Tax Act for fresh assessment of the subject property so as to make additional entries in the Basic Tax Register to show correctly the changed nature of the land as garden land purayidam has to be taken by the Tahsildar concernedand not by the RDO has not been made a party in the contempt case and further that strict instructions and directives will be given to the Tahsildar concerned to immediately ascertain as to whether the subject property covered by Ext.P3 application dated 25.06.2020 filed under Sec.6A of the Kerala Land Tax Act before the Tahsildar is the same or part of the property covered by Ext.P2 statutory order dated 02.03.1996 passed by the RDO under Rule 6(2) of the KLU Order and that if the property covered by Ext.P3 application under Sec.6A of the Kerala Land Tax Act is found to be the same or part of the property covered by Ext.P2 order under Rule 6(2) of the KLU Order then strict instructions will be given to the Tahsildar to ensure that orders are passed on Ext.P3 under Sec.6A of the Kerala Land Tax Act so as to effectuate additional entries in the BTR to show Cont.CaseNo.21 correctly the changed nature of the land as purayidam garden land The abovesaid undertakings made on behalf of the Tahsildar concerned are recorded. Accordingly it is ordered that the Tahsildar concerned will ensure that necessary orders are passed on Ext.P3 application filed under Sec.6A of the Kerala Land Tax Act after affording opportunity of being heard to the petitioner and as stated hereinabove and if it is found that the property covered by Ext.P3 application filed under Sec.6A of the Kerala Land Tax Act is the same or part of the property covered by Ext.P2 statutory order passed under Rule 6(2) of the KLU Order by the RDO then fresh assessment of the subject property be made so as to make additional entries in the BTR to show correctly the changed nature of the land as purayidam garden land and not either as Nilam paddy land or as സ(cid:2)ഭ(cid:4)വ വ(cid:7)ത(cid:9)യ(cid:4)ന(cid:12 വര(cid:14)ത(cid:9)യ ഭ(cid:16)മ(cid:9). Action in this regard should be duly completed by the Tahsildar Land Records Aluva who is the 2nd respondent in Annexure A1 W.P(C) No.14486 2020 within six weeks from the date of receipt of a certified copy of this judgment Cont.CaseNo.21 The Registry will return back certified copy of Annexure A1 in W.P(C) No.14486 2020 if a request in that regard is made by the petitioner s counsel. However the Registry will ensure that photocopy of the said document is placed in the original case file for the purpose of maintenance of records. Thereafter if there is any non compliance of the abovesaid directions by the Tahsildar concerned then the petitioner will be at liberty to file fresh contempt of court case in the Accordingly recording the abovesaid submission of the respondent Officer the above Cont.Casewill stand disposed of Sd ALEXANDER THOMAS JUDGE Cont.CaseNo.21 PETITIONER S S EXHIBITS CERTIFIED COPY OF THE JUDGMENT DATED 27 07 2020 IN WPC NO.14486 2020 OF THE HON BLE HIGH COURT OF KERALA

Determination of ‘excess land’ depends upon the status of land during commencement of the Principal Act: Supreme Court

The determination of ‘excess land’ is to be made considering the status of the land at the time of commencement of the Principal Act, and not at the time of filing of the declaration. The section 6 of the Principle Act, which requires the filing of statement before the competent authority for vacant land and ceiling area, states ‘at the commencement of the Act’ in its provision and not the time of filing the declaration. This principle was upheld by the Supreme Court presided by J. MOHAN M. SHANTANAGOUDAR &amp; J. VINEET SARAN in the case of U.A. Basheer Thr. G.P.A. Holder vs. State of Karnataka &amp; Anr. [CIVIL APPEAL NO. 3032 OF 2010]. In the present case, five properties totally measuring 3 acres and 11 cents, situated in Ullal village, Mangalore   Agglomeration, originally belonged to the joint family of two sisters. One had three children and the other had seven children. After their death, the Appellant’s case is that their ten children benefited through a registered partition deed. Through the said partition deed a share of 1983 sq. mts. of land, including land to the extent of 30 cents, children got their share. The Urban Land Act, 1976 came into force in Karnataka and Padmanabha, one of the seven children, filed a statement under Section 6(1) of the Principal Act declaring the particulars of the joint family   property. Thereafter, the   Deputy Commissioner and Competent Authority, Mangalore Urban Agglomeration issued a draft statement under Section 8(1) of the Principal Act to the declarant, i.e., Padmanabha to surrender excess vacant land of 9,489.48 sq. mts. Padmanabha filed objections stating that the individual share of each of the children subsequent to the partition was within the ceiling limit prescribed under the Principal Act. The Competent Authority passed an order holding that the partition deed having been affected subsequent to the commencement of the Principal Act, the same could not be considered as per the Principal Act. Subsequently, the Competent Authority passed an   award   fixing   compensation   for   the   said excess land at Rs.15,630. The Appellant filed a petition under Urban Land Repeal Act, 1999 praying for his name to be restored in the RTC, inter alia on the grounds that the Competent Authority had not issued notice to the Appellant regarding taking of possession of the suit property. The Competent Authority had not taken physical possession of the suit property as on the date of commencement of the Repeal Act. Hence, as per the provisions of the Repeal Act, the proceedings would abate and the Competent Authority could not take further action under the Principal Act. The said petition was rejected by the Competent Authority. Thereafter, the Appellant approached the High Court by way of Writ Petition which was dismissed.  Aggrieved, the  Appellant  came  before  this Court. The honorable court observed, “The determination of ‘excess land’ is to be made considering the status of the land at the time of commencement of the Principal Act, and not at the time of filing of the declaration.   In  our considered opinion, since it is an admitted fact that the partition, if any, was only effected after the Principal Act’s commencement, the Division Bench was correct in holding that the partition deed would not affect the validity of the Competent Authority’s determination of excess land owned by the joint family at the time of commencement of the Act. Hence, to this limited extent, we concur with the findings of the Division Bench.”

dated 26.03.2009 dismissing Writ Appeal No. 7758 of 2003 ULC] filed by the Appellant herein against the order dated 2. The facts leading to this appeal are as follows: Five properties Survey Nos. totally measuring 3 acres and 11 cents situated in Ullal village Mangalore Agglomeration originally belonged to the joint family of two sisters namely Smt. Korapalu three children and Smt. Nemu Sapalyathi had seven children After the death of the two sisters the Appellant’s case is that dated 9.01.1984. Through the said partition deed Smt. Leela Sapalyathi daughter of Smt. Korapalu Sapalyathi allegedly came 3. The Urban Land Act 1976 hereinafter ‘Principal Act’) came into force in Karnataka on 17.02.1976. Padmanabha one of the seven children of Smt Nemu Sapalyathi filed a statement under Section 6(1) of the family property. Thereafter the Deputy Commissioner and Competent Authority Mangalore Urban Agglomeration Respondent No. 2 herein hereinafter ‘Competent Authority’ the declarant i.e. Padmanabha to surrender excess vacant land of 9 489.48 sq. mts which included land falling within Survey family property had been divided through the aforementioned 4. On 5.12.1994 the Competent Authority passed an order holding that the partition deed having been effected on 9.01.1984 i.e. subsequent to the commencement of the declarant be treated as excess vacant land to be surrendered Subsequently on 16.10.1996 the Competent Authority passed an award fixing compensation for the said excess land at Rs.15 630 ­. In the said award it was stated that Gazette notification was made in respect of acquisition of the land on purchase and has been in possession till date. The Appellant 1993­1994 and 1994­1995. The Appellant states that he was unaware of the Competent Authority’s orders dated 5.12.1994 and 16.10.1996 mentioned supra. In April 2001 the Appellant of the RTC. It was at this stage that he noticed that the the Appellant was apprised of the proceedings under the Principal Act and the subsequent orders passed by the had not issued notice to the Appellant regarding taking of possession of the suit property. That in any case the Competent Principal Act. The said petition was rejected by the Competent Writ Petition No. 35449 2001 which was dismissed vide order dated 21.10.2003. The Appellant’s Writ Appeal No. 7758 2003 ULC] before the Division Bench of the High Court was also dismissed vide impugned order dated 26.03.2009 with certain observations. Aggrieved the Appellant has come before this i) That vide partition deed dated 9.01.1984 Smt. Leela Sapalyathi obtained 1983 sq. mts. of land in the joint family Schedule 1 Category D of the Principal Act a person is entitled to hold 2000 sq. mts. of land. In such case the Competent Authority erred in concluding that the declarant Padmanabha fact in light of the partition deed Padmanbha has no right to file of the suit property and therefore the entire proceedings are objections were filed on 1.07.1985. However the Competent had been paid. Since neither compensation had been paid nor possession been taken on the date of coming into force of the Repeal Act i.e. on 8.07.1999 the orders passed by the acre in Survey No. 53 3B2 of Ullal Village have been declared declaration filed by Padmanabha under Section 6(1) of the the said date i.e. sale of suit property to the Appellant without the Principal Act the suit property vests with the Government free from all encumbrances. Accordingly the necessary entries were made in the Government’s name in the RTC. Hence the put forth his objections and the same were considered by the iv) Since the Appellant had not filed the declaration under vi) The order dated 5.12.1994 passed by the Competent Authority is well within jurisdiction. The declaration filed by Proper notices were issued to the declarant at all stages. The submissions on record we find ourselves unable to completely 11. The learned Single Judge dismissed the Appellant’s writ petition on the sole ground that the partition deed dated 9.01.1984 that the Appellant had heavily relied on in furtherance of his submissions was not produced before the “4. It is relevant to observe here that the petitioner a case before the respondent no.2. Even before this Court the petitioner had not filed any document as that of the partition deed to show that the subject 12. The Division Bench on the other hand while dismissing the declarant Padmanabha and his family members had effected would still be subject to the proceedings initiated under the Principal Act. The Division Bench further observed that the filing of the declaration by Padmanabha and thus there was no obligation on the Competent Authority to issue notice to the Competent Authority by ‘every person holding vacant land in excess of the ceiling limit at the commencement of the Act…’ to be made considering the status of the land at the time of of the declaration. In our considered opinion since it is an admitted fact that the partition if any was only effected after the the Act. Hence to this limited extent we concur with the findings 14. We have also given due consideration to the provisions of Section 8 and Section 9 of the Principal Act and in our opinion the aforementioned Sections make it incumbent on the to be heard only to the ‘person concerned’ i.e. the person who as per Section 10(1) of the Principal Act. The Competent 15. Now coming to the question of possession it is the Appellant’s contention that subsequent to the declaration he acquired the suit property from Smt. Leela Sapalyathi by sale property as it was a portion of the 1 983 sq. mts. of the joint “4. All proceedings relating to any order made or immediately before the commencement of this Act before any court tribunal or other authority shall Provided that this section shall not apply to the proceedings relating to sections 11 12 13 and 14 of the principal Act in so far as such proceedings are relatable to the land possession of which has been taken over by the State Government or any person Section 3(1)(a) of the Repeal Act which provides for a savings clause throws light on this by stating that the repeal shall not the concerned State Government. This is further qualified in Section 3(2) which states that vacant land vested in the State not been taken over shall be restored only once any the question of current possession of the suit property is us. This is because if the Appellant does enjoy possession as and possession over the suit property. However neither the title on Smt. Leela Sapalyathi nor the sale deed dated have been produced before this Court. There is thus nothing on record to establish Appellant’s purchase of possession of or pray for abatement of the proceedings which are the subject matter of this appeal being in possession of the suit property award of compensation for the excess land states that the Competent Authority had taken over possession of the suit property with effect from 12.07.1996 i.e. before the passage of the Repeal Act. In our opinion there is nothing on record that the Competent Authority or the Appellant herein. Given the been taken after the proceedings initiated under the Act the order is ceased to have any effect and the perusal of the order discloses that 5 Sy. Nos. were involved in the declaration from the order it is not possible to make out in which survey number the excess land falling within any particular survey possession it would not be in consonance with the order. If really possession has not yet been taken under the repealed Act the petitioner is entitled to continue in possession of the land. All these matter challenging the order under Section 10 filed by the declarant. Notwithstanding the dismissal of the writ appeal or writ petition it is open to the appellant petitioner to work out his remedy in this aspect of the matter and thus set aside the impugned judgment. It was incumbent on the Division Bench to enquire into and settle the questions of fact arising from the present of the suit property and resultantly whether he had the locus the proceedings and prevented the inefficient proliferation of factual finding as to the question of the Appellant’s ownership and possession of the suit property in his judgment dated made a part of the proceedings heretofore. Since the other original owners of the joint family property have accepted the orders of the Competent Authority in so far as they have not questioned the said orders the Division Bench will confine its 22. The appeal stands disposed of accordingly. No order as to

Wife is entitled to maintenance if the husband has sufficient means to provide for the same: Madras High Court

If the wife is unable to maintain herself with her regular income and the husband has sufficient wealth and income, the wife is entitled to maintenance from her husband. A single judge bench of Justice P Velmurugan, while adjudicating the matter in Dr T Subash v. Amsa; [Crl.M.P.No.15222 of 2019], dealt with the issue of maintenance to wife despite paying her alimony. The case of the respondent/wife is that the marriage between the petitioner and the respondent was solemnized on 06.06.1999 as per the Hindu rites and customs at Murugan Temple, Vayaloor, Trichy. Out of their wedlock, they had no issue. The petitioner herein demanded dowry, property, medical higher education, money to build a Clinic and subjected her to cruelty and the respondent is living separately without any support, as her parents passed away and living in a rental house with much difficulty and could not maintain herself. The petitioner herein without getting divorce from the respondent, has got married again, begotten children, constructed a new house, working as ENT Doctor in Dharmapuri Government Hospital and also running a Private Clinic. The respondent living separately for the past 15 years. The petitioner is having properties worth about Rs.2 crores and working as a Government Doctor and earns more than Rs.70,000/- per month, as salary, in addition to that rental income and he has got sufficient means. The respondent requires a sum of Rs.30,000/- per month for maintenance and therefore, she filed maintenance case before the Family Court. The case of the petitioner/husband is that the marriage and reception expenses were borne out only by the petitioner’s parents. After marriage, petitioner pursued his course as House Surgeon at Mysore JSS Medical College and took training at Royapettah Hospital, Chennai and took up higher studies at Ramachandra Medical College. The marriage was not at all consummated. The educational expenses of the petitioner was borne out by the petitioner’s father only. There was no necessity to open a Clinic at that time and petitioner had sufficient property to begin a Clinic. In order to maintain and save their family dignity, compromise was arrived in the petition for divorce filed by the respondent. Learned counsel also submitted that; the respondent filed a divorce petition and also maintenance case in which the parties arrived at settlement and two properties were given to the respondent/wife and also Rs.3 lakhs given to her as permanent alimony. Therefore, as per law, once the wife obtained a permanent alimony, she is not entitled to get any maintenance under Section 125 of Cr.P.C., and the respondent/wife also admitted the same.

Crl.R.C.No.11319IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 30.04.2021CORAM:THE HONOURABLE MR.JUSTICE P.VELMURUGAN Crl.R.C.No.11319andCrl.M.P.No.152219Dr.T.Subash... PetitionerVs.Amsa... RespondentPRAYER: This Criminal Revision Case is filed under Section 397 read with Section 401 of Cr.P.C. to set aside the order made in M.C.No.517 on the file of the Family Court at Dharmapuri dated 26.09.2019 thereby dismissing said case in M.C.No.517. For Petitioner :Mr.Ayyaduraion the file of the Family Court at Dharmapuri against the petitioner husband for maintenance. The learned Judge Family Court at Dharmapuri after enquiry ordered a sum of Rs.21 500 per month to the respondent herein. Challenging the said order passed by the learned Judge Family Court at Dharmapuri the petitioner husband has filed the present revision before this Court.3. The case of the respondent wife is that the marriage between the petitioner and the respondent was solemnized on 06.06.1999 as per the Hindu rites and customs at Murugan Temple Vayaloor Trichy. Out of their wedlock they had no issue. The petitioner herein demanded dowry property medical higher education money to build a Clinic and subjected her to cruelty and the respondent is living separately without any support as her parents passed away and living in a rental house with much difficulty and could not maintain herself. The petitioner herein without getting 2 10 https: www.mhc.tn.gov.in judis Crl.R.C.No.11319divorce from the respondent has got married again begotten children constructed a new house working as ENT Doctor in Dharmapuri Government Hospital and also running a Private Clinic. The respondent living separately for the past 15 years. The petitioner is having properties worth about Rs.2 crores and working as a Government Doctor and earns more than Rs.70 000 per month as salary in addition to that rental income and he has got sufficient means. The respondent requires a sum of Rs.30 000 per month for maintenance and therefore she filed maintenance case in M.C.No.517 before the Family Court Dharmapuri.4. The case of the petitioner husband is that the marriage and reception expenses were borne out only by the petitioner s parents. After marriage petitioner pursued his course as House Surgeon at Mysore JSS Medical College and took training at Royapettah Hospital Chennai and took up higher studies at Ramachandra Medical Collge. The marriage was not at all consummated. The educational expenses of the petitioner was borne out by the petitioner s father only. There was no necessity to open a Clinic at that time and petitioner had sufficient property to begin a Clinic. In 3 10 https: www.mhc.tn.gov.in judis Crl.R.C.No.11319order to maintain and save their family dignity compromise was arrived in the petition for divorce filed by the respondent in H.M.O.P.No.502 and maintenance case in M.C.No.403. As per the compromise 2 storeyed concrete house at Harichandran Koil Street and Bharathipuram 66 feet street consisting of shops and Rs.3 lakhs of cash was given to the respondent as permanent alimony. Therefore maintenance case was filed by the respondent in M.C.No.403 and it was dismissed on 05.12.2003. The respondent is residing at her sister s house and not in a rented house separately. The maintenance case filed by the respondent is not maintainable as the respondent has got permanent alimony by way of properties and cash. 5. The learned Judge Family Court at Dharmapuri failed to consider the factual as well as legal position ordered a sum of Rs.21 500 per month for maintenance which warrant interference of this Court.6. Learned counsel for the petitioner would submit that marriage was 4 10 https: www.mhc.tn.gov.in judis Crl.R.C.No.11319consummated and there is no issue. The respondent filed a divorce petition and also maintenance case in which the parties arrived at settlement and two properties were given to the respondent wife and also Rs.3 lakhs given to her as permanent alimony. Therefore as per law once the wife obtained a permanent alimony she is not entitled to get any maintenance under Section 125 of Cr.P.C. and the respondent wife also admitted the same. The learned Judge Family Court at Dharmapuri failed to appreciate the oral and documentary evidence and wrongly ordered for a sum of Rs.21 500 per month for maintenance. After divorce the petitioner married another girl and that he got children and therefore he has to maintain his family and there is no need to pay any maintenance amount to the respondent herein. Therefore the order passed by the learned Judge Family Court at Dharmapuri is liable to be set aside.7. Learned counsel for the respondent would submit that the respondent filed a petition for divorce in H.M.O.P.No.502 and also filed a maintenance case in M.C.No.403 and his father was alive and though they agreed to give his property but physically they have not handed 5 10 https: www.mhc.tn.gov.in judis Crl.R.C.No.11319over the property and one of the properties were sold by the father of the petitioner himself and petitioner herein has also admitted during the evidence that other house is also old one and in dilapidated condition and for the purpose of safety he is residing with her sister. Further as per the customs the respondent cannot get re married. However the petitioner got re married and he begot children and living joyful life and he himself also admitted that he got properties and also working as a Doctor in Government Hospital as well as running a Private Clinic and getting a sum of more than Rs.75 000 as monthly salary and he has got sufficient means and that he also constructed building and getting rental income from the said building and shops and therefore he has got sufficient means. Whereas the respondent wife is concerned she has no means to maintain herself. Only at the time of evidence in the HMOP they entered into a compromise subsequently the property was sold by the father of the petitioner and the respondent is not enjoying any property. Further in the year 2003 he received a sum of Rs.3 lakhs which is not sufficient to maintain herself and considering prevailing cost of living as on date. The wife is entitled to get maintenance to maintain the status par with her husband and considering the 6 10 https: www.mhc.tn.gov.in judis Crl.R.C.No.11319economical status of the petitioner the learned Judge Family Court at Dharmapuri ordered a sum of Rs.21 500 . There is no merits in the order passed by the learned Judge Family Court at Dharmapuri.8. Heard both sides and perused the materials available on record.9. Admittedly the marriage between the petitioner and the respondent was solemnized on 06.06.1999 and there was no issues and the petitioner left the respondent and though respondent filed the divorce petition they entered into a compromise and no divorce was granted. As such the respondent continued to be as wife of the petitioner. Even otherwise the divorced wife is also entitled to get maintenance. The case of the petitioner is that the respondent wife obtained permanent alimony hence she is not entitled to get maintenance. But the records show that one of the properties alloted to the respondent sold by the father of the petitioner herein and also other properties does not fetch any income for leading day to day life. However the petitioner is a Doctor by profession and also working in Government Hospital and getting a salary for more than Rs.1 lakh in 7 10 https: www.mhc.tn.gov.in judis Crl.R.C.No.11319addition to that earns through private practice and also having movable and immovable properties and also getting rental income. 10. Even though the respondent admitted that she received only Rs.3 lakhs by way of cash in the year 2003 as on date the petitioner is not able to substantiate that the respondent has got sufficient means to maintain herself. Therefore as per Section 125 of Cr.P.C. when the wife unable to maintain herself and husband has got sufficient means wife is entitled to get maintenance.11. Though in this case earlier petition filed for divorce and also maintenance case in M.C.No.403 the parties entered into a compromise. However the evidence shows that the petitioner has to maintain the wife if needed. Hence in this case as stated earlier the respondent wife has no sufficient means to maintain herself and the petitioner husband is having sufficient means. Considering the earlier compromise entered into between the parties and respondent also received Rs.3 lakhs cash for maintenance considering the cost of living prevailing as 8 10 https: www.mhc.tn.gov.in judis Crl.R.C.No.11319on date she is entitled to get maintenance. Therefore the petitioner is liable to pay Rs.15 000 per month and therefore the order passed by the learned Judge Family Court at Dharmapuri is modified from Rs.21 500 per month to Rs.15 000 per month.12. With the above modification the criminal revision case is dismissed. Consequently the connected criminal miscellaneous petition is closed. 30.04.2019Index: Yes NodmToThe Family Court at Dharmapuri9 10 https: www.mhc.tn.gov.in judis Crl.R.C.No.11319P.VELMURUGAN J. dmCrl.R.C.No.11319andCrl.M.P.No.15221930.04.201910 10

Pregnancy beyond 20 weeks, may be medically terminated with prior permission of High Court: Bombay High Court

In cases where pregnancy is a result of physical abuse and the subsequent birth of a child would cause physical disabilities and mental trauma to the pregnant woman, the victim may, with prior permission of the Court, be excused from the 20-week limitation imposed by the Medical Termination of Pregnancy Act. A Division Bench comprising of Justice KK Tated and Justice Abhay Ahuja while adjudicating the matter in X v. State of Maharashtra [WRIT PETITION (L) NO. 11131 OF 2021], dealt with the issue of terminating the pregnancy of a minor at her 23rd week of pregnancy. The petitioner, a minor girl, aged 16 years filed an FIR, under section 376 of the I.P.C. for rape, and under sections 4, 8 &amp; 12 of the Protection of Children for sexual assault and sexual harassment. The victim was raped by accused residing nearby. As a result of sexual offence, the victim became pregnant. Petitioner did not get her menstrual cycle for three months. Petitioner’s mother noted change in the Petitioner’s abdomen area and so took her to local clinic for check-up, where doctor after examination informed Petitioner’s mother that Petitioner was pregnant and sent the Petitioner for medico-legal checkup to R. N. Cooper Hospital. The said test was conducted on 23rd April 2021 and police were informed. Medical examination of Petitioner revealed that, she was pregnant and pregnancy was of 20 weeks gestation. Since the pregnancy had exceeded the statutory period of 20 weeks prescribed under the Medical Termination of Pregnancy Act, 1971 (the “MTP Act”), Petitioner is sought permission from this court to terminate her pregnancy. The learned Counsel for the petitioner relied on a few judgments passed by the Hon’ble Supreme Court as well as different Division Benches of this Court dealing with the issue of granting permission for termination of pregnancy even after the statutory period of twenty weeks provided under the MTP Act was over. He submitted that the mental trauma that the victim petitioner is undergoing because of the pregnancy caused due to the offence of rape was causing. serious injury to her mental health. Besides this, there was inherent risk to her life because of pregnancy at such a tender age.

on 11 05 2021 on 12 05 2. WPL 11131 21.odt IN THE HIGH COURT OF JUDICATURE AT BOMBAYORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITIONNO. 11131 OF 2021 ‘X’Petitioner is seeking permission from this court toterminate her pregnancy.5. We have heard Ms. Padwal the learned Counsel for thepetitioner and Ms. Kantharia the learned GP for theRespondent.6. The learned Counsel for the petitioner relied on a fewjudgments passed by the Hon’ble Supreme Court as well asdifferent Division Benches of this Court dealing with theissue of granting permission for termination of pregnancyeven after the statutory period of twenty weeks providedunder the MTP Act was over. He submitted that the mentaltrauma that the victim petitioner is undergoing because ofthe pregnancy caused due to the offence of rape was causingNikita Gadgil2 12.. on 11 05 2021 on 12 05 2. WPL 11131 21.odtserious injury to her mental health. Besides this there wasinherent risk to her life because of pregnancy at such atender age.7. Considering the various directions issued by theHon’ble Supreme Court as well as by different DivisionBenches of this Court this Court on 6th May 2021 directedthe Medical Board at the Sir J. J. Group of Hospitals andGrant Medical College Mumbai to submit a report aboutpermitting medical termination of Petitioner’s pregnancy tothis Court.8. Today the report of the Committee is tendered beforeus in sealed envelope. The envelope is opened in the court.The report dated 10th May 2021 of the Committee readsthus: “After careful clinical examination ultasonography examination and psychiatricevaluation the committee has come to theopinion that at present no abnormality is detectedin the fetus or the pregnant minor mother.Pregnant minor and her parents do not wish tocontinue the pregnancy. The minorNotwithstanding anything contained in theIndian Penal Codea registeredmedical practitioner shall not be guilty of anyoffence under that Code or under any other law forthe time being in force if any pregnancy isterminated by him in accordance with theprovisions of this Act.(2) Subject to the provisions of sub sectionapregnancy may be terminated by a registeredmedical practitioner —(a) where the length of the pregnancy does notexceed twelve weeks if such medical practitioneris or(b) where the length of the pregnancy exceedstwelve weeks but does not exceed twenty weeks ifNikita Gadgil5 12.. on 11 05 2021 on 12 05 2. WPL 11131 21.odtnot less than two registered medical practitionersare of opinion formed in good faith that—(i) the continuance of the pregnancy would involvea risk to the life of the pregnant woman or of graveinjury to her physical or mental health or(ii) there is a substantial risk that if the child wereborn it would suffer from such physical or mentalabnormalities as to be seriously handicapped.Explanation I.—Where any pregnancy is alleged bythe pregnant woman to have been caused by rape the anguish caused by such pregnancy shall bepresumed to constitute a grave injury to the mentalhealth of the pregnant woman.Explanation II.—Where any pregnancy occurs as aresult of failure of any device or method used byany married woman or her husband for the purposeof limiting the number of children the anguishcaused by such unwanted pregnancy may bepresumed to constitute a grave injury to the mentalhealth of the pregnant woman.(3) In determining whether the continuance of apregnancy would involve such risk of injury to thehealth as is mentioned in sub sectionaccountmay be taken of the pregnant woman’s actual orreasonably foreseeable environment.(4)(a) No pregnancy of a woman who has notattained the age of eighteen years or who havingattained the age of eighteen years is a[mentally illperson] shall be terminated except with theconsent in writing of her guardian.(b) Save as otherwise provided in clausenopregnancy shall be terminated except with theconsent of the pregnant woman.”Nikita Gadgil6 12.. on 11 05 2021 on 12 05 2. WPL 11131 21.odt12. Under Section 3(2)(b) of the MTP Act the maximumperiod of pregnancy is prescribed as twenty weeks. Thecircumstances under which the pregnancy can beterminated are also set out under this Section. One suchcircumstance as mentioned in Section 3(2)(b)(i) is that thetermination of pregnancy is allowed if the continuance ofthe pregnancy involved a risk to the life of the pregnantwoman or grave injury to her physical or mental health.Explanation 1 to this sub section provides that when thepregnancy was caused by rape it was presumed toconstitute a grave injury to the mental health of thepregnant woman. In the instant case this particularcircumstance is clearly existing and there is no doubt thatcontinuance of this pregnancy is causing a grave injury tothe mental health of the petitioner. Apart from this ofcourse considering her tender age of 16 years there is aninherent risk to her life. The only diffculty in the presentcase is that the statutory period of 20 weeks is over.Petitioner has entered into 23rd week of her pregnancy and therefore the MTP Act does not permit medical terminationof pregnancy in such cases.13. However Sub Sectionof Section 5 of the MTP Actcarves out an exception which reads thus :“5. Sections 3 and 4 when not to apply.The provisions of section 4 and so much of theprovisions of sub sectionof section 3 as relate to thelength of the pregnancy and the opinion of not less than tworegistered medical practitioners shall not apply to thetermination of a pregnancy by a registered medicalNikita Gadgil7 12.. on 11 05 2021 on 12 05 2. WPL 11131 21.odtpractitioner in a case where he is of opinion formed in goodfaith that the termination of such pregnancy is immediatelynecessary to save the life of the pregnant woman.”14. A Division Bench of this Courtin Writ Petition Nos.10835 2018 9748 2018 & OS Writ PetitionNo.3172 2018 decided on3.4.2019 has discussed and dealt with similar issue. TheDivision Bench considered various judgments passed by theHon’ble Supreme Court and discussed many issues. Firstand foremost the Division Bench referred to the order ofthe Hon’ble Supreme Court passed in Writ Petition&of Section 3(2)(b) of the MTP Act exist.15. The Division Bench also considered whetherexpression ‘life’ in Section 5 of the MTP Act was to beconstrued narrowly as antithesis to death or physicalsurvival or whether it had to be liberally interpretedadopting the principles of purposive interpretation.Nikita Gadgil8 12.. on 11 05 2021 on 12 05 2. WPL 11131 21.odt16. It was observed in paragraphs 79 and 80 that wherethe continuance of pregnancy poses grave injury to thephysical or mental health of the mother if the pregnantmother is forced to continue with her pregnancy merelybecause the pregnancy had extended beyond the ceiling of20 weeks there would arise a serious affront to thefundamental right of such mother to privacy to exercisereproductive choices to bodily integrity and to her dignity.It was further observed that the principle of liberal orpurposive construction would harmonize the provision inSection 5 of the MTP Act with the constitutional provisions.Based on some Supreme Court judgments the DivisionBench went on to observe that the right to life enshrined inArticle 21 included the right to live with human dignity.17. Considering all these facets the Division Bench held inter alia where a pregnant woman the length of whosepregnancy has exceeded 20 weeks seeks to terminate suchpregnancy on the ground that its continuance would involvegrave injury to her physical or mental health or wherethere is a substantial risk that if the child were born itwould suffer from such physical or mental abnormalities asto be seriously handicapped such pregnant woman will haveto seek permission from the High Court and unless suchpermission is granted no registered Medical Practitionercan terminate such pregnancy.18. It was further held that this Court in exercise of itsextraordinary jurisdiction under Article 226 of theConstitution of India can permit medical termination ofNikita Gadgil9 12.. on 11 05 2021 on 12 05 2. WPL 11131 21.odtpregnancy the length of which exceeds 20 weeks incontingencies set out in clausesandof Section 3(2)(b) of the MTP Act. The Division Bench had directed theState to constitute Medical Boards for this purpose whichdirection appears to have found place in the 2021amendments though yet to be made effective.19. The Division Bench had further held that if medicaltermination of pregnancy was permitted and inspite of thatif the child was born alive then the registered MedicalPractitioner and the hospital concerned was required toassume full responsibility to ensure that such child isoffered best medical treatment available in thecircumstances and in such cases if the parents ofsuch child were not willing to or are not in a position toassume the responsibility for such child then the State andits agencies will have to assume full responsibility for suchchild in the best interests of such child and in accordancewith the statutory provisions of the Juvenile Justice Act.20. In view of the observations made in the aforesaidjudgment of the Division Bench in W.P Nos.10835 2018 9748 2018 & OS W.P.No.3172 2018 applying the ratio guidelines and directions of this judgment to the facts of thecase we are of the considered view that Petitioner will haveto be permitted to undergo medical termination ofpregnancy.21. The report of the committee also mentions that thepregnant minor and her parents have been made aware ofNikita Gadgil10 12.. on 11 05 2021 on 12 05 2. WPL 11131 21.odtthe dangers of continuation of pregnancy as well astermination of pregnancy. 22. Another Division Bench of this Courtin Writ Petition No.6613 2019on 13.6.2019 has dealt with another important issue. It wasobserved in that judgment that since the pregnancy in thatcase was a result of physical abuse and since the FIR waslodged directions were issued for preservation of the tissuesample blood sample of the fetus for carrying out necessarymedical tests including DNA fnger printing mapping andthe Investigating Offcer was directed to forward the sameto the Regional Forensic Laboratory. The learned Counselfor the petitioner submitted that similar directions neededto be issued in the instant case as well.23. Considering the above discussion following order ispassed :ORDERi. The petitioner is permitted to undergo medicaltermination of pregnancy as per Committee’s report dated10th May 2021 at KEM Hospital Mumbai.ii. The Dean of the KEM Hospital Mumbai shall ensure thatthe procedure is performed at a place which satisfes all therequirements of the MTP Rules 2003 and the procedureshall be conducted by the Medical Practitioner who satisfesthe conditions laid down under those rules.Nikita Gadgil11 12.. on 11 05 2021 on 12 05 2. WPL 11131 21.odtiii. The blood sample and tissue sample of the fetus shall bepreserved for the purpose of carrying out necessarymedical tests including DNA and other tests. TheInvestigating Offcer conducting investigation shall ensurethat the samples are forwarded to Forensic ScienceLaboratory and the samples shall be preserved for thepurpose of trial of the offence.iv. In case if the child is born alive the Medical Practitionerwho conducts the procedure will ensure that all necessarymedical facilities are made available to such child for savingit’s life.V. In case if the child is born alive and if the petitioner andher parents are not willing or are not in a position to takeresponsibility of such a child then the State and its agencieswill have to assume full responsibility for such child.vi. Rule is made absolute in the aforesaid terms.vii. No order as to costs.viii. All concerned parties to act on the authenticated copyof this order. Learned A.G.P. is directed to send anauthenticated copy of this order to the Investigating Offcerwho is conducting investigation in the present case.(ABHAY AHUJA J.)(K.K.TATED J.)Nikita Gadgil12 12..

Subsequent purchaser open to challenge readiness and willingness on plaintiff’s part in Specific Performance Suit: Supreme Court

The entire perspective with which the matter regarding the right of the subsequent purchaser to challenge the readiness and willingness on part of the plaintiff was considered by the High Court was clearly erroneous. This was said in the case of Kadupugotla Varalakshmi Versus Vudagiri Venkata Rao &amp; Ors [Civil Appeal No.543 Of 2021] by Mr. Justice Uday Umesh Lalit  Ms. Justice Indira Banerjee Hon’ble Mr. Justice K.M. Joseph in the Supreme Court of India The facts of the case are that a suit seeking specific performance was dismissed by the Trial Court inter alia that the plaintiff had failed to prove the genuineness of the agreement. Subsequently an appeal was filed, where the High Court relying on the case of Jugraj Singh and Another vs. Labh Singh and Others [(1995) 2 SCC 31] held that the plea filed by the plaintiff must always be ready and willing to perform his part of the contract must be available only to the vendor or his legal representatives, but not to the subsequent purchaser. Assailing the judgment of the Trial Court and the High Court, the appellant filed an appeal. The appellant contended that the subsequent purchaser were not taken into account on the premise that it would not be open to a subsequent purchaser to challenge the readiness and willingness on part of the plaintiff. The Apex Court bench referred to the case of Ram Awadh (Dead) vs.Achhaibar Dubey [(2000) 2 SCC428] wherein it was said that “The obligation imposed by Section 16 is upon the court not to grant specific performance to a plaintiff who has not met the requirements of clauses (a), (b) and (c) thereof. A court may not, therefore, grant to a plaintiff who has failed to aver and to prove that he has performed or has always been ready and willing to perform his part of the agreement the specific performance whereof he seeks. There is, therefore, no question of the plea being available to one defendant and not to another. It is open to any defendant to contend and establish that the mandatory requirement of Section 16(c) has not been complied with and it is for the court to determine whether it has or has not been complied with and, depending upon its conclusion, decree or decline to decree the suit. It also noted that the principles laid down in the judgment of Jugraj Singh were not approved in the above case.

IN THE CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO.543 OF 2021 Arising out of SLPNo(s).9175 2020 KADUPUGOTLA VARALAKSHMI APPELLANT(S VERSUS VUDAGIRI VENKATA RAO & ORS. RESPONDENT(S CIVIL APPEAL NO.544 OF 2021 No(s) 1944 2021 O R D E R Application for substitution is allowed These appeals arise out of the judgment and order dated 20 04 2020 passed by the High Court of Andhra Pradesh at Amravati in A.S. No. 531 2008 Civil suit1 seeking specific performance of agreement dated 09.10.2004 was dismissed by the Trial Court holding inter alia that the plaintiff had failed to prove the genuineness of the agreement dated 09.10.2004 and that the appellant herein was a bonafide purchaser for consideration without notice of said agreement dated 09.10.2004 In paragraph 15 onwards of its judgment the Trial Court also noted certain facts touching upon the question of 1 O.S. No.2006 in the Court of Senior Civil Judge Vizianagaram filed by respondent no.1 in both appeals Vudagiri Venkata Rao readiness and willingness on part of the plaintiff In the first appeal arising therefrom the matter was considered by the High Court under Point No.2 in paragraphs 70 to 76 of its judgment as under “POINT No.2: 70. The evidence of the appellant as P.W.1 is that he was ready and willing to perform his part of the contract in terms of Ex.A1. Reasons are assigned while discussing point No.1 that the appellant had established that he was in a position to raise necessary funds to perform his part of the contract under Ex.A1. In Ex.A2 notice he clearly stated that he was ready and willing to perform his part of the contract thereunder and called upon the 1st respondent to perform his part of the contract upon receiving balance sale consideration and to execute a regular sale deed as well as to get it registered References to these circumstances are also made in the plaint though specific averments to the effect that the appellant was always ready and willing to perform his part of the contract are not brought out in the plaint. Nonetheless the manner in which the appellant expressed his readiness and willingness in so many words in the plaint as well as in Ex.A2 notice clarify the situation and making out this 71.The nature of defence of denial of execution of Ex.A1 set up by the 1st respondent without referring or denying that the appellant was always ready and willing to perform his part of the contract is a factor to be considered in this respect. 72. The learned counsel for the appellant placed reliance in Narinderjit Singh vs. North Star Estate Promoters Limited 5 SCC 712 26] in this respect. In given facts and circumstances referring to denial of agreement of sale set up as defence in a suit for specific performance it is observed in this ruling that objection that the plaintiff is not ready and willing to perform his part of the contract under agreement for sale cannot stand. It was thus observed that the defendant could not have raised a plea relating to want of readiness and willingness on the part of the plaintiff to perform his part of the contract 73. Further reliance is placed by the learned counsel for the appellant in this context in Silvey and others vs. Arun Varghese and another[(2008) 11 SCC 45] apart from a judgment of Punjab & Haryana High Court in Santa Singh v. Binder Singh and others 2006 SCC OnLine P&H 442 74. Contentions are also advanced on behalf of the appellant referring to the defence of 3rd respondent who is subsequent purchaser of the suit property under Ex.B4 that she cannot raise such objection. Reliance is placed in this context in M M.S.Investments Madurai and others vs. V. Veerappan and others 9 SCC 660] . In para 6 of this ruling it is observed as under “6. Questioning the plea of readiness and willingness is a concept relatable to an agreement. After conveyance the question of readiness and willingness is really not relevant Therefore the provision of the specific Relief Act 1963 is not 75. In Jugraj Singh and another vs. Labh Singh and others[(1995) 2 SCC 31] in this respect it is observed in para 5 referring to the celebrated judgment in Gomathinayagam Pillai v. Palaniswami Nadar{AIR 1967 SC 868 ] as under “5. This Court in Gomathinayagam Pillai v Palaniswami Nadar quoting with approval Ardeshir casehad held as follows “But the respondent has claimed a decree for specific performance and it is for him to establish that he was since the date of the contract continuously ready and willing to perform his part of the contract. If he failed to do so his claim for specific performance must That plea is specifically available to the vendor defendant. It is personal to him. The subsequent purchasers have got only the right to defend their purchase on the premise that they have no prior knowledge of the agreement of sale with the plaintiff. They are bona fide purchasers for valuable consideration. Though they are necessary parties to the suit since any decree obtained by the plaintiff would be binding on the subsequent purchasers the plea that the plaintiff must always be ready and willing to perform his part of the contract must be available only to the vendor or his legal representatives but not to the 76. Therefore in the light of the above legal position it is not open for the 3rd respondent to raise this plea Thus on the material it has to be held that the appellant did succeed in making out that he was ready and willing to perform his part of the contract under Ex.A1 at all material times against the 1st respondent. Thus this point Thus the submissions advanced on behalf of the appellant i.e subsequent purchaser were not taken into account on the premise that it would not be open to a subsequent purchaser to challenge the readiness and willingness on part of the plaintiff. The High Court had relied upon the decision of this Court rendered in Jugraj Singh and Another vs. Labh Singh and Others2 SCC 31] to come to such conclusion It must be stated here that the principles laid down in Jugraj Singh and Another were not accepted by a larger Bench of this Court. The relevant discussion in paragraph 6 in the case of Ram Awadhby Lrs. and Others vs.Achhaibar Dubey and Another2 SCC428] was as under “6. The obligation imposed by Section 16 is upon the court not to grant specific performance to a plaintiff who has not met the requirements of clauses (b andthereof. A court may not therefore grant to a plaintiff who has failed to aver and to prove that he has performed or has always been ready and willing to perform his part of the agreement the specific performance whereof he seeks. There is therefore no question of the plea being available to one defendant and not to another. It is open to any defendant to contend and establish that he mandatory requirement of Section 16(c) has not been complied with and it is for the court to determine whether it has or has not been complied with and depending upon its conclusion decree or decline to decree the suit. We are of the view that the decision in Jugraj Singh case2 SCC 31] is erroneous.” Learned counsel appearing for the plaintiff respondent no.1 sought to support on facts the conclusion arrived by the High Court on the issue of readiness and willingness However the fact remains that the entire perspective with which the matter was considered by the High Court was clearly erroneous and as the observations made by the High Court in paragraph 76 disclose the High Court went on the footing that it was not open to the appellant i.e. subsequent purchaser to raise any submissions on the issue of readiness and willingness. Thus the judgment under challenge clearly fell in serious error We therefore deem it appropriate to set aside the decision of the High Court and remit the matter for fresh consideration on merits These appeals are therefore allowed the judgment under challenge is set aside and First Appeal being A.S. No.5308 is restored to the file of the High Court to be decided afresh on No order as to costs SECTION XII A 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). 9175 2020 Arising out of impugned final judgment and order dated 20 04 2020 in AS No. 531 2008 passed by the High Court Of Andhra Pradesh At KADUPUGOTLA VARALAKSHMI Petitioner(s VERSUS VUDAGIRI VENKATA RAO & ORS. Respondent(s FOR ADMISSION and I.R. and IA No. 72331 2020 EXEMPTION FROM FILING C C OF THE IMPUGNED JUDGMENT IA No. 75121 2020 PERMISSION TO FILE ADDITIONAL SLP(C) No. 1944 2021Mr. A. Ramalingeswara Rao Sr. Advocate Ms. E. R. Sumathy AOR and Ms. S. Spandana Reddy advocate No. 1944 2021 Mr. Raavi Yogesh Venkata AOR Ms. Snigdha Singh(VIRENDER SINGH COURT MASTERBRANCH OFFICER SIGNED ORDER IS PLACED ON THE FILE

It is not necessary to prove that the mental cruelty is such as to cause injury to the health of the petitioner: Orissa High Court

The mental abuse must not be demonstrated to injure the health of the petitioner. In reaching such a conclusion, the social position, educational level of the parties, the society in which they move must always be taken into consideration, the possibility or otherwise of the parties that already exist together, and all other relevant facts and conditions which cannot or cannot be described exhaustively. The judgment was passed by The High Court of Orissa in the case of Dipak Bhutia Vs the State of Odisha [BLAPL No.5701 OF 2020] by a Single Bench consisting of Hon’ble Shri Justice S.K. Panigrahi. The petitioner has filed the instant application under Section 439 of CrPC seeking bail in connection with a case pending before the court of the learned S.D.J.M., Kamakhyanagar. The petitioner herein is the accused in connection with the alleged commission of offences punishable under Sections 498-A, 294, 323, 307, 506, 34 of I.P.C. The Learned Counsel for the petitioner has submitted that the petitioner has been falsely implicated in the case and the prosecution has failed to establish a prima facie case against the petitioner. The allegations as set out in the FIR are omnibus in nature and there is absolutely no allegation of any specific overt act against the present petitioner. Further, on perusal of the FIR and the statement of the victim, it can be seen that both are contradictory and apart from that offence under Section 307 of I.P.C may not be made out against the petitioner, as no injury in the vital parts of the body of the victim and all the injuries including burn injury are simple in nature. Hence, the petitioner may be granted bail. The Learned Counsel for the respondent pleaded that the petitioner cannot be granted bail as the investigation is still ongoing and while further, explaining the cruelty he referred to the case Neeraj Subhash Mehta Vs. In the State of Maharashtra, the court noted that “cruelty implies harsh and harmful conduct with certain intensity and persistence. It covers acts causing both physical and mental agony and torture or tyranny and harm as well as unending accusations and recrimination reflecting bitterness putting the victim thereof to intense miscarries.”

HIGH COURT OF ORISSA: CUTTACK BLAPL No.5701 OF 2020 In the matter of an application under Section 439 of the Criminal Procedure Code 1973) Dipak Bhutia State of Odisha Opposite Party For Petitioner Mr. Dharanidhar Nayak Senior Advocate and M s. S.K. Das B.K. Das B. Mishra and J. Mitra Advocates For Opposite Party Mr. Karunakar Nayak Additional Standing Counsel Miss. Rajalaxmi Biswal and P. Jena For the Informant) THE HONOURABLE SHRI JUSTICE S.K. PANIGRAHI The petitioner has filed the instant application under Section 439 of CrPC seeking bail in connection with Dhenkanal Tumusingha P.S. Case No.720 corresponding to G.R. Case No. 3120 pending before the court of the learned S.D.J.M. Kamakhyanagar. The petitioner herein is the accused in connection with the alleged commission of offences punishable under Sections 498 A 294 323 307 506 34 of I.P.C. The case of the prosecution is that the complainant got married to the present petitioner on 20.02.2015 as per cast and customary practices. At the time of marriage the complainant’s father had given Rs.5 lakhs and gold ornaments of about 200 gms. 20 bhari) and other household items in the form of dowry. After two years of marriage she was subjected to cruelty seeking demand for more dowry of Rs.10 lakhs and threatened to burn her alive in case of refusal of the same. The village gentry have tried to resolve the dispute between them on many occasions. Pursuant to consistent demand and cruelty meted out to the daughter the complainant’s father has given further Rs. 2 4 lakhs over a few instalments. The complainant has also emphasised that the matter has been resolved in the Tumusingha P.S. wherein the petitioner and his family members have admitted their fault and has promised not to repeat similar mistake again in future. It is further alleged that on 06.06.2020 at about 11 P.M. the petitioner along with mother in law and sister in law of the informant victim abused her and assaulted with her with a sharp wood threatening to take her life. Her mother in law and sister in law applied ‘baidanka’ to her private part which is heinous and inhuman. Subsequently the petitioner poured kerosene on her and set her to fire. However she threw the burning apparels and fled from the spot and somehow saved herself. Thereafter the complainant lodged the FIR in the Tumusingha Police Heard Mr. Dharanidhar Nayak learned Senior Counsel appearing for the petitioner learned Additional Standing Counsel and Miss. Rajalaxmi Biswal learned counsel for the Informant and perused the case records. Learned Senior Counsel for the petitioner Mr. Nayak has submitted that the petitioner has been falsely implicated in the case and the prosecution has failed to establish a prima facie case against the petitioner. The allegations as set out in the FIR are omnibus in nature and there is absolutely no allegation of any specific overt act against the present petitioner. Further on perusal of the FIR and the statement of the victim it can be seen that both are contradictory and apart from that offence under Section 307 of I.P.C may not be made out against the petitioner as no injury in the vital parts of the body of the victim and all the injuries including burn injury are simple in nature. Apart from that though there is allegation of setting fire to her body by pouring kerosene but no burnt clothes are seized by the Police and thus the FIR is concocted. Further the learned counsel has alleged that the complainant is a psychiatric patient which was mentioned when the village gentlemen settled a dispute with a condition that she will go to a doctor for treatment. Therefore the allegations in the FIR are completely false and fabricated. Hence the petitioner may be granted bail. The Investigating Officer has submitted the Case Diary along with the injury report of the complainant. The injury report shows: Burn injury of size 1 burn 2x1 cm2 right snuff box area dorsal thumb caused by fire. Incision 1x0.1x0.1 cm 3 left thumb ventral region simple Trauma and pain over right upper deltoid region and right zygomatic region due to hit by blunt object nature of caused by knife. injury simple. Inching wound of snuffle size on perineal region due to application of poisonous spore. The injury report further fortifies the allegations in the FIR. The document produced by the petitioner also shows that on 25.05.2020 there was settlement between the complainant and the petitioner at Tumusingha P.S. and show cases that the petitioner and his family members subjected the complainant to cruelty within 10 days of In the case of Neeraj Subhash Mehta Vs. The State of Maharashtra1 the Bombay High Court relied on Shobha Rani v. Medhukar Reddi2 and Noorjahan v. State3 and provided an explanation of cruelty. “10. By catena of judgments of this court as well as Apex Court what amounts to cruelty as envisaged by Explanation to Section 498A of IPC is explained. Cruelty 1(Criminal Application No. 12116 in Criminal Appeal No. 5516). 21988 SCR(1) 1010. 3[(2008) 11 SCC 55]. implies harsh and harmful conduct with certain intensity and persistence. It covers acts causing both physical and mental agony and torture or tyranny and harm as well as unending accusations and bitterness putting the victim miscarries….A wilful conduct of such a nature as is likely to propel or compel a married woman to commit suicide or to cause grave injury or danger to her life limb or health is required to be established.” In V. Bhagat v. Mrs. D. Bhagat4 the Supreme Court while dealing with the issue of cruelty in the context of Section 13 of the Hindu Marriage Act observed as under: “17. ...It is not necessary to prove that the mental cruelty is such as to cause injury to the health of the petitioner. While arriving at such conclusion regard must be had to the social status educational level of the parties the society they move in the possibility or otherwise of the parties ever living together in case they are already living apart and all other relevant facts and circumstances which it is neither possible nor desirable to set out exhaustively. What is cruelty in one case may not amount to cruelty in another case. It is a matter to be determined in each case having regard to the facts and circumstances of that case. If it is a case of accusations and allegations regard must also be had to the context in which they were made.... The context and the set up in which the word cruelty has been used in the section seems to us that intention is not necessary element in cruelty. That word has to be understood in the ordinary sense of the term in matrimonial affairs. If the intention to harm harass or hurt could be inferred by the nature of the conduct or brutal act complained of cruelty could be easily established. But the absence of intention should not make any difference in the case if by ordinary sense in human affairs the act complained of could otherwise be regarded as cruelty.” Court held that In Manju Ram Kalita vs. State of Assam5 the Supreme “22. "Cruelty" for the purpose of Section 498A I.P.C. is to be established in the context of Section 498A IPC as it may be a different from other statutory provisions. It is to be determined inferred by considering the conduct of the man weighing the gravity or seriousness of his acts and to find out as to whether it is likely to drive the woman to commit suicide etc. It is to be established that the woman continuously persistently or at least in close proximity of time of lodging the complaint.” In the case of Somnath Bharti vs State6 the Delhi High Court rejected the bail application stating the gravity of the allegations against the petitioner and relied on the following ratio: “42. In case of Preeti Gupta and Another Vs. State of Jharkhand and Another7 the Supreme Court held that the ultimate object of the justice is to find out the truth and punish the guilty and protect the innocent. The tendency of implicating husband and all his immediate 5(2009) 13 SCC 330. 6BAIL APPLN. 1952 2015 & Crl.M.(Bail).No.7749 2015. 7(2010) 7 SCC 667. relations is also not uncommon. At times even after the conclusion of criminal trial it is difficult to ascertain the real truth. The courts have to be extremely careful and cautious in dealing with these complaints and must take pragmatic realities into consideration while dealing with matrimonial cases. The allegations of the complaint are to be scrutinized with great care and circumspection. Experience reveals long and protracted criminal trials lead to rancour acrimony and bitterness in the relationship amongst the parties. It is also a matter of common knowledge that in cases filed by the complainant if the husband or the husband s relations had to remain in jail even for a few days it would ruin the chances of amicable settlement altogether. The process of suffering is extremely long and painful. Therefore it is high time that the legislature must take into consideration the pragmatic realities and make suitable changes in the existing law. It is imperative for the legislature to take into consideration the informed public opinion and the pragmatic realities in consideration and make necessary changes in the relevant provisions of law.” In the instant case the investigation is still going on. From perusal of the FIR it appears that offences under the Indian Penal Code are prima facie definitely made out though it requires thorough trial. A perusal of the FIR and charge sheet filed in the present case shows that there are very specific allegations against each of the family members of the petitioner who are arrayed as accused. It is not as if the allegations are casual and sweeping against all the accused generally. 13. There are numerous other allegations as well in the charge sheet which are very detailed and need not be reproduced since the above extracts are sufficient to indicate that the allegations are specific and not of a general nature. Upon reading of the FIR and the charge sheet as a whole it is not possible to come to the conclusion that they do not make out even a prima facie case against the petitioner for the offences in question. While it is true that even the distant relatives of the husband have been roped in this must be viewed in the context of the fact that the extended family does live in villages within Odisha and the prevalent social milieu and that setting does facilitate their constant interaction. Moreover the allegations are specific qua each of them. The length of detention of the petitioner is not a ground for release him on bail in this kind of offence which shakes the social fabrics. Even the allegation of psychological illness of the complainant victim does not give the petitioner and his family members the handle to treat her like slave bereft of any mercy and human compassion. Therefore I am not inclined to enlarge the petitioner on bail. In view of the above this Bail Application is accordingly dismissed. However the petitioner will be at liberty to raise all the points already raised in this petition at the time of framing of the 9 charge which will be considered by the trial court concerned by passing a reasoned order. It is further made clear that any of the observations made in this judgment shall not come in the way of a fair trial of the case nor shall the trial Court be influenced by these S.K. PANIGRAHI J.] Orissa High Court Cuttack The 5th February 2021 AKK LNB AKP

Bar of Section 37 is not attracted for offenses alleged U/S 9A/25 A of the NDPS Act: High Court of Delhi

Section 9A which deals with controlled substances is concerned, there is no categorization of small quantity or commercial quantity. Therefore, the concept of commercial quantity is applicable only to narcotic drugs and psychotropic substances and not to controlled substances and the bar of Section 37 is not attracted in the present case as the substance recovered is a controlled substance within the meaning of Section 2 (viid) of the Act. This was held in NASTOR FARIRAI ZISO  V. NCB [BAIL APPLN. 1960/2020] in the High Court of Delhi by a single bench consisting of JUSTICE RAJNISH BHATNAGAR. Facts are that on the basis of secret information, the petitioner was apprehended at IGI Airport when she was going to Zambia and 19.3 Kg. of pseudoephedrine hydrochloride was recovered from her baggage. The petitioner accused in her statement u/s 67 N.D.P.S. Act admitted the bags concealing the said bags were given by her friend IKE. Petitioner has filed a petition under Section 439 Cr.P.C. for grant of regular bail. The counsel for the petitioner submitted that the charges have been framed and the long incarceration of the petitioner would not serve any purpose. The alleged recovered substance is a controlled substance and the bar under section 37 of the NDPS Act for granting bail will not be attracted in the present case, the investigation has been completed, and the petitioner is a respectable foreign citizen and there is no possibility of petitioner fleeing from justice as her passport was seized. The for the respondent submitted that during her voluntary statement under section 67, NDPS Act she had admitted that the said drugs which were recovered from her possession were given to her by IKE, the petitioner is charged of offense for trafficking of Pseudo-Ephedrine which is used in the production of narcotic drugs/ psychotropic substance. Crucial witnesses are yet to be examined under trial and the petitioner is a foreign national and may jump bail and abscond. The respondent (NCB) relied upon Union of India Vs. Prateek Shukla. The court referred to the order of the Apex Court in the case of “Sartori Livio vs. State”, wherein the following observations were made,  “Personal liberty, deprived when bail is refused, is too precious a value of our constitutional system recognized under Art. 21 that the curial power to negate it is a great trust exercisable, not casually but judicially, with a lively concern for the cost to the individual and the community.” It was further held that “deprivation of personal freedom, ephemeral or enduring, must be founded on the most serious considerations relevant to the welfare objectives of society, specified in the Constitution.” The court also made reference to the order of the Delhi High Court in the case of “Sartori Livio vs. State”, wherein the following observations were made, “It would be a shame if courts are going to keep persons incarcerated merely because they are of foreign origin even though prima facie no case is made out against them. This would be a negation of the valued principles of rule of law and violative of the constitutional mandate and principles of human rights.”

IN THE HIGH COURT OF DELHI AT NEW DELHI Pronounced on : 20.04.2021 BAIL APPLN. 1960 2020 NASTOR FARIRAI ZISO Through: Mr. Ajay Verma Advocate Through: Mr. Subhash Bansal Adv. Sr Standing counsel for NCB with Mr. Sushant Bansal Adv HON BLE MR. JUSTICE RAJNISH BHATNAGAR RAJNISH BHATNAGAR J By way of this order I shall dispose of the present petition filed under Section 439 Cr.P.C. on behalf of the petitioner for grant of regular bail in SC No. 4119 arising out of FIR No. VIII 27 DZU 2019 Under Section 9A 25A of the Narcotic Drugs And Psychotropic Substances Act 1985 PS. Narcotics Control BureauNew Delhi Brief facts of the case that on 13.07.2019 on the basis of secret information the petitioner accused was apprehended at IGI Airport when she was going to Zambia and 19.3 Kg. of pseudoephedrine hydrochloride was recovered from her baggage. The petitioner accused in her statement BAIL APPLN. 1960 2020 u s 67 N.D.P.S. Act admitted the recovery and disclosed that she came to India on request of her friend and the bags concealing the said bags was given by her friend IKE I have heard the Ld. counsel for the petitioner Ld. Sr. Standing Counsel for the respondentand perused the records of this case It is submitted by the Ld. counsel for the petitioner accused that the petitioner is in custody since her date of arrest on 13.07.2019 and the charges have already been framed and the long incarceration of the petitioner would not serve any fruitful purpose. It is also submitted that the alleged recovered substance i.e. Pseudo Ephedrine is a controlled substance and the bar under section 37 of the NDPS Act which provides for bar for granting bail will not be attracted in the present case as the same is applicable only in offences involving commercial quantity which refers to only narcotic drug and psychotropic substance and the substance alleged to be recovered from the petitioner is neither a narcotic drug nor psychotropic substance and is a controlled substance under the NDPS Act. He further submits that NCB officials after conducting the investigation have filed the police report before the Ld. Trial Court and the investigation has been completed and the petitioner is no more required by the investigating agency and the present matter is at the initial stage of prosecution evidence therefore there is very likelihood that the conclusion of the trial shall take time. He further submitted that the petitioner is a respectable foreign citizen and there is no possibility of petitioner fleeing from justice as her passport was seized at the time of investigation by the IO at NCB on the date of arrest BAIL APPLN. 1960 2020 and therefore there is no chance of the petitioner leaving India and the petitioner does not have any criminal antecedents and is not previous convict in any case Ld. Counsel for the petitioner has relied upon following Judgments:  Gudikanti Narasimhulu and Others vs. Public Prosecutor 1978 AIR  Rajesh Sharma v Directorate of Revenue Intelligence 2018 SCC Del 12372 Decided on 14.8.2018  Sri. Vastavayi Siva Ramakrishna Paratna Varma vs. The State of Karnataka criminal Petition no. 200880 2017 Decided on 16.8.2017  Madderia Shankar vs State of Karnataka Criminal Petition No 200811 2017 Decided on 1.08.2017  Manoj Kumar Vs Director of Revenue Intelligence 2015 BAIL.A.257 2015 Decided on 03.03.2015 SCC 7830219 DLT  Niranjan Jayantilal Shah v. Directorate of Revenue Intelligence Bail Appln. 1202 2013 2013 SCC Online Del 4608  G. M. Akbar Ali V. The Intelligence Officer Crl. O.P. No. 263210 Decided on 19.11.2010  Rafael Palafox Garcia v The Union of India and Anr. Criminal Application no. 2015 2008  Lambert Kroger vs. State 2000 SCC Online Del 208  Sartori Livio vs. State 2005DRJ 482  Nasimjon Komlov v. Customs CRLM(M) No. 2038 2000 Decided on BAIL APPLN. 1960 2020 On the other side while opposing the bail of the petitioner Ld. Sr Standing Counsel submitted that during her voluntary statement the accused was within her knowledge and had deposed under section 67 NDPS Act and admitted that the said drugs which were recovered from her possession was given to her by IKE which had to be handed over to Jonathan at Zambia. It is also submitted by Ld. Sr. Standing Counsel that petitioner accused is charged of offence for trafficking of Pseudo Ephedrine which is used in production of narcotic drugs psychotropic substance. It is further submitted that all crucial witnesses are yet to be examined under trial and if petitioner accused is released on bail the petitioner accused may influence the witnesses and petitioner accused is a foreign national and may jump the bail and abscond. Ld. Sr. Standing Counsel for the respondenthas relied upon “Union of India Vs. Prateek Shukla” Criminal Appeal No 2821 decided by the Supreme Court of India on March 08 2021 The offences alleged against the petitioner are U s 9A 25 A of the NDPS Act. First and foremost question is whether rigors U s 37 of the NDPS Act applies to the case of the petitioner or not The present petitioner is facing prosecution for charges U s 9A and 25 A of the NDPS Act and hence obviously her case would not be covered U s 37 of the NDPS Act. Moreover as far as Section 9A which deals with controlled substance is concerned there is no categorization of small quantity or commercial quantity Therefore concept of commercial quantity is applicable only to narcotic drugs and psychotropic substances and not to controlled substance BAIL APPLN. 1960 2020 Section 9A of the NDPS Act deals with the power to control and regulate controlled substance. "Controlled substance" means any substance which the Central Government may having regard to the available information as to its possible use in the production manufacture of narcotic drugs or psychotropic substances or to the provisions of any international Convention by notification be a controlled in the official Gazette declare substance. The Ministry to of Finance Department of Revenue vide its notification dated 28th December 1999 has declared pseudo ephedrine a controlled substance under the Act. The Central Government being of the opinion that having regard to the use of the controlled substances in the production or manufacture of any narcotic drug or psychotropic substance it is necessary or expedient so to do in the public interest in exercise of powers conferred by Section 9A of the Act has made the Narcotic Drugs and Psychotropic SubstancesOrder 1993 which has come into force w.e.f. 15th April 1993 petitioner accused is 19.3 Kg. of pseudoephedrine hydrochloride which is a It has been rightly submitted by the Ld. counsel for the petitioner accused that it is neither a narcotic drug nor a psychotropic substance under the NDPS Act. The alleged offences are not punishable with death or imprisonment for life. The offence falling U s 9A r w section 25A of the NDPS Act is punishable with imprisonment which may extend to 10 years and also fine which may also extend to Rs. 1 Lakh and the bar of Section 37 is not attracted in the present case as the substance recovered is a controlled substance within the meaning of Section 2of the Act BAIL APPLN. 1960 2020 The next point for consideration is whether the petitioner accused who is a foreign national is entitled to be released on bail if she is able to make out a case in her favour. The counsel for the petitioner has placed reliance upon “Gudikanti Narasimhulu and Others Vs. Public Prosecutor” 1978 AIR SC 429 in which it has been held as follows Personal liberty deprived when bail is refused is too precious a value of our constitutional system recognised under Art. 21 that the curial power to negate it is a great trust exercisable not casually but judicially with lively concern for the cost to the individual and the community." It was further held that deprivation of personal freedom ephemeral or enduring must be founded on the most serious considerations relevant to the welfare objectives of society specified in the Constitution.” Ld. counsel for the petitioner accused has also relied upon “Sartori Livio vs. State” 2005DRJ 482 in which it has been held as follows It would be a shame if courts are going to keep persons incarcerated merely because they are of foreign origin even though prima facie no case is made out against them. This would be a negation of the valued principles of rule of law and violative of the constitutional mandate and principles of human rights It was further added by the Hon ble Court that In view of this judgment with which I am in agreement it is clear that just because a foreign national is involved it does not mean that he is to be denied the benefit of bail. Therefore in view of the judgmentsrelied upon by the Ld counsel for the petitioner accused there is no bar for releasing foreign national on bail if the case so warrants BAIL APPLN. 1960 2020 It has also been argued by the Ld. counsel for the petitioner that in cases where the controlled substance recovered was even much larger then that recovered from the petitioner accused even in those cases the bail have been granted and he has placed reliance upon “Niranjan Jayantilal Shah Vs. Directorate of Revenue Intelligence” decided on 19.11.2013this Court granted bail to the accused where the recovery of the same controlled substances was of 100 Kg. This decision referred to had relied upon several other decisions of the Court where the recovery of much larger quantities of controlled substances have been made Reliance can also be placed upon the judgment of this Court “Manoj Kumar Vs. Directorate of Revenue Intelligence” 2015 SCC On Line Delhi 7830 16. As far as the judgment Union of India Vs. Prateek Shuklais the same is not applicable to the facts of the present case as in the said case the sections involved were sections 8 9A 25A 23 and 29 of the NDPS Act which is not so in the present case 17. As already observed hereinabove bar of section 37 of the NDPS Act is not applicable. Therefore keeping in view the entire facts and circumstances the petitioner accused who is in J.C. since 13.07.2019 is admitted to bail on her furnishing personal bond in the sum of Rs.1 00 000 with two solvent sureties each of the like amount subject to the satisfaction of the trial Court. Being released on bail the petitioner shall inform the NCB Office the address at which she will reside during the period she is on bail. Any change in the address shall also be communicated to the NCB BAIL APPLN. 1960 2020 Office within 2 days. The petitioner shall report to the NCB office once in a week till the conclusion of the trial. The petitioner shall not leave the limits of NCT of Delhi without prior permission of the Trial Court. With these directions the application stands disposed of 18. Nothing stated hereinabove shall tantamount to the expression of any opinion on the merits of this case RAJNISH BHATNAGAR J APRIL 20 2021 BAIL APPLN. 1960 2020 Page

A Major Unmarried Daughter is not entitled to claim Maintenance from Father u/s 125 of Crpc: Supreme Court of India

An unmarried daughter who is not suffering from any physical or mental abnormality and has attained majority is not entitled to claim maintenance from her father u/s 125 of Crpc held by a three-judge bench comprising of Hon’ble Justices Ashok Bhushan, Subhash Reddy, and M.R. Shah in a landmark judgement Abhilasha vs. Prakash [Crl. Appeal No. 615 of 2020]. Facts related to this case is: The respondent No.2, mother of the appellant, on her behalf, as well as on behalf of her two sons and the appellant daughter, filed an application under Section 125 Crpc. against her husband, respondent No.1, Prakash, claiming maintenance for herself and her three children. The question raised from this case is whether a Hindu unmarried daughter is entitled to claim maintenance from her father u/s 125 Crpc only till she attains majority or she can claim maintenance till she remains unmarried? It was observed by the Hon’ble Court that “The Act, 1956 was enacted to amend and codify the law relating to adoptions and maintenance among Hindus. A bare perusal of Section 125(1) Crpc. as well as Section 20 of Act, 1956 indicates that whereas Section 125 Crpc. limits the claim of maintenance of a child until he or she attains majority. By virtue of Section 125(1) (c), an unmarried daughter even though she has attained majority is entitled for maintenance, where such unmarried daughter is by reason of any physical or mental abnormality or injury is unable to maintain itself. The Scheme under Section 125(1) Crpc. thus, contemplate that claim of maintenance by a daughter, who has attained majority is admissible only when by reason of any physical or mental abnormality or injury, she is unable to maintain herself.” It was further observed by the Hon’ble Court that “Section 20 of Hindu Adoptions and Maintenance Act, 1956 cast a statutory obligation on a Hindu to maintain his daughter who is unmarried and unable to maintain herself out of her own earnings or other property. As noted above, Hindu Law prior to the enactment of Act, 1956 always obliged a Hindu to maintain an unmarried daughter, who is unable to maintain herself. The obligation, which is cast on the father to maintain his unmarried daughter, can be enforced by her against her father if she is unable to maintain herself by enforcing her right under Section 20.” It was held by the Hon’ble Court that “The purpose and object of Section 125 Crpc. as noted above is to provide immediate relief to an applicant in a summary proceeding, whereas right under Section 20 read with Section 3(b) of Act, 1956 contains larger right, which needs determination by a Civil Court, hence for the larger claims as enshrined under Section 20, the proceedings need to be initiated under Section 20 of the Act and the legislature never contemplated to burden the Magistrate while exercising jurisdiction under Section 125 Crpc. to determine the claims contemplated by Act, 1956.” Finally, the appeal has been dismissed by giving liberty to the appellant to take recourse to section 20(3) of the act, 1956. Click here to read the judgement

IN THE CRIMINAL APPELLATE JURISDICTION arising out of SLPNo.8260 2018 NO. 615 of 2020 ...APPELLANT(S) PARKASH & ORS ...RESPONDENT(S J U D G M E N T BHUSHAN J Leave granted. This appeal has been filed by the appellant daughter of respondent Nos. 1 and 2 challenging the order of the High Court of Punjab and Haryana at Chandigarh dated 16.08.2018 by which order the High Court dismissed the application under Section 482 Cr.P.C. filed by the appellant praying for setting aside the order of the Judicial Magistrate First Class Rewari dated 16.02.2011 as well as the order dated 17.02.2014 passed by the Additional Sessions Judge Rewari. The brief facts necessary to be noticed for deciding this appeal are: 3.1 The respondent No.2 mother of the appellant on her behalf as well as on behalf of her two sons and the appellant daughter filed an application under Section 125 Cr.P.C. against her husband the respondent No.1 Parkash claiming maintenance for herself and her three children. The learned Judicial Magistrate vide its judgment dated 16.02.2011 dismissed the application under Section 125 Cr.P.C. of the applicant Nos. 1 2 and 3 and allowed the same for applicant No.4 appellant before us) for grant of maintenance till she attains majority. 3.2 Aggrieved against the judgment dated 16.02.2011 all the four applicants filed a criminal revision before the Court of Sessions Judge which criminal revision was dismissed by learned Additional Sessions Judge by order dated 17.02.2014 with the only modification that revisionist No.4shall be entitled to maintenance till 26.04.2005 when she attains majority Learned Additional Sessions Judge held that as per provision of Section 125 Cr.P.C. the children who had attained majority are entitled to maintenance if by reason of any physical or mental abnormality or injury they are unable to maintain themselves Learned Additional Sessions Judge also held that the revisionist No.4is not suffering from any physical mental abnormality or injury therefore she is entitled to maintenance only till 26.04.2005 i.e. till she attains majority. 3.3 Challenging the order of Sessions Judge as well as the Judicial Magistrate an application under Section 482 Cr.P.C. was filed before the High court by all the applicants including the appellant. High Court by the impugned judgment dated 16.02.2018 dismissed the application filed under Section 482 Cr.P.C. by making following “Both the Courts are consistent with regard to petitioners No. 1 to 3. As regards grant of maintenance to Abhilasha by the trial Court the order regarding it was modified by learned Additional Sessions Judge Rewari observing that she was entitled to get maintenance till attaining majority and not thereafter since she is not suffering from any physical or mental abnormality or injury in those eventualities a child who though has attained majority but is unable to maintain itself is entitled to get maintenance. I do not find any illegality or infirmity in the judgment passed by learned Additional Sessions Judge Rewari which might have called for interference by this Court while exercising jurisdiction under Section 482 Cr.P.C. Therefore the petition stands dismissed.” 3.4 This appeal has been filed challenging the judgment of the High Court Ms. Vibha Datta Makhija learned senior counsel appearing for the appellant submits that even though the appellant had attained majority on 26.04.2005 but since she is unmarried she is entitled to claim maintenance from her father. Learned senior counsel contends that High Court committed error in dismissing the application filed under Section 482 Cr.P.C. of the appellant on wrong premise that since appellant has attained majority and is not suffering from any physical or mental abnormality she is not entitled for any maintenance. Ms. Makhija has relied on provisions of Section 20 of the Hindu Adoptions Maintenance Act 1956 and submits that as per Section 20 obligation of a person to maintain his daughter who is unmarried extends till she is married. Ms Makhija relies on judgment of this Court in Jagdish Jugtawat Vs. Manju Lata and Others 5 SCC 422 in support of her submission. She submits that High Court committed error in taking a contrary view to the above judgment of this Court. Ms. Makhija submits that appellant is still unemployed hence she is entitled to claim maintenance from her father Learned counsel for the respondent refuting the submission of the learned senior counsel for the appellant contends that Courts below have rightly confined the claim of the maintenance of the appellant till she attains majority on 26.04.2005 It is submitted that as per Section 125 Cr.P.C entitlement to claim maintenance by daughter who has attained majority is confined to case where the person by reason of any physical or mental abnormality or injury unable to maintain herself Revisional Court has returned a finding that there is no case that appellant is by reason of any physical or mental abnormality or injury is unable to maintain herself. It is submitted that High Court has rightly dismissed the application filed under Section 482 Cr.P.C. of the appellant since no case was made out to interfere in orders passed by the Judicial Magistrate and learned Revisional Court in exercise of jurisdiction under Section 482 Cr.P.C. We have considered the submissions of the learned counsel for the parties and have perused the records From the submissions of the learned counsel for the parties following two questions arise for consideration in this appeal: Whether the appellant who although had attained majority and is still unmarried is entitled to claim maintenance from her father in proceedings under Section 125 Cr.P.C. although she is not suffering from any physical or mental abnormality injury Whether the orders passed by learned Judicial Magistrate as well as learned Revisional Court limiting the claim of the appellant to claim maintenance till she attains majority on 26.04.2005 deserves to be set aside with direction to the respondent No.1 to continue to give maintenance even after 26.04.2005 till the appellant remains unmarried Both the questions being interconnected we proceed to take them together. Application under Section 125 Cr.P.C. was filed on 17.10.2002 by the applicants including the appellant as applicant No.4 against Parkash father of the appellant. The date of birth of the appellant being 26.04.1987 she was minor at the time when the application was filed Learned Judicial Magistrate allowed the application of the appellant for maintenance till she attains majority. Learned Revisional Court has also affirmed the judgment with modification that appellant was entitled to receive maintenance till 26.04.2005 instead of 07.02.2005 which is date when she attains majority. In support of application under Section 125 Cr.P.C. applicant had examined Surya Dev Pandey as PW1 Chunni Lal Saini as PW2 Vikas Saini as PW3 and Dr. Raj Saini as PW4. The claim of the applicant Nos. 1 2 and 3 was rejected which was also affirmed by Courts below and is not subject matter of this appeal. The question to be answered in the present case is as to whether a Hindu unmarried daughter is entitled to claim maintenance from her father under Section 125 Cr.P.C. only till she attains majority or she can claim maintenance till she remains unmarried Section 125(1) Cr.P.C. which is relevant for the present case is as follows: “125. Order for maintenance of wives children and parents. If any person having sufficient means neglects or refuses to maintain a) his wife unable to maintain herself or b) his legitimate or illegitimate minor child whether married or not unable to maintain itself or c) his legitimate or illegitimate child who has attained majority where such child is by reason of any physical or mental abnormality or injury unable to maintain itself or d) his father or mother unable to maintain himself or herself 10. The claim of maintenance of applicant No.4 was filed at the time when she was minor. During pendency of the application she became major on 26.04.2005. The learned Judicial Magistrate therefore allowed the application of the appellant for maintenance till she attains majority on 26.04.2005. 11. Learned counsel for the appellant contends that the appellant is entitled to receive maintenance till she remains unmarried but said argument was rejected only on the ground that appellant is not suffering from any physical or mental abnormality or injury therefore she is not entitled for maintenance. The provision on which learned counsel for the appellant has placed reliance i.e. Section 20 of the Hindu Adoptions and Maintenance Act 1956 needs to be noted which provides for maintenance of children and aged parents which is as follows: “20. Maintenance of children and aged parents.— Subject to the provisions of this section a Hindu is bound during his or her lifetime to maintain his or her legitimate or illegitimate children and his or her aged or infirm parents 2) A legitimate or illegitimate child may claim maintenance from his or her father or mother so long as the child is a minor 3) The obligation of a person to maintain his or her aged or infirm parent or a daughter who is unmarried extends in so far as the parent or the unmarried daughter as the case may be is unable to maintain himself or herself out of his or her own earnings or other property. Explanation.— In this section “parent” includes a childless step mother.” 12. The Act 1956 was enacted to amend and codify the law relating to adoptions and maintenance among Hindus. A bare perusal of Section 125(1) Cr.P.C. as well as Section 20 of Act 1956 indicates that whereas Section 125 Cr.P.C. limits the claim of maintenance of a child until he or she attains majority. By virtue of Section 125(1)(c) an unmarried daughter even though she has attained majority is entitled for maintenance where such unmarried daughter is by reason of any physical or mental abnormality or injury is unable to maintain itself. The Scheme under Section 125(1) Cr.P.C. thus contemplate that claim of maintenance by a daughter who has attained majority is admissible only when by reason of any physical or mental abnormality or injury she is unable to maintain herself. In the present case the Revisional Court has returned a finding that appellant is not suffering from any physical or mental abnormality or injury due to which she is unable to maintain herself. The above findings are not even questioned before us. What is contended that even if she is not suffering from any physical or mental abnormality or injury by virtue of Section 20 of Act 1956 she is entitled to claim maintenance till she is unmarried 13. For answering the question as noted above we need to examine the nature extent and scope of Section 125 Cr.P.C. In the Code of Criminal Procedure 1898 Section 488 Cr.P.C. was the provision governing the maintenance of wife or legitimate or illegitimate child of any person Section 488(1) Cr.P.C. provided “488(1). If any person having sufficient means neglects or refuses to maintain his wife or his legitimate or illegitimate child unable to maintain itself the District Magistrate a Presidency Magistrate a Sub divisional Magistrate or a Magistrate of the first class may upon proof of such neglect or refusal order such person to make a monthly allowance for the maintenance of his wife or such child at such monthly rate not exceeding five hundred rupees in the whole as such Magistrate thinks fit and to pay the same to such person as the Magistrate from time to time directs.” 14. Section 488 Cr.P.C. sought to inhibit negligence of woman and children with intent to serve a social purpose. The provision provided for summary proceeding to enable a deserted wife or helpless child legitimate or illegitimate to get urgent relief. The laws are nothing but collective consciousness of community. It is in the interest of the community and social order that woman and child who are neglected be maintained and should be provided a forum to obtain urgent relief to enable them to sustain. 15. This Court in Nanank Chand Vs. Chandra Kishore Aggarwal and Others 3 SCC 802 had occasion to consider the provision of Section 488 Cr.P.C. 1898 The Court had occasion to consider the nature of proceedings under Section 488 Cr.P.C. in reference to provisions of Hindu Adoptions and Maintenance Act 1956 which provided for overriding effect of Act Section 4 of the Act 1956 is to the following “Section 4. Overriding effect of Act Save as otherwise expressly provided in this Act a) any text rule or interpretation of Hindu law or any custom or usage as part of that law in force immediately before the commencement of this Act shall cease to have effect with respect to any matter for which provision is made in this Act any other law in force immediately before the commencement of this Act shall cease to apply to Hindus in so far as it is inconsistent with any of the provisions contained in this Act.” 16. In Nanak Chand’s case the question arose as to whether by virtue of Section 4 of Act 1956 the provision of Section 488 Cr.P.C. shall be overridden In the above case this Court explained the provisions of Section 488 Cr.P.C. as well as Section 20 of the Act 1956. This Court held that there is no inconsistency between Section 488 Cr.P.c. and the Hindu Adoptions and Maintenance Act and both can stand together. This Court further held that Section 488 Cr.P.C. provides a summary remedy and is applicable to all persons belonging to all religions and has no relationship with the personal law of the parties. Following was laid down in paragraph 4 “4.....The learned Counsel says that Section 488 Cr.P.C. insofar as it provides for the grant of maintenance to a Hindu is inconsistent with Chapter III of the Maintenance Act and in particular Section 20 which provides for maintenance to children. We are unable to see any inconsistency between the Maintenance Act and Section 488 Cr.P.C. Both can stand together. The Maintenance Act is an act to amend and codify the law relating to adoptions and maintenance among Hindus The law was substantially similar before and nobody ever suggested that Hindu Law as in force immediately before the commencement of this Act insofar as it dealt with the maintenance of children was in any way inconsistent with Section 488 Cr.P.C. The scope of the two laws is different. Section 488 provides a summary remedy and is applicable to all persons belonging to all religions and has no relationship with the personal law of the parties. Recently the question came before the Allahabad High Court in Ram Singh v State AIR 1963 All 355 before the Calcutta High Court in Mahabir Agarwalla v. Gita Roy 2 Cr. L.J.528 and before the Patna High Court in Nalini Ranjan v. Kiran Rani AIR 1965 Pat 442 The three High Courts have in our view correctly come to the conclusion that Section 4(b) of the Maintenance Act does not repeal or affect in any manner the provisions contained in Section 488 17. In Nanak Chand this Court had approved the judgments of Allahabad High Court in Ram Singh Vs. State AIR 1963 All 355 judgment of Patna High Court in Nalini Ranjan Vs. Kiran Rani AIR 1965 Pat 442 and judgment of Calcutta High Court in Mahabir Agarwalla Vs. Gita Roy 2 Cr. L.J.528. This Court in Mst. Zohara Khatoon Vs. Mohd. Ibrahim 1981) 2 SCC 509 after noticing the judgment of this Court in Nanak Chand’s case extracted relevant portions of judgments of Ram Singh Mahabir Agarwalla and Nalini Ranjanwhich were approved by this Court in Nanak Chand. In Ram Singh’s case Allahabad High Court took the view that Section 18 of Act 1956 cannot be substituted for Section 488 Cr.P.C. In Nalini Ranjan Patna High Court held that Section 488 Cr.P.C. provided a separate remedy and Section 488 Cr.P.C. covered the civil liability of a husband under the personal law. It is useful to extract paragraphs 8 9 and 10 of the judgment of this Court in Zohara Khatoon which are to the following effect “8. It would be seen that this Court approved of the decisions in the cases of Ram Singh Mahabir Agarwalla and Nalini Ranjan mentioned in the observations extracted above. In order to understand the proper scope of Section 488 of the 1898 Code which is almost the same as that of Section 125 of the 1973 Code it may be necessary to examine the decisions which were referred to with approval by this Court in Nanak Chand s case 2 Cr. L.J. 528 where the following observations were made : An alternative but not inconsistent summary remedy was provided by Section 488 of the CrPC not only to the Hindu wife irrespective of religion for recovery of maintenance from the husband. The two remedies were however not co extensive 10. Thus on a consideration of the authorities mentioned above it is clear that the 1898 Code by virtue of Section 488 provided a summary remedy for awarding irrespective of caste creed community or religion to which they belonged. It was in this context that the Courts referred to above considered the effect of Hindu Adoption and Maintenance Act and other 18. This Court in Yamunabai Anantrao Adhav Vs Anantrao Shivram Adhav and Another 1 SCC 530 held that personal law applicable to the parties cannot altogether be excluded from consideration in proceeding under Section 125 Cr.P.C. 19. In Yamunabai’s case the question involved was as to whether a Hindu woman who is married after coming into force of Hindu Marriage Act 1955 to a Hindu male having a living lawfully wedded wife can maintain an application for maintenance under Section 125 Cr.P.C. This Court in the above case held the marriage of Yamunabai to be null and void from its very inception. In the above context this Court referred to provision of Hindu Marriage Act 1955 to find out marital status. In paragraphs 5 and 6 following was laid down “5. It has been contended on behalf of the appellant that the term wife in Section 125 of the Code should be given a wider and extended meaning so as to include therein not only a lawfully wedded wife but also a woman married in fact by performance of necessary rites or following the procedure laid down under the law. Relying upon the decision of this Court in Mohd. Ahmed khan v. Shah Bano Beghum 1985 Cri LJ 875 it was argued that the personal law of the parties to a proceeding under Section 125 of the Code should be completely excluded from consideration. The relationship of husband and wife comes to an end on divorce but a divorcee has been held to be entitled to the benefits of the section it was urged and therefore applying this approach a woman in the same position as the present appellant should be brought within the sweep of the section. We are afraid the argument is not well founded. A divorcee is included within the section on account of Clause of the Explanation. The position under the corresponding Section 488 of the code of 1898 was different. A divorcee could not avail of the summary remedy. The wife s right to maintenance depended upon the continuance of her married status. It was pointed out in Shah Bano s case that since that right could be defeated by the husband by divorcing her unilaterally under the Muslim Personal Law or by obtaining a decree of divorce under any other system of law it was considered desirable to remove the hardship by extending the benefit of the provisions of the section to a divorced woman so long as she did not remarry and that was achieved by including Clause of the Explanation. Unfortunately for the appellant no corresponding provision was brought in so as to apply to her. The legislature decided to bestow the benefit of the Section even on an illegitimate child by express words but none are found to apply to a de facto wife where the marriage is void ab initio 6. The attempt to exclude altogether the personal law applicable to the parties from consideration also has to be repelled. The section has been enacted in the interest of a wife and one who intends to take benefit under Sub section 1)(a) has to establish the necessary condition namely that she is the wife of the person concerned. This issue can be decided only by a reference to the law applicable to the parties. It is only where an applicant establishes her status on relationship with reference to the personal law that an application for maintenance can be maintained. Once the right under the section is established by proof of necessary conditions mentioned therein it cannot be defeated by further reference to the personal law. The issue whether the section is attracted or not cannot be answered except by the reference to the appropriate law governing the parties. In our view the judgment in Shah Bano s case does not help the appellant It may be observed that for the purpose of extending the benefit of the section to a divorced woman and an illegitimate child the Parliament considered it necessary to include in the section specific provisions to that effect but has not done so with respect to women not lawfully married.” 20. It is to be noted that in the above case personal law was looked into to find out as to whether an application filed by the appellant Yamunabai claiming to be his wife was maintainable or not. Another judgment which needs to be noted is Kirtikant D Vadodaria Vs. State of Gujarat and Another 4 SCC 479. The question which came for consideration before this Court was as to whether expression “mother” used in clause of sub section of Section 125 Cr.P.C. includes stepmother. This Court referring to Section 125 Cr.P.C. as well as provision of Section 20 of Act 1956 held that stepmother can claim maintenance from her stepson provided she is widow of her husband if living and also incapable of maintaining and supporting her. 21. Now we come to the Three Judge Bench judgment of this Court as relied by learned counsel for the appellant i.e. Jagdish Jugtawat of the Hindu Adoptions and Maintenance Act. The facts of the case and observations of the High Court have been made in the paragraph 2 of the judgment which is to the following effect: “2. The Petitioner is the father of Kumari Rakhi Respondent 3 herein who is a minor unmarried girl. Considering the application filed under Section 125 of the Criminal Procedure Code by Respondent 1 wife of the Petitioner and mother of Respondent 3 claiming maintenance for herself and her two children the Family Court by order dated 22.7.2000 granted maintenance @ Rs.500 per month to each of the Applicants. The Petitioner herein filed a revision petition before the High Court assailing the order of the Family Court on the ground inter alia that Respondent 3 was entitled to maintenance only till she attains majority and not thereafter. Considering the point the learned Single Judge of the High Court accepted the legal position that under Section 125 CrPC a minor daughter is entitled to maintenance from her parents only till she attains majority but declined to interfere with the order passed by the Family Court taking the cue from Section 20(3) of the Hindu Adoptions and Maintenance Act under which the right of maintenance is given to a minor daughter till her marriage. The learned Single Judge was persuaded to maintain the order of the Family Court with a view to avoid multiplicity of proceedings. The relevant portion of the judgment of the High Court is quoted here “Thus in view of the above though it cannot be said that the order impugned runs counter to the law laid down by the Hon ble Supreme Court the provisions of Section 125 CrPC are applicable irrespective of the personal law and it does not make any distinction whether the daughter claiming maintenance is a Hindu or a Muslim. However taking an overall view of the matter I with all respect to the Hon ble Court am of the candid view that the provisions require literal interpretation and a daughter would cease to have the benefit of the provisions under Section 125 CrPC on attaining majority though she would be entitled to claim the benefits further under the statute personal law. But the Court is not inclined to interfere as the order does not result in miscarriage of justice rather interfering with the order would create great inconvenience to Respondent 3 as she would be forced to file another petition under sub section of Section 20 of the Act of 1956 for further maintenance etc. Thus in order to avoid multiplicity of litigations the order impugned does not underlined by us 22. The judgment of this Court in Jagdish Jugtawat supra) is sheet anchor of learned counsel for the appellant. The question which came for consideration before this Court in Jagdish Jugtawat’s case has been noted in paragraph 3 of the judgment which is to the following effect “3. In view of the finding recorded and the observations made by the learned Single Judge of the High Court the only question that arises for consideration is whether the order calls for 23. This Court answered the question noticed in paragraph 3 as above in paragraph 4 in the following “4. Applying the principle to the facts and circumstances of the case in hand it is manifest that the right of a minor girl for maintenance from parents after attaining majority till her marriage is recognized in Section 20(3) of the Hindu Adoptions and Maintenance Act. Therefore no exception can be taken to the judgment order passed by the learned Single Judge for maintaining the order passed by the Family Court which is based on a combined reading of Section 125 Code of Criminal Procedure and Section 20(3) of the Hindu Adoptions and Maintenance Act For the reasons aforestated we are of the view that on facts and in the circumstances of the case no interference with the impugned judgment order of the High Court is called for.” 24. In the above case an order was passed by the Family Court by granting maintenance which was based on combined reading of Section 125 Cr.P.C. and Section 20 of Act 1956. Although the High Court and this Court had declined to interfere with the order of the Family Court taking the cue from Section 20(3 of the Act 1956 under which the right of maintenance is given to a minor daughter till her marriage but the judgment of this Court in Jagdish Jugtawat supra) cannot be read to laying down the ratio that in proceedings under Section 125 Cr.P.C. filed by the daughter against her father she is entitled to maintenance relying on the liability of the father to maintain her unmarried daughter as contained in Section 20(3) of the Act 1956. The High Court in exercise of Criminal Revisional jurisdiction can very well refuse to interfere with the judgment of Courts below by which maintenance was granted to unmarried daughter. This Court while hearing criminal appeal against the above judgment of High Court was exercising jurisdiction under Article 136 of the Constitution of India and in the facts of that case this Court refused to interfere with the judgment of High Court but in refusal to interfere by this Court no ratio can be read in the judgment of Jagdish Jugtawatas contended by learned counsel for 25. In Classical Hindu Law prior to codification a Hindu male was always held morally and legally liable to maintain his aged parents a virtuous wife and infant child. Hindu Law always recognised the liability of father to maintain an unmarried daughter. In this context we refer to paragraph 539 and 543 of Mulla Hindu Law 22nd Edition which is as follows: 539. Personal liability: liability of father husband and son. A Hindu is under a legal obligation to maintain his wife his minor sons his unmarried daughters and his aged parents whether he possesses any property or not. The obligation to maintain these relations is personal in character and arises from the very existence of the relation between the Section 18 and 20 of the Hindu Adoptions and Maintenance Act 1956 deal with the question of maintenance of wife children and aged parents. Reference may be made to the notes under those sections 543. Daughter. A father is bound to maintain his unmarried daughters. On the death of the father they are entitled to be maintained out of his estate 26. Muslim Law also recognises the obligation of father to maintain his daughters until they are married. Referring to Mulla’s Principle of Mohammedan Law this Court in State of Haryana and Others Vs. Santra (2000) 5 SCC 182 in paragraph 40 held: “40. Similarly under the Mohammedan Law a father is bound to maintain his sons until they have attained the age of puberty. He is also bound to maintain his daughters until they are married. page 300]......................” 27. Section 20(3) of Hindu Adoptions and Maintenance Act 1956 is nothing but recognition of principles of Hindu Law regarding maintenance of children and aged parents. Section 20(3) now makes it statutory obligation of a Hindu to maintain his or her daughter who is unmarried and is unable to maintain herself out of her own earnings or other property. 28. Section 20 of Hindu Adoptions and Maintenance Act 1956 cast a statutory obligation on a Hindu to maintain his daughter who is unmarried and unable to maintain herself out of her own earnings or other property. As noted above Hindu Law prior to enactment of Act 1956 always obliged a Hindu to maintain unmarried daughter who is unable to maintain herself. The obligation which is cast on the father to maintain his unmarried daughter can be enforced by her against her father if she is unable to maintain herself by enforcing her right under 29. We may also notice another judgment of this Court in Noor Saba Khatoon Vs. Mohd. Quasim 6 SCC 233 which was a case under Section 125 Cr.P.C. A Muslim wife with her two daughters and a son filed an application claiming maintenance under Section 125 Cr.P.C. The trial court allowed the maintenance to the wife and children from her husband. The husband after divorcing the wife filed application in the trial court seeking modification of the order in view of the provisions of the Muslim WomenAct 1986. The trial court modified the order insofar as the grant of maintenance of wife was concerned but maintained the order of maintenance to each of the three minor children. The husband challenged the order by means of revision which was dismissed by the Revisional Court. An application under Section 482 Cr.P.C. was filed in the High Court. The High Court accepted the claim of husband and relying on provision of Section 3(1)(b) of the Act 1986 held that a Muslim wife is entitled to claim maintenance from her previous husband for her children only for a period of two years from the date of birth of the child concerned The High Court held that minor children were not entitled for maintenance under Section 125 Cr.P.C A special leave to appeal was filed questioning the judgment. This Court dealing with Section 125 Cr.P.C as well as Act 1986 held that effect of a beneficial legislation like Section 125 Cr.P.C. cannot be allowed to be defeated except through clear provisions of a statute. This Court held that there is no conflict between the two provisions 30. This Court noticed the provisions of Section 3 of Muslim Women Act 1986 and Section 125 Cr.P.C. It is relevant to refer to the following observations made by this Court in paragraph 7 of the above judgment “7....Under Section 125 CrPC the maintenance of the children is obligatory on the father and as long as he is in a position to do so and the children have no independent means of their own it remains his absolute obligation to provide for them. Insofar as children born of Muslim parents are concerned there is nothing in Section 125 CrPC which exempts a Muslim father from his obligation to maintain the children. These provisions are not affected by Clauseof Section 3(1) of the 1986 Act and indeed it would be unreasonable unfair inequitable and even preposterous to deny the benefit of Section 125 CrPC to the children only on the ground that they are born of Muslim parents. The effect of a beneficial legislation like Section 125 CrPC cannot be allowed to be defeated except through clear provisions of a statute. We do not find manifestation of any such intention in the 1986 Act to take away the independent rights of the children to claim maintenance under Section 125 CrPC where they are minor and are unable to maintain themselves. A Muslim father s obligation like that of a Hindu father to maintain his minor children as contained in Section 125 CrPC is absolute and is not at all affected by Section 3(1 b) of the 1986 Act. ......” 31. The provision of Section 20 of Act 1956 cast clear statutory obligation on a Hindu to maintain his unmarried daughter who is unable to maintain herself The right of unmarried daughter under Section 20 to claim maintenance from her father when she is unable to maintain herself is absolute and the right given to unmarried daughter under Section 20 is right granted under personal law which can very well be enforced by her against her father. The judgment of this Court in Jagdish Jugtawatlaid down that Section 20(3) of Act 1956 recognised the right of a minor girl to claim maintenance after she attains majority till her marriage from her father. Unmarried daughter is clearly entitled for maintenance from her father till she is married even though she has become major which is a statutory right recognised by Section 20(3) and can be enforced by unmarried daughter in accordance with law 32. After enactment of Family Courts Act 1984 a Family Court shall also have the jurisdiction exercisable by a Magistrate of the First Class under Chapter IX of Cr.P.C. relating to order for maintenance of wife children and parents. Family Courts shall have the jurisdiction only with respect to city or town whose population exceeds one million where there is no Family Courts proceedings under Section 125 Cr.P.C. shall have to be before the Magistrate of the First Class. In an area where the Family Court is not established a suit or proceedings for maintenance including the proceedings under Section 20 of the Act 1956 shall only be before the District Court or any subordinate Civil 33. There may be a case where the Family Court has jurisdiction to decide a case under Section 125 Cr.P.C. as well as the suit under Section 20 of Act 1956 in such eventuality Family Court can exercise jurisdiction under both the Acts and in an appropriate case can grant maintenance to unmarried daughter even though she has become major enforcing her right under Section 20 of Act 1956 so as to avoid multiplicity of proceedings as observed by this Court in the case of Jagdish Jugtawat of Act 1956 and the submission of the appellant cannot be accepted that the Court below should have allowed the application for maintenance even though she has become major. We do not find any infirmity in the order of the Judicial Magistrate First Class as well as learned Additional Magistrate in not granting maintenance to appellant who had become major 35. The maintenance as contemplated under Act 1956 is a larger concept as compared to concept of maintenance under Section 125 Cr.P.C. Section 3(b while defining maintenance gives an inclusive definition including marriage expenses in following “3. Definitions In this Act unless the context otherwise requires b) "Maintenance" includes i) in all cases provision for food clothing residence education and medical attendance and treatment ii) in the case of an unmarried daughter also the reasonable expenses of and incident to her marriage c) "minor" means a person who has not completed his or her age of 36. The purpose and object of Section 125 Cr.P.C. as noted above is to provide immediate relief to applicant in a summary proceedings whereas right under Section 20 read with Section 3(b) of Act 1956 contains larger right which needs determination by a Civil Court hence for the larger claims as enshrined under Section 20 the proceedings need to be initiated under Section 20 of the Act and the legislature never contemplated to burden the Magistrate while exercising jurisdiction under Section 125 Cr.P.C. to determine the claims contemplated by Act 1956. 37. There are three more reasons due to which we are satisfied that the orders passed by the learned Judicial Magistrate as well as learned Additional Sessions Judge in the revision was not required to be interfered with by the High Court in exercise of jurisdiction under Section 482 Cr.P.C. The reasons are as follows: The application was filed by the mother of the appellant in the year 2002 claiming maintenance on her behalf as well as on behalf of her two sons and appellant who was minor at that time. The appellant being minor at that time when application was filed on 17.10.2002 there was no occasion for any pleading on behalf of the appellant that she was not able to maintain herself even after attaining the majority Section 20 of the Act 1956 on which reliance has been placed by learned counsel for the appellant recognising the right of maintenance of unmarried daughter by a person subject to the condition when “the parents or the unmarried daughter as the case may be is unable to maintain themselves herself out of their her own earnings or other property”. The learned Additional Sessions Judge noticed the submission of the respondent that appellant did not come in the witness box even when she had attained majority to claim that she was unable to maintain herself which contention has been noted in paragraph 12 of the judgment of the learned Additional Sessions Judge. From the judgment of the learned Judicial Magistrate another fact which is relevant to be noticed is that applicant Nos. 2 to 4 which included the appellant also had filed the proceedings under Section 20 of the Act 1956 being Suit No. 6 of 2001 which was dismissed as withdrawn on 17.12.2012. Another factor which need to be noticed that in the counter affidavit filed in this appeal there was a specific pleading of the respondent that a plot of land was purchased in name of the appellant admeasuring 214 sq. Yds. In the rejoinder affidavit filed by the appellant it has been admitted that the plot was purchased on 31.07.2000 from the joint income earned by mother and father of the appellant which had been agreed to be sold in the year 2012 for a total sale consideration of Rs.11 77 000 . In the rejoinder affidavit an affidavit of prospective purchaser has been filed by the appellant where it is mentioned that agreement to sell had taken place between appellant and Arjun on 31.07.2000 for a sale consideration of Rs.11 77 000 out of which appellant had received Rs.10 89 000 as earnest money. 38. We thus accept the submission of the learned counsel for the appellant that as a preposition of law an unmarried Hindu daughter can claim maintenance from her father till she is married relying on Section 20(3) of the Act 1956 provided she pleads and proves that she is unable to maintain herself for enforcement of which right her application suit has to be under Section 20 of Act 39. In facts of the present case the ends of justice be served by giving liberty to the appellant to take recourse to Section 20(3) of the Act 1956 if so advised for claiming any maintenance against her father. Subject to liberty as above the appeal is ( ASHOK BHUSHAN ( R. SUBHASH REDDY ( M.R. SHAH New Delhi September 15 2020

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

The petitioner has filed the present petition under the provisions of Section 11(6) of the Arbitration and Conciliation Act, 1996 seeking appointment of sole Arbitrator, and the same issue was held in the judgement passed by a single bench judge comprising HON’BLE MR. JUSTICE SURESH KUMAR KAIT, in the matter, dealt with an issue mentioned above M/S. ARKAS BIOCON PRIVATE V. M/S. KASHINATH AGRO INDUSTRIES PRIVATE LIMITED dealt with an issue mentioned above Petitioner is a Company, who had entered into a Lease Agreement dated 09.05.2018 with the respondent, a private limited company, along with manufacturing shed, including plant, machinery and equipment, ARB.P.930/2021 constructed thereon, was leased to the petitioner for eleven months on a monthly rental of Rs.4,50,000/- with applicable GST. According to the petitioner, the said plant was taken on lease from the respondent for the manufacture of Liquid Glucose, Malto Dextrin Powder and the by-product being cattle feed, which was to be manufactured by the petitioner from broken rice by an enzymatic process, They also mentioned that petitioner had furnished security deposit of Rs.27,00,000/-In the Lease Agreement dated 09.05.2018. According to the petitioner, the delay in the refurbishment of the equipment was solely attributable to the petitioner and since ARB.P.930/2021 respondent failed to complete the refurbishment of the plant within 45 days of the execution of the lease agreement, the respondent has no right to demand any amount. Meanwhile, the petitioner claims that when the respondent failed to make the payments raised by the petitioner, a legal notice dated 03.03.2021 was issued to the respondent calling upon to make the payment of ARB.P.930/2021 Rs.1,97,77,000/- and notified that if the respondent fails to make the payment within 14 days of receipt of the notice. However, since the petitioner did not receive any communication from a respondent in response to its legal notice dated 03.03.2021, it has approached this Court seeking the appointment of Arbitrator. Given the above, keeping in mind that disputes inter se parties have to be resolved in terms of Article 17 of the Lease Agreement dated 09.05.2018, which is not disputed, this petition is allowed. The court perused the facts and argument’s presented, it believed that- “The fee of the learned Arbitrator shall be governed by the Fourth Schedule of the Arbitration and Conciliation Act, 1996. The learned Arbitrator shall ensure compliance of Section 12 of Arbitration and Conciliation Act, 1996 before commencing the arbitration. The petition is accordingly disposed of”.

IN THE HIGH COURT OF DELHI AT NEW DELHI Date of decision: 09.11.2021 ARB.P. 930 2021 M S. ARKAS BIOCON PRIVATE LIMITED ..... Petitioner Through: Mr. Paritosh Budhiraja Ms. Surabhi Maheshwari & Ms. Divya Singh M S. KASHINATH AGRO INDUSTRIES PRIVATE LIMITED Through: Mr. Utkarsh Sharma Advocate Respondent HON BLE MR. JUSTICE SURESH KUMAR KAIT JUDGMENT For adjudication of disputes with respondent petitioner has filed the present petition under the provisions of Section 11(6) of the Arbitration and Conciliation Act 1996 seeking appointment of sole Arbitrator. Petitioner is a Company incorporated under the Companies Act 1956 who had entered into a Lease Agreement dated 09.05.2018 with respondent a private limited company whereby Plot bearing Khasra No.292 Khata Khatuni No. 00037 Village Itara Tehsil & District Meerut Uttar Pradesh along with manufacturing shed including plant machinery and equipment ARB.P.930 2021 constructed thereon was leased to the petitioner for eleven months on a monthly rental of Rs.4 50 000 with applicable GST. According to petitioner the said plant was taken on lease from the respondent for the purpose of manufacture of Liquid Glucose Malto Dextrin Powder and the byproduct being cattle feed which were to be manufactured by the petitioner from broken rice by enzymatic process. Further claimed that in terms of the Lease Agreement dated 09.05.2018 petitioner had furnished security deposit of Rs.27 00 000 to the respondent. However certain disputed with regard to equipments electricity and pollution approvals from concerned authorities electricity and water connection etc. arose between the parties and the claim of petitioner is that despite assurances respondent failed to fix the disputes due to which petitioner had to suffer for running the manufacturing unit at the site. Further claim of petitioner is that the plant became fully operational only on 22.09.2018 and as per the agreement petitioner is liable to pay the lease rent only from the date when the production from the plant shall become fully operational i.e. 22.09.2018 only. to petitioner the delay replacement of the equipment was solely attributable to petitioner and since ARB.P.930 2021 respondent failed to complete the refurbishment repairs replacement of the plant within 45 days of the execution of the lease agreement respondent has no right to demand any amount in part or in full from the sale proceeds of the products so manufactured and sold by the petitioner and the sole consideration payable by the petitioner to the respondent was the agreed monthly lease rental. It is also averred on behalf of petitioner that upon completion of eleven months from the date of the commencement of the agreement the lease agreement in question stood terminated and petitioner vide email dated April 19th 2019 had informed the respondent that petitioner shall vacate the leased premises on April 21st 2019. Thereafter several communications were exchanged between the parties and despite repeated requests of petitioner security deposit after adjustment of two months rental has not been refunded to the petitioner. Besides security deposit petitioner has also claimed refund towards electricity deposit with interest thereon and certain other claims. The claim of petitioner is that when respondent failed to make the payments raised by the petitioner a legal notice dated 03.03.2021 was the respondent calling upon to make the payment of ARB.P.930 2021 Rs.1 97 77 000 and notified that if respondent fails to make the payment within 14 days of receipt of notice the same shall be presumed to be refusal on the part of respondent and in that eventuality Arbitration Clause as contained in Article 17 of the Lease Agreement shall stand invoked. Petitioner said to have even proposed names of three Arbitrators for adjudication of disputes. However since petitioner did not receive any communication from respondent in response to its legal notice dated 03.03.2021 it has approached this Court seeking appointment of Arbitrator. At the hearing though the claims so raised by the petitioner are opposed by learned counsel appearing on behalf of respondent however existence of Lease Agreement dated 09.05.2018 is not disputed. It is also not disputed that in terms of Article 17 of the Lease Agreement disputes have to be adjudicated through arbitration. However learned counsel for respondent has submitted that this Court may appoint Arbitrator instead of any names so proposed by the petitioner. In view of the above keeping in mind that disputes inter se parties have to be resolved in terms of Article 17 of the Lease Agreement dated 09.05.2018 which is not disputed this petition is allowed. Accordingly Mr. Justice Retd.) Sangeet Lodha ARB.P.930 2021 9414130220) is appointed Sole Arbitrator to adjudicate the dispute between the parties. 10. The fee of the learned Arbitrator shall be governed by the Fourth Schedule of the Arbitration and Conciliation Act 1996. 11. The learned Arbitrator shall ensure compliance of Section 12 of Arbitration and Conciliation Act 1996 before commencing the arbitration. 12. The petition is accordingly disposed of. 13. A copy of this order be sent to the learned Arbitrator for information. NOVEMBER 09 2021 SURESH KUMAR KAIT) JUDGE ARB.P.930 2021

Police personnel cannot be appointed as jail Superintendents: Uttarakhand High Court

The purpose of the Police is not to reform, or to rehabilitate, but to prevent the occurrence of crime, and to punish the criminals. Therefore, the very training of police personnel is carried out with a different purpose in mind, and with different goals prescribed by law. The judgment was passed by The High Court of Uttarakhand in the case of Sanjeev Kumar Akash vs the State of Uttarakhand and others [Writ Petition (PIL) No. 25 of 2021] by a single bench consisting of Justice Sri Raghvendra Singh Chauhan. The facts of the case are that, out of the nine sanctioned posts of Superintendent of Jail, four posts are to be filled up by way of direct recruitment, and five posts are to be filled up by way of promotion from the post of Jailor. Presently, one post of Senior Superintendent of Jail, and four posts of Superintendent of Jail, have been filled up. According to the State Government, considering the difficulties faced in running the Jails properly, it has taken a conscious decision to give additional charge to the Senior Superintendent of Jail. Hence, the present Public Interest Litigation before this Court. Learned Senior Counsel for the Petitioner that the duty of the Police Officers is preventive and penal, and spans the arena of investigation, prevention and protection, and maintenance of law and order. On the other hand, with the emerging modern trends in penology and theories of punishment, the fundamental duty of the Officers of the Department of Jail is the protection, the reformation, and the rehabilitation of the prisoners. Thus, the very philosophy behind the interaction between a Police Officer and an offender, and the interaction between a Jail Officer and the prisoner, stand on a different footing. Therefore, one cannot be confused with the other. Learned counsel on the corollary the fact that presently there are two posts of Senior Superintendent of Jail, and five posts of Superintendent of Jail, which is lying vacant, considering the fact that direct recruitment to these posts would require some time, considering the fact that there is no one in the post of Jailors, who has completed five years of required service for being promoted to the post of Senior Superintendent of Jail, the State is justified in making Police Officers in charge of these two posts on a temporary basis. The Court while referring to the Uttar Pradesh Jail Service Rules, 1982, “the post of Superintendent of District Jail is to be filled up fifty per cent by direct recruitment, and fifty per cent by promotion from amongst the regularly appointed Deputy Superintendents/Jailors with a minimum of five years’ service as Deputy Superintendents, or Jailors or both. Moreover, Rule 14 deals with the determination of vacancies. Rule 15 deals with the procedure for direct recruitment. Rule 16 deals with the “procedure for recruitment by promotion to the post of Superintendent, District Jail.”

RESERVED JUDGMENT IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL THE HON’BLE THE CHIEF JUSTICE SRI RAGHVENDRA SINGH CHAUHAN AND THE HON’BLE SRI JUSTICE ALOK KUMAR VERMA WRIT PETITIONNo. 25 OF 2021 JUDGMENT RESERVED : 24th MARCH 2021 JUDGMENT DELIVERED : 12th APRIL 2021 …Petitioner Between: Sanjeev Kumar Akash. and State of Uttarakhand and others. Counsel for the petitioner. Ms. Kamini Counsel for the respondents. …Respondents learned Senior Counsel assisted by Mr. Rahul Consul learned counsel. Jaiswal Mr. N.S. Pundir learned Deputy Advocate General with Mr. Anil Kumar Bisht learned Additional Chief Standing Counsel for the State of Uttarakhand. The Court made the following: JUDGMENT :Mr. Sanjeev Kumar Akash the petitioner has filed the present Public Interest Litigation in order to challenge the order dated 12.02.2021 passed by the Secretary Department of Home the respondent no. 2 whereby the Officers of the Police Department have been given the additional charge of the office of the Senior Superintendent Superintendent of Jail at Sitarganj Haldwani Haridwar Dehradun and Roorkee. The petitioner has further challenged the consequential order dated 12.02.2021 passed by the Inspector General of Prisons the respondent no. 3 whereby the Officers of the Police Department have been transferred and posted Superintendent Superintendent of Jail at various prisons in the State of Uttarakhand. Briefly stated the facts of the case are that as per the structure in the Department of Prison in the State of Uttarakhand there are three sanctioned posts of Senior Superintendent of Jail and nine sanctioned posts of Superintendent of Jail. Out of the nine sanctioned posts of Superintendent of Jail four posts are to be filled up by way of direct recruitment and five posts are to be filled up by way of promotion from the post of Jailor. Presently one post of Senior Superintendent of Jail and four posts of Superintendent of Jail have been filled up. Therefore currently two posts of Senior Superintendent of Jail and five posts of Superintendent of Jail are lying vacant. According to the State Government considering the difficulties faced in running the Jails properly it has taken a conscious decision to give additional charge of Senior Superintendent of Jail and Superintendent of Jail to officers of the Indian Police Servicefurther stresses on the need for appointment of prison personnel “on a full time basis”. Rule 75(2) states that “before entering on duty all prison staff shall be provided with training tailored to their general and specific duties which shall be reflective of contemporary evidence based best practice in penal sciences”. Rule 76 further states that the training referred to in Rule 75(2) shall include at a minimum training on “rights and duties of prison staff in the exercise of their functions including respecting the human dignity of all prisoners and the prohibition of certain conduct in particular torture and other cruel inhuman or degrading treatment or punishment.” Rule 79 further states that “the Prison Directorshall devote his or her entire working time to official duties and shall not be appointed on a part time basis. He or she shall reside on the premises of the prison or in its immediate Relying on the Nelson Mandela Rules the learned Senior Counsel has emphasised Superintendents of Jail are required to undergo a particular training which will inculcate a sense of dignity of all the prisoners will make them humane and sensitise them to the plight of the prisoners to their families and to the prison conditions. The learned Senior Counsel has further stressed on the need for appointing the Senior Superintendent Superintendent of Jail on a full time basis rather than on a part time basis. Fourthly referring to the Uttar Pradesh Jail Group A and B) Service Rules 1982 the learned Senior Counsel has submitted that Rule 3(k) defines the post of "Superintendent District Jail" to mean “the whole time Superintendent Jail appointed in accordance with the 1982 Rules”. According to Rule 5(6) of the Rules 1982 the post of Superintendent of District Jail is to be filled up fifty percent by direct recruitment and fifty percent by promotion from amongst the regularly appointed Deputy Superintendents Jailors with a minimum of five years’ service as Deputy Superintendents or Jailors or both. Moreover Rule 14 deals with “determination of vacancies”. Rule 15 deals with the “procedure for direct recruitment”. Rule 16 deals with the “procedure for recruitment by promotion to the post of Superintendent District Jail”. Therefore according to the learned Senior Counsel the procedure for making an appointment to the post of Senior Superintendent Superintendent of Jail is clearly prescribed by Rules 14 15 and 16 of the Rules 1982. These Rules do not permit ad hoc appointment of Superintendent Superintendent of Jail. Therefore the impugned orders are clearly in violation of the Rules 1982. Fifthly even the Code of Criminal Procedure prevents the keeping of an undertrial prisoner in police custody beyond a stipulated period of time. According to Section 167 of Cr.P.C an accused cannot be detained in police custody beyond a period of fifteen days. In case the investigation is not completed within a period of ninety days for offences punishable with death imprisonment for life or imprisonment for a term of not less than ten years the offender would have to be granted bail under Section 167(2)(a)(i) Cr.P.C. Therefore even the Cr.P.C. does not envisage keeping of undertrial prisoners in police custody for too long a period. Even otherwise while keeping an offender in judicial custody he she cannot be kept beyond a period of sixty days or ninety days in case the investigation were not completed within the stipulated period of time. Moreover in case the investigation were to be completed within the stipulated period of sixty days or ninety days and in case bail were not granted by a competent Court an undertrial is required to be kept in judicial custody. But by appointing police personnel as Senior Superintendent Superintendent of Jail for all practical purposes the custody is suddenly changed from a judicial one to a police one. Therefore the learned Senior Counsel submits that the impugned orders violate the letter and the spirit of Section 167 Cr.P.C. Lastly despite the fact that a prisoner loses the freedom of movement he she continues to enjoy the other rights as guaranteed by Constitution of India. Therefore Article 21 of the Constitution of India guaranteeing protection of Life and personal liberty continues to shine even in the dark corners of a prison cell. According to the learned Senior Counsel once a procedure has been established by law that too a procedure backed by certain penological philosophy it cannot be violated by the State. Therefore the State is legally bound to implement the service rules as contained in the Rules 1982 to implement the requirements of Cr.P.C to implement the constitutional philosophy as embodied in the Preamble of the Constitution of India and to implement the “Nelson Mandela Rules”. Hence according to the learned Senior Counsel the impugned orders deserve to be set aside by this Court. Court : On the other hand Mr. Anil Kumar Bisht the learned Additional Chief Standing Counsel for the State has raised the following counter contentions before this Firstly in the order dated 17.11.2006 issued by the Principal Secretary Uttaranchal Administration it was clearly mentioned that the Inspector General of Prisons would either be the Secretary Home or IAS officers or of equivalent posts. Similarly Additional Inspector General of Prisons would be from the post of Additional Secretary Home Joint Secretary Home or from PCS Cadre. In fact even presently the post of the Inspector General of Prisons is occupied by a person belonging to the IPS cadre. Therefore the appointment of Senior Superintendent Superintendent of Jail can certainly be made from Police Officers. Secondly considering the fact that presently there are two posts of Senior Superintendent of Jail and five posts of Superintendent of Jail which are lying vacant considering the fact that direct recruitment to these posts would require some time considering the fact that there is no one in the post of Jailors who has completed five years of required service for being Superintendent Superintendent of Jail the State justified in making Police Officers incharge of these two posts on a temporary basis. Therefore the learned counsel has supported the impugned orders. In rejoinder Ms. Kamini Jaiswal the learned Senior Counsel for the petitioner has pleaded that the letter dated 17.11.2006 does not support the case of the State. For while the post of Inspector General of Prisons and Additional Inspector General of Prisons may be permitted to be filled up from IPS Officers the post of Senior Superintendent Superintendent of Jail is covered by the Rules 1982. Once the Rules 1982 have been promulgated they cannot be diluted by a mere letter issued by the Principal Secretary. In fact the Superintendent Superintendent of Jail has to be strictly in accordance with the Rules 1982. learned counsel perused impugned orders. Prisons are as ancient as human civilization. Initially prisons were created as detention centres for detaining those who were threat to the political power. According to the Bhagavata Purana an ancient text on the life of Lord Krishna his parents Devaki and Vasudeva were imprisoned by Kansa the King of Mathura. However over the centuries prisons were constructed for the purpose of punishing those who violate the law. Soon the purpose of prisons was changed from detention to punishment. In ancient Athens Socrates was imprisoned for punishing him for having corrupted the minds of the youth. Long imprisonment sentences catered to the retributory and deterrent theories of punishment. In the eighteenth century Europe in the age of Enlightenment John Locke the great English political theorist claimed that although men are basically good but laws and prisons were still needed to keep down “the few desperate men in society”. Therefore prisons were needed to protect the society from molestation of others. However in the 1700’s British Judges like Sir William Blackstone criticized the use of executions and other harsh punishments being meted out to the people. In 1777 the British reformer John Howard published his book called “The State of the Prisons in England and Wales”. For the first time he introduced the theory of reformation i.e. to make the prisoners aware of their guilt and to motivate them to do penance for their wrongful act thereby cleansing their soul and mind so that they may reform themselves as individuals. Because the prisoners were motivated to feel penitent the prisons came to be known as “penitentiaries”. 10. On the other side of the Atlantic in 1787 the founders of Philadelphia a city in the United States the Quakers formed the “Philadelphia Society for Alleviating the Miseries of Public Prisons” All State Governments UTs DGs IGs incharge of prisons All State Governments UTs wherein it had emphasised the large number of judgments delivered by the Hon’ble Supreme Court with regard to the prison administration and the jail system prevalent in India. It had further made certain recommendations as under: infrastructure in the State with adequate skilled and well qualified instructional staff to cater to the normal needs of basic and in service training for the prison staff in different discipline. Creating adequate posts for prison staff as per in different categories commensurate with operational needs of custody reformation rehabilitation health care legal assistance etc. iii) 18. Filling up all the vacancies presently running up to 17.58% within time bound frame and ensure proper cadre management trainings promotions recruitments etc. Over the decades the Hon’ble Supreme Court has rushed to the rescue of the prisoners. The Apex Court has not only given the protection of Article 21 of the Constitution of India to the prisoners but has also emphasised on the penological philosophy of reformation and rehabilitation of the prisoners. It has thus stressed on the need for having a well trained prison staff who would cater to the needs of the prisoners on a full time basis. 19. Recently in the case of Inhuman Conditions In 1382 Prisons In re18 SCC 777] keeping in mind the dire necessity of reforming in prison administration and the prison management the Hon’ble Supreme Court has constituted a Supreme Court Committee on “Prison Reforms” consisting of :Hon ble Mr Justice Amitava Roy a former Judge of the Supreme Court as its Chairperson Inspector General of Police Bureau of Police Research and Development as its Member and Director General Tihar Jail New Delhi as its Member. The Committee has made the following recommendations with regard to the staffing patterns in the jails: “Recruitment of Staff The Hon ble Court may issue following directions in this regard: a) All State Governments will hold special recruitment drives to fill up the existing vacancies in different ranks with the following timelines. i) In case of regular recruitment against permanent vacancies the recruitment process should start within three months and should be completed within one year in the maximum. ii) All promotional vacancies should be filled up within six months”. 20. At the International level the United Nations has issued the “Nelson Mandela Rules” which deal with the “Standard Minimum Rules for the Treatment of Prisoners”. As mentioned hereinabove these Rules prescribe the accepted good principles and practices in the treatment of prisoners and prison management. Rules 74 to 82 deal with “Institutional Personnel”. 21. Rule 74 is as under : “Rule 74 1. The prison administration shall provide for the careful selection of every grade of the personnel since it is on their integrity humanity professional capacity and personal suitability for the work that the proper administration of prisons depends. 2. The prison administration shall constantly seek to awaken and maintain in the minds both of the personnel and of the public the conviction that this work is a social service of great importance and to this end all appropriate means of informing the public should be used. 3. To secure the foregoing ends personnel shall be appointed on a fulltime basis as professional prison staff and have civil service status with security of tenure subject only to good conduct efficiency and physical fitness. Salaries shall be adequate to attract and retain suitable men and women employment benefits and conditions of service shall be favourable in view of the exacting nature of the work.” Rule 75 is as under : 1. All prison staff shall possess an adequate standard of education and shall be given the ability and means to carry out their duties in a professional manner. 2. Before entering on duty all prison staff shall be provided with training tailored to their general and specific duties which reflective of contemporary evidence based best practice in penal sciences. Only those candidates who successfully pass the theoretical and practical tests at the end of such training shall be allowed to enter the prison service. shall be 3. The prison administration shall ensure continuous provision of in service training courses with a view to maintaining and improving the knowledge and professional capacity of its personnel after entering on duty and during their career.” 22. “Rule 75 23. Rule 76 is as under : “Rule 76 1. Training referred to in paragraph 2 of rule 75 shall include at a minimum training on: inhuman or degrading a) Relevant national legislation regulations and policies as well as applicable international and regional instruments the provisions of which must guide the work and interactions of prison staff with inmates b) Rights and duties of prison staff in the exercise of their functions including respecting the human dignity of all prisoners and the prohibition of certain conduct in particular torture and other cruel treatment or punishment c) Security and safety including the concept of dynamic security the use of force and instruments of restraint and the management of violent offenders with due consideration of preventive and defusing techniques such as negotiation and mediation d) First aid the psychosocial needs of prisoners and the corresponding dynamics in prison settings as well as social care and assistance including early detection of mental health issues. 2. Prison staff who are in charge of working with certain categories of prisoners or who are assigned other specialized functions shall receive training that has a corresponding focus.” “Rule 79 1. The prison director should be adequately qualified for his or her task by character administrative ability suitable training and experience. 2. The prison director shall devote his or her entire working time to official duties and shall not be appointed on a part time basis. He or she shall reside on the premises of the prison or in its immediate vicinity. 3. When two or more prisons are under the authority of one director he or she shall visit each of them at 24. Rule 79 is as under : frequent intervals. A responsible resident official shall be in charge of each of these prisons.” Emphasis added). 25. Since India is a member of the United Nations these Rules are equally binding on the country. Therefore neither these Rules nor the recommendations of the various Committees nor the letter issued by the Ministry of Home Affairs Government of India dated 17.07.2009 can possibly be ignored by the State. 26. All these recommendations and Rules are in conformity with the great transformation which has occurred in the theory of punishment : from the theory of “Retribution And Deterrence” we have come to the age of “Reformation and Rehabilitation of Prisoners”. These Committee recommendation and the Nelson Rules emphasize the need for carefully selecting the prison personnel for providing rigorous training both prior to their joining the service and subsequent thereto of the appointment being a full time regular appointment. It is only when these factors are inculcated in the prison administration that the prison system succeeds in protecting reforming and rehabilitating the prisoners. Otherwise it is a self defeating proposition. 27. Needless to say the purpose of the Police is not to reform or to rehabilitate but to prevent the occurrence of crime and to punish the criminals. Therefore the very training of a police personnel is carried out with a different purpose in mind and with different goals prescribed by law. Thus there is a vast difference in the philosophy that permeates the police administration and the jail administration. Hence even their training and the psychology of the police personnel and prison personnel are poles apart. 28. Keeping the differences in two systems the Rules 1982 clearly provide the post of Superintendent District Jail should necessarily has to be filled up in accordance with the Rules 1982. Rule 5(6) of the Rules 1982 is as under : “5(6) Superintendents District Jails. 50 per cent of posts in the cadre by direct recruitment through the Commission. ii) 50 per cent of post in the cadre by Superintendents Jailors with a minimum of 5 years services as Deputy Superintendents of Jailors or both.” the Commission 29. Rule 14 of the Rules 1982 is as under : “14. Determination of vacancies. The appointing authority shall determine and intimate 30. Rule 15 of the Rules 1982 is as under : to the Commission the number of vacancies on the posts of Superintendents District Jails to be filled during the year of recruitment as also the number of vacancies candidates belonging to the Scheduled Castes Scheduled Tribes and other categories under Rule to be “15. Procedure for direct recruitment. 1) Application for permission to appear in the competitive examination for direct recruitment shall be invited by the Commission in the prescribed form which may be obtained from the Secretary to the Commission on payment if any. 2) No candidate shall be admitted to the examination unless he holds a certificate of admission issued by the Commission. 3) After the results of the written examination have been received and tabulated the Commission shall having regard to the need for securing due representation of the candidates belonging to the Scheduled Castes Scheduled Tribes and others under Rule 6 summon for interview such number of candidates as on the result of the written examination have come up to the standard fixed by the Commission in this respect. The marks awarded to each candidate at the interview shall be added to the marks obtained by him in the written examination. 4) The Commission shall prepare a list of in order of their proficiency as disclosed by the aggregate of marks obtained by each candidate at the written examination and interview and recommend such number of candidates as they consider fit for appointment. If two or more candidate obtain equal marks in the aggregate the name of the candidate the written examination shall be placed higher in the list. The number of names in the list shall be larger but not larger by more than 25 percent of the number of vacancies. The Commission shall forward the list to the appointing authority. higher marks Note. The syllabus and rules for the competitive examination shall be such as may be prescribed by the Commission from time to time. 31. Rule 16 of the Rules 1982 is as under : “16. Procedure for recruitment by promotion to the post of Superintendent District Jail. Recruitment by promotion to the post of Superintendent of District Jail shall be made on the basis of seniority subject to the rejection of the unfit in accordance with the Uttar Pradesh Promotion by Selection in Consultation with Public Service Commission Rules 1970 as amended from time to time.” 32. A bare perusal of these Rules of 1982 clearly reveals that the post of Superintendent of Jail necessarily has to be filled up either by direct recruitment or by promotion (fifty percent). The Rules do not permit an ad hoc appointment from any other service much less the police service. Therefore the post can be filled up either directly from candidates from the open market of Deputy Superintendents Jailors having a work experience of minimum of five years. Hence the appointment of the police personnel by the impugned orders is clearly illegal. 33. Although the learned counsel for the State has tried to support the impugned orders ostensibly on the ground that the Inspector General of Prisons and the Additional Inspector General of Prisons can be appointed from the IPS cadre the said argument is clearly untenable. For once the Rules 1982 which deal with Group A and B services clearly provide a procedure for determination of vacancy and selection and promotion for filling up the post the said Rules cannot be deviated from. After all it is a settled position of law that once a procedure has been established by law it cannot be circumvented from. Therefore merely because the post of Inspector General of Prisons and Additional Inspector General of Prisons can be filled up from persons belonging to the IPS cadre it does not empower the State to fill up the post of the lower echelons by posting Superintendent Superintendent of Jail. 34. For the reasons stated above the impugned order dated 12.02.2021 passed by the Secretary Department of Home respondent no. 2 and the consequential order dated 12.02.2021 passed by the Inspector General of Prisons respondent no. 3 are hereby set aside. The State is directed to immediately fill of Senior Superintendent Superintendent of Jail either through direct recruitment or through promotion. Since the Rules permit ad hoc promotion as a temporary measure even ad hoc promotions may be granted by the State till regular promotions are made. The said exercise shall be carried out as expeditiously as possible and preferably within one month from the date of receiving the certified copy of this judgment. 35. The Writ Petition is hereby allowed. RAGHVENDRA SINGH CHAUHAN C.J. ALOK KUMAR VERMA J. Dt: 12th April 2021

Inadequacy of funds is not an excuse for not paying maintenance to ex-wife and daughter: Tripura High Court

Maintenance to ex-wife post-divorce cannot be denied or ignored only on the grounds of the inadequacy of carrying home pay. Tripura High Court gave these orders in the case of Supriya Bhattacharjee &amp; others vs. Debabrata Chakraborty [Crl.Rev.P.no. 55 of 2019] by the single bench of Hon’ble Justice S.G Chattopadhyay. In the instant case, due to marital disputes, the appellant decided to leave her husband (Respondent) and took along their daughter. As she was unable to maintain herself and her daughter and had no income, she claimed for maintenance u/s 125 of Crpc. Family Court of Agartala gave orders to the respondent to pay his wife Rs 3000/- per month as maintenance. Respondent agreed to take back his wife and daughter and contended for restitution of conjugal rights for which no response was observed from his wife’s side and therefore, the respondent decided to file a decree for divorce. Their Divorce got final and the Family Court of Agartala ordered the husband to pay Rs 5000/- per month as maintenance to his wife and daughter. Thereafter, the Respondent got promoted and his salary rose. Respondent’s ex-wife appealed that their maintenance should also be increased because she was unable to pay for her daughter’s education and the other expenses out of the earlier maintenance amount. Therefore, she filed a petition in the Family Court in the year 2018 for raising her monthly maintenance allowance from Rs.5000/- to Rs.23500/- per month. High Court observed the arguments from both the parties where the respondent contended that his divorced wife (petitioner) is an earning lady who is quite capable of supporting herself and therefore, the petition, according to him is devoid of merit and liable to be rejected. The Appellant’s counsel argued that the facts were completely false and there was no documentary evidence available for supporting the false claims.  It was further argued that the husband’s salary was Rs 62,400/- per month for which the appellant had the salary certificate.  Respondent contended that out of his salary, he mandatorily has to pay Rs 15000/- per month to his GPF Account and he was now married to a woman who was dependent on him and his salary. The Appellant’s counsel argued that the amount to the GPF account is voluntary and can be reduced to discharge his obligation to his daughter and divorced wife. And the ex-wife also has the right to live with the same standards as she was living while she was with her husband. High Court Bench agreed to these arguments and while referring to the previous judgments in the case of Bhuwan Mohan Singh vs. Meena and others [(2015) 6 SCC 353] Rajnesh vs. Neha and others [2020 SCC Online SC 903] gave the judgment that the husband can reduce his contribution to GPF to discharge his obligation towards the petitioner and his daughter and he cannot defeat their claim on the ground of such deduction and there is no proof of any serious ailment to him. HC stated that “Respondent cannot be permitted to ignore his responsibility for maintaining his divorced wife and daughter on the ground of inadequacy of carrying home pay”. Hence, the HC bench ordered the Respondent to pay Rs 17000/- per month to his ex-wife as maintenance for herself and their daughter. Click here to read the judgement

Page HIGH COURT OF TRIPURA Crl. Rev. P No.55 2019 Smti Supriya Bhattacharjee Daughter of Sri Jiban Sankar Bhattacharjee. Abhoynagar : Jagatpur Opposite to Agragati Club Agartala : West Tripura. 2. Miss Dikshita Chakraborty Daughter of Debabrata Chakraborty. She being minor is represented by her mother. Residents of Abhoynagar: Jagatpur: Opposite to Agragati Club: Agartala: West Tripura. … Petitioner(s). Versus Sri Debabrata Chakraborty Son of Monoranjan Chakraborty O.S.D Directorate of Secondary Education 2nd Floor : Shiksha Bhavan : Office lane : Agartala. … Respondent(s). THE HON’BLE MR. JUSTICE S. G. CHATTOPADHYAY Ms. A. Debbarma Advocate. For Petitioner(s) For Respondent(s) Date of hearing Date of Judgment & Order Whether fit for reporting Mr. Alik Das Advocate. Mr. S. Pal Advocate. 18th December 2020. 20th January 2021. NO. Crl. Rev. P No.55 2019. Page JUDGMENT AND ORDER 1] By means of this criminal revision petition the petitionerhas challenged the order dated 30.05.2019 of the Additional Judge Family Court Agartala passed in case No. Misc. 344 of 2018 whereby the monthly maintenance allowance payable to her has been enhanced from Rs.5000 to Rs.8000 declining her request for enhancing the amount from Rs.5000 to Rs.23 500 per month. The brief facts which have led to the filing of this revision petition are as under: Marriage between the parties was solemnised in accordance with the rites and customs of Hindu marriage on 02 02 2003. After marriage a daughter was born to them within their wedlock. Few years thereafter matrimonial dispute developed between them for various reasons and the wife left the company of her husband along with her daughter and started living with her parents. Since the wife had no income and she was thus unable to maintain herself and her daughter she claimed maintenance allowance under Section 125 of the Code of Criminal Procedure in the Family Court at Agartala. The Judge Family Court by his order dated 01.11.2006 allowed her petition and taking into consideration the income of her husband and her needs allowed monthly maintenance allowance of Rs.2200 to her and Rs.800 to her daughter. Eager to take back his wife and resume Crl. Rev. P No.55 2019. Page conjugal life the husband then filed a petition in the Family Court at Agartala for restitution of conjugal rights. The wife contested the suit brought by her husband and ultimately the Family Court Agartala vide order dated 06.05.2008 decreed the suit and asked the wife to come back to her husband for resumption of conjugal life. There was no response from the side of the wife. Therefore the husband approached the Family court seeking a decree of divorce on the ground that there was no resumption of cohabitation between them for a period of more than one year after the decree for restitution of conjugal rights was passed by the Court. The wife contested the divorce suit and brought various allegations against her husband including physical torture and extra marital affairs etc. The Family Court Agartala after hearing the parties and recording their evidence passed a decree of divorce dissolving their marriage under Sections 13(1A)(ii) of the Hindu Marriage Act 1955 and while decreeing the suit for divorce the Family court allowed monthly maintenance allowance of Rs.5 000 to the petitioner and it was ordered that maintenance allowance of Rs.3 000 already granted to her in the past proceeding under Section 125 Cr. P.C shall be adjusted towards the maintenance allowance of Rs.5 000 and finally the wife would get Rs.5 000 per month. The said decree of divorce was passed on 16.09.2010. Circumstances rapidly changed thereafter. The salary of the husband rose after he became Headmaster of a Higher Secondary school. As a result of escalation in the price of essential goods and increase in the educational expenses of her daughter and for other reasons the wife Crl. Rev. P No.55 2019. allowance to Rs.23 500 per month. Page required more amount of maintenance allowance to support herself and her daughter as she had no other source of income. Therefore she filed a petition in the Family Court in the year 2018 for raising her monthly maintenance allowance from Rs.5 000 to Rs.23 500 per month. The husband contested the case. The Family Court after hearing the parties allowed the petition of the wife raising her maintenance allowance from Rs.5 000 to Rs.8 000 vide order dated 30.05.2019. Aggrieved with this order the wife has approached this Court by means of this criminal revision petition seeking enhancement of the amount of her maintenance In the course of the proceeding the husband submitted written objection on 10.12.2020. In his written objection he has claimed that the wife is responsible for the termination of their marital relationship. Repeated efforts from the side of the husband for restoration of their relationship did not work because of the adamant attitude of the wife and according to the husband his divorced wife is an earning lady who is quite capable of supporting herself and more over he is still willing to take back his divorced wife and daughter and therefore the petition according to him is devoid of merit and liable to be rejected. Heard Ms. A. Debbarma learned counsel appearing for the wife and Mr. S. Paul learned counsel appearing for the husband. Crl. Rev. P No.55 2019. Page Ms. A. Debbarma learned counsel appearing for the wife submits that the learned Judge Family Court did not record any reason as to why her claim for raising maintenance allowance to Rs.23 500 per month was declined. According to Ms. A. Debbarma learned counsel the contention of the husband that the wife is an earning lady is absolutely false and such claim is not supported by any documentary evidence. It is further submitted by the learned counsel of the wife that the child alone needs more than Rs.8 000 per month for her educational expenses and other needs and as such Rs.8 000 is not enough even for the child alone. It is further contended by Ms. A. Debbarma learned counsel that the wife has filed a salary certificate of the husband which indicates that his monthly salary as on 30.07.2019 was Rs.62 400 . About the claim of the husband that his carry home pay after deduction is far less than his actual salary learned counsel submits that the salary certificate will indicate that husband contributes a handsome amount of Rs.15 000 per month to his GPF Account. It is submitted by Ms. A. Debbarma learned counsel that the husband cannot be allowed to defeat the claim of his wife on the ground of such deduction from salary because contribution to GPF after a certain amount is voluntary and the husband can reduce the amount of contribution to discharge his obligation to his daughter and divorced wife. It is vehemently contended by Ms. A. Debbarma learned counsel that the Family Court did not appreciate the fact that the wife was entitled to a life of the same standard which she lived while she was with her husband and it was the sacrosanct duty of the husband to Crl. Rev. P No.55 2019. Page provide adequate financial support to his wife and daughter so that they could live their life with dignity. In support of her contention learned counsel has referred to a decision of the Apex Court in Bhuwan Mohan Singh Vrs. Meena and others reported in6 SCC 353. Learned counsel therefore urges the Court to raise the maintenance allowance of the petitioner by allowing her petition. Mr. S. Pal learned counsel appearing for the husband on the other hand submits that claim of the wife is absolutely unjustified in view of the fact that the wife is a earning lady and the husband has a lot of dependants in his family including his present wife whom he has married after the decree of divorce with the petitioner has been granted by the Family Court in his favour. It is further contended by learned counsel of the husband that the husband and his present wife have been suffering from various ailments for which they have recurring medical expenditure and as such he is quite unable to pay more than Rs.8 000 per month to the petitioner. Learned counsel therefore urges the Court for dismissal of the claim of his wife. I have considered the submissions of learned counsel representing the parties and perused the materials available on record. The husband had taken almost the same plea in the Family Court to defeat the claim of his wife with regard to enhancement of her maintenance allowance. He claimed that his divorced wifehad income from her employment and she was quite able to maintain Crl. Rev. P No.55 2019. Page herself. But he could not provide any particulars with regard to her employment and income. It appears from impugned order dated 30.05.2019 of the Family Court that the learned Judge had taken into consideration the salary certificate of the husband which indicated that his monthly salary was Rs.62 400 and after considering the amount of his carry home pay after deduction and the rising needs of the petitioner and her daughter enhanced the amount of maintenance allowance from Rs.5000 to Rs.8000 per month though the wife claimed Rs.23 500 per month. Income of the spouse is one of the prime considerations for determination of maintenance allowance to wife and children. Apparently the monthly salary of the husband was Rs.62 400 when the impugned order was passed. The husband himself issued his salary certificate dated 03.07.2019 which has been produced by the wife as Annexure 6 in this proceeding. It appears from the said salary certificate that other than compulsory deductions towards Professional Tax Group Insurance and Income Tax the amount of Rs.15 000 is deducted from his salary towards his contribution to General Provident Fund and Rs.10 000 is deducted towards recovery of loan taken by him from his Provident Fund. There is adequate force in the submission of Ms. A. Debbarma learned counsel of the petitioner that the husband can reduce his contribution to GPF to discharge his obligation towards the petitioner and his daughter and he cannot defeat their claim on the ground of such deduction. Crl. Rev. P No.55 2019. Page Moreover the husband could not produce any documentary proof in support of his claim that his wife has adequate income and she is quite able to maintain herself. No such proof has been adduced by the husband either in the Family Court or in this Court. There cannot be any denial of the fact that Rs.8 000 per month is far less than adequate for the petitioner to maintain herself and her daughter who is a school going child. The submission of learned counsel that the wife and daughter are entitled to the same standard of life which they lived in the house of the respondent has merit. The Apex Court in paragraph 2 of the judgment in Bhuwan Mohan Singh Vrs. Meena and others relied on by a learned counsel has held as under: Be it ingeminated that Section 125 of the Code of Criminal Procedure was conceived to ameliorate the agony anguish financial suffering of a woman who left her matrimonial home for the reasons provided in the provision so that some suitable arrangements can be made by the court and she can sustain herself and also her children if they are with her. The concept of sustenance does not necessarily mean to lead the life of an animal feel like an unperson to be thrown away from grace and roam for her basic maintenance somewhere else. She is entitled in law to lead a life in the similar manner as she would have lived in the house of her husband. That is where the status and strata come into play and that is where the obligations of the husband in case of a wife become a prominent one. In a proceeding of this nature the husband cannot take subterfuges to deprive her of the benefit of living with dignity. Regard being had to the solemn pledge at the time of marriage and also in consonance with the statutory law that governs Crl. Rev. P No.55 2019. Page the field it is the obligation of the husband to see that the wife does not become a destitute a beggar. A situation is not to be maladroitly created whereunder she is compelled to resign to her fate and think of life “dust unto dust”. It is totally impermissible. In fact it is the sacrosanct duty to render the financial support even if the husband is required to earn money with physical labour if he is able bodied. There is no escape route unless there is an order from the court that the wife is not entitled to get maintenance from the husband on any legally permissible grounds.” In a recent judgment in Rajnesh Vrs. Neha and Another: reported in 2020 SCC OnLine SC 903 the Apex Court has also discussed about the determinants of maintenance allowance payable to wife and children. In this regard the following observations have been made by the Apex Court: “III Criteria for determining quantum of maintenance i) The objective of granting interim permanent alimony is to ensure that the dependant spouse is not reduced to destitution or vagrancy on account of the failure of the marriage and not as a punishment to the other spouse. There is no straitjacket formula for fixing the quantum of maintenance to be awarded. The factors which would weigh with the Court inter alia are the status of the parties reasonable needs of the wife and dependant children whether the is educated and professionally qualified whether the applicant has any independent source of income whether the income is sufficient to enable her to maintain the same standard of living as she was accustomed to in her matrimonial home whether the applicant was employed prior to her marriage whether she was working during the subsistence of the marriage whether the wife was required to sacrifice her employment opportunities for nurturing the family child rearing and looking after adult members of the family reasonable costs of litigation for a non working wife. Crl. Rev. P No.55 2019. Page 1 In Manish Jain v Akanksha Jain this Court held that the financial position of the parents of the applicant wife would not be material while determining the quantum of maintenance. An order of maintenance is conditional on the circumstance that the wife or husband who makes a claim has no independent income sufficient for her or his support. It is no answer to a claim of maintenance that the wife is educated and could support herself. The court must take consideration the status of the parties and the capacity of the spouse to pay for her or his support. Maintenance is dependent upon factual situations the Court should mould the claim for maintenance based on various factors brought before it. On the other hand the financial capacity of the husband his actual income reasonable expenses for his own maintenance and dependant family members whom he is obliged to maintain under the law liabilities if any would be required to be taken into consideration to arrive at the appropriate quantum of maintenance to be paid. The Court must have due regard to the standard of living of the husband as well as the spiralling inflation rates and high costs of living. The plea of the husband that he does not possess any source of income ipso facto does not absolve him of his moral duty to maintain his is able bodied and has educational if he ii) A careful and just balance must be drawn between all relevant factors. The test for determination of maintenance in matrimonial disputes depends on the financial status of the respondent and the standard of living that the applicant was accustomed to in her matrimonial home. The maintenance amount awarded must be reasonable and realistic and avoid either of the two extremes i.e. maintenance awarded to the wife should neither be so extravagant which becomes oppressive and unbearable for the respondent nor should it be so meagre that it drives the wife to penury. The sufficiency of the quantum has to be adjudged so that the wife is able to maintain herself with reasonable comfort. iii) Section 23 of HAMA provides statutory guidance with respect to the criteria for determining the quantum of maintenance. Sub section of Section 23 of HAMA provides the following factors which may be taken into consideration : position and status of the parties reasonable wants of the claimant if the petitioner claimant is living separately the justification for the same value of the claimant’s property and any income derived from such property income from claimant’s own earning or from any other source. Crl. Rev. P No.55 2019. Page 1 iv) Section 20(2) of the D.V. Act provides that the monetary relief granted to the aggrieved woman and or the children must be adequate fair reasonable and consistent with the standard of living to which the aggrieved woman was accustomed to in her matrimonial v) The Delhi High Court in Bharat Hedge v Smt. Saroj Hegde laid down the following factors to be considered for determining maintenance : “1. Status of the parties. 2. Reasonable wants of the claimant. 3.The independent income and property of the claimant. 4. The number of persons the non applicant has to 5. The amount should aid the applicant to live in a similar lifestyle as he she enjoyed in the matrimonial home. 6. Non applicant’s liabilities if any. 7. Provisions for food clothing shelter education medical attendance and treatment etc. of the applicant. 8. Payment capacity of the non applicant. 9. Some guess work is not ruled out while estimating the income of the non applicant when all the sources or correct sources are not disclosed. 10. The non applicant to defray the cost of litigation. 11. The amount awarded u s 125 Cr.P C is adjustable against the amount awarded u 24 of the Act. 17.” vi) Apart from the aforesaid factors enumerated hereinabove certain additional factors would also be relevant for determining the quantum of maintenance 10] There is no denial of the fact that monthly salary of the husband as per Annexure 6 is Rs.62 400 . As the Headmaster of the school he himself issued his salary certificate. With regard to his existing liability he has stated that after divorce with the petitioner he has remarried Smt. Sonali Bhattacharjee who is a dependant of him. The husband has also stated that both he and his present wife suffer from various kinds of ailments for which they have a recurring medical Crl. Rev. P No.55 2019. Page 1 expenditure. Apparently there is no proof of any serious ailment of them. His divorced wife i.e. the petitioner on the other hand is struggling with their daughter for survival. Admittedly the daughter is a school going child and Rs.8 000 which has been sanctioned by the Family Court is not at all adequate for them particularly when the husband is capable of paying more. Though he earns Rs.62 400 per month his carry home pay has been reduced due to contribution of Rs.15 000 to GPF and GPF recovery of Rs.10 000 . The husband can bring down these amounts by contributing less to GPF and raising the number of instalments for recovery of loan taken from GPF. He cannot be permitted to ignore his responsibility for maintaining his divorced wife and daughter on the ground of inadequacy of carry home pay. Having taken into consideration the relevant factors for determining the quantum of maintenance in the light of the legal principles laid down by the Apex Court in the judgments cited supra this Court is of the view that Rs.17 000 per month would be appropriate amount of maintenance in this case. 11] Therefore the husband namely Sri Debabrata Chakraborty is directed to pay Rs.17 000 per month to the wife namely Smti Supriya Bhattacharjee for her maintenance and maintenance of their daughter namely Miss Dikshita Chakraborty. Income of the husband was less when the petition for enhancement of maintenance allowance was filed on 07.08.2018. Therefore the Crl. Rev. P No.55 2019. Page 1 maintenance allowance at the enhanced rate ordered by this Court shall be paid w.e.f the date of the impugned order i.e. from 30.05.2019. Accordingly the husband will pay the said amount of Rs.17 000 to the petitioners as monthly maintenance allowance by depositing the money in the savings bank account of the wife. Maintenance allowance for the month of January 2021 shall be so deposited within the 7th day of February 2021 failing which the Family Court Agartala shall order for deduction of the same from the salary of the husband. For paying the arrears falling due under this order i.e. arrears from 30.05.2019 till 31.12.2020 the husband will pay Rs.3 000 per month in addition to the monthly maintenance allowance of Rs.17 000 till recovery of the whole arrear w.e.f. 30.5.2019 failing which the Family Court will also realize the amount at the rate aforesaid by way of deduction from his salary. This criminal revision petition is thus disposed of. Copy of the order be given to both of the parties free of costs. Send back the LCR along with a copy of the judgment. Dipankar Crl. Rev. P No.55 2019.

The minimum sentence applicable for an offence punishable under section 13 of the Prevention of Corruption Act is one year: Jharkhand High Court

It was a settled principle of law that the minimum sentence under Sections 7 and 13(2) of the Prevention of Corruption Act, 1988 was enhanced by Act 1 of 2014 with effect from 16-1- 2014, would was not applicable to the case in which the incident in question relates to. The Hon’ble High Court of Jharkhand before The Hon’ble Mr. Justice Anil Kumar Choudhary held such opinion regarding the case of Kedar Paswan Vs. The Union of India through the CBI/SPE/Ranchi [Cr. Appeal (SJ) No. 457 of 2019].  The facts of the case were associated with an appeal filed against the judgment dated 22.02.2019, wherein the learned Special Judge passed a sentence of conviction. The counsel representing the appellant-convict stated that the appellant does not want to contest the said appeal on merit and confined his arguments only to a sentence imposed by the trial court upon the appellant-convict in the impugned judgment and order of sentence. The learned Court convicted the appellant of offences under Section 13 (2) r/w 13 (1) (d) Prevention of Corruption Act, 1988, Section 120B  read with 420, 407, 467, 468, and 471 IPC and Section 13(2) read with 13(1) (d) P.C. Act. It was reported that in the office of the Engineer-in-chief, RCD, Government of Bihar, Patna, the appellant was functioning as the Director. Supply of bitumen in bulk was proposed to the RCD but the appellant dissented to the same and accepted the illegal gratification from the transporter co-convict, D.N. Singh. After going through each and every exhibit, submission and witness it was found that he was instrumental in placing the order for supply but there was neither any capacity for storage of the aforesaid bulk bitumen nor the allotted fund was sufficient. Even then, the said supply order was issued by the appellant-convict in favour of the co-convict transporter and based on those circumstances and the evidence in the record the learned court below held him guilty for the said offences and convicted and sentenced him, as stated earlier.  Considering all the statements and submissions, The Hon’ble Court held that “as the appellant-convict has already undergone custody for more than two years and six months, this Court does not want to interfere with the sentence so far as offence punishable under Section 120B  read with 420, 407, 467, 468, and 471 IPC and Section 13(2) read with 13(1) (d) P.C. Act is concerned. In case, the appellant-convict deposits the fine amount of Rs. 15,000/-, he shall be released from the custody forthwith unless his detention is required in any other case. This appeal is disposed of with modification in sentence only and in view of the disposal of this appeal, the interlocutory application, if any, also stands disposed of.”

1 Cr. AppealNo. 4519 IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr. AppealNo. 4519 1997 R ) Kedar Paswan aged about 71 years son of Late Pawan Paswan @ Late Raman Paswa Resident of Village Kharsari P.S. Kowakale P.O. KharsariDistrict Nawadah The Union of India through the CBI SPE Ranchi …... For the Appellant For the C.B.I Mr. Ajit Kumar Senior Advocate Ms. Nitu Sinha Advocate P R E S E N T HON’BLE MR. JUSTICE ANIL KUMAR CHOUDHARY By the Court: Heard the parties. Though this appeal is directed against the Judgment of conviction and order of sentence dated 22.02.2019 passed by learned Special Judge C.B.I. Ranchi in R.C. No. 02 1997(R) Mr. Ajit Kumar learned senior counsel for the appellant convict submits in continuation submissions made by him before this court on 16.11.2021 the appellant convict does not want to contest this appeal on merit and he confines his arguments only to sentence imposed upon the appellant convict by the trial court in the impugned judgment and order of sentence. 2. By the impugned Judgment of conviction and order of sentence dated 22.02.2019 passed by learned Special Judge C.B.I. Ranchi in R.C. No. 02 1997 R the learned court has held the appellant convict guilty for the offences punishable under following offences and had sentenced them as indicated below: 2 Cr. AppealNo. 4519 Sentence Convict Offence Imprisonment Fine Section 13 r w 13 1)P.C. Act Section 120B r w 420 407 467 468 and 471 IPC r w Section 13(2) r w 13(1)P.C. Act 5 years R.I. Rs. 10 lacs 2 years R.I. Rs. 10 lacs 6 months 6 months R.I. 3. The brief facts of this case is that the appellant convict while functioning as the Directorin the office of the Engineer in chief RCD Government of Bihar Patna in flagrant disregard to the procedures processed and recommended the issuance of supply order for 1500 MT bulk bitumen to the RCD Chatra Division having knowledge about the previous supply order for the said division and he never dissented to the proposal for supply of bitumen in order to process the same and for this act of commission he accepted the illegal gratification from the transporter co convict D.N. Singh at the rate of ₹ 10 per MT. 4. In support of its case the prosecution altogether examined forty six witnesses and proved the documents which have been marked as Exhibits 1 to 60 and several documents have also been marked as X to X 40. From the side of the defence also one witness has been examined as D.W.1 and from the side of the defence the documents were proved which have been marked as Exhibits A to Exhibit J and J 1 and further two documents have been marked as Y and Y 1. 5. Learned trial court after taking into consideration the evidence in the record observed that the appellant convict admitted that he was the Director in the office of the Engineer in chief RCD Government of Bihar Patna in additional charge during the relevant period but the fact that in absence of any requisition for bulk bitumen from the RCD Chatra and as without mentioning in his noting about any requirement of bulk bitumen for RCD Chatra he was instrumental in placing order for supply by issuing the supply order though there was no capacity for storage of the aforesaid bulk bitumen nor the allotted fund was sufficient even then the said supply order was issued by the appellant convict in 3 Cr. AppealNo. 4519 favour of the co convict transporter and basing on circumstances and the evidence in the record in this respect learned court below held him guilty for the said offences and convicted and sentenced him as already indicated above. 6. Ms. Nitu Sinha the learned counsel for the Central Bureau of Investigation defends the impugned judgment of conviction and order of sentence and submits that as there is ample evidence in the record to bring home the charges hence neither the judgment of conviction nor the order of sentence warrants interference in this appeal and submits that this appeal being without any merit be Since the appeal is not contested on merit hence this court is not inclined to interfere with the impugned judgment of conviction. Accordingly the impugned judgment of conviction dated 22.02.2019 passed by learned Special Judge C.B.I. Ranchi in R.C. No. 02 1997 R is confirmed. So far as the sentence of the appellant convict is concerned it is submitted by learned senior counsel for the appellant convict that the appellant convict was the in charge by way of additional charge of the office of Directorin the office of the Engineer in chief RCD Government of Bihar Patna only for few months and he is in no way concerned with the supply made after his demitting the office and the only allegation against him is that he was instrumental in issue of supply order for 1500 MT of bitumen and he allegedly took ₹ 10 per MT of bitumen which in total comes to ₹ 15 000 only. It is then submitted that the appellant convict is an old person of 73 years age as on today and he has already undergone angioplasty as well as by pass surgery and he is a diabetic person hence he requires constant medication. It further submitted by learned senior counsel for the appellant convict that the appellant convict has already undergone rigors of criminal trial since 1997 to till date and during the trial he had been in custody from 31.01.2002 to 02.05.2002 and after his conviction he has been in custody since 22.02.2019 to till date hence it is submitted that the 4 Cr. AppealNo. 4519 appellant convict be sentenced for the period he has already undergone in custody. 9. Learned counsel for the C.B.I. Mrs. Nitu Sinha submits that after the amendment the minimum sentence for the offence punishable under section 13 of the Prevention of Corruption Act is 4 years it is then submitted that the fine amount imposed upon the appellant convict ought not be interfered with. 10. Having heard the rival submissions made at the Bar it is pertinent to mention here that it is a settled principle of law that the minimum sentence under Sections 7 and 13(2) of the Prevention of Corruption Act 1988 has been enhanced by Act 14 with effect from 16 1 2014 will not be applicable to the cases in which the incident in question relates to the period prior to the said date as has been held by the Hon’ble Supreme Court of India in the case of Gurjant Singh Vs. State of Punjab reported in8 SCC 650 paragraph 15 and 16 of which read as under: “15. The learned counsel for the appellant submitted that the sentence awarded by the trial court is harsh and the same may at least be reduced to the period already undergone by the appellant. It is further submitted by him that the sentence of imprisonment awarded by the trial court is much more than the minimum sentence prescribed under law as it stood in 2003. It is relevant to mention here that the minimum sentence under Sections 7 and 13(2) of the Prevention of Corruption Act 1988 has been enhanced by Act 1 of 2014 with effect from 16 1 2014 but the incident in question relates to the period prior to the said date. Considering the facts and circumstances of the case we are of the view that the sentence of rigorous imprisonment for a period of two years and a fine of rupees one lakh would meet the ends of justice in the present case. 16. Accordingly the sentence of imprisonment is reduced from a period of three years to a period of two years without interfering with the sentence of fine recorded by the trial court. With this modification in the sentence the appeal stands disposed of.” It is needless to mention that the incident involved in this case was prior to the year 1997 thus the minimum sentence applicable in this case so far as the offence punishable under section 13 of the Prevention of Corruption Act is concerned will be one year as was prevalent before 16.1.2014. Considering the fact that the appellant 5 Cr. AppealNo. 4519 convict is an old person of 73 years age and the allegation against the appellant convict is only of receiving Rs. 10 per MT of bulk bitumen that comes out in total to Rs 15 000 and also keeping in view that the appellantconvict has undergone custody during the trial and after his conviction taken together for a period of a little less than three years i.e. during the trial he had been in custody from 31.01.2002 to 02.05.2002 and after his conviction he has been in custody since 22.02.2019 to till date this Court is of the considered view that the sentence of the appellant convict so far as offence punishable under Section 13 read with Section 13 (d) of the Prevention of Corruption Act be reduced to the period he has already undergone in custody and fine of Rs. 15 000 and in default of paying the fine of Rs. 15 000 the appellant convict has to undergo Simple Imprisonment for one month. Further as the appellant convict has already undergone custody for more than two years and six months this Court does not want to interfere with the sentence so far as offence punishable under Section 120B read with Sections 420 407 467 468 471 of Indian Penal Code read with Section 13 read with Section 13 (d) of the Prevention of Corruption Act is concerned. In case the appellant convict deposits the fine amount of Rs. 15 000 he shall be released from the custody forthwith unless his detention is required in any other case. 11. This appeal is disposed of with modification in sentence only and in view of the disposal of this appeal the interlocutory application if any also stands disposed of. 12. Let a copy of this judgment be sent to the Court concerned forthwith. High Court of Jharkhand Ranchi Dated the 18th November 2021. AFR Smita

Rejection of Anticipatory Bail but accused was granted three days protection from arrest u/s 438(4) Cr.P.C: High Court of Bombay

The presence of the applicant seeking anticipatory bail shall be obligatory at the time of final hearing of the application and passing of final order by the court, if an application make to it by the Public Prosecutor, the Court considers such presence necessary in the interest of justice. In the context of Criminal Application (APL) No.393 of 2021, Dr. Sameer Narayanrao Paltewar versus The State of Maharashtra, through police station office. Mr. Avinash Gupta, Senior advocate with Mr. Akash Gupta, advocate for the applicant. Mr. S.A.Ashirgade, (APP) for the respondent. Mr. Shyam Dewani, Advocate and Mr. Sahil Dewani, advocate for the intervenor. The judgement was given by Hon’ble Manish Pitale.J. The background of the case goes hereby, The court heard a Nagpur based neurosurgeon’s plea seeking directions to obliviate the possibility of arrest an accused is faced with when he remains present at the time of final hearing of ABA, abiding by the Sessions Court’s order. The Surgeon was booked for under sections 406, 409, 420, 465, 467, 468  and 471 of the Indian Penal Code(IPC) and Section 66-C of the Information Technology Act, 2000 for fraud and cheating. He approached the High Court as the Sessions Court hearing his anticipatory bail application ordered him to remain present at the time of final hearing. APP for the state S.A. Ashirgade submitted that there was a possibility that the accused may be arrested in the absence of interim protection. But, he cited the Division Bench’s judgement in the case of Abdul Razzak Abdul Sattar and Anr. Versus State of Maharastra and Ors., and another judgement rejecting a plea challenging the constitutional validity of Section 438(4) of the Cr.P.C. applicable to the State of Maharashtra, as being violative of Articles 14 and 21 of the Constitution of India. The Bench then issued the following directions: “This would not only be antithetical to the right of the accused to move the High Court under Section 438 of the Cr.P.C. but it would strike at the the root of the right guaranteed under Article 21 of the Constitution of India,” Justice Manish Pitale observed.

on 21 08 2021 on 24 08 1 apl 393 2021 J.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYNAGPUR BENCH AT NAGPURCriminal ApplicationNo. 3921APPLICANT:Dr. Sameer Narayanrao Paltewar Aged 51 years Occupation : Medical Practitioner Neuro Surgeon Resident of 502 Le Prestige 105 106 Farmland Ramdaspeth Nagpur 440 010.Vs.RESPONDENT : The State of Maharashtra through Police Station Officer Police Station Sitabuldi NagpurMr. Avinash Gupta Senior Advocate with Mr. Akash Gupta Advocate for the applicantMr. S.A. Ashirgade APP for the respondent Mr. Shyam Dewani Advocate and Mr. Sahil Dewani Advocatefor the intervenorCORAM : MANISH PITALE J.RESERVED ON : JULY 27 2021PRONOUNCED ON: AUGUST 21 2021 JUDGMENT Heard finally.2.What is the fate of an accused in the State ofMaharashtra who is directed to remain present in the SessionsCourt pursuant to a direction under Section 438(4) of the on 21 08 2021 on 24 08 2 apl 393 2021 J.odtCode of Criminal Procedure 1973and his applicationfor anticipatory bail is rejected Is he not exposed toimmediate arrest as the interim protection operating duringpendency of the application vanishes with the dismissal of theapplication Is he then not deprived of opportunity to movethe High Court for grant of anticipatory bail by invoking theconcurrent jurisdiction of the High Court under Section 438of the Cr.P.C. These are the questions that fall forconsideration in the present application. 3.The applicant before this Court contends thatappropriate directions are required from this Court in thecontext of Section 438(4) of the Cr.P.C. MaharashtraAmendment so as to ensure that the very remedy of pre arrest bail or anticipatory bail is not frustrated when theSessions Court directs the accused to remain present underthe said provision at the time of final hearing of theapplication for anticipatory bail. The contention is that whenthe presence of the accused is insisted upon under Section438(4) of Cr.P.C. in the eventuality of the application foranticipatory bail being rejected interim protection needs tobe extended for a reasonable time so that the accused is notdeprived of the opportunity to knock the doors of the High on 21 08 2021 on 24 08 3 apl 393 2021 J.odtCourt to seek anticipatory bail as the High Court exercisesconcurrent jurisdiction in the matter. The submission is thatin the absence of any such direction the moment ananticipatory bail application of an accused is rejected and theapplicantis obliged to remain present before theSessions Court pursuant to direction under Section 438(4) ofCr.P.C. there is every possibility of the Investigating Officerarresting the accused then and there as a result of which theaccused would stand deprived of approaching the High Court thereby frustrating the very remedy available under Section438 of Cr.P.C.4.The applicant before this Court is a Nero Surgeon practicing since 1999 who has worked as a Lecturer in SionHospital at Mumbai and who has been instrumental inestablishing the Neuro Science Department of a SuperSpecialty Hospital at Nagpur. The complainant and theapplicant are the Directors of a company operating the saidHospital and the complainant has lodged a criminalcomplaint due to disputes that have arisen bearing CrimeNo. 77 2021 against the applicant for offences punishableunder Sections 406 409 420 465 467 468 and 471 of theIndian Penal Codeand Section 66 C of the Information on 21 08 2021 on 24 08 4 apl 393 2021 J.odtTechnology Act 2000.5.The applicant filed an application for grant ofanticipatory bail before the Sessions Court wherein on22 02 2021 ad interim protection was granted in favour ofthe applicant and he was told to co operate with theinvestigation. Upon notice being issued in the saidapplication the Public Prosecutor appeared in the matter anda counsel also represented the complainant to assist theProsecutor. The applicant states that the counsel representingthe complainant applied before the Public Prosecutor seekinga direction for personal presence of the applicant at the timeof final hearing of the anticipatory bail application.Thereafter the Investigating Officer and the Prosecutormoved applications seeking presence of the applicant in theCourt at the time of final hearing of the anticipatory bailapplication. On 05 03 2021 the Court of Additional SessionsJudge6 Nagpur allowed the applications and directed theapplicant to remain present in the Court at the time of finalhearing of the application for anticipatory bail.6.Aggrieved by the same the applicant filed thepresent application wherein this Court passed an order on on 21 08 2021 on 24 08 5 apl 393 2021 J.odt09 03 2021 admitting the application and recorded theaforesaid contentions raised in the matter pertaining to thescope and amplitude of Section 438(4) of Cr.P.C. as applicableto the State of Maharashtra. Interim order was passed infavour of the applicant to the effect that if the Sessions Courtrejected the anticipatory bail application the interimprotection operating in favour of the applicant wouldcontinue for a period of 72 hours to enable him to approachthis Court. The complainant filed an intervention applicationand appeared through counsel. The public Prosecutorrepresented the State.7.Mr. Avinash Gupta learned Senior Counselappearing along with Mr. Akash Gupta learned Counsel forthe applicant submitted that the power to grant anticipatorybail under Section 438 of Cr.P.C. is exercised concurrently bythe Sessions Court and this Court. It was submitted that Sub sectionto Section 438 of Cr.P.C. as applicable to the Stateof Maharashtra creates a situation that when the Courtdirects presence of the applicantin the Court on anapplication moved by the Prosecutor unless there is an ordergranting interim protection from arrest to the applicant thereis every possibility of the applicant being arrested on his on 21 08 2021 on 24 08 6 apl 393 2021 J.odtremaining present in the Court thereby frustrating the veryright available under the said provision. It is submitted thatthis Court to address the said situation has repeatedly heldthat when the Sessions Court exercises its power underSection 438(4) of Cr.P.C. directing the accused to remainpresent in the Court at the stage of final hearing there has tobe interim protection from arrest in favour of the accused. Inother words it is already held by this Court that the directionto the accused to remain present in the Court by exercisingpower under Section 438(4) of Cr.P.C. can be granted onlywhen interim protection is already operating in favour of suchan accused. 8.But the learned Senior Counsel submits that theapplicant in the present case seeks to highlight the plight ofan accused when he remains present in the Court at the stageof final hearing of the application for grant of anticipatorybail while interim protection is operating. In the eventualitythat the application is rejected upon final hearing unlessprotection is extended further for a reasonable period of timeto approach the High Court for grant of anticipatory bail theaccused stands exposed to the possibility of arrest. As a result in the event of his immediate arrest he is deprived of an on 21 08 2021 on 24 08 7 apl 393 2021 J.odtopportunity to move the High Court having the consequenceof frustrating the right available under Section 438(4) ofCr.P.C. to move the High Court for consideration of his prayerfor grant of anticipatory bail. The learned Senior Counselsubmits that the Maharashtra Amendment to Section 438 ofCr.P.C. incorporating sub sectiontherein ought to be readin such a fashion that it operates in the interest of justice andin the interest of the prosecution as well as the accused. It issubmitted that the Court can continue the conditions imposedfor grant of interim protection during pendency of theapplication before the Sessions Court or the Court can imposefurther conditions also while extending the interimprotection for a reasonable period of time in the interest ofjustice. The learned Senior Counsel emphasized that theexpression “interest of justice” used in Section 438(4) of theCr.P.C. as applicable to the State of Maharashtra ought not tobe interpreted in a narrow fashion to mean only the interestof prosecution but also to take care of the interest of theaccused.9.The learned Senior Counsel relied upon judgmentsof the Hon’ble Supreme Court in the cases of Shri GurbakshSingh Sibbia and Others Vs. State of Punjab2 SCC on 21 08 2021 on 24 08 8 apl 393 2021 J.odt565 Sushila Aggarwal and Others Vs. State5 SCC 1 and judgment and order dated04 12 2009 passed by this Court in Criminal Application No.53009of the Cr.P.C. as applicable to the State ofMaharashtra operates in furtherance of justice and theinterpretation that frustrates the very right provided underSection 438 of the Cr.P.C. is eschewed. 10.Mr. S.A. Ashirgade learned APP appeared onbehalf of the respondent State and submitted that theapprehension expressed on behalf of the applicant that in theabsence of interim protection being continued there wasdistinct possibility of the accused being arrested uponrejection of the application for anticipatory bail by theSessions Court could not be said to be unjustified. The on 21 08 2021 on 24 08 9 apl 393 2021 J.odtlearned APP further submitted that there can be no doubtabout the fact that the Sessions Court and High Court doexercise concurrent jurisdiction insofar as Section 438 ofCr.P.C. is concerned. But attention of this Court was invitedto judgment of the Division Bench of this Court in the case ofAbdul Razzak Abdul Sattar and Anr. Vs. State of Maharashtraand Ors. judgment and order dated 19 07 2011 passed inCriminal Writ Petition No. 3511 wherein the aforesaidspecific provision i.e. under Section 438(4) of the Cr.P.C.applicable to the State of Maharashtra was challenged on theground that it violated Articles 14 and 21 of the Constitutionof India. It was submitted that by the said judgment aDivision Bench of this Court rejected the challenge raised tothe validity of Section 438(4) of the Cr.P.C. It was specificallyheld that the said provision could not be said to violate Article21 of the Constitution of India. On this basis it wassubmitted that the direction given in the present case by theimpugned order dated 05 03 2021 by exercise of powerunder Section 438(4) of the Cr.P.C. could not be said to beimproper on the part of the Sessions Court. The learned APPsubmitted that the contents of the 203rd Report of the LawCommission could not be disputed and this Court may passappropriate directions in the context of the apprehension on 21 08 2021 on 24 08 10 apl 393 2021 J.odtexpressed by the learned Senior Counsel appearing for theapplicantin the interest of justice. 11.Mr. Sahil Dewani learned counsel appearing forthe intervenorsubmitted that thepresent application was rendered infructuous in view of thefact that this Court had granted interim relief to the applicantby directing that if the Sessions Court passed any adverseorder of rejection of anticipatory bail the interim protectionoperating in favour of the applicant would continue tooperate for further period of 72 hours to enable the applicantto approach this Court. On this basis it was submitted thatthe present application had served its purpose. On thespecific contentions raised on behalf of the applicant thelearned counsel appearing for the intervenor also relied uponthe aforesaid Division Bench judgment in the case of AbdulRazzak Abdul Sattar and Anr. Vs. State of Maharashtra andOrs.3 Bom CR 348 wherein this Court had an occasion to comment upon theapprehension expressed on behalf of the applicant. on 21 08 2021 on 24 08 11 apl 393 2021 J.odt12.Having heard the learned counsel appearing forthe rival parties this Court is called upon to consider as towhether appropriate directions need to be given in order toaddress the apprehension of the accused in the State ofMaharashtra in the context of Section 438(4) of the Cr.P.C.This Court needs to consider as to whether the accused isentitled for appropriate directions extending the interimprotection operating during pendency of the anticipatory bailapplication before the Sessions Court for a reasonable period in the event the application is rejected upon final hearing soas to enable the applicant to approach the High Court byinvoking concurrent jurisdiction under Section 438 of theCr.P.C.13.This Court is of the opinion that even though inthe present case the applicant was granted interim relief theissue raised on behalf of the applicant is recurring and that itneeds to be decided on merits. Before considering the rivalarguments and the relevant material produced before thisCourt it would be appropriate to reproduce the aforesaidprovision as applicable in the State of Maharashtra. “Substitution of section 438 of Act 74 : For section 438 of the Code of Criminal on 21 08 2021 on 24 08 12 apl 393 2021 J.odtProcedure 1973in its application tothe State of Maharashtra the following sectionshall be substituted namely : 438. Direction for grant of bail to personapprehending arrest. When any person hasreason to believe that he may be arrested on anaccusation of having committed a non bailableoffence he may apply to the High Court or theCourt of Session for a direction under this sectionthat in the event of such arrest he shall bereleased on bail and High Court may after takinginto consideration inter alia the following factors: The nature and gravity or seriousnessof the accusation as apprehended by theapplicantthe Courtshall indicate therein the date on which theapplication for grant of anticipatory bail shall befinally heard for passed on order thereon as theCourt may deem fit and if the Court passes anyorder granting anticipatory bail such order shallinclude inter alia the following conditions namely on 21 08 2021 on 24 08 13 apl 393 2021 J.odt:of section 437 as ifthe bail was granted under that section.(3)Where the Court grants an interimorder under sub sectionit shall forthwithcause a notice being not less than seven daysnotice together with a copy of such order to beserved on the Public Prosecutor and theCommissioner of Police or the as the case may be the concerned Superintendent of Police with aview to give the Public Prosecutor a reasonableopportunity of being heard when the applicationshall be finally heard by the Court.(4)The presence of the applicant seekinganticipatory bail shall be obligatory at the time offinal hearing of the application and passing of thefinal order by the Court if on an application madeto it by the Public Prosecutor the Court considerssuch presence necessary in the interest of justice.(5)On the date indicated in the interimorder under sub sectionthe Court shall hearthe Public Prosecutor and the applicant and afterdue consideration of their contentions it mayeither confirm modify or cancel the interim ordermade under sub sectionbefore the Court at the time of final hearing of anapplication for anticipatory bail and the Court considers suchpresence necessary and in the interest of justice it becomesobligatory for the accused to remain present before the Court.The physical presence of the applicantbefore theCourt at the stage of final hearing obviously exposes him toarrest the moment his application for anticipatory bail isdismissed upon final hearing. It is obvious that the momentthe applicantis arrested his right to move the HighCourt under Section 438 of Cr.P.C. invoking the concurrentjurisdiction vested in the High Court stands forfeited andfrustrated. 15.There can be no doubt about the fact that theSessions Court as well as the High Court exercise concurrentjurisdiction insofar as applications under Section 438 of theCr.P.C. are concerned. This is because the words used in theabove quoted provision are “he may apply to the High Courtor the Court of Sessions for a direction under this Section….”. The Law Commission of India in the aforementioned203rd Report has also deliberated upon the said concurrentjurisdiction of the Sessions Court and the High Court in thematter of applications under Section 438 of the Cr.P.C. and on 21 08 2021 on 24 08 15 apl 393 2021 J.odtcommented upon the then proposed amendment in Section438 of the Cr.P.C. which ultimately did not fructify in theCr.P.C. as generally applicable but nevertheless found itsway in the said provision as applicable to the State ofMaharashtra. Thus it is an undeniable fact that the SessionsCourt as well as the High Court exercise concurrentjurisdiction insofar as applications for anticipatory bail underSection 438 of the Cr.P.C. are concerned.16.By now it is also a settled position of law asreferred in the aforesaid 203rd Report of the Law Commissionof India submitted in December 2007 that an accused isexpected to first approach the Sessions Court to seekanticipatory bail and if an adverse order is passed to thenapproach the High Court seeking anticipatory bail underSection 438 of the Cr.P.C. Therefore this two stage process ofexercising right to move the Sessions Court initially and thenthe High Court for seeking anticipatory bail under Section438 of the Cr.P.C. has been recognized.17.Initially when the question arose regarding plightof an accused not having interim protection during thependency of anticipatory bail application before the Sessions on 21 08 2021 on 24 08 16 apl 393 2021 J.odtCourt and then being directed to appear before the SessionsCourt at the stage of final hearing under Section 438(4) of theCr.P.C. this Court held in various orders that if a directionwas to be given to the accused to remain present in Courtunder Section 438(4) of the Cr.P.C. interim protection oughtto be operating in his favour. In the case of The State ofMaharashtra Vs Kachrusingh Santaramsingh Rajputthis Court considered the aforesaid aspect of the matter andheld that the very purpose of introducing Section 438 in theCr.P.C. and the new form in which it was brought into forcein the State of Maharashtra was to strike a balance betweenthe interest of the State to investigate through police intooffences according to established procedure of law and theindividual liberties of a person accused of serious crimes. Theexpression “in the interest of justice” was deliberated uponand it was held that the said expression was not limited toconcern for the rights of the accused but also the duty of theState to investigate into serious offences in a proper andefficient manner. In the case of Vijaya Ramesh Ramdasi V.State of Maharashtra decided on 20 03 2001 this Court held as follows:“8.While considering whether the grant ofinterim anticipatory bail is sine qua non for theCourt to order personal presence of the applicant onthe date fixed for final hearing practical effect of on 21 08 2021 on 24 08 17 apl 393 2021 J.odtthe scheme as a whole must be taken intoconsideration. In case the applicant is not grantedinterim anticipatory protection and still the Courtdirects the applicant to remain present in the Courton the date fixed for final hearing by virtue ofproviso to sub sectionit is open for theinvestigating Officer to effect arrest of the applicant.The direction under sub sectionif considered asan independent and irrespective of interimprotection will prove to be a mouse trap and not aprotection of personal liberty of the citizen. Beingunder the Court directions the applicant would beobliged to proceed towards the Court andinvestigating Officer can wait at the entrance gateof the Court premises.The proposition of learned APP that sub sectionis an independent power and can beexercised without granting interim protection is therefore unacceptable being against the spirit ofprovision of anticipatory bail which is believed tobe for the purpose of protection of personal libertyguaranteed by the Constitution of India. It must therefore be said that the Court entertaining theapplication for anticipatory bail shall be in aposition to insist for personal presence of theapplicant although in the interest of justice on thedate fixed for final hearing or on any other datefixed for hearing provided the applicant is grantedprotection by interim anticipatory bail. In case sub sections(4) andare not to be read togetherin this fashion by virtue of proviso to sub section(1) the Court itself shall be indulging intofrustrating the petitions.”18.The observations quoted above are echoed in theorder passed by this Court in the case of Goyappa Jalagiri V.The State of Maharashtra in Criminal Application No. 4370 of2004 decided on 20 10 2004 wherein this Court held asfollows: on 21 08 2021 on 24 08 18 apl 393 2021 J.odt“P.C.1.Heard Counsel for the parties.Perused the record. The Court below to mymind has committed manifest error inassuming that provisions of sub sections 3 and4 of section 438 are independent. Sub sectionsof Section 438 as applicable to the State ofMaharashtra will have to be read conjointlyand if so read the scheme appears to be thatwhen the Court insist for appearance of anyapplicant before the application is finally heardor at any other stage of the hearing of theapplication the appropriate course would be toprotect the applicant for the limited purpose soas to enable him to appear before the Court. Ifsuch limited protection is not extended to theapplicant the applicant would be obviouslyexposed to the threat of arrest and for whichpurpose Section 438 has been brought intoforce. Viewed in this perspective the SessionsJudge Sangli has committed manifest error inproceeding on the assumption that it was notnecessary to extend any protection to theapplicant as to enable him to appear before theCourt. As the court below has not consideredany other aspects on merits to my mind following order will meet the ends of justice: of section 438 do not grant any interimprotection. In my view it would be appropriate therefore to take into consideration the schemeof section 438 that if an application is preferredby the prosecution for the purpose of securingpresence of the accused the Courts if theywant to pass favourable order granting theapplication in such cases it would beappropriate if some reasons are assigned as towhy it feels that presence of the accused isnecessary and ordinarily should grant interimprotection to the accused so that theprosecution on the pretext of securing presenceof the accused does not arrest the accused andmake his application infructuous.” 20.The above quoted observations of this Court in thesaid judgments are in consonance with the law laid down by on 21 08 2021 on 24 08 20 apl 393 2021 J.odtthe Hon’ble Supreme Court in the case of Shri GurbakshSingh Sibbia and Others Vs. State of Punjab1 SCC 248 thatin order to meet the challenge of Article 21 of theConstitution the procedure established by law fordepriving a person of his liberty must be fair justand reasonable. Section 438 in the form inwhich it is conceived by the legislature is open tono exception on the ground that it prescribes aprocedure which is unjust or unfair. We ought atall costs to avoid throwing it open to aConstitutional challenge by reading words in itwhich are not to be found therein.” on 21 08 2021 on 24 08 21 apl 393 2021 J.odt21.Thus insofar as the apprehension of the accused inthe State of Maharashtra in the context of being arrestedwhen directed to remain present under Section 438(4) of theCr.P.C. before the Sessions Court has been addressed by thespecific observations and law laid down in theabovementioned judgments. The applicant in the present casehas highlighted the apprehension even when interimprotection is operating during pendency of the anticipatorybail application before the Sessions Court and the saidapplication stands finally rejected. It is contended that whenan accused like the applicant in this application is directed toremain present by the Sessions Court under Section 438 ofthe Cr.P.C. the moment his application for anticipatory bail isrejected upon final hearing by the Sessions Court the interimprotection terminates instantly and the accused is exposed tothe possibility of arrest while he is yet to exercise his right tomove the High Court in its concurrent jurisdiction underSection 438 of the Cr.P.C. Thus in the present case theapplicant is seeking appropriate directions which could besaid to be in the nature of a step further than what is alreadyrecognized by this Court in the aforementioned judgments.22.That the said apprehension is real and not on 21 08 2021 on 24 08 22 apl 393 2021 J.odtunfounded is supported by the contents of the 203rd Report ofthe Law Commission of India. The learned Senior Counselappearing for the applicant is justified in submitting that theReport of Law Commission can be used as an external aid forappropriate interpretation of Section 438(4) of the Cr.P.C. because the said report specifically deliberates upon anidentical proposed amendment in the Cr.P.C. as applicable tothe entire country. The Hon’ble Supreme Court has held inthe case of Mithilesh Kumari and Another Vs. Prem BehariKhare2 SCC 95 that report of Law Commission ofIndia may be referred to as an external aid to construction ofprovisions of law. In the said Report submitted in December2007 the Law Commission of India referred to the origins ofthe remedy of anticipatory bail incorporated in the Cr.P.C. andthereupon it came to a considered conclusion that theproposed amendment identically worded as the one found inthe Maharashtra Amendment ought not to be brought intoeffect and that the same was required to be omitted in theinterest of justice. The Law Commission of India in the saidReport has categorically recorded as follows:“Nevertheless we are of the view that obligatorypresence of the applicant seeking anticipatorybail in compliance with Court’s order to thateffect will be antithesis to his right toanticipatory bail. We are therefore of theconsidered view that sub sectionshould be on 21 08 2021 on 24 08 23 apl 393 2021 J.odtomitted from this section.”23.The Law Commission of India has specificallyreferred to the concurrent jurisdiction of the Sessions Courtand the High Court in the context of exercise of originaljurisdiction under Section 438 of the Cr.P.C. and after takinginto consideration the said aspect of the matter it has foundthat such an amendment making presence of the accusedobligatory is antithetical to the right of the accused toanticipatory bail. The Law Commission of India has alsorecorded that it is conscious of the fact that the StateAmendment of Maharashtra incorporating sub section 4 toSection 438 of the Cr.P.C. has already come into effect fromthe year 1993 and yet a clear opinion is expressed that suchan amendment is an antithesis to the right of anticipatorybail. In its recommendations at para 7.1 of the aforesaid203rd Report submitted in December 2007 the LawCommission of India has specifically recommended that sub section 1(B) identically worded to sub section 4 of Section438 of the Maharashtra Amendment to the Cr.P.C. must beomitted. It is perhaps for this reason that the such anamendment never found its way in Section 438 of the Cr.P.C. as applicable to the other parts of the country. on 21 08 2021 on 24 08 24 apl 393 2021 J.odt24.At this stage it would be appropriate to refer tothe judgment of the Division Bench of this Court in the caseof Abdul Razzak Abdul Sattar and Anr. Vs. State ofMaharashtra and Ors.in the context ofArticles 14 and 21 of the Constitution of India. The DivisionBench of this Court has specifically held that the aforesaidamendment does not violate Article 21 of the Constitution ofIndia because the right conferred to the accused underSection 438 of the Cr.P.C. is a statutory right regulated bycertain reasonable restrictions and therefore introduction ofsub section 4 to Section 438 of the Cr.P.C. in the MaharashtraAmendment cannot be said to violate the rights of theaccused under Article 21 of the Constitution of India. 25.In the light of the above this Court is proceedingon the basis that the requirement of sub section 4 of Section438 of the Cr.P.C. as applicable to the State of Maharashtra has to be satisfied by the accused when the Court upon anapplication of the Prosecutor considers presence of theaccused necessary in the interest of justice at the time of final on 21 08 2021 on 24 08 25 apl 393 2021 J.odthearing of the application. This Court in the aforementionedjudgments has repeatedly held that such applications cannotbe casually moved by the prosecution and they cannot beroutinely allowed by the Sessions Court under Section 438(4)of the Cr.P.C. It has been also specifically laid down that sucha direction under Section 438(4) of the Cr.P.C. can be issuedfor the presence of the accused before the Court at the stageof final hearing of the application only where an interimorder of protection from arrest is operating in favour of theaccused. As regards the further step whereby the accused canknock the doors of this Court i.e. the High Court to invokeconcurrent original jurisdiction under Section 438(4) of theCr.P.C. this Court in the case of The State of Maharashtra VsKachrusingh Santaramsingh Rajputhas observed asfollows:“13.Mr. Loya learned Counsel for therespondents then indicated to us threecontingencies in which to me guidelines would benecessary in view of the aforesaid view of thematter for the Courts below. They are: Where interim relief is not granted bythe Court and yet the Court directs the personalattendance of the accused before the Court at thefinal hearingof the Code ofCriminal Procedure. It would be a duty of theCourt to ensure by imposing adequate restrictionon the applicant accused that he did not get anopportunity to flee away or jump the interim bail if already granted. It would be possible for theCourt in such an eventuality to impose on theapplicant accused even a restriction as regardsthe time within which he should approach asuperior Court and get the necessary orders. Itmust be appreciated that the entire section 438 isbeing substituted because the legislature hadthought it fit to have it ensured that the accused applicant do not misuse the provisions of law fordodging the legal process or for evadingthemselves to be subjected to the due process oflaw. If this consideration is borne in mind itwould certainly be open to the Court to pass depending upon the facts of each case theappropriate orders. The same should be theguidelines even in the third contingency namely where the application for anticipatory bail isfinally rejected.”26.Thus in the aforesaid judgment of this Court theaspect sought to be specifically highlighted on behalf of the on 21 08 2021 on 24 08 27 apl 393 2021 J.odtapplicant in the present application has been deliberatedupon and the above quoted observations have been made.There cannot be any two opinions about seriousapprehension expressed on behalf of the applicantof the Cr.P.C. The moment theapplicantis arrested upon rejection of hisapplication by the Sessions Court he is clearly deprived of hisright to move this Court i.e. the High Court for invoking theconcurrent jurisdiction to seek anticipatory bail under Section438 of the Cr.P.C. It is clear that in the absence of extensionof the interim order of protection operating in favour of theaccused during pendency of the application for anticipatorybail before the Sessions Court the right available to theaccused to move this Court i.e. the High Court will standfrustrated if he is arrested and such arrest will obviously befacilitated by the direction of the Sessions Court under on 21 08 2021 on 24 08 28 apl 393 2021 J.odtSection 438(4) of the Cr.P.C. This would not only beantithetical to the right of the accused to move the HighCourt under Section 438 of the Cr.P.C. but it would strike atthe root of the right guaranteed under Article 21 of theConstitution of India.27.This aspect also indicates that the Sessions Courtneeds to pass the order directing presence of the accused atthe time of final hearing under Section 438(4) of the Cr.P.C. only in cases where the Court is of the opinion that there ispossibility of the applicant absconding or that the presence ofthe applicantis necessary to ensure continuedcooperation with the investigation even after final disposal ofthe application for anticipatory bail by the Sessions Court.The prosecution cannot be permitted to move applicationsunder Section 438(4) of Cr.P.C. in a casual manner and theSessions Court is also expected not to routinely allow suchapplications moved on behalf of the prosecution. This isbecause the expression “in the interest of justice” has to beconstrued in the interest of both the prosecution as well asaccused and the Court is obliged to strike a balance betweenthe interests of the two while considering the applicationunder Section 438(4) of the Cr.P.C. on 21 08 2021 on 24 08 29 apl 393 2021 J.odt28.It is not as if the Sessions Court is powerless inimposing further conditions while extending interimprotection granted to an accused while finally rejecting theapplication for anticipatory bail. The Sessions Court caninsist upon continuing the conditions already imposed orimposing further stringent conditions in the interest of justiceso that the abscondence of the accused is not onlydiscouraged but obviated. At the same time the accused isnot deprived of an opportunity to place his case before theHigh Court by invoking concurrent original jurisdiction forseeking anticipatory bail under Section 438 of the Cr.P.C.Therefore this Court finds that there is substance in thecontentions raised on behalf of the applicant and that thisapplication deserves to be disposed of by issuing appropriatedirections in the matter. 29.This Court is conscious of the fact that the purposefor which the applicant had challenged the impugned orderhad served its purpose when interim relief was granted in thisapplication by directing that if the Sessions Court passed anyadverse order of rejection of anticipatory bail the interimpre arrest protection operating in his favour would continue on 21 08 2021 on 24 08 30 apl 393 2021 J.odtto operate for a period of 72 hours to enable the applicant toapproach this Court. It is undisputed that the application foranticipatory bail of the applicant was finally disposed of andthe limited interim relief granted by this Court served thepurpose insofar as applicant before this Court is concerned.30.In any case this Court has perused the impugnedorder. It is found that the applications at Exhs.7 and 8 movedon behalf of the Investigating officer and the Prosecutor didnot divulge any reasons as to why presence of the applicantwas necessary in the interest of justice at the time of finalhearing of the application for anticipatory bail. Theimpugned order passed by the Court of Additional SessionsJudge at Nagpur allowing the aforesaid applications atExhs.7 and 8 also does not record any specific reason otherthan the merely recording that a non cognizable report wasregistered against the applicant at a Police Station. This Courtis of the opinion that the applications moved on behalf of theInvestigating officer and the Public Prosecutor at Exhs. 7 and8 did not divulge sufficient reasons for seeking presence ofthe applicant at the time of final hearing of the applicationfor anticipatory bail. Equally the Court of Additional SessionsJudge Nagpur in the present case allowed the said on 21 08 2021 on 24 08 31 apl 393 2021 J.odtapplications by the impugned order in a casual manner.Therefore even though the purpose for which the presentapplication was filed by the applicant was served by theinterim order passed in his favour this Court is of the opinionthat the impugned order cannot be sustained. 31.In view of the above the present application isdisposed of as follows:a)The impugned order is quashed and set aside. b)In order to address the aforesaid apprehension ofaccused persons in the State of Maharashtra of thepossibility of arrest upon remaining present before theSessions Court pursuant to direction under Section438(4) of the Cr.P.C.andrejection of their application for anticipatory bail thefollowing directions are issued:(i)The Prosecutor under Section 438(4) of theCr.P.C.shall statecogent reasons while seeking the obligatorypresence of the accused before the SessionsCourt at the time of final hearing of theapplication for anticipatory bail. on 21 08 2021 on 24 08 32 apl 393 2021 J.odt(ii)The Sessions Court shall consider such anapplication and pass a reasoned order as to whythe presence of the accused is necessary in theinterest of justice at the time of final hearing ofapplication for grant of anticipatory bail.(iii)If the Sessions Court rejects the application foranticipatory bail upon final hearing and theaccused is present before the Sessions Court inpursuance of directions given under Section438(4) of the Cr.P.C.the Court shall extend the interim protectionoperating in favour of the accused for aminimum period of three working days on thesame conditions on which interim protection wasgranted during pendency of the application foranticipatory bail or on such further conditions asthe Sessions Court may deem fit in the interestof justice.(iv)In cases where the Sessions Court deems itappropriate to grant extension of interimprotection for more than three working days itshall record reasons for the same and in anycase such extension of interim protection upon on 21 08 2021 on 24 08 33 apl 393 2021 J.odtexisting conditions or further stringentconditions shall not exceed a period of sevenworking days.(v)The accused shall abide by the conditions soimposed by the Sessions Court while grantingextension of interim protection failing whichsuch interim protection shall cease to operateinstantaneously. 32.Application stands disposed of in above terms. JUDGEMP Deshpande

Balmukand V. Kamla Wati & Ors

Granting specific performance is always in the discretion of the court Case Name: Balmukand V. Kamla Wati &amp; Ors. Case Number: Appeal No. 7 of 1962 Court: Supreme Court of India Bench: MUDHOLKAR, J.R. SUBBARAO, K. Decided On: 27/01/1964 Relevant Acts and Sections: Contract   by manager to sell joint   property—Specific Performance when ordered–Hindu Law–Joint family. BRIEF FACTS AND PROCEDURAL HISTORYThe plaintiff owned 79/120th share in Kasra he purchased 23/120th share in this land belonging to one Devisahai.  He thus became owner of 17/20th share in this land.  The remaining 3/20th share belongs to the  joint Hindu  family  of  which Pindidas was the  Manager  and  his brother  Haveliram Khemchand and Satyapal were the  members.He, therefore, approached Pindidas in the matter and the latter agreed to sell the 3/20th  share  belonging to the family at the rate of Rs. 250 per marla. The contract in this regard was entered into on October 1 and Rs. 100 were paid to him as  earnest money.But as the manager of the family failed to execute the sale deed in his favour, the plaintiff instituted the suit and made Pindidas and his brothers defendants thereto.He had instituted the suit in the court of Sub-Judge, First Class, Batala, who dismissed it in its entirety.  Upon appeal the High Court of Punjab, while upholding the dismissal of the plaintiff’s claim for specific performance, modified the decree of the trial court and ordered the defendants to  repay to  the plaintiff the earnest money which he had  paid  when the contract of sale was entered into by him with  Pindidas.Aggrieved by the dismissal of his claim for specific performance the plaintiff has come up to this Court by a certificate granted by the High Court, under Art.  133 of the Constitution. ISSUE BEFORE THE COURT:Whether specific performance should be allowed in the present appeal. RATIO OF THE COURTThe Court was of the view that for a transaction to be regarded as one which is of benefit to the family it need not necessarily be only of a defensive character.In the present case there is nothing in the plaint to suggest that Pindidas agreed to sell the property because he found it difficult to manage it or because he found that the family was incurring loss by retaining the property. Nor again is there anything to suggest that the idea was to invest the sale  proceeds in some profitable manner.Even though the fraction of the family’s share of the land owned by the family bore a very small proportion to the  land  which  the  plaintiff held at  the  date  of  the transaction.   But that was indeed the case even before  the purchase  by  the  plaintiff  of  the  23/120th  share  from Devisahai. There is nothing to indicate that the  position of  the family vis-a-vis their share in the land had in  any way  been  altered by reason of the  circumstance  that  the remaining  17/20th interest in the land came to be owned  by the plaintiff alone.The Court observed where  adult  members are  in  existence  the judgment is to be not  that  of  the manager  of the family alone but that of all the adult  members of the family, including the manager.  In the case before us all the brothers of Pindidas were adults when the contract was entered into.  There is no suggestion that they agreed to the transaction or were consulted about it or even knew of the transaction.The court observed that for a transaction to be regarded as of benefit to the family it need not be of defensive character so as to be binding on the family. In each case the court must be satisfied from the material before it that it was in fact such as conferred or was reasonably expected to confer benefit on the family at the time it was entered into.Apart from that it is clear that the adult members of the family have stoutly  resisted the plaintiff’s claim for specific performance and we have no doubt that they would not have done so if they  were satisfied that the transaction was of benefit to the family. DECISION HELD BY COURT:The Court held that the courts below were right in dismissing the suit for specific performance. It added that granting specific performance is always  in the  discretion  of the court and in a case  of this  kind the court would be exercising its discretion right by refusing specific performance.Appeal was dismissed with costs.

Vs KAMLA WATI & ORS DATE OF JUDGMENT MUDHOLKAR J.R MUDHOLKAR J.R SUBBARAO K 1964 AIR 1385 1964 SCR 321 CITATOR INFO E 1978 SC 300 A.I.R. 1962 Raj 3 1959 All. L.J. 340 134 159 S.C. 21 at the time of the contract were also impleaded in the suit as defendants. The suit was resisted on the ground that there was no legal necessity and that the contract for sale was not for the benefit of the family. The trial court as well as the High Court upheld these contentions Before this Court it was contended that even though there was no legal necessity the transaction was for the benefit of the family which the karta as a prudent owner was entitled to enter into for the benefit of the family Held:(i) For a transaction to be regarded as one which is of benefit to the family it need not necessarily be only of a defensive character but what transactions would be for the benefit of the family would depend on the facts and circumstances of each case. In each case the Court must be satisfied from the material before it that it was in fact such as conferred or was necessarily expected to confer benefit on the family at the time it was entered into ii) No part of the joint family property could be parted with or agreed to be parted with by the manager on the ground of alleged benefit to the family when the transaction is opposed by the adult members of the family iii)In the present case the appropriate pleas were not raised by the plaintiff nor the necessary evidence led. The granting of specific performance is always in the discretion of the court. In the facts and circumstances of the case the courts below were justified in refusing to order specific performance and the appeal is dismissed Jagatnarain v. Mathura Das I.L.R. 50 All. 969 Honooman Prasad Pandey v. Babooee Munraj Koonwaree 6 Moo I.A. 393 Sahu Ram Chandra v. Bhup Singh I.L.R. 39 All. 437 Palaniappa Chetty v. Sreemath Daiyasikamony Pandara Sannadhi 44 I.A. 147 Sital Prasad Singh v. Ajablal Mander I.L.R. 18 Pat. 306 and In the matter of A. V. Vasudevan Ors. Minors. A.I.R. 1949 Mad. 260. referred to CIVIL APPELLATE JURISDICTION: Civil Appeal No. 62 Appeal from the judgment and decree dated October 14 1957 of the Punjab High Court in R.F.A. No. 2150 N. C. Chatterjee H. L. Mittal S. S. Khanduja and Ganpat Rai for the appellant Ram Lubhaya and S. D. Sekhri for respondents Nos. 1 12 S. K. Mehta and K. L. Mehta for respondents Nos. 13 15 323 January 27 1964. The Judgment of the Court was MUDHOLKAR J. This is a plaintiff’s appeal from the dismissal of his suit for specific performance of a contract for the sale of 3 20th share of land in certain fields situate in Mauza Faizpur of Batala in the State of Punjab. He had instituted the suit in the court of Sub Judge First Class Batala who dismissed it in its entirety. Upon appeal the High Court of Punjab while upholding the dismissal of the plaintiff’s claim for specific performance modified the decree of the trial court in regard to one matter. By that modification the High Court ordered the defendants to repay to the plaintiff the earnest money which he had paid when the contract of sale was entered into by him with Pindidas It may be mentioned that Pindidas died during the pendency of the appeal before the High Court and his legal representatives were therefore substituted in his place Aggrieved by the dismissal of his claim for specific perfor mance the plaintiff has come up to this Court by a certi ficate granted by the High Court under Art. 133 of the The relevant facts are these The plaintiff owned 79 120th share in Kasra Nos. 494 495 496 497 1800 501 1801 501 and 529 shown in the zamabandi of 1943 43 situate at Mauza Faizpur of Batala. On October 1 1943 he purchased 23 120th share in this land belonging to one Devisahai. He thus became owner of 17 20th share in this land. The remaining 3 20th share belongs to the joint Hindu family of which Pindidas was the Manager and his brother Haveliram Khemchand and Satyapal were the members According to the plaintiff he paid Rs. 175 per marla for the land which he purchased from Devisahai. In order to consolidate his holding the plaintiff desired to acquire the 3 20th share held by the joint family of Pindidas and his brothers. He therefore approached Pindidas in the matter and the latter agreed to sell the 3 20th share be longing to the family at the rate of Rs. 250 per marla.The contract in this regard was entered into on October 1 1945 with Pindidas and Rs. 100 were paid to him as earnest money. As the manager of the family failed to execute the sale deed in his favour the plaintiff instituted the suit and made Pindidas and his brothers defendants thereto The suit was resisted by all the defendants. Pindidas admitted having entered into a contract of sale of some land to the plaintiff on October 1 1945 and of having received Rs. 100 as earnest money. According to him however that contract pertained not to the land in suit but to another piece of land. He further pleaded that he had no right to enter into a contract on behalf of his brothers who are defendants 2 to 4 to the suit and are now respondents 13 to 15 before us. The defendants 2 to 4 denied the existence of any contract and further pleaded that even if Pindidas was proved to be the karta of the joint family and had agreed to sell the land in suit the transaction was not binding upon them because the sale was not for the benefit of the family nor was there any necessity for that sale. The courts below have found in the plaintiff’s favour that Pindidas did enter into a contract with him for the sale of 3 20th share of the family land in suit and received Rs. 100 as earnest money But they held that the contract was not binding on the family because there was no necessity for the sale and the contract was not for the benefit of the family It is not disputed before us by Mr. N. C. Chatterjee for the plaintiff that the defendants are persons in affluent cir cumstances and that there was no necessity for the sale But according to him the intended sale was beneficial to the family inasmuch as it was not a practical proposition for the defendants to make any use of their fractional share in the land and therefore by converting it into money the family stood to gain. He further pointed out that whereas the value of the land at the date of the transaction was Rs 175 per marla only the plaintiff had agreed under the contract to purchase it at Rs. 250 per marla the family stood to make an additional gain by the transaction. The substance of his argument was that the Manager of a joint 325 Hindu family has power to sell the family property not only for a defensive purpose but also where circumstances are such that a prudent owner of property would alienate it for a consideration which he regards to be adequate In support of his contention he has placed reliance on three decisions. The first of these is Jagatnarain v. Mathura Das(1). That is a decision of the Full Bench of that High Court in which the meaning and implication of the term benefit of the estate" is used with reference to transfers made by a Manager of a joint Hindu family was considered The learned Judges examined a large number of decisions including that in Hanooman Persaud Pandey v. Babooee Munraj Koonweree(2) Sahu Ram Chandra v. Bhup Singh(3) and Palaniappa Chetty v. Sreemath Daivasikamony Pandra Sannadhi(4) and held that transactions justifiable on the principle of benefit to the estate are not limited to those which are of a defensive nature. According to the High Court if the transaction is such as a prudent owner of property would in the light of circumstances which were within his knowledge at that time have entered into though the degree of prudence required from the manager would be a little greater than that expected of a sole owner of property. The facts of that case as found by the High Court "........ the adult managers of the family found it very inconvenient and to the prejudice of the family’s interests to retain property 18 or 19 miles away from Bijnor to the management of which neither of them could possibly give proper attention that they considered it to the advantage of the estate to sell that property and purchase other property more accessible with the proceeds that they did in fact sell that property on very advantageous terms that there is nothing to indicate that the transaction would not have reached a profitable conclusion . . I.L.R. 50 All. 969. 6 Moo. I.A.393 I.L.R. 39 All 437. I.L.R. 18 Pat. 306 course of management in order to benefit the estate Following the view taken in the Allahabad case the learned Judges also held that the expression "benefit of the estate has a wider meaning than mere compelling necessity and is not limited to transactions of a purely defensive nature In the course of his judgment Harries C.J. observed at p ". . . . . the karta of a joint Hindu family being merely a manager and not an absolute owner the Hindu law has like other systems of law placed certain limitations upon his power to alienate property which is owned by the joint family. The Hindu law givers however could not have intended to impose any such restriction on his power as would virtually disqualify him from doing anything to improve the conditions of the family. The only reasonable limitation which can be imposed on the karta is that he must act with prudence and prudence implies caution as well as foresight and excludes hasty reckless and arbitrary conduct After observing that the transaction entered into by a manager should not be of a speculative nature the learned Chief Justice observed "In exceptional circumstances however the court will uphold the alienation of a part of the joint family property by a karta for the acquisition of new property as for example where all the adult members of the joint family with the knowledge available to them and possessing all the necessary information about the means and requirements of the family are convinced that the proposed purchase of the new property is for the benefit of the estate These observations make it clear that where adult members are in existence the judgment is to be not that of the manager of the family alone but that of all the adult mem bers of the family including the manager. In the case be fore us all the brothers of Pindidas were adults when’ the contract was entered into. There is no suggestion that they agreed to the transaction or were consulted about it or even knew of the transaction. Even therefore if we hold that the view expressed by the learned Chief Justice is right it does not help the plaintiff because the facts here are different from those contemplated by the learned Chief Justice. The other Judge who was a party to that decision Manokarlal J. took more or less the same view The third case relied on is In the matter of A.T. Vasudevan Ors. minors(1). There a single Judge of the High Court held that the manager of joint Hindu family is competent to alienate joint family property if it is clearly beneficial to the estate even though there is no legal necessity justifying the transaction. This view was expressed while dealing with an application under cl. 17 of Letters Patent by one Thiruvengada Mudaliar for being appointed guardian of the joint family property belonging to inter alia to his five minor sons and for sanction of the sale of that pro perty as being beneficial to the interests of the minor sons. The petitioner who was karta of the family had besides the five minor sons two adult sons his wife and unmarried daughter who had rights of maintenance. It was thus in connection with his application that the learned Judge considered the matter and from that point of view the decision is distinguishable. However it is a fact that the learned Judge has clearly expressed the opinion that the manager has power to sell joint family property if he is satisfied that the transaction would be for the benefit of the family. In coming to this conclusion he has based himself mainly upon the view taken by Venkata Subba Rao J. in Sellappa v. Suppan(2). That was a case in which the question which arose for consideration was whether borrowing money on the mortgage of joint family property for the purchase of a house could be held to be binding on the family because the transaction was of benefit to the family While holding that a transaction to be for the benefit of the family need not be of a defensive character the learned Judges upon the evidence before them held that this particular transac 1) A.I.R. 1949 Mad. 260 2) A.I.R. 1937 Mad. 496 tion was not established by evidence to be one for the bene fit of the family Thus as we have already stated that for a transaction to be regarded as of benefit to the family it need not be of defensive character so as to be binding on the family. In each case the court must be satisfied from the material be fore it that it was in fact such as conferred or was reason ably expected to confer benefit on the family at the time it was entered into . We have pointed out that there is not even an allegation in the plaint that the transaction was such as was regarded as beneficial to the family when it was entered into by Pindidas. Apart from that we have the fact that here the adult members of the family have stoutly re sisted the plaintiff’s claim for specific performance and we have no doubt that they would not have done so if they were satisfied that the transaction was of benefit to the family It may be possible that the land which was intended to be sold had risen in value by the time the present suit was instituted and that is why the other members of the family are contesting the plaintiff’s claim. Apart from that the adult members of the family are well within their rights in saying that no part of the family property could be parted with or agreed to be parted with by the manager on the ground of alleged benefit to the family without consulting them. Here as already stated there is no allegation of any such consultation In these circumstances we must hold that the courts below were right in dismissing the suit for specific performance We may add that granting specific performance is always in the discretion of the court and in our view in a case of this kind the court would be exercising its discretion right by refusing specific performance No doubt Pindidas himself was bound by the contract which he has entered into and the plaintiff would have been entitled to the benefit of s. 15 of the Specific Relief Act which "Where a party to a contract is unable to perform the whole of his part of it and the part which 330 must be left unperformed forms a considerable portion of the whole or does not admit of compensation in money he is not entitled to obtain a decree for specific performance. But the court may at the suit of the other party direct the party in default to perform specifically so much of his part of the contract as he can perform provided that the plaintiff relinquishes all claim to further performance and all right to compensation either for the deficiency or for the loss or damage sustained by him through the default of the defendant However in the case before us there is no claim on behalf of the plaintiff that he is willing to pay the entire consideration for obtaining a decree against the interest of Pindidas alone in the property. In the result the appeal fails and is dismissed with costs

For long unauthorized absence from duty the punishment of dismissal of personnel cannot be held to be per se disproportionate : Delhi High Court

Every employee has the right to avail leave for various reasons, however such leave requires to within the authorised period, anything that exceeds it is required to be submitted for further approval. This was held in the judgment passed by a two-judge bench comprising HON’BLE JUSTICES MR. JUSTICE MANMOHAN and MR. JUSTICE NAVIN CHAWLA, in the matter of MOHD. RAFI V. DEPUTY INSPECTOR GENERAL ,CRPF &amp; ORS (W.P.(C) 9854/2021 &amp; CM APPLs. 30337-338/2021), dealt with an issue where the petitioner filed a petition challenging orders dated 11th June, 2019 issued by the Respondent No. 1 and order dated 08th August, 2017 issued by the Respondent No. 2, whereby the Petitioner was removed from service. Petitioner also seeks reinstatement of service with full back wages and other consequential benefits. The counsel for the petitioner stated that the Petitioner was not served with any notice asking him to re-join his duty or regarding initiation of departmental proceedings for the alleged misconduct of over staying on sanctioned leave. He further stated that the punishment of removal from service for alleged misconduct of continuous absence from duty with effect from 06th June, 2016 awarded under Section 11(1) of the CRPF Act, 1949 is highly disproportionate. He stated that the Petitioner over stayed his leave due to his mental condition and subsequent illness caused due to the matrimonial cases instituted by the Petitioner’s wife against him before the family court, Moradabad and the removal of the Petitioner’s minor children from his custody. The Court presents the view that the petitioner, who is a member of Central Armed Police Forces (CAPFs), was obliged to report back to duty after expiry of the leave. Respondents/CRPF was under no obligation in law to keep on issuing notices to invite the petitioner to re-join his service. Consequently, this Court is of the view that the petitioner has violated his solemn duty and responsibility to report back on time.

IN THE HIGH COURT OF DELHI AT NEW DELHI S 54 W.P.(C) 9854 2021 & CM APPLs. 30337 338 2021 MOHD. RAFI ..... Petitioner Through: Mr. Kaushal Yadav Advocate with Mr. Shafik Ahmed and Mr. Nandlal Kumar Mishra Advocates. DEPUTY INSPECTOR GENERAL CRPF ORS & ORS. ..... Respondents Through: D.S.Mehandru Advocate with Mr. Akshat Singh Advocate. Mr. Vivek Kumar Singh DC Law Date of Decision:08th September 2021 HON BLE MR. JUSTICE MANMOHAN HON BLE MR. JUSTICE NAVIN CHAWLA JUDGMENT MANMOHAN J:The petition has been heard by way of video conferencing. Present writ petition has been filed challenging t he order dat ed 11 th June 2019 issued by the Respondent No. 1 an d order dat ed 08 th Au gust 2017 issued by the Respondent No. 2 whereby the Petitioner was rem oved from service. Petitioner also seeks reinstatement of service wit h fu ll back wages and other consequential benefits. W.P.(C) 9854 2021 3. Learned counsel for the petitioner states that t he Petitioner was n ot served with any notice asking him to rejoin his duty or regardin g in itiation of departmental proceedings for the alleged misconduct of over st aying on sanctioned leave. He further states that t he pu nishment of rem oval from service for alleged misconduct of continuous absence from duty with effect from 06th June 2016 awarded under Section 11(1) of the CRPF Act 1949 is highly disproportionate. He states that the Petitioner over st ayed h is leave due to his mental condition and subsequent illness caused due to the matrimonial cases instituted by the Petitioner’s wife against him before t he family court Moradabad and the removal of the Petitioner’s minor children from his custody. This Court is of the view that the petitioner who is a member of Central Armed Police Forceswas obliged to report back t o du ty after expiry of the leave. Respondents CRPF was under no obligation in law to keep on issuing notices to invite the petitioner to re join his service. Consequently this Court is of the view that the petitioner h as violated h is solemn duty and responsibility to report back on time. The factum of matrimonial dispute and illness could have been agitated before the Inquiry Officer. In any event the petitioner sh ould h ave either reported back on time or sought extension of his leave which h e did not do in the present case. For long u nauthorised absence from du ty t he punishment of dismissal of a CAPF personnel cannot be h eld t o be per se This matter calls for no interference in writ jurisdiction. Consequently the writ petition along with pending applications is dismissed. disproportionate. W.P.(C) 9854 2021 7. The order be uploaded on the website forthwith. Copy of the order be also forwarded to the learned counsel through e mail. MANMOHAN J SEPTEMBER 8 2021 TS NAVIN CHAWLA J W.P.(C) 9854 2021

The Trial Court cannot ignore the criteria laid down by the Supreme Court while granting bail: Manipur High Court

The Court must keep all these considerations in account when determining the bail application and the conditions set down by the Supreme Court cannot be ignored during the award of the bail. Merely because the presence of the accused can be secured at the trial, that is not the only factor that is required to be considered while granting bail. This auspicious judgment was passed by The High Court Manipur in the case of The State of Manipur &amp; ors vs LH Wolring &amp; ors [MC (Crl. Rev. P.) No. 1 of 2021] by Honourable Justice M.V. Muralidaran. The facts of the case are the respondents are actively indulging in various terrorist activities attempts and threats by the accused that will carry out the violent terrorist activities by use of illegal weapons which are believed to be in their possession. Some article we seize from their possession and they were produced before the CJM. The learned counsel for the petitioner argued that the learned CJM who decided the Bail Application at the initial stage, all the papers pertaining to the investigation were produced but the relevant papers were not considered by the CJM. In spite of this, without considering the stage of investigation or serious circumstances pointed against the respondents, it seems the learned Judge has entertained the applications and released the accused who are involved in a serious offence on bail. The learned counsel for the respondent vehemently argued that this Court should not interfere at this stage because the accused are already released on bail and bail should not be cancelled unless there is evidence on record that the accused are likely to tamper with the evidence or are likely to abscond.

P a g e | 1 IN THE HIGH COURT OF MANIPUR AT IMPHAL Crl. Revision Petition No. 20 1. The State of Manipur represented by the Chief Home) Government of Manipur Babupara Old Secretariat Building Imphal West 2. The Officer in Charge Investigating Officer Chandel Police Chandel Police Station Chandel District Manipur. Manipur. Petitioners VERSUS 1. LH Wolring aged about 68 years S o L.H. Khungvol resident of Lambung Village Chandel District Manipur. Langhu Manahring Anal @ David aged about 47 years S o L. Ango of Charongching Village Chakpikarong Sub Division. Kothingwar aged about 27 years S o Rt.Dalhring resident of Tamphi Village Crl. Rev.P. No. 20 with MC(Cril.Rev.P.) No. 21 P a g e | 2 SP Kolome Anal aged about 50 years S oSP Village Chakpikarong. With MC(Crl. Rev. P.) No. 21 Ref: Cril. Revision Petition No. 20 1. The State of Manipur represented by the Chief Home) Government of Manipur Babupara Old Secretariat Building Imphal West 2. The Officer in Charge Investigating Officer Chandel Police Chandel Police Station Chandel District Manipur. Manipur. Petitioners VERSUS 1. LH Wolring aged about 68 years S o L.H. Khungvol resident of Lambung Village Chandel District Manipur. Langhu Manahring Anal @ David aged about 47 years S o L. Ango of Charongching Village Chakpikarong Sub Division. Crl. Rev.P. No. 20 with MC(Cril.Rev.P.) No. 21 P a g e | 3 Kothingwar aged about 27 years S o Rt.Dalhring resident of Tamphi Village SP Kolome Anal aged about 50 years S oSP Village Chakpikarong. Respondents HON’BLE MR. JUSTICE M.V. MURALIDARAN For the Petitioner Mr. Lenin Hijam Addl. AG Ms. N. Tejpriya Advocate. Ms. H. Bisheshwari Advocate. For the Respondents Reserving Judgment Order Date of Judgment &Order :: JUDGMENT AND ORDER 1. The present Criminal Petition has been filed by the State of Manipur represented by the Chief Secretary in charge of Home challenging the order dated 17 12 2020 vide Ref. No. FIR No. 25(11)2020 CDL P.S. U S 153A 504 505 506 500 34 IPC & 4 Explosive Substance Act thereby releasing the accused person on bail without availing ample opportunity to the police to investigate the terrorist activities of the accused persons against whom many Crl. Rev.P. No. 20 with MC(Cril.Rev.P.) No. 21 P a g e | 4 incriminating things including documents Laptop computer hard drives involved in terrorist activities were recovered by the Police. Brief facts of the Case: a) The State of Manipur has been trying to its best to develop each and every District of Manipur particularly in the Hill Districts including the Chandel District. The persons are the resident of Chandel District who are actively indulging in various terrorist activities as indicated in the police investigation with incriminating evidences and there are a serious attempts and threats by the accused that will carry out the violent terrorist activities by use illegal weapons which are believed to be in their possession. b) The incriminating articles like laptops computer hard drives pen drives documents were seized from the respondents accused and they were produced before the Ld. CJM Chandel. The respondent accused namely LH Wolring who turned out to be one of the main accused was apprehended only on 15 12 2020 with the various Crl. Rev.P. No. 20 with MC(Cril.Rev.P.) No. 21 P a g e | 5 incriminating articles like laptops computer hard drives pen drives documents etc. And he along with the other accused SP Kolomi was remanded in police custody. And without affording ample opportunity to the police to investigate serious terrorist activities against the respondent accused the Ld. CJM Chandel by the impugned order released the accused on bail in the afternoon of 17 12 2020. 3. Challenging the impugned Order this Revision is filed by the State amongst the following other GROUNDS a. The Ld. CJM Chandel ought to have considered that accused namely LH Wolring who turned out to be one of the main accused was apprehended only on 15 12 2020 with the various incriminating articles like laptops computer hard drives pen drives documents etc. And he alongwith the other accused SP Kolomi was remanded in police custody by the CJM only in the evening of 15 12 2020 and therefore the Ld. CJM failed to consider that the police had only 1effective Crl. Rev.P. No. 20 with MC(Cril.Rev.P.) No. 21 P a g e | 6 working day i.e. only on 16 12 2020 investigation. And without affording ample opportunity to the police to investigate serious terrorist activities against the accused the Ld. CJM Chandel by the impugned order released the accused on bail the afternoon of 17 12 2020. Therefore impugned order dated 17 12 2020 is liable to be quashed and set aside. b. The Ld. Trial Court failed to consider the gravity of the case wherein various incriminating articles used for terrorist activities were seized by police. Therefore the Ld. CJM Chandel ought not to have released the accused on bail even before the police could investigate the terrorist activities. c. The Ld. Trail Court failed to consider that the accused have spreaded hatred amongst the various communities living in Chandel District they have loudly propagated communities living in the District will bombed and there are a serious attempts and threats by the Crl. Rev.P. No. 20 with MC(Cril.Rev.P.) No. 21 P a g e | 7 accused that will carry out the violent terrorist activities by use illegal weapons which are believed to be in their possession. Therefore the respondents accused are to be the sake of national State security as the offence relates to the terrorist activities in the District bordering Myanmar which is a terrorist hot bed in the region. d. The Ld. Trial Court has not given enough time to properly investigate the case involving section 4 of Expl. Sub. Act. 4. Therefore this revision petition is filed to set aside impugned order dated 17 12 2020 of the Chief Judicial Magistrate Chandel passed in Chief Judicial Magistrate Chandel in F.I.R. No 25(11) 2020 CDL P.S. U S 153A 504 505 506 500 34 IPC & 4 Expl. Sub. Act and to re arrest and detain the respondents accused in the judicial custody till the investigation of the case. 5. The fulcrum of this petition is the FIR registered against the respondents accused which is now at the stage of investigation and the grant of bail by the learned CJM therefore with the consent of learned counsel for the parties these petitions Crl. Rev.P. No. 20 with MC(Cril.Rev.P.) No. 21 common judgment. have been heard together and are being disposed of by this P a g e | 8 6. It is necessary to look in to the impugned order passed by the CJM. The operative portion of the impugned order is as follows “Sifting through the materials placed before me it is the pamphlets which allegedly contain incriminatory and inflammatory messages were seized from accused viz. Kothingwar and L.Monahring. From their instance and disclosure two other accused viz. L.H Wolring and SP Kolome Anal were arrested. These arrests were not random but each arrest is connected pamphlets. The contents of the pamphlets are likely to incite a class or community to commit any offence against another class or community. The pamphlets also contain threat of dire consequences. Therefore Sections 153A 505 and 506 are prima facie attracted. Similarly the said pamphlet names certain individuals and speak of them in an unsavory manner and thus appears to be scandalous and defamatory. Sections 500 and 504 are thus also made out. The Crl. Rev.P. No. 20 with MC(Cril.Rev.P.) No. 21 P a g e | 9 Pamphlets speak of a threat of bomb blast. It never was die case of the prosecution that the accused to cause explosion which would endangered lives. Section 4 of Expl.Sub.Act 1908 is therefore not made out. It is not the case of the prosecution that the custody of the accused is necessary for discovery. It is also not the case of the prosecution that custodial interrogation or confrontation of the accused persons is necessary. Merely because the other associates needs to be identified and arrested is not a viable ground to curtail the personal liberty of the accused particularly when adequate time has been granted qua the offences. Any electronic evidences that the prosecution says are required can be secured without the accused being in custody. The Cr.P.C gives the outer limit of 15(fifteen) days for P.C but extension of remand after initial remand period should be granted only on justifiable grounds. The prosecution has failed to show such ground(s). Bald statement that the accused are not cooperating does not suffice. Crl. Rev.P. No. 20 with MC(Cril.Rev.P.) No. 21 P a g e | 10 To recapitulate prima facie case against die accused persons other titan Section 4 of Expl.Sub.Act exist. Be that as it may given the nature of offences alleged and the punishment that could entail it is the considered view of this Court incarceration of the accused is not necessary. Taken into account in deciding the applications is also the fact that there are no reasons to believe that the accused are flight risk or will hamper investigation or that they would influence witnesses. Under the aforesaid facts and circumstances the principle of bail not jail must take priority. All things considered the prayer of the IO is rejected. Corollary the bail applications stands allowed.” 7. It should be noted that before the learned CJM who decided the Bail Application at the initial stage all the papers pertaining to investigation were produced but the relevant papers were not considered by the CJM while allowing the application. To this Court also some papers were shown and this Court considered the same. In spite of this without considering the stage of investigation or serious of circumstances pointed against the respondents accused it seems the learned Judge has entertained Crl. Rev.P. No. 20 with MC(Cril.Rev.P.) No. 21 P a g e | 11 the applications and released the accused who are involved in a serious offence on bail. This can hardly be said to be new ground for revising the order passed by the Court of co ordinate jurisdiction or to ignore the order passed by this Court. 8. The learned Advocate appearing on behalf of the the aforesaid revision applications submitted that even though the offence is serious yet this Court should not interfere at this stage because the accused are already released on bail and bail should not be cancelled unless there is evidence on record that the accused are likely to tamper with the evidence or are likely to abscond. 9. In all the learned Advocates who are appearing on behalf of the respondents accused vehemently relied upon the decision of the Kerala High Court in the case of Shanu v. State of kerala and submitted that unless the Court arrives at the conclusion that the accused would not be readily available for their trial and they were likely to abuse the discretion in their favour by tampering with the evidence the Court should not cancel their bail which is granted by the CJM by exercising its discretion. They further submitted that the approach of the Court in the matter of bail is to see that the accused should not be detained by way of punishment Crl. Rev.P. No. 20 with MC(Cril.Rev.P.) No. 21 P a g e | 12 and if the presence of the accused could be readily secured at the time of trial then the order of bail should not be cancelled. 10. It is necessary to quote the judgment of the Kerala High Court under below Though the offences punishable under the provisions of the S.C. & S.T. Act are made triable by the Special Court presided over by a Sessions Judge considering the peculiar nature and circumstances under which those cases are registered and tried with regard to atrocities perpetrated against the downtrodden and weaker sections of the society the offences punishable under the 15 subsections under sub s.of S. 3 of the Act are punishable with imprisonment for a term which shall not be less than six months but which may extend to five years and with fine. The offences punishable under sub s.of S. 3 of the Act relate to graver offences. In this case as already noted the offence alleged against petitioners is only punishable under S. 3(1)(x) of the S.C. & S.T.Act for which the maximum sentence prescribed is imprisonment for five years and with fine. Crl. Rev.P. No. 20 with MC(Cril.Rev.P.) No. 21 P a g e | 13 6. In the decision in Satyan v. State of Keralathis Court considered the question whether the refusal to grant bail by the J.F.C.M. in an offence punishable under S. 326 of I.P.C. on the the offence is punishable with imprisonment for life is justified or not and held that so long as the offence punishable under S. 326 is triable by a Magistrate of the First Class there is no reason why it should be viewed differently in the matter of granting bail from an offence punishable under S. 420 of I.P.C. for which the punishment extends to imprisonment for 7 years or any other non bailable offence for which the punishment is a term of imprisonment. 7. In a subsequent decision reported in Chellappan v. State of KeralaK.L.T. 435) this Court relying upon the above decision reportedin 1981 K.L.T. 606 held that the Magistrate has jurisdiction to grant bail if the offence is not punishable with death or imprisonment for life in the alternative under S. 437(1) of the Cr. P.C. Crl. Rev.P. No. 20 with MC(Cril.Rev.P.) No. 21 P a g e | 14 that case the question that arose consideration was whether the Second Class Magistrate had jurisdiction to grant bail to the accused in Crime No. 16 87 registered by the Aranrnula Policealieging offerices punishable under Ss. 143 147 148 332 225 307 and 427 r w 149 I.P.C. and S. 3(2)(c) of the Prevention of Damage to Public Property Act with certain conditions. The State filed Crl. M.P. 32 87 before the Sessions Court seeking to cancel the bail granted by the learned Magistrate and the Sessions Court allowed the application and cancelled the bail granted to the accused. That order was challenged by the accused before this Court in that Crl. M.C. In para 3 of the order a single Judge of this Court has observed as follows: “In passing the order the learned Sessions Judge held that the Magistrate has overstepped his jurisdiction and has violated the mandatory provisions contained in S. 437(1) of the Cr. P.C. The view taken by the learned Sessions Judge is wrong in the light of the decision of this Court in Satyan v. State of Kerala 1981 KLT 606) and also an unreported decision in Crl. Crl. Rev.P. No. 20 with MC(Cril.Rev.P.) No. 21 P a g e | 15 M.C. No. 4484. In both these decisions it was held that the Magistrate has jurisdiction to grant bail if the offence is not punishable with death or imprisonment for life in the alternative. In Crl. M.C. No. 4484 the offence against the accused was one under S. 436 I.P.C. which was exclusively triable by the Court of Sessions. Therefore the view taken by the learned Magistrate that he has powers to grant bail in the instant case is correct.” 9. In the above decision this Court has held that even though offence punishable under S. 307 of I.P.C. exclusively triable by the Sessions Court was also alleged the Magistrate s Court has got jurisdiction to grant bail under S. 437(1) of the Cr. P.C. since the offence is not punishable with death or imprisonment for life in the alternative. 10. As already noted the 15 offences enumerated under sub s. of S. 3 of the S.C. and S.T. Prevention of Atrocities) Act are punishable with maximum imprisonment of five years and with fine though the offences are triable by the Special Court which is the Sessions Court. Therefore applying the Crl. Rev.P. No. 20 with MC(Cril.Rev.P.) No. 21 P a g e | 16 principles enunciated in the decisions of this Court referred to above it is clear that the J.F.C.M. s Court has got jurisdiction to grant bail to the persons accused of the offence punishable under any of the sub cls.toof sub s.of S. 3 of the Act. In this case the offence alleged against the petitioners is punishable under S. 324 of I.P.C. and S. 3(1)(x) of the S.C. and S.T.Act. Therefore it follows that the J.F.C.M. s Court has got jurisdiction to grant bail to the accused under S. 437(1) of the Cr. P.C. irrespective of the fact that the case is triable by the Special Court which is the Court of Session. Hence the learned Magistrate is directed to enlarge the petitioners on bail on appropriate conditions he deems necessary in case the petitioners surrendered or arrested and produced before the court and moved for bail. The Crl. M.C. is allowed as above. 11. It is true that normally this Court would be slow in interfering with the discretionary order granting bail to the accused. It is equally true that one of the paramount considerations for the Court at the time of cancelling bail in this revision would be whether Crl. Rev.P. No. 20 with MC(Cril.Rev.P.) No. 21 P a g e | 17 the accused would be readily available for their trial and whether they are likely to abuse the discretion granted in their favour by tampering with the evidence. But at the same time the Court has also to consider the other relevant aspects in the matter before granting bail. The Court is required to exercise the discretion of granting bail judicially after following the well laid down principles. If the CJM has ignored the said criteria of deciding bail application either intentionally or arbitrarily then this Court has jurisdiction to set aside the said order. It is not the law that once the accused is released on bail on erroneous ground till he tampers with the evidence or till he absconds the High Court has no authority to interfere with the said order. In each case the Court is required to consider the reasonable apprehension of the prosecuting agency depending upon the facts of each case. The CJM is subordinate to the High Court and it is always open to the State Government to point out to the High Court that the order passed by the CJM is arbitrary or illegal one or it suffers from any serious infirmity and the High Court would have jurisdiction to set aside the said order. 12. The criteria for deciding bail application and the jurisdiction of the High Court would be clear from the catena of Hon’ble Supreme Court decisions and of this Court which are referred to hereinafter. Crl. Rev.P. No. 20 with MC(Cril.Rev.P.) No. 21 P a g e | 18 13. In the case of T.H. Hussain v. M.P. Mondkar the Hon’ble Supreme Court has held that the High Court has inherent power to cancel the bail granted to a person accused of a bailable offence and in a proper case such power can be exercised in the interest of justice. The Court has further observed that if a fair trial is the main objective of the Criminal Procedure any threat to the continuance of a fair trial must be immediately arrested and the smooth progress of a fair trial must be ensured and this can be done if necessary by the exercise of inherent power. The Court has further held that if the accused person by his conduct puts the fair trial into jeopardy it would be the primary and paramount duty of the Criminal Courts to ensure that the risk to the fair trial is removed and Criminal Courts are allowed to proceed with the trial smoothly and without any interruption or obstruction and this would be equally true in cases of both bailable as well as non bailable offences. The Court has further held that by exercising inherent power the Court can cancel the bail. 14. In the case of State v. Captain Jagjit Singh the Court has laid down certain guidelines while considering the bail application and set aside the bail granted by the High Court by holding that the High Court has not taken into consideration the relevant factors and the fact that the matter was relating to non Crl. Rev.P. No. 20 with MC(Cril.Rev.P.) No. 21 P a g e | 19 bailable offence under Section 3 of the Indian Official Secrets Act 1923. The Court has observed that when prima facie case has been found against the accused that he is involved in a non bailable offence while granting bail the Court should take into consideration i) the nature of the offence if the offence is of a kind in which bail should not be granted considering its seriousness the Court should refuse bail even though it has very wide power under Section 498 of the Criminal Procedure Codethe nature and seriousness of the offence the character of the evidence circumstances which are peculiar to the accused iv) a reasonable possibility of the presence of the accused not being secured at the trial reasonable apprehension about the witnesses being tampered with the larger interests of the public or the State andsimilar other consideration which arise when a Court is asked for bail in a non bailable offence. The aforesaid decision of the Hon’ble Supreme Court is all throughout followed until now and therefore while granting bail the Court should take into consideration all the aforesaid criteria laid down by the Hon’ble Supreme Court. The trial Court or this Court cannot ignore the Crl. Rev.P. No. 20 with MC(Cril.Rev.P.) No. 21 P a g e | 20 criteria laid down by the Supreme Court while granting bail and all these factors should jointly be taken into consideration while deciding the bail application. Therefore merely because the presence of the accused can be secured at the trial that is not the only factor which is required to be considered while granting bail. 16. into consideration the aforesaid observations of the Hon’ble Supreme Court in the decisions mentioned above it can be said that following factors are the relevant factors which are required to be taken into consideration for deciding bail application: 1) The nature of the case is the vital factor and the nature of the stage of investigation is also pertinent. 2) The collection of incriminating materials to which the accused is linked may be liable if convicted. 3) While considering the question of granting bail under Section 439(1) of the Criminal Procedure Code the Court should take into consideration the provisions of Section 437(1) in spite of the fact that under Section 439(1) the High Court and Sessions Court have wide jurisdiction to grant bail. 4) The nature and gravity of the circumstances in which the offence is committed say terrorist offences highway Crl. Rev.P. No. 20 with MC(Cril.Rev.P.) No. 21 P a g e | 21 robbery or dacoity gang rape murder or murders because of group rivalry attack by one community on other community or such other cases. 5) The position and the status of the accused with reference to the victim and the witnesses say in case of burning of house wife witnesses may be neighbours their evidence might be tampered with by any means. 6) The reasonable possibility of the presence of the accused not being secured at the trial. Apart from this it is the main argument advanced by the learned Addl.AG Mr. Lenin Hijam that though the petitioners were arrested and remanded into judicial custody only on 15.12.2020 in the evening by the learned Chief Judicial Magistrate and without issuing any notice to the I.O. or the respondent police seeking the objection has simply granted the bail to all the accused on the very next day i.e. 17.12.2020 which is totally against the natural justice. It is made clear that on fair reading of the order passed by the learned Judge that the learned Chief Judicial Magistrate has exceeded his limits without following the natural justice and without giving fair opportunity to the Prosecution to put forth their objection Crl. Rev.P. No. 20 with MC(Cril.Rev.P.) No. 21 P a g e | 22 had simply granted the bail with explanation and dealing each provision in his order. The learned CJM is bear in mind that he is not passing the final order after conducting the trial for discussing the maintenance of each offences registered by the State Police but it is only for bail. The learned Chief Judicial Magistrate also without giving proper opportunity to the petitioners State has mentioned in the order that the Prosecution has failed to show that the custodial interrogation or confrontation of the accused person is necessary. The learned Chief Judicial Magistrate also mentioned in the order that the pamphlet speaks of a threat of bomb blast and further mentioned that it was never the case of the Prosecution that the accused confined to cause explosion which would endanger lives and hence Section 4 of Explosive Substance Act 1908 is therefore not made out. This statement of the learned Chief Judicial Magistrate is not proper and without getting any reply from the Prosecution he cannot simply stated in the order by mentioning with that the provisions under Section 500 and 504 IPC and under Section 4 of the Explosive Substance Act 1908 is not made out. Therefore the very order of the learned Chief Judicial Magistrate dated 17.12.2020 granting bail to the accused that too Crl. Rev.P. No. 20 with MC(Cril.Rev.P.) No. 21 P a g e | 23 within one day from the remand of their custody and without getting the objection from the Prosecution that too also without filing any proper bail application by the accused is totally wrong. 22] In my view the Special Acts and its provisions to be followed in dealing with the arrest remand committal and trial of the accused who were charged with the offences under the said special act. Therefore the judgment of the Kerala High Court is on different perspective and facts of the case is quite different. Moreover only the concerned special court alone has the jurisdiction in granting bail and the CJM exceeded its jurisdiction. 23] In the result a) this Crl.Rev.P.No.6 of 2020 is allowed by setting aside the order passed by Learned Chief Judicial Magistrate Chandel in FIR No.25(11) 2020 CDL P.S. U s.153 A 504 505 506 500 34 of IPC and 4 Expl. Sub.Act dated 17.12.2020. b) petitioner officer in charge Investigating Officer Chandel Police Station Chandel District Manipur is directed Crl. Rev.P. No. 20 with MC(Cril.Rev.P.) No. 21 P a g e | 24 to re arrest the Respondents Accused and to remand into Judicial Custody. c) the petitioner in M.C.(Crl.Rev.P.) No.1 of 2021 is closed. d) the petitioners State are permitted to move before the Learned Chief Judicial Magistrate Chandel for police custody and for further proceedings. 24] Registry is directed to issue copy of this order to both JUDGE the parties. FR NFR Sushil Crl. Rev.P. No. 20 with MC(Cril.Rev.P.) No. 21

Public servants cannot claim study leaves as a matter of right : Delhi High Court

Courts, in exercise of their power of judicial review, cannot sit as an Appellate Authority over the decision taken by the administration / management. The High Court bench consisting of J. V. Kameswar Rao, dismissed a petition seeking grant of study leaves in the case of Dr. Rohit Kumar v. LT Governor of Delhi &amp; Ors. [W.P.(C) 499/2021, CM No. 1294/2021]. The petitioner attended the offline counselling for MD/MS course at PGI and was a allotted a seat in MD (Paediatrics) course. The DDU Hospital where the petitioner was working even issued the required certificate which clearly stated that the hospital did not need a substitute for the petitioner and an NOC. However, after competing the due formalities, when the petitioner submitted his study leaves as per the rules, the respondents deliberately delayed in granting the same. In the meantime, the PGI extended the last date for accepting the seat allotment till January 18, 2021with the condition that if the deadline wasn’t met, then the seat would be cancelled. It was only during the petitioner’s visit on January 8, 2021 that he came to know that his application had not been forwarded. The counsel for the petitioner submitted that denying study leave on account of COVID-19 was untenable since the situation with regard to management of pandemic had been considerably improved. She also argued that the petitioner was a meritorious student and joining the MD/MS course at the most prestigious Institution of the Country, would be in public interest, for the betterment of the institution where he is working. The respondent filed a counter affidavit contending that government servants were not entitled study leave as a matter of right according to Chapter-VI, Rule 50 of the Central Civil Services (Leave) Rules, 1972. According to them, in the present situation wherein COVID-19 pandemic is spreading throughout the country, the only exigency in public service would be to serve the COVID-19 patients.

IN THE HIGH COURT OF DELHI AT NEW DELHI Date of decision: 02nd February 2021 W.P.(C) 499 2021 CM No. 1294 2021 DR ROHIT KUMAR Petitioner Ms. Geeta Luthra Sr. Adv. with Mr. Nitin Saluja & Mr. Varun Dewan LT GOVERNOR OF DELHI & ORS. Respondents Through: Mrs. Avnish Ahlawat SC for GNCTD with Ms. Tania Ahlawat Mr. Nitesh Kumar Singh & Ms. Palak Rohmetra HON BLE MR. JUSTICE V. KAMESWAR RAO V. KAMESWAR RAO J.The present petition has been filed by the petitioner inter alia seeking a direction against respondent Nos. 1 and 2 to issue the relieving order and grant study leave to him in order to enable him pursue MD MS Course in Pediatrics from Post Graduate Institute of Medical Education & Research Chandigarh as the petitioner satisfies the criteria laid down for grant of study leave in the office memorandum dated November 02 2012 and after taking due permissions from the respondents. It is the case of the petitioner and so contended by Ms. Geeta Luthra learned Sr. Counsel that the petitioner after taking W.P.(C) 499 2021 Page 1 11 the required permissions from the respondent No.2 applied for the INICET 2020 examination which he cleared. He secured a rank of 15270 from amongst 80000 candidates who appeared. That apart he is a sponsored candidate from the respondent No.2. The petitioner on being successfully attended the offline counseling for MD MS course at PGI was allotted a seat in MD Pediatrics) course. The DDU hospital where the petitioner is working even issued the required certificate and NOC to the petitioner. The certificate clearly states that the hospital did not need a substitute for the petitioner. However after completing due formalities when the petitioner submitted his study leave as per the Rules on December 31 2020 the respondents 1 and 2 deliberately delayed in granting the same to the petitioner. In the meantime the respondent No.3 i.e PGI extended the last date for accepting the seat allotment to the petitioner till January 18 2021 with a condition that in case the petitioner fails to get the study leave by then from the respondent No.2 in that case it shall cancel the seat and allot the same to some other candidate. It was only on his visit to the secretariat on January 08 2021 that he came to know that his application has not been forwarded. He was orally informed that he has not been granted study leave on account of COVID 19. Ms Luthra submitted that denying study leave to the petitioner on account of COVID 19 is untenable since the data released by the respondent No.2 itself reveals the situation of COVID 19 with regard to management of pandemic and availability of beds in Delhi hospitals has improved considerably in the last couple of weeks and recently 326 Doctors have been freshly W.P.(C) 499 2021 Page 2 11 recruited as Medical Officers by the Govt. of NCT of Delhi which is evident from office order dated May 01 2020. She submitted that the petitioner is a meritorious student and joining the MD MS course at the most prestigious Institution of the Country would be in public interest for the betterment of the institution where he is That apart she submitted that similarly placed Doctors were granted study leave at the time when the number of COVID cases were at the peak and maximum number of beds were assigned for COVID patients in the hospital. She stated that in the DDU hospital there are twentybeds which are vacant as of date so the reasoning given by the respondents 1 and 2 for not granting the study leave due to COVID 19 is clearly an untenable reason. She supports her submission by relying upon the following judgments: Dr. J. Samjaison vs. The Dy. Director of Health Services and Ors. W.P.(MD) No. 10275 2020 and W.P.(MD) No. Dr. Kamal Jain vs. State of Rajasthan W.P. 5532 2020 dated May 15 2020 decided on August 28 2020 Professor Udaya Kumar vs. Jawaharlal Nehru University through its Registrar W.P.(C) 5496 2020 dated September 14 2020 1) BLJR 485 Dr. Anil Prasad Gara vs. State of Bihar and Ors.40 W.P.(C) 499 2021 Page 3 11 Ganesh Prasad Shukla vs. Guru Ghasi Das Central University MANU SG 0209 208 Dr. Puneet Mishra vs. GNCTD W.P.(C) 4590 2020 Orders dated July 27 2020 and September 29 2020. She seeks the relief as prayed for by the petitioner in the writ A counter affidavit has been filed by the respondents 1 and 3 and so contended by Ms. Avnish Ahlawat that the government servant is not entitled for study leave as a matter of right. Chapter VI Rule 50 of Central Civil Services Rules 1972 deals with grant of study leave to a government servant. As per the said Rule the study leave may be granted to a government servant with due regard to exigencies of public service. Even though a Medical officer may be granted study leave for prosecuting a course of post graduate study in Medical Science but in the exigencies of services the Competent Authority may deny the same. She stated that as per Clause 6 of the OM dated November 02 2012 issued by the Govt. of India for CHS cadre officers study leave can only be granted to a government servant with due regard to the exigencies of public service. According to her in the present situation wherein COVID 19 pandemic is spreading throughout the country the only exigency in public service would be to serve the COVID 19 patients. According to her the Lt. Governor has taken a considered view that in these times of pandemic COVID 19 we need more medical staff in the field. As some of the Doctors have already proceeded on study leave it would not be prudent to spare more Doctors. Hence W.P.(C) 499 2021 Page 4 11 the Lt. Governor has desired that the department may kindly be advised to not sanction any more study leave application in view of the requirement of medical staff of COVID 19. She also stated that even after the decision of the Lt. Governor in pursuance of the direction of this Court in W.P.(C) 5987 2020 in the matter of Dr. Ruchita Ghiloria & Ors. Vs. ltd. Governor of Delhi and Ors the matter with respect to sanction of study leave of the Doctors was again placed before the Lt. Governor to decide the application for grant of study leave of the petitioners in that case on October 20 2020 and the Special Secretary submitted that at present country is facing COVID 19 pandemic including Delhi and in the present scenario it cannot be presumed whether the cases of COVID 19 will settle or not. It was also mentioned that health experts also have an opinion that in the coming months the cases of COVID 19 may increase along with viral flue. In such an emergency situation services of each and every medical human resource are valuable and no one could be spared for other matters. Thereafter on the recommendation of the Principal Secretary the matter was placed before the Lt. Governor that proposals for grant of study leave may not be acceded to at this juncture which proposal was accepted by the Lt. Governor on October 22 2020. Accordingly an order dated October 22 2020 was issued wherein the following has been stated: “In view of the prevailing situation of COVID 19 in NCT of Delhi and the projections made by Experts about the expected increase in cases of COVID 19 during the period of November December 2020 it is not feasible in public W.P.(C) 499 2021 Page 5 11 interest to spare the services of GDMOs to pursue Post Graduation courses. As such it has been decided that the proposal for grant of study leave to GDMOs cannot be acceded to at this juncture.” She submitted that in the present case the petitioner requests for study leave from January 15 2021 to January 14 2024 for three years to pursue Post Graduate Degree Course in Pediatrics from PGI but in view of the prevailing situation the request has not been acceded to. Insofar as the submission of Ms. Luthra that similarly placed three Doctors out of eleven Doctors were already given study leave much before October 15 2020 and that apart few have got study leave as they have been selected in the same hospital in Delhi is concerned she stated that the cases of COVID 19 pandemic are still reported to various hospital and it cannot be said that the pandemic is over. She relied upon the judgment of the Supreme Court in the case of State of Punjab & Ors. Vs. Dr. Sanjay Kumar Bansal 2009 SCC 168 in support of her submission that the leave cannot be availed as a matter of right. According to her the said case was also of a Doctor who was refused the leave on the ground that there was shortage of Doctors and which the Supreme Court held that the matters fall in the category of ‘administrative exigencies’ and Courts cannot sit in appeal thereon. In the present case the decision of the Lt. Governor for no more study leave to the Doctors due to pandemic COVID 19 is an administrative decision in the exigencies of services therefore the W.P.(C) 499 2021 Page 6 11 petitioner cannot be granted study leave. She seeks the dismissal of the writ petition. Having heard the learned counsel for the parties and perused the record it is a fact that the petitioner while applying for the course in question had taken the concurrence of the Authorities in the hospital. It is admitted by Ms. Luthra that the grant of study leave is not by the hospital authorities but by the Ld. Governor. No doubt that as late as October 14 2020 the respondent had granted permission to the petitioner to sit in INICET 2020 examination. There is also no dispute that the petitioner had cleared the said examination with a good rank. He is also a sponsored candidate from the respondent No.2 and the hospital where the petitioner is working has also clearly expressed itself that it shall not require any substitute in place of the petitioner. But the fact remains that the decision has been taken by the Competent Authority i.e. Lt. Governor Govt. of NCT of Delhi based on the prevailing COVID 19 situation in the City that no study leave must be granted. No doubt the initial order was passed by the Lt. Governor in July 2020 and thereafter also in certain cases the study leave has been granted but the fact remains that after October 22 2020 when the order which has been reproduced above was passed no permission has been granted regarding study leave to the Doctors in the Govt. of NCT of Delhi because of the prevailing COVID 19 situation. In fact I find that the case of the petitioner has been considered by the Competent Authority i.e. Lt. Governor as recently as January 19 2021 and it was decided based on the decision dated October 22 2020 the request of the petitioner cannot be acceded to. W.P.(C) 499 2021 Page 7 11 The Supreme Court in the judgment as relied upon by Mrs. Ahlawat in the case of State of Punjab & Ors.has in paras 3 and 4 held as under: “3. We have gone through Annexure P 3. It merely categorizes employees who are entitled to apply for special leave and those who cannot apply for special leave. Such policy does not confer any right on the applicant to obtain special leave. On facts the question of striking down the Order of Administration does not arise for the simple reason that in the counter the Administration has stated that shortage of doctors is one of reasons for not granting special leave. In our view these are matters which fall in the category of "administrative exigencies" and this Court cannot sit in Appeal thereon. In the circumstances the High Court had erred in coming to the conclusion that the Management had erred in refusing the application for want of reasons. 4. Even on the case of discrimination it is for the into account contingencies which may arise the course of administration. The services of an employee may be required in a given case on more emergent basis vis a vis other employees. In such cases the services rendered by an employee his seniority the nature of work which he is required to do his responsibilities etc. are required to be into account while taking decision on such W.P.(C) 499 2021 Page 8 11 From the above it is clear that the Courts in exercise of its power of judicial review cannot sit as an Appellate Authority over the decision taken by the administration management. Suffice would it be to state that the decision has been taken giving due regard to the exigencies which may arise in the course of administration. I am conscious of the fact that the petitioner being a meritorious candidate has a legitimate expectation to acquire a higher qualification and advance in his career but at the same time as an employee working in the Govt. of NCT of Delhi is bound by the Rules framed by the Government i.e. Rule 50 of the Leave Rules clearly stipulates that the grant of study leave is not a matter of right as the same shall be granted to the government servant with due regard to the exigencies of public service. Insofar as the judgments relied upon by Ms. Luthra are concerned in Dr. J. Samjaisonthe Madras High Court was concerned with an issue where the resignation of the petitioner in that case was not being accepted by the respondent on the ground that he is bound to serve the government in exigencies. The said argument was negated by the Court stating that when the petitioner intends to pursue his medical course the petitioner therein could not have been stopped from pursuing a higher course. Suffice would it be to state the case of the petitioner is not a case of resignation. He continues to be the employee of the Govt. of NCT of Delhi and W.P.(C) 499 2021 Page 9 11 bound by the rules and the law which as referred to above are very clear. The judgment is distinguishable on that ground. Similarly insofar as the judgment in the case of Dr. Kamal Jain is concerned the said order is passed by the High Court of Rajasthan with regard to a Doctor who wants to pursue a higher course. The ground taken by the respondents in that case was that in the appointment order there was a condition that Medical Officer will not undergo PG course for one year and therefore the petitioner should not be allowed. Suffice would it be to state denial to permit the petitioner from pursuing a medical course is not for COVID 19 reasons as are the reasons in the present case. Hence the order is clearly distinguishable. Insofar as the judgment in the case of Professor Udaya Kumaris concerned the same pertain to JNU and for grant of extraordinary leave for pursuing a fellowship. A Coordinate Bench of this Court has allowed the petition by holding that the same was against the provision of the Ordinance of the University. The defence of the respondents regarding 20% ceiling is untenable in law and cannot be sustained and accordingly set aside the order. The case is clearly distinguishable for the reasons weighed with the Authority for denying the study leave to the petitioner in this petition. Similarly in the cases of Dr. Anil Prasad Garaand Ganesh Prasad Shuklaon which reliance has been placed the petitioner was denied study leave on the ground of interest of students financial burden and shortage of faculty. The judgments W.P.(C) 499 2021 Page 10 11 are clearly distinguishable on facts and the reasons given by the Lt. Governor in the case in hand. Insofar as the judgment in the case of Dr. Puneet Mishra supra) is concerned the order dated September 29 2020 was passed before October 22 2020 and it is the case of the respondents that no further study leave have been granted to any of the Doctors thereafter. That apart I note that it is the submission of Mrs. Ahlawat that the case of the petitioner is not a solitary case as there are many other Doctors who have also applied for grant of study leave shall seek similar benefit is appealing. In view of my discussion above this Court is of the view that in view of the judgment of the Supreme Court in the case of State of Punjab & Ors.when the decision has been taken at the highest level in the Government this Court cannot sit as an Appellate Authority over such a decision. In the facts of this case I do not see any reason to interfere with the decision of the respondents not to grant study leave to the petitioner. The writ petition is dismissed. No costs. CM No. 1294 2021 Dismissed as infructuous. FEBRUARY 02 2021 ak V. KAMESWAR RAO J W.P.(C) 499 2021 Page 11 11

Constitution confers an equal right upon all the qualified individuals to seek employment to public offices through Articles 14, 16 and 309: The High Court of Delhi

Adherence to the rule of equality in public employment is a basic feature of our Constitution and since the rule of law is the core of our Constitution, a court would certainly be disabled from passing an order upholding a violation of Article 14 or in ordering the overlooking of the need to comply with the requirements of Article 14 read with Article 16 of the Constitution. Therefore is necessary to hold that unless the appointment is in terms of the relevant rules and after a proper competition among qualified persons, the same would not confer any right on the appointee. The aforementioned has been laid down by the Apex Court in the case of Secretary, State of Karnataka &amp; Ors. v. Uma Devi &amp; Ors.; (2006) 4 SCC 1 has laid the premise by the Delhi High Court to be followed in the case of Saroj Kumar Nayak &amp; Ors v. Tribal Cooperative Marketing Development Federation on India Limited [W.P.(C) 5453/2020, CM Nos. 19659/2020 &amp; 340/2021] which was decided by a single judge bench comprising Justice V. Kameswarrao on 21st June 2021. The facts of the case are as follows. The petitioners were appointed as senior assistants and junior assistants. Though, the appointments were with the nomenclature “on contract basis” but for all purposes it was a regular appointment except the fact that the remuneration that is being paid, is not that of a regular appointee. In 2019, the respondent gave an advertisement to fill up various posts on direct recruitment basis. It is their case that as they are eligible and have been performing their duties sincerely / diligently hence are entitled to be regularized on the posts on which they are working. It was also stated that an advertisement had been issued on November 15, 2019 against which petitioner Nos.1, 4, 5, 6 and 7 had applied for the posts of Deputy Manager, Senior Accountant and Sales Executive. Consequent upon completion of all the procedure, the final result of the direct recruitment process and Computer Based Tests (‘CBT’ for short) were announced on March 23, 2021, wherein it was found except Deepak Kumar who has been shortlisted in the waiting list category for the post of Sales Executive, none of the other petitioners are successful in the selection process. The counsels from both the sides relied on several judgments to prove their side of the contention.

IN THE HIGH COURT OF DELHI AT NEW DELHI Date of decision: June 21 2021 W.P.(C) 5453 2020 CM Nos. 19659 2020 & 340 2021 SAROJ KUMAR NAYAK & ORS. Petitioners Through: Mr. Sudarshan Rajan Adv. with Mr. Hitain Bajaj Adv. TRIBAL COOPERATIVE MARKETING DEVELOPMENT FEDERATION ON INDIA LIMITED HON BLE MR. JUSTICE V. KAMESWAR RAO Through: Mr. Rajesh Gogna CGSC Respondent V. KAMESWAR RAO J.The present petition has been filed by eight persons with the following prayers: “In view of the facts narrated and grounds set out in this writ petition it is most respectfully prayed that this Hon’ble Court may be graciously pleased to a) call for the relevant records relating to the contractual employment of the petitioners herein as also relevant records leading to the issue of the notification dated 09 11 2019and other kindred records leading to the issue of order dated 23 07 2020and examine the extent of injustice meted to the petitioners in W.P.(C) 5453 2020 Page 1 21 b) issue a writ in the nature mandamus or any other suitable writ or direction or order directing the respondents to consider the case for regularization from the very date of initial engagement and afford the petitioners the consequential reliefs such as pay and allowances annual increments leave and leave encashment and other benefits which may be granted in accordance the provisions of the VII Pay Commission recommendations as admissible to the regular employees of the TRIFED of corresponding This Hon’ble Court may be pleased to pass such other order or orders as this Hon’ble Court deem fit to meet the ends of justice.” It is the case of the petitioners that their initial engagement on contract basis was in the years 2010 2011 on the post of Assistant Grade Iand Clerkthrough a selection process which is undertaken for making regular appointment. Th eir en gagement was renewed from time to time with artificial breaks. Som e of the petitioners were also given appointment on higher post s. Though the appointments were with the nomenclature “on contract basis” but for all purposes it was a regular appointment except the fact that the remuneration that is being paid is not that of a regular appointee. The cause of action for them to approach t his Court by way of this petition was triggered on the issuance of not ification W.P.(C) 5453 2020 Page 2 21 dated November 09 2019 by the respondent whereby the respondent advertised the filling up various posts on direct recruitment basis. These posts include t hat of Depu t y Man ger Sales Executive Senior Accountant etc. It is t h eir case t h at as they are eligible and have been performing their duties sincerely diligently hence are entitled to be regularized on the posts on which they are working. According to them they now being overage for any job outside the respondent organization the respondent should regularize their services. They have referred to the various representations made by them requesting the authorities in the respondent organization for regu larization of their services. Unfortunately the same have not been replied t o. It is averred in the petition that legal advice was sou ght on t he aspect of regularizing the services of the petitioners wherein it is opined that the petitioners past contractual services could well be reckoned for purposes of seniority and age limit shall not be a bar and precedents are available when in 2012 individuals who h ad temporary status were regularized. A counter affidavit has been filed by the respondent wherein it is stated that the respondent is a Multi State Cooperative Society under the administrative control of the Ministry of Tribal Affairs and is an organization engaged in marketing development of tribal products including t ribal art & craft under the brand name “TRIBES INDIA”. The main mandate of the respondent is t o en h ance t he capability of the tribal community promotion of tribal produ cts and creation of marketing opportunities for them wit h a view t o W.P.(C) 5453 2020 Page 3 21 ensure fair prices for their products and augmenting their in come on a sustainable basis. It is stated that an advertisement was published in the Employment News dated 20 to 26 February 2010 and in the Tribune Himachal Pradesh dated April 23 2011 whereby applications were invited from the eligible candidates for fillin g up the posts of Assistant Grade I and Clerk on contract basis. In furtherance of the said advertisement and receipt of applications a Selection Committee was constituted by the respondent to conduct interviews to shortlist the applicants against the advertised posts. Pursuant thereto in terviews were held and selection was made of the petitioners. Th e pet itioners being contractual employees are being paid salary remuneration consisting of minimum basic wage of the grade post with Dearness Allowance HRA and Transport Allowance in t erms of the norms fixed by the Central Government. It is also stated that an advertisement had been issued on November 15 2019 against which petitioner Nos.1 4 5 6 an d 7 had applied for the posts of Deputy Manager Senior Accountant and Sales Executive. Consequent upon completion of all the procedure the final result of the direct recruitment process and Computer Based Tests were announced on March 23 2021 wherein it was found except Deepak Kumar who has been shortlisted in the waiting list category for t he post of Sales Executive none of the other petitioners are successful in the selection process. It is stated that the petitioners who h ave applied for t h e W.P.(C) 5453 2020 Page 4 21 posts and having participated in the selection process now cannot make a claim for regularization of their services. It is stated t he petition be dismissed. A rejoinder is also filed by the petitioners con troverting the stand of the respondent in its counter affidavit. At the outset Mr. Sudarshan Rajan learned counsel appearing for the petitioners submitted that out of eight petitioners the petitioner Nos.2 and 3 have since resigned and the lis qua them no longer survives. The statement is taken on record. It is the submission of Mr. Rajan that the prayer in the writ petition is for regularization of the petitioners from t he da t e of their initial appointment with consequential benefits. According to him the petitioner Nos.1 to 5 were appointed as Assistant Grade Iand petitioner Nos.6 to 8 were appointed as Clerkwith the respondent organization in the years 2010 and 2011. The appointment of the petitioners was on regular basis inasmuch as the post on which the petitioners were appointed are san ctioned posts and through the process followed for regular appointment. That apart some of the petitioners i.e. petitioner Nos.1 t o 5 h ave also been given promotion for all practical purposes to the post of Senior Assistant in the year 2019. Similarly the petitioner Nos.6 to 8 were practically promoted from the post of Clerk to t h e post of Junior Assistant in the year 2019. He lays st ress on t he fact that the ACRs of the petitioners were also drawn which is akin t o the case of a regular appointee. The contract of the petitioners has W.P.(C) 5453 2020 Page 5 21 been extended after evaluating their performance which was found to be good. He also stated that the petitioners’ service was with Pan India Service liability which otherwise does not exist in the case of contractual employment. Even t he respondent was making deductions against Provident Fund which is also an attribute showing their regular appointment. The fu nctions are being discharged by the petitioners as regular appointees. 12. Mr. Rajan stated that the appointments were m ade aft er following the due process inasmuch as notification calling applications for appointment was issued. Th e pet itioners h ave requisite qualifications except petitioner No.3 who was appointed after giving age relaxation for which provision exists. In fact it is his submission that the respondent themselves wanted to regularize the petitioners and in that regard they had also t aken a legal opinion. Even as per DOPT circular of 2013 a person wh o has rendered continuous service of three years is entitled to regularization. 13. Mr. Rajan stated that the plea of the respondent t hat t he petitioners having applied for various posts under the direct recruitment category and being unsuccessful cannot seek regularization is untenable. In this regard it was his su bmission that the petitioners who had applied against notification for direct recruitment did not apply for the same post on which t hey were appointed on contract basis. Hence their participation in the selection for different posts and not being successful is inconsequential and they cannot be non suited in this petition on that ground. According to Mr. Rajan continued service for nearly W.P.(C) 5453 2020 Page 6 21 a decade without intervention of the Court on the basis of selection under the constitutional scheme and against regular vacancies has resulted in a vested right having accrued in favour of the petitioners for regularization. 14. Mr. Rajan had also stated that provision exists even to absorb temporary status employee. Casual labou rers wh o were appointed even without the due process of selection and have served for 240 days resulting in grant of t em porary st atus h ave been regularized. The case of the petitioners is on stronger footing as they have been appointed by a due process and again st regular vacancies and have put in more than ten years of service. In support of his submissions Mr. Rajan had relied upon the following judgments: B. Nagarajan & Ors. v. State of Mysore3 SCR Dhirendra Chamoli v. State of U.P.1 SCC 637 iii) Direct Recruit Class II Engineering Officers Association v. State of Maharashtra2 SCC 715 iv) N. Suresh Nathan & Anr. v. UOI SuppSCC K.C. Gupta v. Lt. Governor of Delhi 1994 SuppSCC vi) U.P.S.C. v. Alpana2 SCC 723 vii) Bimlesh Tanwar v. State of Haryana5 SCC 604 viii) State of West Bengal v. Manas Kumar Chakraborty 2003) 2 SCC 604 ix) U.P.S.C. v. Girish Jayanthi Lal Vaghela & Ors.2 682 584 408 W.P.(C) 5453 2020 Page 7 21 Secretary State of Karnataka & Ors. v. Uma Devi & SCC 482 Ors. 4 SCC 1 Shailendra Dania v. S.P. Dubey & Ors.5 SCC xii) State of Orissa v. Mamata Mohanty3 SCC 436 xiii) Sheo Narayan Nagar v. State of U.P.13 SCC xiv) Chander Mohan Negi v. State of H.P. 5 SCC 535 432 732 xv) Randhir Singh v. Union of India & Ors. 1 SCC xvi) Anuj Garg & Ors. v. Hotel Association of India & Ors. 618 and 2008) 3 SCC 1. On the other hand Mr. Rajesh Gogna learned CGSC appearing for the respondent would contend that t he pet itioners were engaged by the respondent on various dates relating back t o 2010 11 and their contract was extended from time to time. Mr.Gogna has taken an objection that the shortlisted can didates for appointment pursuant to notification of 2019 are n ecessary parties to the petition as they are going to be adversely affected. He submitted that the petitioners having participated in the selection process pursuant to the advertisement dated November 09 2019 and being unsuccessful cannot seek regularization. He stated the petitioners were aware that on regular selection t heir engagement shall be terminated. On the submission the selected candidates need to be party as their rights shall be affected he has W.P.(C) 5453 2020 Page 8 21 relied on the following judgments: Prabodh Verma & Ors. v. State of U.P. 4 SCC Avtar Singh Hit v. Delhi Gurudwara8 SCC 487 Public Service Commission v. Mamta Bisht 12 251 SCC 204. 16. Mr.Gogna would submit that in view of the t erms of t he advertisement and the letter of appointment issued to the petitioners in the year 2010 2011 which stipulates the appointment as contractual till regular appointments are m ade they are not entitled to regularization. In this regard he has relied upon the judgment in the case of Anil Lamba and Ors. v. Govt. of NCT and Ors. 2017 SCC OnLine Del 7382. According to Mr. Gogna the claim of the petitioners t hat they had legitimate expectation that their contractual appointment may crystallize in regular appointment is against settled posit ion of law and also on facts. In this regard h e h as relied u pon t he judgment in the case of Radhey Shyam & Ors. v. GNCT of Delhi and Ors. 2015 SCC Online Del 6774 and Kumar Mayank v. Delhi Technological University & Anr. 2016DRJ 211. Insofar as the submission of Mr. Rajan that persons wit h temporary status have been regularized and similar benefit must be given to the petitioners is contested by Mr.Gogna as misconceived. According to him the petitioners who were W.P.(C) 5453 2020 Page 9 21 appointed on contractual basis cannot be compared with temporary status employee. According to him the regularization of the temporary status employee is governed by Casual Labourer Sch eme 1993 which stipulates regularization of Casual Labourers in service who were in place as on September 10 1993. He also contests the plea of Mr. Rajan that t he gran t of pay scale wit h DA HRA and filling up of ACR form would depict regular nature of appointment as untenable. He stated no comparison can be made between the contractual employees and the regular employees. He concluded his submissions by reiterating his stance that some of the petitioners having availed opportunity of seeking regular appointment in the respondent organization an d being unsuccessful cannot not seek regularization which sh all be a back door entry in view of the judgment of the Supreme Court in the case of Secretary State of Karnataka & Ors.and Clerk Junior Assistant) on contract a basis. The advertisement pursuant to which they were appointed clearly st ated t hat t he appointment is for a period of two years or till regular W.P.(C) 5453 2020 Page 10 21 appointments are made whichever is earlier. The advertisement also stated that the candidates applying against the advertisement shall be appointed on a contract basis and have no right of absorption or permanent employment. Similar are the provisions in the appointment letters issued to the petitioners. Admittedly the petitioners have not challenged the nature terms of the appointment since their initial appointment and also in this petition. They continued to work on contractual basis for the last ten years. I note similar terms of appointment with regard to the very same respondent had come up for con sideration in a case titled as Jagdish Kumar v. Tribal Cooperative Marketing Development Federation of India Ltd. W.P.(C) 1647 2014 decided on November 10 2014 wherein a Coordin ate Bench of this Court has in para 14 held as under: “14. This Court is of the opinion that having accepted the aforesaid terms and conditions of appointment of his own free will joined the services of the respondent and worked for a year and a half it does not lie in the mouth of the petitioner to challenge the same and that too after the respondent has terminated his services. The terms and conditions of the petitioner’s appointment letter bears out the submission made by learned counsel for the respondent that his appointment was contractual in nature and he was aware of the fact that the said appointment would W.P.(C) 5453 2020 Page 11 21 not confer any right on him for regular appointment to the said post and further that his services could be terminated in case of non compliance of any of the conditions stipulated in the letter.” Emphasis supplied) It is not known as to why the respondent had resorted t o contractual appointment despite the Supreme Court in the case of Secretary State of Karnataka & Ors. has held that public appointment has to be in terms of the constitution al scheme on regular basis and also following the recruitment rules. The appointments made were in violation of the judgment of t h e Supreme Court in Secretary State of Karnataka & Ors.10 SCC 1 as relied on by a Coordin ate Bench of this Court in the judgment of Anil Lambawherein in W.P.(C) 5453 2020 Page 12 21 paragraph 52 has held as under: “52. … In this context we may also mention that though the Official Liquidators appear to have issued advertisements for appointing the company paid staff and made some sort of selection more qualified and meritorious persons must have shunned from applying because they knew that the employment will be for a fixed term on fixed salary and their engagement will come to an end with the conclusion of liquidation proceedings. As a result of this only mediocres must have responded to the advertisements and joined as company paid staff. In this scenario a direction for absorption of all the company paid staff has to be treated as violative of the doctrine of equality enshrined in Articles 14 and 16 of the Constitution.” Emphasis supplied) Having said that Mr. Gogna is also right in contending at least petitioner Nos.1 4 5 6 and 7 havin g applied pu rsuant t o notification of 2019 for getting a regular appointment an d bein g unsuccessful cannot now seek regularization. This I say so because regularization is not a mode of appointment. SCC 161]. Regular appointment has to be in the manner contemplated under the Recruitment Rules. The said petitioners being u nsuccessful cannot now seek a regular appointment under the garb of W.P.(C) 5453 2020 Page 13 21 regularization. The Supreme Court in the case of Hindustan Shipyard Ltd. and Ors. v. Dr. P. Sambasiva Rao and Ors.1996SCC 499 held that regularization has to be as per Recruitment Rules for direct recruitment. The Supreme Court in Secretary State of Karnataka & Ors.held that public employment has t o be in t erms of constitutional scheme which is as per the Recruitment Rules framed by the employer and has to be by givin g wide pu blicity and considering every person who applies for the post and fulfills the eligibility conditions. Insofar as the plea of Mr. Rajan that there is a preceden t available in the respondent organization regularizing the services of the Casual Labourers having attained temporary status h ence the petitioners need to be regularized is not appealing. First ly Casual Labourers are Group D employees whose regularization was effected under the scheme evolved by t he Government of India known as Casual LabourersScheme 1993. From the perusal of the said scheme it is clear that the same is applicable to Group D employees only whereas the petitioners h erein are working on Group C posts hence the said scheme has no applicability. Even I find the prayer of the petitioners in this petition is for their regularization w.e.f. their initial date of en gagement. From t he above discussion it is clear that the petitioners are not entitled t o their regularization hence the plea of Mr. Rajan t h at t he sam e must relate back the date of initial appointment cannot be granted. The Supreme Court in the case of Union of India and W.P.(C) 5453 2020 Page 14 21 Ors. v. Sheela Rani 15 SCC 230 has rejected a similar plea of regularization from a retrospective date. I may also at this stage reproduce paras 43 and 50 of the judgment of the Supreme Court in the case of Secretary State of Karnataka & Ors. supra) as under: “43. Thus it is clear that adherence to the rule of equality in public employment is a basic feature of our Constitution and since the rule of law is the core of our Constitution a court would certainly be disabled from passing an order upholding a violation of Article 14 or in ordering overlooking of the need to comply with the requirements of Article 14 read with Article 16 of the Constitution. Therefore consistent with the scheme for public employment this Court while laying down the law has necessarily to hold that unless the appointment is in terms of the relevant rules and after a proper competition among qualified persons the same would not confer any right on the appointee. If it is a contractual appointment the appointment comes to an end at the end of the contract if it were an engagement or appointment on daily wages or casual basis the same would come to an end when it is discontinued. Similarly a temporary employee could not claim to be made permanent on the expiry of his term of appointment. It has also to be clarified that merely W.P.(C) 5453 2020 Page 15 21 because a temporary employee or a casual wage worker is continued for a time beyond the term of his appointment he would not be entitled to be absorbed in regular service or made permanent merely on the strength of such continuance if the original appointment was not made by following a due process of selection as envisaged by the relevant rules. It is not open to the court to prevent regular recruitment at the instance of temporary employees whose period of employment has come to an end or of ad hoc employees who by the very nature of their appointment do not acquire any right. The High Courts acting under Article 226 of the Constitution should not ordinarily issue directions absorption regularisation continuance unless the recruitment itself was made regularly and in terms of the constitutional scheme. Merely because an employee had continued under cover of an order of the court which we have described as “litigious employment” in the earlier part of the judgment he would not be entitled to any right to be absorbed or made permanent in the service. In fact in such cases the High Court may not be justified in issuing interim directions since after all if ultimately the employee approaching it is found entitled to relief it may be possible for it to mould the relief in such a manner that ultimately no W.P.(C) 5453 2020 Page 16 21 prejudice will be caused to him whereas an interim direction to continue his employment would hold up the regular procedure for selection or impose on the State the burden of paying an employee who is really not required. The courts must be careful in ensuring that they do not interfere unduly with the economic arrangement of its affairs by the State or instrumentalities or instruments to facilitate the bypassing of the constitutional and statutory mandates. 50. It is argued that in a country like India where there is so much poverty and unemployment and there is no equality of bargaining power the action of the State in not making the employees permanent would be violative of Article 21 of the Constitution. But the very argument indicates that there are so many waiting for employment and an equal opportunity for competing for employment and it is in that context that the Constitution as one of its basic features has included Articles 14 16 and 309 so as to ensure that public employment is given only in a fair and equitable manner by giving all those who are qualified an opportunity to seek employment. In the guise of upholding rights under Article 21 of the Constitution a set of persons cannot be preferred over a vast majority of people W.P.(C) 5453 2020 Page 17 21 waiting for an opportunity to compete for State employment. The acceptance of the argument on behalf of the respondents would really negate the rights of the others conferred by Article 21 of the Constitution assuming that we are in a position to hold that the right to employment is also a right coming within the purview of Article 21 of the Constitution. The argument that Article 23 of the Constitution is breached because the employment on daily wages amounts to forced labour cannot be accepted. After all the employees accepted the employment at their own volition and with eyes open the nature of their employment. The Governments also revised the minimum wages payable from time to time in the light of all relevant circumstances. It also appears to us that importing of these theories to defeat the basic requirement of public employment would defeat the constitutional scheme and the constitutional goal of equality.” One of the plea of Mr. Rajan was also that the petitioners who have applied pursuant to the notification of 2019 was for different posts and hence they need to be considered for regularization on the posts on which they are working as of n ow is also without merit. The respondent had in 2019 issued notification for making appointments on the posts on wh ich t he petitioners are working on contract basis. The petitioners in stead of applying for the posts they are working applied for higher W.P.(C) 5453 2020 Page 18 21 posts and were unsuccessful they cannot now contend t hat t hey should be considered for regularization on the posts on which they are currently working. This argument of Mr. Rajan is an afterthought only realizing that the petitioners are unsuccessful in getting regular appointment pursuant to notification of 2019. Now coming to the judgments referred t o by Mr.Rajan are concerned he has relied upon in B. Nagarajan & Ors. supra) in support of his contention that if the government advertises appointments and the conditions of service of the appointment and makes a selection after advertisement there would be no breach of Articles 15 and 16 of the Con stitution of India because everybody who is eligible in view of the conditions of service would be entitled to be considered by t h e St ate. Th e said judgment has no applicability in the facts of this case. I h ave already held that the process followed by the respondent was n ot similar to the process followed in making regular appointments. For similar reasons the judgment in the case of U.P.S.C. v. Girish Jayanthi Lal Vaghelahas no applicability. On similar proposition Mr. Rajan had relied upon the judgment in the case of State of Orissa t he ju dgment has no applicability to the facts of this case. He h as relied u pon the judgments in the case of N. Suresh Nathan & Anr.K.C. Gupta U.P.S.C. v. Alpana Bimlesh Tanwar State of West Bengal Shailendra Daniaand Sheo Narayan Nagarto contend that if their exists past practice the same has become a ru le an d t he W.P.(C) 5453 2020 Page 19 21 petitioners are entitled to regularization. Suffice to state the plea is contrary to the ratio of the Supreme Court in Secretary State of Karnataka & Ors. wherein it is held that appointments have to be in terms of Constitutional Scheme Recruitment Rules by giving wide publicity and on regular basis. 33. Mr. Rajan has also relied on the judgments in the cases of Randhir Singh and Anuj Gargto argue that equal work should translate to equal pay. Suffice wou ld it be t o state that in light of my conclusions above and the fact that present petition seeks the regularization of t h e petitioners t he abovementioned judgments are not relevant in terms of t h e issu e at hand. He has also relied upon the judgment in the case of Dhirendra Chamoli supra) Direct Recruit Class II Engineering Officersand Chander Mohan Negiin support of his submission that the pet itioners are en titled t o regularization. I am afraid that such a submission cannot be accepted in view of my discussion above based on the ju dgment of the Supreme Court in Secretary State of Karnataka & Ors. supra) and also the fact that the petitioners 1 4 5 6 and 7 having applied for appointment to various posts pursuant to a notification of 2019 and being unsuccessful the reliefs as prayed can n ot be granted. Suffice to state the Judgments relied upon are distinguishable on facts. In view of my discussion above I find the contesting petitioners are not entitled to any relief. There is n o m erit in t he W.P.(C) 5453 2020 Page 20 21 petition the same is dismissed. CM Nos. 19659 2020 & 340 2021 In view of my decision in the writ petition these applications stand dismissed. JUNE 21 2021 aky V. KAMESWAR RAO J W.P.(C) 5453 2020 Page 21 21

Transfer Of Property Has to Take Effect Within the Confines of The Governing Law: Competition Commission of India

The Commission upheld the autonomy of the Chandigarh Housing Board in prescribing guidelines and policies from time to time as it may deemfit, in relation to transfer of property. This authority cannot be considered as ‘unfair’, ‘restrictive trade practices’ and ‘abuse of dominant position’ or in violation of Section 3 and 4 of the Competition Act. An order under Section 26(2) of the Competition Act, 2002 was passed in the matter of In Re: Manmohan Singh and Chairman, Chandigarh Housing Board and Others, Case No. 31 of 2021 by Chairperson, Mr. Ashok Kumar Gupta, and Members, Ms. Sangeeta Verma and Mr. Bhagwant Singh Bishnoi.   The Informant (Mr. Manmohan) had filed Information under Section 19(1)(a) of the Competition Act on the ground that the opposite party has contravened Sections 3 and 4 of the Competition Act. The dispute revolves around a dwelling unit that was allotted to the Informant’s father. After his demise, the Informant had sent an application with all relevant documents, for transferring the dwelling unit in his name to the Chandigarh Housing Board (CHB) on 3rd August 2009. He claims that even after providing the necessary documents, the unit was not transferred to him, and that it was in 2018 that the CHB informed him about their latest policy, in lieu of which he was asked to resend the documents. He contended that the said policy was inapplicable in his case, as he had applied for the transfer in 2009, the same was rejected by the CHB. He also claimed compensation of Rs. 75 Lakhs for the loss he suffered as he was unable to sell the unit and restoration of his application under Section 33 of the Act. On further investigation the Commission noted that, there was some irregularity in the signature of one of the legal heirs on the joint affidavit, and so the Informant was asked to submit a fresh one. The Informant approached CHB in 2018 when the CHB asked him to file a fresh affidavit in 2012 itself. Since, he approached the board in 2018 he had to comply with its latest policy. Therefore, the Commission noted that, “the Informant has not been able to make out any case of contravention of the provisions of section 3 of the Act. Further, in relation to alleged contravention of the provisions of section 4 of the Act, the Commission prima facie observes that no competition concern is noticed and therefore, the delineation of relevant market and subsequent assessment of dominance and abuse are dispensable in the instant case……In the facts and circumstances of the present matter transfer of property has to take effect within the confines of the governing law for which the CHB may prescribe certain guidelines/policies from time to time, in consonance with the legal requirements, as it may deem appropriate. No abuse, per se, can be found in such circumstances”; and that, “the matter be closed under Section 26(2) of the Competition Act, 2002. Consequently, no case for grant for relief(s) as sought under Section 33 of the Act arises, and the same is also rejected.” Click Here to Read the Order Judgement Reviewed by Vagisha Sagar

Informant COMPETITION COMMISSION OF INDIA Case No. 321 In Re: Mr. Manmohan Singh R o House No 1118 Sector 29 B Chandigarh 160030 Chairman Chandigarh Housing Board through Advisor U.T. CHD Opposite Party No. 1 Chairman Chandigarh Housing Board Chandigarh Housing Board 8 Janmarg Sector 9D Chandigarh 160009 Opposite Party No. 2 Secretary exercising the powers of real estate CHB Chandigarh Opposite Party No. 3 Secretary CHB through Finance Secretary UT Secretariat Sector 9 Chandigarh Opposite Party No. 4 The Chief Account Officer Chief Executive Officer CHB Chandigarh The Account Officer II CHB Chandigarh Opposite Party No. 5 Opposite Party No. 6 Mr. Ashok Kumar Gupta Ms. Sangeeta Verma Mr. Bhagwant Singh Bishnoi Case No. 321 Order under Section 26(2) of the Competition Act 2002 1. The present Information is filed by Mr. Manmohan Singhunder Section 19(1)(a) of the Competition Act 2002 alleging contravention of the provisions of Sections 3 and 4 of the Competition Act 2002by Chairman Chandigarh Housing Board through Advisor UT CHD Chairman CHBSecretary CHB ChandigarhSecretary CHB through Finance Secretary UT Secretariat the Chief Account Officer Chief Executive Officer CHB Chandigarhthe Account Officer II CHB Chandigarh hereinafter collectively referred to as the Opposite Partiesfor the transfer of the said dwelling unit in his name vide application dated 25.08.2009 to CHB as the other legal heirs Mrs. Mandip Kaurand Mr. Amarjit Singhhad relinquished their respective rights in his 3. The Informant avers that even after submitting the requisite documents in 2009 the said dwelling unit was not transferred in his name and at a much later stage the CHB apprised the Informant that as per its latest policythat in cases of transfer of property in relation to intestate deaths the property shall only be transferred in the name of all legal heirs and accordingly requested the Informant to resubmit the requisite documents once favour. 4. The Informant states that he made many requests to various authorities such as Chairman CHB and Advisor UT Chandigarh etc. contending that the latest policy is not applicable in his case as he had made an application for mutation in the year 2009. However CHB arbitrarily rejected his application vide its order dated 30.07.2019 and that in the absence of Case No. 321 the transfer of dwelling unit in his name he has suffered irreparable loss as he is unable to sell the said dwelling unit. 5. Thus the Informant alleges that CHB has indulged in unfair and restrictive trade practices and abuse of dominant position thus violating the provisions of Sections 3 and 4 of the Competition Act 2002. 6. The Informant has inter alia prayed to the Commission for immediate restoration of his application dated 25.08.2009 and transfer of dwelling unit in his name which is pending before CHB and grant of compensation damages of upto ₹75 lakh as relief. Restoration of his application dated 25.08.2009 has also been sought as interim relief u s 33 of the Act. 7. At the outset the Commission notes that the Informant has stated that after the demise of his father he applied for a transfer of the dwelling unitin his own name vide application dated 25.08.2009as the other legal heirs had relinquished their rights in favour of the Informant. However CHB allegedly rejected his application. 8. The Commission notes that various correspondences have been enclosed with the Information. Upon conjoint reading of the enclosures the Commission notes that the old citizens’ charter of CHB required the submission of an affidavit of remaining legal heirs relinquishing their respective right title interest and that the Informant was asked to file fresh affidavits by CHB owing to some inconsistency in the signature of one of the legal heirs viz. Mrs. Mandip Kaur in the previously filed joint affidavit. 9. The Commission notes that the Informant apparently approached CHB only in 2018 after a gap of six years whereas CHB had asked the Informant to file a fresh affidavit of relinquishment way back in 2012 owing to inconsistency in the signature as aforementioned. In 2018 the new citizens’ charter was issued subsequent to which CHB sought submission of registered relinquishment deed from the Informant in terms of the latest requirements. 10. Having considered the averments and allegations made in the Information the Commission prima facie observes that the Informant has not been able to make out any case of contravention of the provisions of section 3 of the Act. Further in relation to alleged Case No. 321 contravention of the provisions of section 4 of the Act the Commission prima facie observes that no competition concern is noticed and therefore the delineation of relevant market and subsequent assessment of dominance and abuse are dispensable in the instant case. Suffice to say in the facts and circumstances of the present matter that transfer of property has to take effect within the confines of the governing law for which the CHB may prescribe certain guidelines policies from time to time in consonance with the legal requirements as it may deem appropriate. No abuse per se can be found in such circumstances. In any case the alleged conduct of CHB has not resulted in foreclosure of the legal rights of the Informant to perfect his legal title and he is free to act in accordance with the legal requirements in this regard. The Commission while holding the above has expressed nothing on the merits of the legal rights of the Informant and remedies available to the Informant except a finding that no competition concern has been observed. 11. In view of the foregoing the Commission is of the considered opinion that no prima facie case of contravention of any of the provisions of Section 3 and or 4 of the Act is made out against CHB and other Opposite Parties for causing an investigation into the matter and therefore the matter be closed under Section 26(2) of the Competition Act 2002. Consequently no case for grant for relief(s) as sought under Section 33 of the Act arises and the same is also rejected. 12. The Secretary is directed to forward a certified copy of this order to the Informant Sd Mr. Ashok Kumar Gupta Sd Ms. Sangeeta Verma Sd Mr. Bhagwant Singh Bishnoi New Delhi Dated: 10.11.2021 Case No. 321

A private vehicle would not be construed as ‘public place’ under Section 43 of the NDPS Act: Supreme Court of India

Section 43 of the NDPS Act contemplates a seizure made in a public place or in transit. This provision also includes conveyance but its applicability is restricted to vehicles which are public transport vehicle since the explanation of Section 43 clearly shows that a private vehicle would not come within the expression ‘public place’. Only for public transport vehicles, there is no need for any warrant or authority for search and seizure. This remarkable judgment was recently passed by Supreme Court in the matter of BOOTA SINGH &amp; OTHERS V STATE OF HARYANA [CRIMINAL APPEAL NO.421 OF 2021] by Honourable Justice K.M. Joseph and Honourable Justice Uday Umesh Lalit. Through this appeal, the judgment and final order passed by the High Court of Punjab &amp; Haryana is challenged. In this impugned judgment the application of the applicant was dismissed and the HC affirmed the conviction and sentence under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985. The basic facts of the case are S.I. Nand Lal, when raided a vehicle on basis of a tip, found and apprehended the accused whereas the co-accused slipped away however later he was caught. The search of the vehicle led to the recovery of poppy straw- one bag containing 39 kg of poppy straw and the second bag was containing 36 kg of poppy straw, on the basis of which an FIR was registered. The charge was framed. The contents thereof were read over and explained to the appellants, to which they pleaded not guilty and claimed trial. Later, during the trial, it was agreed by the concerned Police officer that he did not record the tip in writing nor did he obtain any search warrants for conducting the search of the jeep of the accused during night hours. Also, he did not record any valid grounds for not obtaining the requisite search warrants in his police file. The Trial Court convicted the accused under Section 15 of the NDPS Act. On the question of applicability of Section 42 of the NDPS Act, the Trial Court stated, “Acquittal due to non-compliance of Section 42 of N.D.P.S. The act would help only if recovery had been effected from the house, building, etc. If the recovery in question was effected while they are on road in a jeep at a public place then such case would be covered by Section 43 of N.D.P.S. Act and not by Section 42 of N.D.P.S. Act.” The HC also rejected the criminal appeal and confirmed the judgment of the lower court by stating that “Section 43 of the Act, the public place includes a conveyance also.” The Supreme Court observed, “The vehicle was not a public conveyance but was a vehicle belonging to accused Gurdeep Singh. The Registration Certificate of the vehicle, which has been placed on record also does not indicate it to be a Public Transport Vehicle. The explanation to Section 43 shows that a private vehicle would not come within the expression ‘public place’ as explained in Section 43 of the NDPS Act. On the strength of the decision in Jagraj Singh alias Hansa, the relevant provision would not be Section 43 of the NDPS Act but the case would come under Section 42 of the NDPS Act.” Thence, the Apex Court stated, “There was total non-compliance of the requirements of Section 42 of the NDPS Act which is impermissible. The rigor of Section 42 may get lessened in situations dealt with but in no case, total non-compliance of Section 42 can be accepted.”

IN THE CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.421 OF 2021 BOOTA SINGH & OTHERS …Appellants STATE OF HARYANA …Respondent JUDGMENT Uday Umesh Lalit J This appeal challenges the judgment and final order dated 03.03.2020 passed by the High Court of Punjab & Haryana at Chandigarh dismissing CR A S 1759 SB 2004 preferred by the appellants and affirming their conviction and sentence under Section 15 of the Narcotic Drugs and Psychotropic Substances Act 1985has conducted the search of the accused in the presence of ASI Jaswant Singhand Constable Gurjit Singh PW 1) took the sample parcels to the FSL. The prosecution has also produced documentary evidence to substantiate the version as put forth by it.” By order dated 15.03.2002 on an application preferred by him the vehicle in question was released by the Trial Court in favour of accused During trial PW4 Inspector Nand Lal the Investigating Officer deposed in his examination in chief as under “On 28.1.2002 I was posted as Sub Inspector SHO in Police Station Rori. On that day I alongwith ASI Jaswant Singh and other police officials were present at the canal bridge on Surtia Rori road in connection with patrolling. I received a secret information that all the accused are selling poppy straw in a vehicle bearing no.GUD 4997 upon a Kacha Rasta at Rori Jatana road and can be apprehended red handed if a raid is conducted. I tried to join two persons who were going to water the fields in the investigations but they refused. Thereafter I organised a raiding party and conducted a raid. All the accused were found in the jeep bearing no GUD 4997 upon a kacha rasta by the side of Rori Jatana Road Upon seeing the police party one of the accused namely Major fled the spot. I knew the accused Major Singh since long. Remaining three accused were apprehended at the spot. Accused Boota Singh Gurdeep Singh and Gurmahender Singh alias Mitta were found sitting upon two bags lying in the said Jeep. Thereafter I served notices Ex.PC Ex.PD and Ex.PE upon accused Gurdeep Boota and Gurmahender Singh respectively u s 50 of NDPS asking them as to whether they desired their search before a gazetted officer or a Magistrate. Vide replies Exl.PC 1.1 Ex.PDA and Ex.PE I accused Gurdeep Singh Boota Singh and Gurmahender Singh alias Mitta declined the offer and reposed faith in the police. …” In his cross examination the witness stated: “I did not record the secret information in writing. Wireless in my jeep was out of order at that time. I did not obtain any search warrants for conducting the search of the jeep of accused during night hours. I did not record any ground for not obtaining the requisite search warrants in my police file. The writing work was done while sitting in the jeep.” After considering the evidence on record the Trial Court by its judgment and order dated 12.08.2004 acquitted accused Major Singh but convicted accused Boota Singh Gurdeep Singh and Gurmohinder Singh under Section 15 of the NDPS Act and sentenced them to suffer rigorous imprisonment for 10 years with imposition of fine in the sum of Rs.1 00 000 in default whereof they were directed to undergo further rigorous imprisonment for a period of two years On the question of applicability of Section 42 of the NDPS Act the Trial Court stated: “ … Learned counsel sought acquittal of accused due to non compliance of Section 42 of N.D.P.S. Act. However above said argument could help the accused if recovery had been effected from the house building etc. of the accused Admittedly recovery in question was effected from the accused while they were sitting on road in a jeep at a public place Therefore case of accused would be covered by Section 43 of N.D.P.S. Act and not by Section 42 of N.D.P.S. Act. Under these circumstances argument of learned counsels for accused The convicted accused being aggrieved preferred the aforementioned Criminal Appeal before the High Court which was dismissed by the High On the question whether the matter came within the scope of Section 42 of the NDPS Act the High Court observed: 14. Furthermore in the case in hand the accused were present in a jeep on a public path and in such circumstance the provisions of Section 43 and not of 42 of the Act come into play. As per explanation to Section 43 of the Act the public place includes a conveyance also. Section 43 of the Act contemplates a seizure made in a public place or in transit. As such Section 42 of the Act is not applicable to the facts of the present case …” In this appeal preferred by Boota Singh Gurdeep Singh and Gurmohinder Singh challenging the correctness of the decisions of the courts below we heard Mr. Praveen Kumar learned counsel for the appellants and Mr. Rakesh Mudgal learned AAG for the State Mr. Praveen Kumar submitted inter alia The vehicle in question was a private vehicle belonging to accused Gurdeep Singh and was not a public conveyance though parked on a public road As accepted by PW4 Inspector Nand Lal the secret information was not recorded in writing nor any grounds were recorded for not obtaining the requisite search The instant case would not be come under Section 43 but would be governed by the provisions of Section 42 of the Section 42 having not been complied with at all the appellants were entitled to acquittal in terms of law laid down in the Constitution Bench decision of this Court in Karnail Singh v State of Haryana1 followed in subsequent decisions in Sukhdev Singh v. State of Haryana2 and State of Rajasthan v. Jagraj Singh alias 1(2009) 8 SCC 539 2(2013) 2 SCC 212 3(2016) 11 SCC 687 Countering the submissions Mr. Rakesh Mudgal learned AAG submitted that the courts below were right in observing that the instant case would be governed by the provisions of Section 43 of the NDPS Act. It was however accepted by the learned counsel that there was no material on record to conclude that the vehicle in question was a public conveyance In Karnail Singh the Constitution Bench of this Court concluded: “35. In conclusion what is to be noticed is that Abdul Rashid2 SCC 513 : 2000 SCC 496] did not require literal compliance with the requirements of Sections 42(1) and 42(2) nor did Sajan Abraham6 SCC 692 2001 SCC1217] hold that the requirements of Sections 42(1) and 42(2) need not be fulfilled at all. The effect of the two decisions was as follows a) The officer on receiving the information of Section 42] from any person had to record it in writing in the register concerned and forthwith send a copy to his immediate official superior before proceeding to take action in terms of clausesto d) of Section 42(1 b) But if the information was received when the officer was not in the police station but while he was on the move either on patrol duty or otherwise either by mobile phone or other means and the information calls for immediate action and any delay would have resulted in the goods or evidence being removed or destroyed it would not be feasible or practical to take down in writing the information given to him in such a situation he could take action as per clausestoof Section 42(1) and thereafter as soon as it is practical record the information in writing and forthwith inform the same to the official superior c) In other words the compliance with the requirements of Sections 42(1) and 42(2) in regard to writing down the information received and sending a copy thereof to the superior officer should normally precede the entry search and seizure by the officer. But in special circumstances involving emergent situations the recording of the information in writing and sending a copy thereof to the official superior may get postponed by a reasonable period that is after the search entry and seizure. The question is one of urgency and expediency d) While total non compliance with requirements of sub sectionsandof Section 42 is impermissible delayed compliance with satisfactory explanation about the delay will be acceptable compliance with Section 42. To illustrate if any delay may result in the accused escaping or the goods or evidence being destroyed or removed not recording in writing the information received before initiating action or non sending of a copy of such information to the official superior forthwith may not be treated as violation of Section 42. But if the information was received when the police officer was in the police station with sufficient time to take action and if the police officer fails to record in writing the information received or fails to send a copy thereof to the official superior then it will be a suspicious circumstance being a clear violation of Section 42 of the Act. Similarly where the police officer does not record the information at all and does not inform the official superior at all then also it will be a clear violation of Section 42 of the Act. Whether there is adequate or substantial compliance with Section 42 or not is a question of fact to be decided in each case. The above position got strengthened with the amendment to Section 42 by Act 01.” In Jagraj Singh alias Hansa the facts were more or less identical In that case the vehiclewas not a public transport vehicle. After considering the relevant provisions and some of the decisions of this Court including the decision in Karnail Singh it was observed: “14. What Section 42(2) requires is that where an officer takes down an information in writing under sub sectionhe shall send a copy thereof to his immediate officer senior. The communication Ext. P 15 which was sent to the Circle Officer Nohar was not as per the information recorded in Ext. P 14 and Ext. P 21. Thus no error was committed by the High Court in coming to the conclusion that there was breach of Section . . . . . . . . . . . In this context it is relevant to note that before the Special Judge also the breach of Sections 42(1) and 42(2) was contended on behalf of the defence. In para 12 of the judgment the Special Judge noted the above arguments of defence However the arguments based on non compliance with Section 42(2) were brushed aside by observing that discrepancy in Ext P 14 and Ext. P 15 is totally due to clerical mistake and there was compliance with Section 42(2). The Special Judge coming to compliance with the proviso to Section 42(1) held that the vehicle searched was being used to transport passengers as has been clearly stated by its owner Vira Ram hence as per the Explanation to Section 43 of the Act the vehicle was a public transport vehicle and there was no need of any warrant or authority to search such a vehicle. The High Court has reversed the above findings of the Special Judge. We thus proceed to examine as to whether Section 43 was attracted in the present case which obviated the requirement of Section 42(1) proviso . . . . . . . . . . . 29. After referring to the earlier judgments the Constitution Bench came to the conclusion that non compliance with requirement of Sections 42 and 50 is impermissible whereas delayed compliance with satisfactory explanation will be acceptable compliance with Section 42. The Constitution Bench noted the effect of the aforesaid two decisions in para 5. The present is not a case where insofar as compliance with Section 42(1) proviso even an argument based on substantial compliance is raised there is total non compliance with Section 42(1) proviso. As observed above Section 43 being not attracted search was to be conducted after complying with the provisions of Section 42. We thus conclude that the High Court has rightly held that non compliance with Section 42(1) and Section 42(2) were proved on the record and the High Court has not committed any error in setting aside the conviction order.” The evidence in the present case clearly shows that the vehicle was not a public conveyance but was a vehicle belonging to accused Gurdeep Singh. The Registration Certificate of the vehicle which has been placed on record also does not indicate it to be a Public Transport Vehicle. The explanation to Section 43 shows that a private vehicle would not come within the expression “public place” as explained in Section 43 of the NDPS Act. On the strength of the decision of this Court in Jagraj Singh alias the relevant provision would not be Section 43 of the NDPS Act but the case would come under Section 42 of the NDPS Act It is an admitted position that there was total non compliance of the requirements of Section 42 of the NDPS Act The decision of this Court in Karnail Singh as followed in Jagraj Singh alias Hansa is absolutely clear. Total non compliance of Section 42 is impermissible. The rigor of Section 42 may get lessened in situations dealt with in the conclusion drawn by this Court in Karnail Singh but in no case total non compliance of Section 42 can be accepted In the circumstances the courts below fell in error in rejecting the submissions advanced on behalf of the appellants. We therefore allow this appeal set aside the view taken by the High Court and acquit the appellants of the charge levelled against them. The appellants be released forthwith unless their custody is required in connection with any other offence Uday Umesh Lalit New Delhi April 16 2021

Advance bail may be granted when there is no sufficient proof of crime: Karnataka High Court

Advance bail to an accused may be granted if there is a lack of substantial evidence that proves that he was engaged in serious criminal offences. A single judge bench consisting of Justice Krishna S Dixit, while adjudicating the matter in Sri Rakesh B v. State of Karnataka [CRIMINAL PETITION NO.2427 OF 2020], dealt with the issue of awarding bail to an individual accused of rape. The complainant in the above case stated that she was subject to rape on the false promise of marriage. She stated that she had employed the services of the petitioner for the last two years, during which the petitioner was allegedly forcing her for sexual favours. She elaborated on a particular incident where she went to her office at night, around 11pm, consumed drinks with the petitioner and allowed him to stay with her till morning. The explanation offered by the complainant for such a conduct was that she was tired and fell asleep after consuming the drinks. In another incident she stated that she had been to Indraprastha Hotel for dinner and that the petitioner having consumed drinks came and sat in the car. A letter was allegedly written by the complainant stating that she was ready to withdraw the complaint if a compromise is brought about between her and the petitioner. The petitioner chose to not accept the offer of compromise. Later, the petitioner was charged under the Indian Penal Code on the grounds of rape, cheating and dishonestly inducing delivery of property and criminal intimidation. The petitioner sought an advance bail from the Court. The respondent vehemently opposed the petition contending that – the offences alleged against the petitioner are serious in nature; there is sufficient material on record to relate the petitioner to the commission of said offences; it is unsafe to the society to grant Advance Bail to the offenders like the petitioner.

IN THE HIGH COURT OF KARNATAKA BENGALURU DATED THIS THE 22ND DAY OF JUNE 2020 THE HON BLE MR. JUSTICE KRISHNA S.DIXIT CRIMINAL PETITION NO.2427 OF 2020 SRI RAKESH B S O B BABU RAO AGE ABOUT 27 YEARS R A NO 48 19TH MAIN ROAD LALITA TENT GROUND VIJAYANAGAR MC LAYOUT BENGALURU NORTH BENGALURU 560040 BY SRI C H HANUMANTHARAYA Sr.ADVOCATE) STATE OF KARNATAKA BY RAJARAJESHWARI POLICE STATION REP BY THE SPP HIGH COURT BANGALORE KARNATAKA 560001 BY SRI K NAGESHWARAPPA HCGP) THIS CRIMINAL PETITION IS FILED UNDER SECTION 439 OF CR.P.C. PRAYING TO ENLARGE THE PETITIONER ON BAIL IN CR.NO.87 2020 OF RAJARAJESHWARINAGARA P.S. BENGALURU FOR THE OFFENCE P U S 376 420 506 OF IPC AND SEC.66(B) OF THE INFORMATION TECHNOLOGY ACT THIS PETITION COMING ON FOR ORDERS THIS DAY THE COURT MADE THE FOLLOWING: Petitioner being the accused in Crime No.87 2020 of Rajarajeshwarinagara Police Station for the offences punishable u s. 376 420 & 506 of IPC 1860 and Sec.66 B of Information Technology Act 2000 has presented this petition u s.438 of Cr.P.C. 1973 seeking Advance Bail his similar prayer in Closure Crl. Misc. No. 111 2020 having been negatived by the learned LIII Addl. City Civil Sessions Special Judge Bengaluru vide order dated 19.05.2020. The learned HCGP having accepted notice for the respondent State vehemently opposes the petition contending that the offences alleged against the petitioner are serious in nature there is sufficient material on record to relate the petitioner to the commission of said offences it is unsafe to the society to grant Advance Bail to the offenders like the petitioner the learned judge of the Court below having considered all aspects of the matter has rightly rejected his claim even otherwise the indulgence of this Court in concurrent jurisdiction is not warranted so contending he seeks dismissal of the petition. 3. Having heard the learned counsel for the parties and having perused the petition papers this Court is inclined to grant Anticipatory Bail to the petitioner for the following reasons and subject to the conditions hereinafter stipulated: a) the offences alleged against the petitioner being punishable u s. 376 420 & 506 of IPC 1860 and Sec.66 B of Information Technology Act 2000 are serious in nature is arguably true however seriousness alone is not the criteria to deny liberty to the citizen when there is no prima facie case from the side of the State Police b) the version of the complainant that she was subjected to rape on the false promise of marriage in the given circumstances of the case is bit difficult to believe at this stage there is a letter allegedly written by the complainant to the effect that she was ready to withdraw the complaint if a compromise is brought about especially when the complainant had employed the services of the petitioner since last two years or so nothing is stated by the complainant as to why she did not approach the Court at the earliest point of time when the petitioner was allegedly forcing her for sexual favours c) nothing is mentioned by the complainant as to why she went to her office at night ie. 11.00 p.m. she has also not objected to consuming drinks with the petitioner and allowing him to stay with her till morning the explanation offered by the complainant that after the perpetration of the act she was tired and fell asleep is unbecoming of an Indian woman that is not the way our women react when they are ravished d) the version of the complainant that she had been to Indraprastha Hotel for dinner and that the petitioner having consumed drinks came and sat in the car even if is assumed to be true there is no explanation offered for not alerting the police or the public about the conduct of the petitioner thus there are sufficient grounds to admit the petitioner to Advance Bail especially when granting of bail is the rule and denial is an exception vide GUDIKANTI NARASIMHULU VS. PUBLIC PROSECUTOR AIR 1978 SC 429 whose ratio can be arguably invoked even in petitions seeking Advance Bail this apart Courts cannot loose sight of COVID 19 pandemic which poses the threat of infection to the detenues in prison and e) the contention of the learned HCGP that if Advance Bail is granted to the petitioner it would be difficult to secure his presence for investigation or trial can be addressed by imposing stricter conditions violation of which will entail him with the cancellation of bail. In the above circumstances this petition succeeds petitioner is ordered to be enlarged on bail if & when arrested in connection with Crime No.87 2020 of Rajarajeshwarinagara Police Station if not required in relation to any other offence subject to the following petitioner shall execute a Personal Bond for a sum of Rs.1 00 000 only with two sureties for the like sum investigation further investigation at all times and appear before the jurisdictional police if & when so directed iii) petitioner shall not leave the jurisdictional limits of the trial Court without its prior permission iv) petitioner shall mark his attendance in jurisdictional Police Station every second and fourth Saturday of calendar month between 9.00 am and 3.00 pm the petitioner shall not witnesses victims nor shall he do anything prejudicial to peace & order in the civil society it is open to the jurisdictional police or the complainant to seek cancellation of bail if when petitioner commits breach of any of the above conditions or perpetrates any offence hereafter. Sd

Stay to be allowed on account of petitioner’s financial distress due to the Covid-19 pandemic subject to deposit of 50 per cent of the decretal amount: Delhi High Court

The Covid-19 pandemic has caused severe effects and consequences all over the country, including economic distress, which necessitates the requirement of the court’s consideration of providing interim relief under exceptional circumstances. This was held in the judgment passed by a single bench judge comprising HON’BLE MS. JUSTICE ASHA MENON, in the matter of M/S TDI INFRATECH LTD V. RAJESH ARORA (CM (M) 455/2021) dealt with an issue where the petitioner filed for a stay subject to the deposit of 50% of the decretal amount on account of the financial distress that the petitioner was undergoing due to the Covid-19 pandemic. The National Consumer Disputes Redressal Commission (‘NCDRC’), disposed of an application 2021 moved by the petitioner, seeking the stay of the order of the State Consumer Disputes Redressal Commission (‘SCDRC’), Chandigarh on 14th June, 2021. This application had been filed by the petitioner in an appeal it had preferred against the decision of the SCDRC, Chandigarh dated 24th February, 2021, whereby, the petitioner was directed to refund an amount of Rs.32,84,560/- and Rs.46,456/- to the respondent along with interest @ 12% per annum along with Rs.50,000/- as compensation. The petitioner submitted that the NCDRC not only overlooked the financial distress due to covid aspect but also failed to note that since 2012, the petitioner had been offering the possession of the plot to the respondent. As such, the direction for refund and that too, at such a high rate of interest was required to be modified. The NCDRC however directed that the full decretal amount be deposited.  Reliance has also been placed on Omaxe Buildhome Pvt Ltd v. Mr. Ibrat Faizan wherein in similar circumstances, stay was granted subject to the deposit of 50% of the decretal amount. The counsel also submitted that before the introduction of the Consumer Protection Act, 2019, under the old act i.e., the Consumer Protection Act, 1986, 50% or Rs. 35,000 was required to be deposited whichever was lower, in compliance of which the petitioner had deposited Rs. 35,000/-.  The respondent submitted that the petitioner has been misleading this Court by claiming that the appeal had been filed under Section 51 of the Act of 2019, whereas it was actually filed before the NCDRC under Section 19 of the Act of 1986. It was submitted that on this short ground of misleading the Court, this petition ought to be dismissed.

CM455 2021 $~6 IN THE HIGH COURT OF DELHI AT NEW DELHI % Date of Decision: July 26 2021 + CM455 2021 M S TDI INFRATECH LTD. ..... Petitioner Through: Ms. Kanika Agnihotri and Mr. Amer Vaid Advocates versus RAJESH ARORA .... Respondent Through: Mr. Nikhil Jain & Mr. Navneet Kumar Advocates. CORAM: HON BLE MS. JUSTICE ASHA MENON O R D E R CM455 2021 CM APPL.21494 20211. Vide orders dated 14th June 2021 the National Consumer Disputes Redressal Commissiondisposed of an application bearing No. IA 3503 2021 moved by the present petitioner seeking the stay of the order of the State Consumer Disputes Redressal CommissionChandigarh. CM455 2021 2. This application had been filed by the petitioner in an appeal it had preferred against the decision of the SCDRC Chandigarh dated 24th February 2021 whereby the petitioner was directed to refund an amount of Rs.32 84 560 and Rs.46 456 to the respondent along with interest @ 12% per annum alongwith Rs.50 000 as compensation cost of litigation. 3. Ms. Kanika Agnihotri learned counsel for the petitioner submitted that the stay had been sought on account of the financial distress that the petitioner was undergoing due to the Covid 19 pandemic. The NCDRC not only overlooked this aspect but also failed to note that since 2012 the petitioner had been offering the possession of the plot to the respondent. As such the direction for refund and that too at such a high rate of interest was required to be modified. Yet by the impugned orders the NCDRC directed that the full decretal amount be deposited. 4. Relying on the judgment of the Supreme Court in Export Credit Guarantee Corporation Ltd. v. M s Bharat Enterpriseslearned counsel has submitted that in a similar situation the Hon’ble Supreme Court had held that a deposit of 50% of the decretal amount would satisfy the requirement of the second proviso to Section 51 of the Consumer Protection Act 2019. Reliance has also been placed on the orders dated 25th May 2021 of the Coordinate Bench of this Court in Omaxe Buildhome Pvt Ltd v. Mr. Ibrat Faizan374 2021) wherein in similar circumstances stay was granted subject to the deposit of 50% of the decretal amount. Learned counsel submitted that before the introduction of the Consumer Protection Act 2019 under the old act i.e. the Consumer Protection Act 1986 50% or Rs. 35 000 was required to CM455 2021 be deposited whichever was lower in compliance of which the petitioner had deposited Rs. 35 000 . However thereafter the NCDRC had exercised its discretion while staying the impugned judgment of the SCDRC by directing deposit of the full decretal amount. The learned counsel submitted that following the judgment of the Supreme Court and the Coordinate Bench of this Court the petitioner may be permitted to deposit 50% of the decretal amount. 5. Mr. Nikhil Jain learned counsel for the respondent has emailed his short notes along with the judgments relied upon by him to oppose the application. He has also submitted that the petitioner has been misleading this Court by claiming that the appeal had been filed under Section 51 of the Act of 2019 whereas it was actually filed before the NCDRC under Section 19 of the Act of 1986. It was submitted that on this short ground of misleading the Court this petition ought to be dismissed. 6. The further contention of the learned counsel for the respondent is that the impugned order was not one directing the deposit preceding the filing of the appeal under Section 19 of the Act of 1986 but was an order passed by the NCDRC after hearing both sides as the respondent was a Caveator before the NCDRC. The passing of such an order was well within the powers of the NCDRC. Moreover the NCDRC had in its judgment dated 12th October 2020 titled M s Sahyog Homes Limited & 6 Ors. v. Gautam Suresh Kumar and other connected matters held that Section 51 of the Act of 2019 was not applicable to complaints filed prior to the amendment. It was also submitted that in any case the impugned orders were not under Section 19 or Section 51 but on the application moved by the petitioner seeking stay of the judgment of the SCDRC. CM455 2021 7. Learned counsel for the respondent also relied upon the decision of the Supreme Court in New India Assurance Co. Ltd. v. Roopa Devi and Ors.to submit that in a similar situation the Supreme Court while dealing with a MACT matter had observed that a pre requisite for entertaining the appeal such as a pre deposit could not affect the power of the High Court to put a more stringent condition as a part of the orders for admission or notice. Therefore the NCDRC was fully justified in directing a full deposit of the decretal amount. 8. With regard to the submissions made on behalf of the petitioner that it had been ready to handover the possession since 2012 the learned counsel for the respondent submitted that this plea had been rejected by the SCDRC as only an eye wash as the completion certificate had not been obtained. 9. The learned counsel for the petitioner has herself clarified that it was never intended to argue that the present case was covered under Section 51 of the Act of 2019 but that on parity of reasoning the benefit of the Supreme Court decision as also the decision of this Court be given to the petitioner in view of the strained financial circumstances that existed today. 10. There is no confusion that with the introduction of the Act of 2019 whereby Section 51 came into effect from 20th July 2020 an appeal can be entertained by the NCDRC only if the appellant deposits 50% of the amount awarded by the SCDRC. However under Section 19 of the Act of 1986 this amount was either 50% of the awarded amount or Rs.35 000 whichever was less. No doubt the NCDRC would have discretion to impose further stringent conditions if found necessary at the time of CM455 2021 disposing of the stay application. But while so imposing more stringent conditions it is natural to expect the NCDRC to disclose the reasons why it was doing so as a condition precedent to grant of stay of the judgment of the SCDRC. However a perusal of the impugned order would show that no reason has been given for directing that the entire decretal amount with up to date interest be deposited with the SCDRC for grant of the interim relief. 11. It is the considered view of this Court that the interest of justice would be met by following the view taken by the Supreme Court in Export Credit Guarantee Corporation Ltd(supra). In that case though 50 per cent of the decretal amount had been deposited under Section 51 of the new Act when the appeal had been filed but the NCDRC while disposing of the stay application had directed the deposit of the entire decretal amount with the SCDRC subject to which execution was stayed. This order was modified by the Supreme Court agreeing with the submission of the learned counsel for the appellant that the statutory intent did not require the NCDRC to direct the deposit of the entire decretal amount or to stipulate that without such deposit there would be no interim relief. The fact situation is similar to the present one even if this is a case under the old Act since the impugned order is post the pre deposit for filing the appeal and at the time of grant of stay. The contention of the learned counsel for the respondent cannot be therefore accepted that this judgment cannot be followed in the present case. 12. The impugned order is set aside. On the deposit of 50 per cent of the decretal amount within eight weeks with the SCDRC Chandigarh CM455 2021 the judgment of the SCDRC dated 24th February 2021 and execution if any shall remain stayed till the disposal of the appeal by the NCDRC. 13. The petition is accordingly allowed. The pending application also stands disposed of. 14. The order be uploaded on the website forthwith. JUDGE JULY 26 2021 ak ck

Revision petition challenging the legality of former order rejected due to less ground to interfere with the order – Jharkhand high court

Revision petition challenging the legality of former order rejected due to less ground to interfere with the order – Jharkhand high court A criminal revision petition challenging the correctness of the order passed by the court in (Cri.Misc.Application No. 1007/2018 (S.T. Case No. 113 of 2017) was dismissed by the single judge bench of HON’BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY in the case of Hridayendra Kumar and ors. Versus the state of Jharkhand and Ors. (Cr. Rev. No. 478 of 2019) The learned counsel for petitioners submitted that First Information Report was instituted and submission of the final form indicated defect of facts and a protest petition was filed through which offense under Section 302/34 of Indian Penal Code was found and cognizance was taken. And submits that that the victim of the case had committed suicide as it is supported by a suicide note which was sent for forensic examination and accordingly, no case under Section 302/34 of the Indian Penal Code was made out. The learned counsel on behalf of opposite party no.2 opposes that the prayer and submits that no case for interference in the impugned order refusing to discharge the petitioners is made out and also submits that there is no illegality or irregularity in the impugned order and it indicates strong suspicion against the petitioners. After considering both the parties the court founds that the police submitted the final form stating that there was defect of facts. The complainant filed the protest petition on 12.09.2006 and after inquiry, the learned court below found a prima facie case under Section 302/34 of the Indian Penal Code. And considering the other material on record, the learned court found that there was strong suspicion against the accused persons and accordingly, rejected the discharge petition. Therefore this court having gone through the impugned order dated 19.03.2019, does not find any illegality or perversity in the impugned order of rejection of discharge petition. The impugned order is a well-reasoned order considering the materials on record and no illegality or perversity as such has been pointed out by the learned counsel for the petitioner calling for interference in revisional jurisdiction. Hence no ground to interfere with the impugned order is made out. Consequently, this criminal revision petition is dismissed.

IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr. Rev. No. 4719 1. Hridayendra Kumar Son of Late Rabindra Prasad 2. Sunita Devi W o Shri Hridayendra Kumar both residents of Arsandey Boreya P.O. Boreya P.S. Kanke District Ranchiwhereby the application filed by the petitioners under Section 227 of the Code of Criminal Procedure for discharge been rejected and the case was fixed for framing of charge. The case arises out of Complaint Case No. 507 said to be pending before the court of learned Addl. Judicial Commissioner VII Ranchi. The learned counsel for the petitioners submits that initially First Information Report was instituted and submission of final form indicated defect of facts. The complainant filed a protest petition on 12.09.2006 and in the protest prima facie case for offence under Section 302 34 of Indian Penal Code was found and cognizance was taken. The learned counsel submits that the victim of the case had committed suicide as it is supported by a suicide note which was sent for forensic examination and accordingly no case under Section 302 34 of Indian Penal Code was made out. The learned counsel for the petitioners further submits that the complainant is the wife of the deceased and the deceased is the own brother of the petitioner no. 1 and brother in law of the petitioner no. 2. The learned counsel submits that a petition for discharge was filed which has been rejected by the impugned order dated 19.03.2019 which is not sustainable in the eyes of law. The learned Senior counsel appearing on behalf of the opposite party no. 2 on the other hand has opposed the prayer and has submitted that no case for interference in the impugned order refusing to discharge the petitioners is made out. He submits that there is no illegality perversity or irregularity in the impugned order calling for interference in revisional jurisdiction in this proceeding. The learned counsel has also submitted that the points which have been argued by the petitioners are matter of evidence and at this stage the learned court below has passed a reasoned order indicating strong suspicion against the petitioners and has also indicated the reason for passing the impugned order refusing to discharge the petitioners. The learned counsel has also submitted that altogether 11 inquiry witnesses were examined and the learned court below has passed a well speaking order as per law. The learned counsel for the state has supported the submissions of the learned counsel for the opposite party no. 2. After hearing the learned counsel for the parties and considering the facts and circumstances of this case this Court finds that the husband of the complainant died in the month of July 2005. He was said to have been brought to RIMS Hospital Ranchi on 11.07.2005 and he died during his treatment. Consequently criminal case was registered under section 302 34 of Indian Penal Code on 11.07.2005. However the police submitted final form stating that there was defect of facts. The complainant filed the protest petition on 12.09.2006 and after inquiry the learned court below found prima facie case under Section 302 34 of Indian Penal Code. It further appears from the impugned order that only two accused persons namely Harendra Kumar Singh and Sunita Devi appeared and the accused Anand Mohan @ Tan Singh did not appear and his case was split vide order dated 06.09.2018. The learned court below considered the evidence of 11 enquiry witnesses who were examined from the side of the complainant and found that the handwriting expert was of the opinion that there was no characteristics difference beyond the range of natural variation and the suicide note was kept in the record. The learned court also recorded that one line such as he was not found perfect as per desire of his elder brother appeared to be added later on. The learned court also recorded that the expert only examined the signature of the deceased and the language has not been examined. The learned court below also perused the post mortem report and found that the cause of death was not stated as viscera was kept reserved but abdomen was found slightly distended and nails were deeply cynosed. The learned trial court also recorded that when it was not a case of asphyxia then deeply cynosed nails indicated only death due to poison. The learned trial court also considered the inquest report. 10. Considering the materials on record the learned court below found that there was strong suspicion against the accused persons and accordingly rejected the petition for discharge. 11. This court after having gone through the impugned order dated 19.03.2019 does not find any illegality or perversity in the impugned order of rejection of discharge petition. The impugned order is a well reasoned order considering the materials on record and no illegality or perversity as such has been pointed out by the learned counsel for the petitioner calling for interference in revisional jurisdiction. This Court further finds that an order dated 03.07.2019 has also been placed on record from where it appears that office was directed to issue summons upon the witnesses for evidence. However the present stage of the case is not on record. 12. Considering the totality of the facts and circumstances of this case no ground to interfere with the impugned order is made out. Consequently this petition is dismissed. 13. However it is observed that dismissal of this petition will not prejudice the case of either parties before the learned court below. Interim order if any stands vacated. 15. Pending interlocutory application if any is closed. 16. Let a copy of this order be transmitted to the learned court below through ‘FAX email’. Anubha Rawat Choudhary J.)

The parties are free to agree on a procedure for appointing the arbitrator or arbitrators: High Court Of New Delhi

Section 11(6) of the Arbitration and Conciliation Act, 1996 speaks about the Sole Arbitrator, were as the present petition was also been filed by the petitioner for seeking the above matter, and the same issue was held in the judgement passed by a single bench judge comprising HON’BLE MR. JUSTICE SURESH KUMAR KAIT, in the matter OFB TECH PVT. LTD V.  KLSR INFRATECH LTD dealt with an issue mentioned above. Petitioner was a person who owned a Private Limited Company incorporated under the erstwhile provisions of the Companies Act. Petitioner is inter-alia engaged in the Business-to-Business (B2B) trading and supply of raw materials to Small and Medium Enterprises and other Corporates. On the other hand, the respondent is also a company incorporated under the erstwhile provisions of the Companies Act. Respondent is inter-alia engaged in the business of Infrastructure. According to the petitioner, a Master Facilities Agreement dated 25.06.2019 was executed between Oxyzo and respondent for providing financing facility to the respondent of Rs.10 Crores, wherein petitioner signed as a confirming party. Wherein Respondent also entered into a Memorandum of Understanding dated 25.06.2019 with petitioner for availing Working Capital Facility of Rs.10 Crores to purchase raw material. Respondent defaulted in its payment schedule in terms of the Memorandum of Understanding dated 25.06.2019 executed with the petitioner as well as the payment schedule agreed with Oxyzo, therefore, the ARB.P. 949/2021 petitioner issued an email, setting out the default on the part of the respondent. Were it was mentioned that the due amount was categorically laid down in the said email, which for the petitioner and Oxyzo amounted to Rs.22,62,60,592/-. Respondent replied alleging that dues of the petitioner have not been cleared as payments have not been received by respondent from the Government due to Covid. However, the respondent did not dispute the amount and its liability as detailed by the petitioner in its email. Thereafter, certain disputes arose between the parties regarding dues amounting to Rs.3,31,39,697/- with interest. Learned counsel for respondent accepts notice and submits that he has no objection if the present petition is allowed and a Sole Arbitrator may be ARB.P. 949/2021  appointed to adjudicate the dispute between the parties subject to all issues to remain open before the learned Arbitrator be appointed.  The court perused the facts and argument’s presented, it thought that- “The learned Arbitrator shall ensure compliance of Section 12 of Arbitration and Conciliation Act, 1996 before commencing the arbitration. 13. With aforesaid directions, the present petition is, accordingly, disposed of”.

IN THE HIGH COURT OF DELHI AT NEW DELHI Date of decision: 29.10.2021 OFB TECH PVT. LTD. Petitioner Through Mr. Varun Tyagi Adv. ARB.P. 949 2021 KLSR INFRATECH LTD. Respondent Through Mr. Mahfooz Nazki Mr. Amitabh Sinha and Mr. Gowtham Polanki HON BLE MR. JUSTICE SURESH KUMAR KAIT JUDGMENTThe present petition has been filed by petitioner seeking appointment of a Sole Arbitrator under the provisions of Section 11(6) of the Arbitration and Conciliation Act 1996. Petitioner is a Private Limited Company incorporated under the erstwhile provisions of the Companies Act. Petitioner is inter alia engaged in the Business to Business trading and supply of raw materials to Small and Medium Enterprises and other Corporates. Oxyzo Financial Services Pvt. Ltd is a Non Banking Finance Companywhich is ARB.P. 949 2021 a wholly owned subsidiary of the petitioner and is therefore a sister concern of petitioner. On the other hand respondent is also a company incorporated under the erstwhile provisions of the Companies Act. Respondent is inter alia engaged in the business of Infrastructure. According to petitioner a Master Facilities Agreement dated 25.06.2019 was executed between Oxyzo and respondent for providing financing facility to respondent of Rs.10 Crores wherein petitioner signed as a confirming party. Respondent also entered into a Memorandum of Understanding dated 25.06.2019 with petitioner for availing Working Capital Facility of Rs.10 Crores in order to purchase raw material. As per the terms of the aforesaid Agreement dated 25.06.2019 respondent got issued Unconditional Bank Guarantees in favour of petitioner for Rs.12 Crores on 27.06.2019 and Rs.8 Crores on 28.10.2020 which were extended from time to time with last date of expiry being 24.12.2020 and 26.12.2020 Respondent defaulted in its payment schedule in terms of the Memorandum of Understanding dated 25.06.2019 executed with the petitioner as well as the payment schedule agreed with Oxyzo therefore the ARB.P. 949 2021 petitioner issued an email setting out the default on the part of respondent. Due amount was categorically laid down in the said email which for the petitioner and Oxyzo amounted to Rs.22 62 60 592 . Respondent replied back alleging that dues of petitioner have not been cleared as payments have not been received by respondent from the Government due to Covid. However respondent did not dispute the amount and its liability as detailed by the petitioner in its email. Despite various reminders and follow ups the respondent did not respond positively hence the petitioner decided to invoke the Bank Guarantees. Thereafter certain disputes arose between the parties regarding dues amounting Rs.3 31 39 697 with interest. Subsequently petitioner in terms of Clause 14 of the Memorandum of Understanding dated 25.06.2019 invoked arbitration in accordance to which a Sole Arbitrator was to be mutually appointed by the parties but respondent rejected the name of the Arbitrator suggested by petitioner. Therefore the present petition has filed the present petition. Notice issued. Learned counsel for respondent accepts notice and submits that he has no objection if the present petition is allowed and a Sole Arbitrator may be ARB.P. 949 2021 appointed to adjudicate the dispute between the parties subject to all issues to remain open before the learned Arbitrator be appointed. 10. Accordingly Justice R.V.Eswar is appointed the sole Arbitrator to adjudicate the dispute between the parties. 11. The fee of the learned Arbitrator shall be governed by the Fourth Schedule of the Arbitration and Conciliation Act 1996. 12. The learned Arbitrator shall ensure compliance of Section 12 of Arbitration and Conciliation Act 1996 before commencing the arbitration. 13. With aforesaid directions the present petition is accordingly disposed of. OCOTBER 29 2021 JUDGE SURESH KUMAR KAIT) ARB.P. 949 2021

The scope of judicial review in the matters of Contract is no more res integra: High Court Of Jammu & Kashmir And Ladakh

Contracts having commercial elements, some more discretion had to be conceded to the authorities in order to enter into contracts with persons keeping an eye on the augmentation of the revenue. The Hon’ble High Court Of Jammu &amp; Kashmir And Ladakh, at Srinagar before the Hon’ble Mr. Justice Ali Mohammad Magrey held such opinion in the matter of Firdous Kamran Shora vs. Union of India &amp; Ors [WP(C) No. 1330/2021 c/w CCP(S) No. 356/2021]. The facts of the case in this instant petition was related to the petitioner who was aggrieved of the Notice No. 6 (6) 58 EE/DIV/SGR/350 dated 5th of July, 2021 and the impugned tender Notice bearing NIT No.12/EE/DIV/SGR/2021-22 dated 7th of July, 2021 issued by the Respondent No.3. The learned senior counsel, Mr. A. H. Naik, representing the petitioner, contended that determining the contract between the parties and changing the site without any negotiation without the petitioner, signifies random execution of power and the objective was to give undue benefit to some other contractors. It was stated that the responsibility of execution of the NFS project by the Department of Telecommunication (Government of India) was assigned to the BSNL, Civil wing. It was appealed that the petitioner was given the contract for timely execution, inspite of the repeated orders given, the petitioner never executed on time, constraining the respondents.   The Hon’ble Court mentioned that the courts are expected to execute judicial restraint in interfering with the administrative action specifically in cases of tenders or contracts. The Hon’ble Court also stated, “The soundness of the decision may be questioned, firstly, if the decision made is so arbitrary and irrational that the Court can say that the decision is such that no responsible authority acting reasonably and in accordance with relevant law could have reached or; second, if the process adopted or decision made by the authority is malafide or intended to favour someone or; third, if the public interest is affected.”  Within the meaning of Article 12 of the Constitution of India, it cannot be overlooked that, unlike policies, contracts are legally binding commitments and they commit the authority which may be held to be a State. While dealing with public property, they have to follow the norms of the Court. The work put on the question was certainly not irrational in any manner. The Hon’ble Court mentions “… This decision, apart from being lawful and sound, appears to have been taken by the Respondents in view of non-acceptance of all the terms and conditions of the contract on part of the Petitioner.” The Hon’ble Court ruled out “For all that has been said and done hereinabove, I do not find any merit in this Petition. It entails dismissal and is, accordingly, dismissed. Interim direction(s), if any, subsisting as on date, shall stand vacated. Pending miscellaneous applications, if any, shall also stand disposed of, accordingly.”

HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT SRINAGAR WP(C) No. 1330 2021 c w CCP(S) No. 356 2021 Firdous Kamran Shora Dated: 24th of September 2021. … Petitioner(s) Union of India & Ors. … Respondent(s) Mr A. H. Naik Senior Advocate with Mr Tawheed Ahmad Advocate. Through: Mr Tahir Majid Shamsi ASGI for R 1 and Mr N. A. Beig Senior Advocate with Mr Sofi Manzoor Advocate for R 2 & 3. Hon’ble Mr Justice Ali Mohammad Magrey Judge. In the instant Petition the Petitioner is aggrieved of Notice No. 658 EE DIV SGR 350 dated 5th of July 2021 as well as the impugned tender Notice bearing NIT No.12 EE DIV SGR 2021 22 dated 7th of July 2021 issued by the Respondent No.3. Mr A. H. Naik the learned Senior Counsel representing the Petitioner submitted that the action and inaction on the part of the Respondents in determining the contract between the parties and changing the site that too without negotiating with the Petitioner amounts to arbitrary exercise of power aimed at giving undue benefit to some other blue eyed WP(C) No. 1330 2021 c w CCP(S) No. 356 2021 contractor(s). It is submitted that there was no agreement executed between the parties therefore there was no question of invoking any clause of the agreement which was not in existence. Objections stand filed on behalf of Respondents 2 and 3. It is stated that the BSNL Civil wing was assigned the responsibility of execution of NFS project by the Department of Telecommunication No. 1330 2021 c w CCP(S) No. 356 2021 be questioned but the decision making process can certainly be subject to judicial review. The soundness of the decision may be questioned firstly if the decision made is so arbitrary and irrational that the Court can say that the decision is such that no responsible authority acting reasonably and in accordance with relevant law could have reached or second if the process adopted or decision made by the authority is malafide or intended to favour someone or third if the public interest is affected. In the case on hand when the Petitioner firm did not fulfil all the terms and conditions prescribed by the Respondents with regard to completion of the project on time despite repeated reminders in such eventuality the decision of the Respondents in issuing the impugned communication and putting the work to fresh tender cannot be said to be one where they have acted in a manner in which no responsible authority acting reasonably and in accordance with the relevant law would have acted. Furthermore a bare perusal of the pleadings on record does not indicate that the decision made by the authority is malafide or intended to favour someone. In fact the decision of the Respondents was the result of non completion of the Contract on time on part of the Petitioner more so when the entire project was located at a highly sensitive and strategic area of LOC. Likewise the third ground of public interest is also not affected in the present case because while it may be in public interest to have greater competition it is also in public interest that all the tender conditions are complied with as prescribed by the tender issuing authority and that there is no uncertainty in that area. WP(C) No. 1330 2021 c w CCP(S) No. 356 2021 Law on the subject of scope of judicial review in the matters of Contract is no more res integra. In case titled ‘Tata Cellular V. Union of India: 6 Supreme Court Cases 651’ at Paragraph No.94 Hon’ble the Supreme Court of the country while dealing with the issue similar to the one subject matter of the instant Petitions evolved the following principles: 1. “The modern trend points to judicial restraint in administrative action 2. The Court does not sit as a court of appeal but merely reviews the manner in which the decision was made 3. The Court does not have the expertise to correct the administrative decision. If a review of the administrative decision is permitted it will be substituting its own decision without the necessary expe4rtise which itself may be fallible 4. The terms of the invitation to tender cannot be open to judicial scrutiny because the invitation to tender is in the realm of contract. Normally speaking the decision to accept the tender or award the contract is reached by process of negotiations through several tiers. More often than not such decisions are made qualitatively by experts 5. The Government must have freedom of contract. In other words a fair play in the joints is a necessary concomitant for an administrative body functioning in an administrative sphere or quasi administrative sphere. However the decision must not only be tested by the application of Wednesbury principle of reasonableness but must be free from arbitrariness not affected by bias or actuated by mala fides and 6. Quashing decisions may impose heavy administrative burden on the administration and lead to increased and unbudgeted expenditure.” In case ‘Sterling Computers Limited V. M&N Publications Ltd:1 SCC 445’ the Apex Court at Paragraph No.12 has laid down as under: WP(C) No. 1330 2021 c w CCP(S) No. 356 2021 “In contracts having commercial element some more discretion has to be conceded to the authorities so that they may enter into contracts with persons keeping an eye on the augmentation of the revenue. But even in such matters they have to follow the norms recognized by courts while dealing with public property. It is not possible for courts to question and adjudicate every decision taken by an authority because many of the Government Undertakings which in due course have acquired the monopolist position in matters of sale and purchase of products and with so many ventures in hand they can come out with a plea that it is not always possible to act like a quasi judicial authority while awarding contracts. Under some special circumstances a discretion has to be conceded to the authorities who have to enter into contract giving them liberty to assess the overall situation for purpose of taking a decision as to whom the contract be awarded and at what terms. If the decisions have been taken in bona fide manner although not strictly following the norms laid down by the courts such decisions are upheld on the principle laid down by Justice Holmes that courts while judging the constitutional validity of executive decisions must grant certain measure of freedom of play in the joints to the executive." Again the Apex Court in case titled ‘Directorate of Education Ors. V. Educomp Datamatics Ltd. And Ors: 4 SCC 19’ while applying the principles enunciated in Tata Cellular’s case at Paragraph No.12 observed thus: “12. It has been held in these decisions that the terms of the invitation to tender are not open to judicial scrutiny the same being in the realm of contract. That the Government must have a free hand in setting the terms of the tender. It must have reasonable play in its joints as a necessary concomitant for an administrative body in an administrative sphere. The Courts would interfere with the administrative policy decision only if it is arbitrary discriminatory malafide or actuated by bias. It is entitled to pragmatic adjustments which may be called for by the particular circumstances. The Courts cannot strike down the terms of the tender prescribed by the Government because it feels that some other terms in the tender would have been fair wise or logical. The Courts can interfere only if the policy decision is arbitrary discretionary or malafide.” On an appreciation of the law laid down above what comes to limelight is that the modern trend points to judicial restraint in administrative WP(C) No. 1330 2021 c w CCP(S) No. 356 2021 action and that the Court does not sit as a ‘Court of Appeal’ but merely reviews the manner in which the decision was made. It has also been declared that Court does not have the expertise to correct the administrative decision and that if a review of the administrative decision is permitted it will be substituting its own decision without the necessary expertise which itself may be fallible. Furthermore fair play in the joints is a necessary concomitant for an administrative body functioning in an administrative sphere or quasi administrative sphere and quashing administrative decisions may impose heavy administrative burden on the administration and lead to increased and unbudgeted expenditure. It is thus settled that public authorities must be left with the same liberty as they have in framing the policies even while entering into contracts because many contracts amount to implementation or projection of policies of the Government. But it cannot be overlooked that unlike policies contracts are legally binding commitments and they commit the authority which may be held to be a State within the meaning of Article 12 of the Constitution of India in many cases for years. It is for this reason that the Courts have impressed that even in contractual matters the public authority should not have unfettered discretion. In contracts having commercial element some more discretion has to be conceded to the authorities so that they may enter into contracts with persons keeping an eye on the augmentation of the revenue. But even in such matters they have to follow the norms recognized by Courts WP(C) No. 1330 2021 c w CCP(S) No. 356 2021 while dealing with public property. It is not possible for the Courts to question and adjudicate every decision taken by an authority because many of the Government Undertakings which in due course have acquired the monopolist position in matters of sale and purchase of products and with so many ventures in hand they can come out with a plea that it is not always possible to act like a quasi judicial authority while awarding contracts. Under some special circumstances a discretion has to be conceded to the authorities who have to enter into contract by giving them liberty to assess the overall situation for purpose of taking a decision as to whom the contract be awarded and at what terms. If the decisions have been taken in bonafide manner although not strictly following the norms laid down by the Courts such decisions are upheld on the principle laid down by Justice Holmes that Courts while judging the constitutional validity of executive decisions must grant certain measure of freedom of ‘play in the joints’ to the executive. Looking at the instant case in the above perspective the Petitioner has not been able to establish before the Court that the decision taken by the Respondents putting the works in question to fresh tenders is an arbitrary exercise of power or that the same was is malafide in nature. In ‘Jagdish Mandal v. State of Orissa:14 SCC 517’ at Paragraph No.22 the Hon’ble Supreme Court held thus: “22. …. Therefore a Court before interfering in tender or contractual matters in exercise of power of judicial review should pose to itself the following questions: WP(C) No. 1330 2021 c w CCP(S) No. 356 2021 i) Whether the process adopted or decision made by the authority is mala fide or intended to favour someone Whether the process adopted or decision made is so arbitrary and irrational that the court can say: “the decision is such that no responsible authority acting reasonably and in accordance with relevant law could have reached” ii) Whether public interest is affected. If the answers are in the negative there should be no interference under Article 226.” From a bare perusal of the pleadings placed on record as well as after going through the relevant records placed before the Court by the Respondents it is more than apparent that the decision taken by the Respondents in putting the work in question to fresh tenders was certainly not irrational in any manner whatsoever or intended to favour anyone. This decision apart from being lawful and sound appears to have been taken by the Respondents in view of non acceptance of all the terms and conditions of contract on part of the Petitioner. For all that has been said and done hereinabove I do not find any merit in this Petition. It entails dismissal and is accordingly dismissed. Interim direction(s) if any subsisting as on date shall stand vacated. Pending miscellaneous applications if any shall also stand disposed of accordingly. No order as to costs. WP(C) No. 1330 2021 c w CCP(S) No. 356 2021 The relevant record as produced by Mr Beig the learned Senior Counsel representing the Respondents 2 and 3 is returned to him in the open CCP(S) No. 356 2021: This Contempt Petition is filed alleging violation of ad interim Order dated 14th of July 2021 passed in WP(C) No. 1330 2021. In view of the dismissal of the Writ Petition wherein the interim Order was passed as above the Contempt Petition has turned infructuous which shall stand closed as such. Registry to place a copy of this Judgment on each file. September 24th 2021 Judge Whether the Judgment is reportable Yes No. Yes No. Whether the Judgment is speaking

The courts must examine the evidence with extreme caution before recording a conviction under the terms of the Prevention of Corruption Act: Chhattisgarh High Court

When a person is convicted under the terms of the Prevention of Corruption Act, it carries with it a social stigma as well as substantial implications for the service provided. At the same time, it should be observed that there can be no clear proposal as to whether the trial court’s opinion is a feasible view or not, and each case must be decided on its own merits, taking into account the facts on record. The judgment was passed by The High Court of Chhattisgarh in the case of Rohit Kumar Sahu  V. State of Madhya Pradesh [Criminal Appeal No.2618 of 1999] by a Single Bench consisting of Hon’ble Shri Justice Arvind Singh Chandel. The appellant has preferred this appeal against the judgment passed by the Special Judge, Raipur in Special, whereby the Appellant has been convicted and sentenced under the Prevention of Corruption Act, 1988) as under Section 7 of the Act, Section 13(1)(d) read with Section 13(2) of the Act, with Rigorous Imprisonment for 1 year and fine of Rs.1000 with default stipulation. Learned Counsel for the Appellant first submitted that the sanction for prosecution of the Appellant obtained from the Law and Legislative Affairs Department, Bhopal is invalid and, therefore, the entire case of the prosecution vitiates. It was argued that according to the provisions of Section 19 of the Act, it is necessary that the sanction for prosecution must be given by the authority competent to remove the person appointed. A Patwari is appointed under Section 104 of the Chhattisgarh Land Revenue Code, 1959 by the Collector and, therefore, the Collector is the competent authority to remove a Patwari. According to the learned counsel, it is submitted that before the Trial Court this objection was raised, but the Trial Court, while passing the impugned judgment, overlooked this fact and, therefore, there is a failure of justice. Opposing the above arguments, Learned Counsel for the Respondent supported the impugned judgment. Further, he pleaded to reject the petition. While relying on the State of T.N. v. N. Vijayakumar, the court held that “Before recording conviction under the provisions of the Prevention of Corruption Act, the courts have to take utmost care in scanning the evidence. Once a conviction is recorded under the provisions of the Prevention of Corruption Act, it casts a social stigma on the person in the society apart from serious consequences on the service rendered. At the same time, it is also to be noted that whether the view taken by the trial court is a possible view or not, there cannot be any definite proposition and each case has to be judged on its own merits, having regard to evidence on record.”

HIGH COURT OF CHHATTISGARH BILASPUR Criminal Appeal No.26199 Judgment Reserved on : 22.2 . 2021 Judgment Delivered on : 9.6.2021 Rohit Kumar Sahu son of Jhunauram Sahu aged about 52 years Patwari Halka No.104 Revenue Circle Lawan Village Badjar District Raipur M.P now Chhattisgarh) State of Madhya Pradesh through the Lokayukt Special Police Establishment M.P. Bhopal M.P Appellant Respondent For Appellant : Dr. N.K. Shukla Senior Advocate with Shri Arjit Tiwari Advocate For Respondent : Shri Priyanshu Gupta Panel Lawyer Hon ble Shri Justice Arvind Singh Chandel C.A.V. JUDGMENT This appeal has been preferred against judgment dated 20.9.1999 passed by the Special Judge Raipur in Special Case No.93 whereby the Appellant has been convicted and sentenced under the Prevention of Corruption Act 1988 as under: Under Section 7 of the Act Rigorous Imprisonment for 1 year and fine of Rs.1000 with Under Section 13(1)(d read with Section 13(2) of the Act Rigorous Imprisonment for 1 year and fine of Rs.1000 with Both the jail sentences are directed to run concurrently According to the case of prosecution at the relevant time the Appellant was working as a Patwari of Patwari Halka No.104 Village Lawan. In favour of Complainant Baburam the Tahsildar passed an order for correction in the relevant mutation record. On 28.10.1988 the Complainant met with the Appellant and talked for the correction. The Appellant demanded bribe of Rs.250 and asked him to bring the bribe money by 1.11.1988 Since the Complainant did not want to give the bribe on 1.11.1988 he made a written complaint to the Superintendent of Police Lokayukta Raipur. On the basis of Ex.P3 Dehati Nalishi Ex.P11) was registered. Investigating Officer C.K. Tiwariand R.P. Sharma PW4). The panch witnesses verified the contents of the complaint Ex.P3) from the Complainant. The Complainant produced 2 currency notes each in the denomination of Rs.100 and 1 currency note in the denomination of Rs.50 for giving as bribe. Their numbers were noted and they were smeared with phenolphthalein powder. The panch witnesses and the Complainant were given a demonstration of trap proceedings. Thereafter a trap party proceeded to Village Bagbooda. Ajay Awasthi and Complainant Baburamwent to the house of the Appellant situated at Village Bagbooda. In his house the Appellant was sitting in the outside courtyard. A conversation took place between Complainant Baburam and the Appellant and thereafter Baburamgave the bribe money to the Appellant to which the Appellant kept in the pocket of his kurta. Complainant Baburam PW6) came out of the courtyard and gave a signal to the trap party on which the trap party went to the spot and caught the Appellant The bribe money was recovered from the pocket of the kurta of the Appellant. Hands of the Appellant were washed in a solution of sodium carbonate on which colour of the solution turned into pink The kurta of the Appellant and the recovered tainted money were also dipped into different solutions of sodium carbonate on which their colour turned into pink. On completion of other formalities the trap party returned to the Lokayukta office. During investigation sanction for prosecution of the Appellant was obtained from the Department of Law and Legislative Affairs Bhopal. On completion of the investigation a charge sheet was filed. The Trial Court framed charges To bring home the offence the prosecution examined as many as 11 witnesses. Statement of the Appellant was also recorded under Section 313 of the Code of Criminal Procedure in which he denied the guilt pleaded innocence and false implication. It was the defence of the Appellant before the Trial Court that he never demanded any bribe nor did he accept the money as bribe Virtually the demand of bribe was made by the Revenue Inspector and to save the Revenue Inspector a false and fabricated case has been prepared against him. At the time of trap the Complainant had deliberately put the bribe money into the pocket of his kurta and soon thereafter the trap party entered there and caught him. It was the further defence of the Appellant that the sanctionfor prosecution of the Appellant obtained from the Law and Legislative Affairs Department Bhopal is invalid and therefore the entire case of the prosecution vitiates. It was argued that according to the provisions of Section 19 of the Act it is necessary that the sanction for prosecution must be given by the authority competent to remove the person appointed. A Patwari is appointed under Section 104 of the Chhattisgarh Land Revenue Code 1959 by the Collector and therefore the Collector is the competent authority to remove a Patwari. In this regard reliance was placed upon the judgments of Madhya Pradesh High Court in 1994) 2 MPJR 58 (2010) 4 MPLJ 439and5 MPLJ 545for prosecution was obtained from the Law and Legislative Affairs Department Bhopal who was not the appointing and removing authority of the Appellant Patwari the sanctionis not valid. According to the Senior Advocate before the Trial Court also this objection was raised but the Trial Court while passing the impugned judgment overlooked this fact and therefore there is a failure of justice Thus the impugned judgment passed by the Trial Court is not sustainable. It was further submitted that in this case the demand of bribe is also not proved. None of the panch witnesses has supported the case of the prosecution regarding demand and acceptance of bribe by the Appellant. Mere recovery of tainted money from the Appellant is not sufficient to prove the offence in question. Opposing the above arguments Learned Counsel appearing for the Respondent State supported the impugned judgment. I have heard the rival contentions urged on behalf of the parties and perused the entire material available including the statements of witnesses and the documents relied upon by the prosecution with due care. It is not in dispute that at the relevant time the Appellant was posted as a Patwari in Patwari Halka No.104 Village Lawan. It is also not in dispute that the sanctionfor prosecution was accorded by the Additional Secretary Law and Legislative Affairs Department Bhopal. With regard to the sanction it would be appropriate to reproduce herein the provisions of Section 19 of the Prevention of Corruption Act 1988 which read thus: Previous sanction necessary for prosecution.—(1 No court shall take cognizance of an offence punishable under Sections7 10 11 13 and 15 alleged to have been committed by a public servant except with the previous sanction save as otherwise provided in the Lokpal and Lokayuktas Act 2013 — in the case of a person who is employed in connection with the affairs of the Union and is not removable from his office save by or with the sanction of the Central Government of that Government in the case of a person who is employed in connection with the affairs of a State and is not removable from his office save by or with the sanction of the State Government of that Government in the case of any other person of the authority competent to remove him from his office 2) Where for any reason whatsoever any doubt arises as to whether the previous sanction as required under sub sectionNotwithstanding anything contained in the Code of Criminal Procedure 1973— no finding sentence or order passed by a Special Judge shall be reversed or altered by a Court in appeal confirmation or revision on the ground of the absence of or any error omission or irregularity in the sanction required under sub section unless in the opinion of that court a failure of justice has in fact been occasioned no court shall stay the proceedings under this Act on the ground of any error omission or irregularity in the sanction granted by the authority unless it is satisfied that such error omission or irregularity has resulted in a failure of justice no court shall stay the proceedings under this Act on any other ground and no court shall exercise the powers of revision in relation to any interlocutory order passed in any inquiry trial appeal or other proceedings 4) In determining under sub sectionwhether the absence of or any error omission or irregularity in such sanction has occasioned or resulted in a failure of justice the court shall have regard to the fact whether the objection could and should have been raised at any earlier stage in the proceedings Explanation.—For the purpose of this section — error includes competency of the authority to grant sanction a sanction required for prosecution includes reference to any requirement that the prosecution shall be at the instance of a specified authority or with the sanction of a specified person or any requirement of a similar With regard to the appointment of a Patwari the provisions of Section 104 of the Chhattisgarh Land Revenue Code 1959 read as “104. Formation of patwaris’ circles and appointment of patwaris thereto—(1) The Collector shall from time to time arrange the villages of the tahsil in partwari circles and may at any time alter the limits of any existing circle and may create new circles or abolish existing ones 2) The Collector shall appoint one or more patwaris to each patwari circle for the maintenance and correction of land records and for such other duties as the State Government may prescribe. 3) Notwithstanding any usage or anything contained in any treaty grant or other instrument no person shall have any right or claim to continue or to be appointed as a patwari on the ground of right to succeed to such office by inheritance.” In Chandramani Prasad caseit was held that the power to appoint a Patwari is conferred upon the Collector under Section 104(2) of the LR Code. It was also held that the Patwari so removed shall have right to appeal and revision under the provisions of the LR Code. Learned Single Judge of the Madhya Pradesh High Court in Ravindra Kumar Gupta case held that the Sub Divisional Officer has the authority to exercise powers of the Collector under Section 104(2) of the LR Code regarding appointment of a Patwari It was further held that apparently as the Sub Divisional Officer has the power to appoint a Patwari he subsequently also has the power to dismiss services of a Patwari. In Ashok Kumar case it was held by the Learned Single Judge of the Madhya Pradesh High Court as under: Admittedly the respondent No.1 is a Patwari. The appointment of Patwari is being made u s 104(2) of the M.P Land Revenue Code 1959 which reads as under “104. Formation of Patwaris’ circles and appointment of The Collector shall appoint one or more Patwaris to each Patwari circle for the maintenance and correction of land records and for such other duties as the State Government may prescribe Thus the appointing authority of Patwari is the Collector and not the State Government. Though it has not been specifically mentioned that who can remove the services of the Patwari but by virtue of Section 16 of the M.P. General Clauses Act the power to appoint includes the power to suspend or dismiss Therefore the power vests in Collector to remove and terminate the services of the Patwari So as to attract the provision contained in sub section of Section 197 Cr.P.C three conditions are pre supposed. Firstly the person should be a public servant secondly he should not be removable from his office save by or with the sanction of the Government and thirdly the offence should have been committed by him while acting or purporting to act in the discharge of his official duty. All these three conditions should co exist. In the present case the respondent No.1 who is a Patwari is neither appointed by the State Government nor can be removed by it and thus the exemption under sub sectionof Section 197 Cr.P.C. is not attracted.” On perusal of the provisions of Section 104(2) of the LR Code and having regard to the above view taken by the Madhya Pradesh High Court it is clear that with regard to appointment of a Patwari the Collector is the competent authority and therefore the Collector only is the competent authority for grant of sanction for prosecution against a Patwari. But in the instant case the prosecution has not obtained the sanction for prosecution of the Appellant Patwari from the concerned Collector. Rather the prosecution has obtained the sanctionfrom the Additional Secretary Law and Legislative Affairs Department Bhopal Therefore the sanction is not a valid sanction for prosecution of the Appellant Patwari. From perusal of the impugned judgment it is also clear that this point was raised by the defence also before the Trial Court but ignoring this point the Trial Court discussing that how a sanction for prosecution can be proved has arrived at a conclusion that the prosecution has proved the sanction in accordance with law. Whether the Additional Secretary Law and Legislative Affairs Department Bhopal was the competent authority to grant the sanction for prosecution of the Appellant Patwari or not no discussion has been made by the Trial Court in this regard nor has any finding been given by it in this regard. Therefore I am of the considered view that a failure of justice has occurred in this case. While dealing with the issue of demand and acceptance of bribe money in 3 SCC 779 the Supreme Court held thus: In Suraj Mal v. State(1979) 4 SCC 725 this Court took the view thatmere recovery of tainted money divorced from the circumstances under which it is paid is not sufficient to convict the accused when the substantive evidence in the case is not reliable. The mere recovery by itself cannot prove the charge of the prosecution against the accused in the absence of any evidence to prove payment of bribe or to show that the accused voluntarily accepted the money knowing it to be bribe.” In13 SCC 55it was held by the Supreme Court as under: Insofar as the offence under Section 7 is concerned it is a settled position in law that demand of illegal gratification is sine qua non to constitute the said offence and mere recovery of currency notes cannot constitute the offence under Section 7 unless it is proved beyond all reasonable doubt that the accused voluntarily accepted the money knowing it to be a bribe. The above position has been succinctly laid down in several judgments of this Court. By way of illustration reference may be made to the decision in C.M. Sharma v. State of A.P. 15 SCC 1 and C.M. Girish Babu v. CBI 3 SCC 779 In the present case the complainant did not support the prosecution case insofar as demand by the accused is concerned. The prosecution has not examined any other witness present at the time when the money was allegedly handed over to the accused by the complainant to prove that the same was pursuant to any demand made by the accused. When the complainant himself had disowned what he had stated in the initial complaintbefore LW 9 and there is no other evidence to prove that the accused had made any demand the evidence of PW 1 and the contents of Ext. P 11 cannot be relied upon to come to the conclusion that the above material furnishes proof of the demand allegedly made by the accused. We are therefore inclined to hold that the learned trial court as well as the High Court was not correct in holding the demand alleged to be made by the accused as proved. The only other material available is the recovery of the tainted currency notes from the possession of the accused. In fact such possession is admitted by the accused himself. Mere possession and recovery of the currency notes from the accused without proof of demand will not bring home the offence under Section 7. The above also will be conclusive insofar as the offence under Sections 13(1)(d)(i andis concerned as in the absence of any proof of demand for illegal gratification the use of corrupt or illegal means or abuse of position as a public servant to obtain any valuable thing or pecuniary advantage cannot be held to be established Insofar as the presumption permissible to be drawn under Section 20 of the Act is concerned such presumption can only be in respect of the offence under Section 7 and not the offences under Sections 13(1)(d)(i) andof the Act. In any event it is only on proof of acceptance of illegal gratification that presumption can be drawn under Section 20 of the Act that such gratification was received for doing or forbearing to do any official act. Proof of acceptance of illegal gratification can follow only if there is proof of demand. As the same is lacking in the present case the primary facts on the basis of which the legal presumption under Section 20 can be drawn are wholly In 10 SCC 152 the Supreme Court held as follows: In a recent enunciation by this Court to discern the imperative prerequisites of Sections 7 and 13 of the Act it has been underlined in B. Jayaraj v. State of A.P. 13 SCC 55 in unequivocal terms that mere possession and recovery of currency notes from an accused without proof of demand would not establish an offence under Section 7 as well as Sections 13(1)(d)(i) andof the Act. It has been propounded that in the absence of any proof of demand for illegal gratification the use of corrupt or illegal means or abuse of position as a public servant to obtain any valuable thing or pecuniary advantage cannot be held to be proved. The proof of demand thus has been held to be an indispensable essentiality and of permeating mandate for an offence under Sections 7 and 13 of the Act. Qua Section 20 of the Act which permits a presumption as envisaged therein it has been held that while it is extendable only to an offence under Section 7 and not to those under Sections 13(1)(d)(i) andof the Act it is contingent as well on the proof of acceptance of illegal gratification for doing or forbearing to do any official act. Such proof of acceptance of illegal gratification it was emphasised could follow only if there was proof of demand. Axiomatically it was held that in absence of proof of demand such legal presumption under Section 20 of the Act would also not arise The proof of demand of illegal gratification thus is the gravamen of the offence under Sections 7 and 13(1)(d)(i and of the Act and in absence thereof unmistakably the charge therefor would fail. Mere acceptance of any amount allegedly by way of illegal gratification or recovery thereof dehors the proof of demand ipso facto would thus not be sufficient to bring home the charge under these two sections of the Act. As a corollary failure of the prosecution to prove the demand for illegal gratification would be fatal and mere recovery of the amount from the person accused of the offence under Section 7 or 13 of the Act would not entail his conviction thereunder.” “13. With reference to the abovementioned rival legal contentions urged on behalf of the parties and the evidence on record we have examined the concurrent finding of the fact on the charge made against the appellant. It has been continuously held by this Court in a catena of cases after interpretation of the provisions of Sections 7 and 13(1)(d) of the Act that the demand of illegal gratification by the accused is the sine qua non for constituting an offence under the provisions of the Act. Thus the burden to prove the accusation against the appellant for the offence punishable under Section 13(1)(d) of the Act with regard to the acceptance of illegal gratification from the complainant PW2 lies on the prosecution.” Further in11 SCC 314it was held by the Supreme Court as under: Reiterating the judgment of B. Jayaraj case and P Satyanarayana Murthy case again in 3 SCC 108 Krishan Chander v. State of Delhi) it was held by the Supreme Court thus: It is well settled position of law that the demand for the bribe money is sine qua non to convict the accused for the offences punishable under Sections 7 and 13(1)(d) read with Section 13(2) of the PC Act. The same legal principle has been held by this Court in B. Jayaraj v. State of A.P. 13 SCC 55 A. Subair v. State of Kerala 6 SCC 587 and P Satyanarayana Murthy v. State of A.P. 10 SCC 152 upon which reliance is rightly placed by the learned Senior Counsel on behalf of the appellant.” In paragraph 39 it was further held by the Supreme Court thus: In view of the aforesaid reasons the approach of both the trial court and the High Court in the case is erroneous as both the courts have relied upon the evidence of the prosecution on the aspect of demand of illegal gratification from the complainant Jai Bhagwanby the appellant though there is no substantive evidence in this regard and the appellant was erroneously convicted for the charges framed against him The prosecution has failed to prove the factum of demand of bribe money made by the appellant from the complainant Jai Bhagwanwhich is the sine qua non for convicting him for the offences punishable under Sections 7 and 13(1)(d) read with Section 13(2) of the PC Act. Thus the impugned judgment and order of the High Court is not only erroneous but also suffers from error in law and therefore liable to be set Recently in 3 SCC 687reiterating the judgment of C.M. Girish Babu case it was held by the Supreme Court as It is equally well settled that mere recovery by itself cannot 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 of this Court while considering the case under Sections 7 13(1)(d i) and of the Prevention of Corruption Act 1988 it is reiterated that to prove the charge it has to be proved beyond reasonable doubt that the accused voluntarily accepted money knowing it to be bribe. Absence of proof of demand for illegal gratification and mere possession or recovery of currency notes is not sufficient to constitute such offence. In the said judgments it is also held that even the presumption under Section 20 of the Act can be drawn only after demand for and acceptance of illegal gratification is proved. It is also fairly well settled that initial presumption of innocence in the criminal jurisprudence gets doubled by acquittal recorded by the trial 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 In the present case the complainant did not support the prosecution case insofar as demand by the accused is concerned. The prosecution has not examined any other witness present at the time when the money was allegedly handed over to the accused by the complainant to prove that the same was pursuant to any demand made by the accused When the complainant himself had disowned what he had stated in the initial complaint Ext.P 11) before LW9 and there is no other evidence to prove that the accused had made any demand the evidence of PW1 and the contents of Ext. P 11 cannot be relied upon to come to the conclusion that the above material furnishes proof of the demand allegedly made by the accused. We are therefore inclined to hold that the learned trial court as well as the High Court was not correct in holding the demand alleged to be made by the accused as proved. The only other material available is the recovery of the tainted currency notes from the possession of the accused. In fact such possession is admitted by the accused himself Mere possession and recovery of the currency notes from the accused without proof of demand will not bring home the offence under Section 7. The above also will be conclusive insofar as the offence under Sections 13(1)(d i) andis concerned as in the absence of any proof of demand for illegal gratification the use of corrupt or illegal means or abuse of position as a public servant to obtain any valuable thing or pecuniary advantage cannot be held to be established Insofar as the presumption permissible to be drawn under Section 20 of the Act is concerned such presumption can only be in respect of the offence under Section 7 and not the offences under Sections 13(1)(d)(i) andof the High Court is fit to be set aside. Before recording conviction under the provisions of the Prevention of Corruption Act the courts have to take utmost care in scanning the evidence. Once conviction is recorded under the provisions of the Prevention of Corruption Act it casts a social stigma on the person in the society apart from serious consequences on the service rendered. At the same time it is also to be noted that whether the view taken by the trial court is a possible view or not there cannot be any definite proposition and each case has to be judged on its own merits having regard to evidence on record.” In the light of above view taken by the Supreme Court now I shall examine the facts and statements of the witnesses of the present case. With regard to the initial demand Complainant Baburam PW6) deposed that for correction in the mutation record when he met with the Appellant at that time the Revenue Inspector was also present there. At that time the Appellant Patwari asked him to come after 2 4 days. When he again met with the Appellant he demanded a sum of Rs.250. On this he made the written complaint in the Lokayukta Office. In his cross examination this witness further deposed that the demand of Rs.250 made by the Appellant was for him was not known to him He did not know the demand was for the Appellant himself or for the Revenue Inspector. Nowhere in his deposition this witness stated that for what purpose the demand was made by the Appellant. In his examination in chief this witness further deposed that the written complaintsubmitted by him was not read by any of the panch witnesses. But both panch witnesses Ajay Awasthi and R.P. Sharma deposed that they had read the complaint and verified its content from Complainant Baburamalong with Complainant Baburamentered the house of the Appellant and there Complainant Baburamgave the bribe money to the Appellant and at that time Ajay Awasthi was present there. On this point Investigating Officer C.K. Tiwariand other panch witness R.P. Sharma stated that along with Complainant Baburampanch witness Ajay Awasthideposed that he alone had entered the house of the Appellant and Ajay Awasthihad stayed outside about 100 metres away from him. Ajay Awasthialso supported the above statement of Complainant Baburamand deposed that Complainant Baburamalone had entered the house of the Appellant and he had stayed about 70 80 feet away from the house of the Appellant. Ajay Awasthifurther deposed that neither any conversation regarding transaction of bribe money took place in his presence nor did he witness the alleged transaction of bribe money between the Complainant and the Appellant. Thus it is clear that on this point statements of all the above prosecution witnesses are totally contradictory. From the Court statements of the above witnesses it is clear that none of the panch witnesses had entered the house of the Appellant nor did any of them witness the alleged transaction of bribe money between the Complainant and the Appellant or hear any conversation took place between the Complainant and the Appellant regarding bribe. In paragraph 5 of his cross examination Complainant Baburam PW6) admitted the fact that when he entered the courtyard of the house of the Appellant at that time Hansu Sahu Resham Satnami Jethu Sahu and Khilawan Vishwakarma were also sitting there along with the Appellant. Investigating Officer C.K. Tiwari PW11) also admitted this fact. But none of the above 4 persons sitting along with the Appellant in the courtyard of his house have been made a witness in this case nor has their statements been recorded. In paragraph 5 of his cross examination itself Complainant Baburamfurther deposed that he himself had gone to the Appellant and told him that he had brought money. At that time the Appellant had not demanded money from this witness. This witness further deposed that he took the Appellant to a room and there he gave him the money. At that time also the Appellant had made any demand from this witness nothing has been stated by this witness in this regard in his Court statement. On a minute examination of the above evidence it is clear that with regard to the initial demand there are material contradictions in the statements of Complainant Baburamand panch witnesses Ajay Awasthiand R.P. Sharmaat the time of trap also there are material contradictions in the statements of Investigating Officer C.K. Tiwari panch witnesses R.P. Sharma and Ajay Awasthi and Complainant Baburamhad entered the house of the Appellant. At that time inside the house the Appellant himself made the demand of bribe from the Complainant Complainant Baburamhas not stated anything in this regard in his Court statement. From the statements of Complainant Baburamit is clear that at the time of trap along with the Appellant 4 5 persons were also sitting along with the Appellant but despite that the prosecution has not made any of those persons a witness in this case nor has recorded their statements. It is suspicious that the Appellant would have demanded and accepted bribe money in presence of those persons. Therefore in my considered view the prosecution has not been able to prove its case of demand and acceptance of bribe money against the Appellant. The Appellant is entitled to get benefit of doubt. Consequently the appeal is allowed. The judgment of the Trial Court is set aside. The Appellant is acquitted of the charges framed against him. (Arvind Singh Chandel JUDGE

A contract which is intended for advancement of trade shall not be regarded as being in restraint of trade: Bombay High Court

A negative covenant is enforceable in law and is not contrary to section 27 of the Contract Act, in view of the nature of confidential information and documents furnished to the appellant with permission to use such sensitive and confidential information of the documents during the existence of the Franchise Agreement and not after the termination of the said agreement. This remarkable judgment was passed by the Bombay High Court in the matter of ARNAV ENTERPRISES V IOSIS SPA &amp; WELLNESS PRIVATE LIMITED [ARB.A.NO.7255 OF 2020 IN ARBITRATION PETITION (L) NO.426 OF 2020] by Honourable Justice V.G.Bisht and Justice R.D.Dhanuka. This appeal was filed under section 37 of the Arbitration and Conciliation Act, 1996 where the appellant has impugned the orders dated 30th July 2020 and 26th October 2020 by which ad interim measure was granted in favor of the respondent under section 9 of the Arbitration Act. The relevant facts of the case in brief are, a respondent is engaged in the business of running wellness centers under the brand name and trademark of “IOSIS”. The appellant approached the respondent for a franchise in December 2018 and subsequently, various correspondences were exchanged between the parties through emails. A Letter of Intent was issued on 5th March 2019 and the Franchise Agreement was executed on 31st March 2019. The appellant later issued a termination notice on 21st June 2020 terminating the business of the franchise center yet continued to operate the center and utilized the brand name, trademarks of the respondent contrary to clause (16) of the Franchise Agreement. Later, the appellant denied any of these allegations due to which respondent filed a petition under section 9 of the Arbitration Act prayed for ad-interim reliefs. However, the appellant raised a preliminary objection with respect to the maintainability of the said petition and alleged that the Franchise Agreement was never signed and executed between the parties and hence was indeed a bogus document. However, the learned single judge granted ad-interim relief to IOSIS since prima facie it was difficult to believe the statement of the appellant that the said Franchise Agreement was fabricated or a bogus document. The appellants contended before the HC that a negative covenant is contrary to section 27 of the Contract Act being a contract in restraint of trade whereas the respondents argued that the appellant had continued to use sensitive and confidential information/documents even after termination of the agreement thus ad-interim reliefs were correctly granted by adverting to the negative covenant which is recorded in clause (16) of the Franchise Agreement. The Court observed that “On the basis of the material produced by the parties on record it is evident prima facie that the argument of the appellant that the Franchise Agreement was not signed by the appellant and was a bogus document cannot be considered since the appellant had acted upon the said agreement and started the business by using such confidential and sensitive information/documents. Thus, there is no substance in the submissions of the appellant that the said Franchise Agreement was a bogus document.” The HC also relied on the judgment of Gujrat Bottling Company Limited and others Vs. Coco-Cola Company and others and acknowledged that as per the Letter of Intent the appellant was restricted to use the same or similar names upon the termination of the agreement and stated that, “A contract which is intended for the advancement of trade shall not be regarded as being in restraint of trade. The brand name “OASIS” has a reputation in the market and having furnished various sensitive and confidential documents and information including the list of their customers, such restraint as recorded in clause (16) of the Franchise Agreement, in our prima facie view would not be a restraint of trade under section 27 of the Contract Act.”

on 20 04 2021 on 23 04 Priya Soparkar1aral 7255 20 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION ABRITRATION APPEALNO.7255 OF 2020INABRITRATION PETITIONNO.426 OF 2020WITHINTERIM APPLICATIONNO. 7271 OF 2020ANDINTERIM APPLICATIONNO. 7268 OF 2020INABRITRATION APPEALNO.7255 OF 2020INABRITRATION PETITIONNO.426 OF 2020 Arnav Enterprises ... Appellant ApplicantVs.IOSIS Spa & Wellness Private Limited... Respondent Mr.Vikrant Shetty alongwith Ms.Sakina Electricwala i by M s TaurusLegal Advocates for the Appellant Applicant.Ms.Fatima Barodawalla alongwith Mr.Uttam S. Rane Mr.Laxman Bhinda Mr.Vikram Ahirwar Advocates for the Respondent. CORAM : R.D.DHANUKA & V.G.BISHT JJ. RESERVED ON : APRIL 07 2021. PRONOUNCED ON: APRIL 20 2021.Judgement the appellant(original respondent) has impugned the order dated 30th July 2020 and26th October 2020 passed by the learned Single Judge thereby granting ad interim measures in favour of the respondent undersection 9 of the Arbitration Act. Some of the relevant facts for the purpose on 20 04 2021 on 23 04 Priya Soparkar2aral 7255 20of deciding this appeal are as under.2.It was the case of the respondent that the respondent is engaged inthe business of running wellness centers under the brandname andtrademark of “IOSIS”. The Founder and Managing Director of therespondent has specialized in cosmetology and wellness from LondonBeauty Schoolbeauty and cosmetology at Christine Valmyetc.The respondent has knowledge of running beauty salon slimming skincarecenters and spas in India.3.It was the case of the respondent that the appellant approached therespondent for franchise of the respondent in the month of December 2018.Various correspondences were exchanged between the parties through e mails. The respondent issued a Letter of Intent on 5th March 2019 in favourof the appellant for setting up and operating the franchise center. It is thecase of the respondent that on 31st March 2019 the Franchise Agreementcame to be executed between the parties. The appellant however committeddefault of the said Franchise Agreement. The appellant however through itsadvocate issued a termination notice on 21st June 2020 terminating thebusiness of the franchise center. The appellant however continued to operatethe center and utilized the brandname trademarks of the respondentcontrary to clauseof the Franchise Agreement. on 20 04 2021 on 23 04 Priya Soparkar3aral 7255 204.The respondent wrote a letter dated 28th June 2020 denying theallegations made by the appellant in the letter dated 21st June 2020 andcalled upon the appellant to adhere to clauseof the said FranchiseAgreement. The appellant denied the contents of the said letter dated 28thJune 2020 vide a letter dated 2nd July 2020. The respondent filed petitionunder section 9 of the Arbitration Act on 14th July 2020 and prayed for ad interim reliefs. The said petition was resisted by the appellant. Theappellant raised a preliminary objection with respect to the maintainabilityof the said petition filed by the respondent under section 9 before this Court.In the said affidavit in reply the appellant relied on the Letter of Intentdated 31st March 2019 and alleged that the said Franchise Agreement wasnever signed and executed by and between the parties.5.The matter appeared before the learned Single Judge on variousdates. On 20th July 2020 the appellant through its counsel made a statementthat pursuant to the letter of termination the appellant has completelyceased use of the respondent’s franchise brandname tradename trademarks printed material brouchers equipments technology and was not referringany of the clients of the respondent to itself. The learned Single Judgerecorded the said statement as an undertaking to this Court. On 30th July 2020 the appellant through its counsel also contended before the learnedSingle Judge that the appellant was not agreeable to acknowledge theFranchise Agreement between the parties and what has been relied upon on 20 04 2021 on 23 04 Priya Soparkar4aral 7255 20by the respondent herein was a bogus document not signed by theappellant.6.This court prima facie held that the appellant has disowned anycontractual relationship on the ground of Letter of Intent or any FranchiseAgreement and not entitled to have any benefits under Letter of Intent orunder Franchise Agreement in respect of facilities brands trademark whichthe respondent would otherwise provide. The appellant made a statementbefore the learned Single Judge that they are in no manner using thetrademark brandnames or any of the facilities of the respondent. This Courtaccepted the said statement.7.It was the case of the respondent that inspite of said statement madeby the appellant the appellant continued to use the brandname andadvertisement materials of the respondent. This court recorded the statementmade by the respondent and directed the appellant not to use any of thebrandname or advertisement material of the respondent or any facilities ofthe respondent in respect of any of its outlet as also on the website orelsewhere. The appellant was directed to take immediate steps to removeany of the brandnames advertisement material belonging to respondent ifthe same was still being used by the appellant.8.By an order dated 30th July 2020 the learned Single Judge granted on 20 04 2021 on 23 04 Priya Soparkar5aral 7255 20ad inerim relief in terms of prayer clausesandthereby restrainingthe appellant from operating that center in the name of “IOSIS” or anyother name for a period of two years from 21st June 2020 and also fromusing the brandname of the petitioner i.e. IOSIS Spa and Wellness PrivateLimited or any other name resembling IOSIS Spa and Wellness PrivateLimited.9.The learned Single Judge passed an order on 26th October 2020 inthe Interim ApplicationNo.5055 of 2020 filed by the appellant formodification of the said order on the ground that the said ad interim order interms of prayer clausesandwas causing prejudice to the appellantas it restrains the appellant from carrying on its business in any othername for a period of two years from 21st June 2020. In paragraph No.4 ofthe said order the learned Single Judge referred to clauseof theFranchise Agreement which provides for the “effect of termination” stronglyrelied upon by the respondent before the learned Single Judge. The learnedSingle Judge observed that there was nothing on record on the date of thesaid order dated 30th July 2020 to discard the Franchise Agreement or toshow that the respondent herein was prohibited from referring to thatagreement. The learned Single Judge clarified in the impugned order thatthe said order dated 30th July 2020 was an ad interim order. Theobservations made in the said order the order dated 30th July 2020 andorder dated 26th October 2020 were prima facie keeping all contentions of on 20 04 2021 on 23 04 Priya Soparkar6aral 7255 20the parties of principal proceedings expressly open. The learned SingleJudge observed that prima facie it is difficult to believe the statement ofthe appellant that the said Franchise Agreement was fabricated or a bogusdocument.10.Being aggrieved by the said two orders the appellant preferred thisappeal. The Division Bench of this Court passed an order on 3rd December 2020 on mentioning the matter by the appellant thereby staying theimpugned order to the extent of restraining the appellant from carrying outspa business for two years from 21st June 2020 to 20th June 2022. TheDivision Bench clarified that the appellant shall not carry out the spabusiness in the name of “IOSIS”.11.Mr.Vikrant D.Shetty learned counsel for the appellant invited ourattention to some of the documents annexed to the appeal paperbook andwould submit that there was no Franchise Agreement signed between theparties. Whatever steps were taken by the parties were taken under the saidLetter of Intent which also came to be terminated by his client. He submitsthat clauseof the Franchise Agreement which prohibits the appellantfrom operating or doing business under any name or in any manner wasnot applicable since no such Franchise Agreement was signed by his client.In any event such clause is contrary to Section 27 of the Contract Act. Suchnegative covenant could not have been enforced against the appellant. The on 20 04 2021 on 23 04 Priya Soparkar7aral 7255 20appellant cannot be restrained from carrying on his own business beingcarried by not using the trademark or material of the respondent.12.In support of this submission learned counsel placed reliance onjudgments in cases of Gujarat Bottling Company Limited and others Vs.Coca Cola Company and others SCC Online Bom 345 Precept D’mark(India) Limited Vs. Zaheer Khan and others Private Limited Vs. Aditya Birla Nuvo Limited6SCC 792. It is submitted that the Hon’ble Supreme Court and this court in those judgments have categorically held that a negative covenant iscontrary to section 27 of the Contract Act being a contract in restraint oftrade.13.Ms.Fatima Barodawala learned counsel for the respondent on theother hand would submit that not only the Letter of Intent was issued bythe respondent but the parties had also executed the Franchise Agreement.Various steps were taken pursuant to those documents by the parties. Theappellant had however terminated the said agreement between the parties.Though this Court had granted ad interim relief the appellant committedviolation of the ad interim order passed by this court and continued to use thetrademark of the respondent. The respondent has already filed a separatecontempt proceedings against the appellant. on 20 04 2021 on 23 04 Priya Soparkar8aral 7255 20 14.The learned counsel for respondent submits that it was a specific caseof the respondent in para 10 of the arbitration petition that the respondenthad shared with the appellant various information documents which weresensitive and confidential including trade secrets and computer database inthe form of files programs knowhow formulae and the like which had beencreated by the respondent as also the customer details etc. The appellant hadcontinued to use those sensitive and confidential information documentseven after termination of the agreement entered into between the parties.The learned Single Judge was thus right in granting ad interim reliefs interms of prayer clausesandby adverting to negative covenantwhich is recorded in clauseof the Franchise Agreement.15.It is submitted that such negative covenant is enforceable in law andis not contrary to section 27 of the Contract Act in view of the nature ofconfidential information and documents furnished to the appellant withpermission to use such sensitive and confidential information of thedocuments during the existence of the Franchise Agreement and not aftertermination of the said agreement. She distinguished the judgments reliedupon by the learned counsel for the appellant and also sought to relyupon such judgments Niranjan Shankar Golikari Vs. Centrury Spinning andManufacturing 2 SCR 378 V.M.Deshpande Vs. The Arvind MillsCompany Ltd. order dated 10th July 1945 in FA 86 1945 and AnindyaMukherjee Vs. Clean Coats Private Limited order dated 28th October 2020 in on 20 04 2021 on 23 04 Priya Soparkar9aral 7255 20ARBP 947 2009 in support of her submissions. 16.It is not in dispute that in the impugned orders passed by the learnedSingle Judge are ad interim orders. The Arbitration petition filed by therespondent under section 9 of the Arbitration act is still pending.17.The parties have not even appointed any arbitrator. On the basis ofthe material produced by the parties on record the learned Single Judge hasmade prima facie observations that the argument of the appellant that theFranchise Agreement was not signed by the appellant and was a bogusdocument cannot be considered. The appellant had acted upon the saidagreement and started the business by using such confidential andsensitive information documents. In our prima facie view there is thus nosubstance in the submissions of the learned counsel for the appellant that thesaid Franchise Agreement was a bogus document.18.Be that as it may even in the said Letter of Intent at page 101 of theappeal memo it is made clear that upon termination of the agreement thefranchise will not use the name of “IOSIS” or any name resembling thename of “IOSIS”. All branding materials data are to be handled as perrules.19.The Hon’ble Supreme Court in case of Gujrat Bottling Company on 20 04 2021 on 23 04 Priya Soparkar10aral 7255 20Limited and others Vs. Coco Cola Company and others has held thatin a contract which is intended for advancement of trade shall not beregarded as being in restraint of trade. The Court has to decide as a matterof law whether the contract has or not in restraint of trade and whether ifso it is reasonable. In our prima facie view considering the fact that therespondent had the brandname in the name of “OASIS” and has reputation inthe market and having furnished various sensitive and confidentialdocuments and information including the list of their customers suchrestraint as recorded in clauseof the Franchise Agreement in our primafacie view would not be a restraint of trade under section 27 of the ContractAct. Hon’ble Supreme Court in the said matter had granted injunction againstthe defendant after considering the provisions of section 27 of the ContractAct and also the principles under order XXXIX and also section 42 of theSpecific Relief Act 1963.20.Be that as it may since the impugned observations made by thelearned Single Judge are prima facie in nature and since those two orders aread interim orders even otherwise we do not propose to interfere with thosetwo orders even on this ground.21. It is made clear that the observations made by the learned Singlejudge as well as the observations made by this Court in this order are primafacie in nature. No case is made out by the appellant for interference with on 20 04 2021 on 23 04 Priya Soparkar11aral 7255 20the impugned orders passed by the learned Single Judge. The appeal isdevoid of merits and is accordingly dismissed. All pending InterimApplications are also dismissed. 22.Ad interim relief granted by this court on 3rd December 2020 standsvacated. The learned Single Judge is directed to dispose of the saidArbitration Petition No.426 of 2020 expeditiously.23.There shall be no order as to costs. ( V.G.BISHT J. )( R.D.DHANUKA J. )….

Unilateral Cancellation of Agreement to Sell – Not required to be challenged separately to maintain suit for specific performance. It is not even a valid defence in a suit for specific performance: Punjab and Haryana High Court

It appeared that the defendant could not substantiate his claim. The plea of hardship itself is not sustainable in this case. The genesis of the plea of the hardship claimed by the defendant goes to his plea, whereby he claimed the agreement to be a security document for repayment of the loan. However, as held above, the defendant has not even disclosed as to what was the circumstance or the purposes for which he had to avail of this loan. Rather he admitted that the earnest money got by him was kept in a Bank account. Hence no hardship to the defendant is proved on record held by Hon’ble Justice Rajbir Sehrawat in Brahm Dutt versus Sarabjit Singh [RSA No. 2943 of 2017 (O&amp;M)].  The facts leading to this case related to the suit was filed by the plaintiff claiming that the defendant had entered into an agreement dated14.02.2011 with him Click here to read the judgementfor the sale of a house, as detailed in the headnote in the plaint, measuring 23 marlas. The sale consideration was fixed at Rs.40, 50,000/-. Out of that Rs.10, 00,000/- were received by the defendant as earnest money. The target date for the execution of the sale deed was fixed as 20.04.2012. It was further claimed that on 20.04.2012 the plaintiff remained present in the office of the Sub Registrar with the balance sale consideration. But, the defendant did not reach there, to execute the sale deed. So, on the target date, the sale deed could not be executed. After that, he sent a legal notice dated 30.04.2012 informing the defendant that he could come to the office of the Sub-Registrar on 10.05.2012 for the execution of the sale deed. But, again on this date, the defendant did not turn up. Therefore, the plaintiff filed a suit. On notice, the defendant filed a written statement that he had sent a legal notice dated 17.04.2012 informing the plaintiff that the agreement in question was not intended to be an agreement to sell and that this was signed only as a security for repayment of the amount which, according to the defendant, was taken as a loan @ 2% per month. Therefore, the defendant claims that this legal notice would be tantamount to the termination of the agreement. Still, further, the defendant denied the pleading of the plaintiff that the agreement was intended to be an agreement to sell. However, the receipt of Rs.10 lac was admitted in the written statement itself. Still further, the signatures on the agreement were also admitted. Still, further, the defendant claimed the hardship to him, in case a decree of specific performance is passed in the suit. To prove the agreement to sell, the plaintiff examined the attesting witnesses. On the other hand, the defendant examined himself and also examined Gurjeet Singh to substantiate his plea regarding the agreement; being a document of security for the repayment of the loan. After hearing the parties and appreciating the evidence, the trialCourt decreed the suit filed by the plaintiff. Hence, the trial Court held that the agreement to sell stands proved as per the requirement of law. The defendant has not been able to extract anything from any of the witnesses of the plaintiff to show that the agreement was intended to be a security document for repayment of the loan. The learned senior counsel for the defendant/appellant has submitted that the lower Appellate Court has gone wrong in law, in so far as it has not even dealt with the evidence pertaining to the legal notice sent by the defendant on 17.04.2012, whereby he had terminated the agreement in question. Therefore, the finding recorded by the lower Appellate Court are incomplete, if not perverse. Still, further, learned counsel for the defendant has argued that once the agreement stands terminated, then unless the same is challenged by the plaintiff and a declaration of termination as illegal is sought by him and granted by the court, he cannot file a suit for specific performance.

RSA No. 29417 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No. 29417whereby he had terminated the agreement in question. Therefore the finding recorded by the lower Appellate Court are incomplete if not perverse. Still further learned counsel for the defendant has argued that once the agreement stands terminated then unless the same is challenged by the plaintiff and a declaration of termination as illegal is sought by him and granted by the Court he cannot file a suit for specific performance. To support his argument learned counsel relies upon the judgment of the Hon ble Supreme Court rendered in 2013SCC 27 titled as I.S. Sikandarby LRs. vs K. Subramani and Ors To buttress his plea regarding the termination of the agreement the counsel submits that he had put suggestions to the witnesses as well as to the plaintiff in this regard. Therefore this should be construed that this plea has been duly raised and argued before the Court. The next argument of the learned counsel for the appellant is that he is having only one house and if even this is given to the plaintiff by way of specific performance this would cause undue hardship to the defendant. Therefore the counsel prays that Section 20 of the Specific Relief Act should be resorted to and the RSA No. 29417 plaintiff should be granted the alternate relief of return of money as has been claimed also by him in his plaint. Further the counsel submits that the agreement was only a security document for repayment of loan Heard the learned counsel for the parties After hearing the counsel for the parties and perusing the record with the able assistance of the counsel for the parties this Court is of the considered opinion that the argument raised by the defendant appellant do not deserve acceptance. The agreement in question has been duly proved by the plaintiff by examining the attesting witnesses as well as the scribes. The plaintiff could have done only this much to prove his claim before the Court to show that it was an agreement intended to be as it has been recorded. This onus he has fully discharged. Even the counsel for the appellant defendant could not dispute this fact that he has been able to prove the agreement by examining the attesting witness. To prove the plea that the agreement was meant to be a document of security of loan which he had taken at the rate of 2% per month the defendant has not led any evidence. He has not disclosed even the purpose for which he required this loan. On the contrary he has admitted that the amount of Rs.10 lacs taken by him from the plaintiff was lying in the Saving Bank Account of the defendant. He has also not led any evidence to prove that he ever paid the monthly interest to the plaintiff at the rate of 2% as claimed by him. So the defendant has miserably failed to prove his plea that the agreement in question was only a security document for repayment of loan available by him. However the next argument of the defendant that the agreement stands terminated though much stressed upon by the learned counsel but the same is not found to be established as per the record. It has RSA No. 29417 come on record by way of Ex.D1 that the defendant claimed to have sent a legal notice to the plaintiff on 17.04.2012 and for that purpose even the postal receipt has been placed on record as Ex.D3 and Ex.D4. However besides these documents nothing has been led in evidence to prove either the receipt of this notice by the plaintiff or the contents of the legal notice allegedly sent by the plaintiff. So far as the postal receipt is concerned there is no dispute that once postal receipt of registered letter is proved on record it is a valid proof of service upon the opposite side. However a perusal of the receipt in the present case shows that it does not contain the address of the addressee. It only mentions the name of the plaintiff and name of the city. This in the opinion of this Court would not be a proof of a proper service upon the plaintiff. Possibility of there being so many persons of the same name in such a big city can not be ruled out. Hence production of receipt in the present case is not the proof of the fact that this notice has been sent by the defendant to the plaintiff. Otherwise also the receipt of this notice has been denied by the plaintiff. Despite the questions being put to the plaintiff in his cross examination nothing could be extracted from him in the form of his admission that he ever received this notice. Therefore the cancellation of agreement as such is not proved on record. However otherwise also the defendant could not have unilaterally cancelled the agreement in question. Unilateral cancellation of agreement to sell by one party is not permissible in law except where the agreement is determinable in terms of Section 14 of this Specific Relief Act Such cancellation cannot be raised as a defence in a suit for specific performance. If any such a plea of cancellation termination is raised by the defendant than the Court can just ignore this and the plaintiff need not RSA No. 29417 challenge such an alleged cancellation. If such unilateral cancellation of non determinable agreement is permitted as a defence then virtually every suit for specific performance can be frustrated by the defendant. Therefore the Specific Reliefs Act has made detailed provisions for this aspect. The bare perusal of the provisions of the Specific Relief Act shows that once a party claims the right of revocation or rescission of the agreement then such a party is required to seek a declaration from the Court regarding the validity of revocation or rescission as the case may be. In the present case also it was not the duty cast upon the plaintiff to challenge the alleged cancellation of agreement which otherwise also is not proved on record On the contrary if the defendant so claimed that he had valid reasons to terminate the contract or rescind the contract then he should have sought a declaration from the competent Court as required under Sections 27 and 31 of Specific Relief Act. Hence the plea of termination of agreement raised by the defendant has rightly not been accepted by the Courts below So far as the judgement of the Hon ble Supreme Court in case of I.S. Sikandar is concerned there is no dispute regarding the proposition laid down by the Hon ble Supreme Court. However that judgement is distinguishable on the facts of the present case. In the case before the Hon ble Supreme Court the defendant had in fact asked the plaintiff to make the payment of the money and to get the sale deed executed. On failure of the plaintiff to make the payment the agreement had become determinable and the defendant had terminated the contract by specific communication. This action of the defendant was within the realm of the Contract Act as provided under Sections 38 and 51 of the Contract Act and Section 14 of Specific Relief Act which provides that in case of the performance which was required of the plaintiff promisee is refused by him RSA No. 29417 then the defendant promisor need not perform his part of the agreement. In the present case the appellant had not offered the performance on his part Still further in the present case the termination as such has also not been proved on record as has been held above Even on the plea of hardship the defendant could not substantiate his claim. The plea of hardship itself is not sustainable in the present case. The genesis of the plea of the hardship claimed by the defendant goes to his plea whereby he claimed the agreement to be a security document for repayment of the loan. However as held above the defendant has not even disclosed as to what was the circumstance or the purposes for which he had to avail this loan. Rather he admitted that the earnest money got by him was kept in Bank account. Hence no hardship to defendant is proved on record. Otherwise also he has come on record that no such hardship would be caused to the defendant because it has come in his cross examination that he is already having another house in the same city where he can reside. No other argument was raised In view of the above the present appeal fails and the same is dismissed being devoid of any merits 6th November 2017 Whether speaking reasoned Whether reportable [RAJBIR SEHRAWAT JUDGE

A married daughter is eligible for an appointment on a compassionate basis: Allahabad High Court

Exclusion of a married daughter from the ambit of expression of “family” as defined under Rule 2(c) of the Rules is illegal and unconstitutional. Therefore, the appointment of a married daughter on a compassionate basis is not illegal. Such an opinion was held by the Hon’ble Allahabad High Court before Hon’ble Chief Justice RAJESH BINDAL &amp; Hon’ble Justice PIYUSH AGRAWAL in the matter of State of U.P. through Secretary Ministry of Labour and ors vs Pooja Singh [Writ-A No. 42491 of 2017]. The facts of the case were that the father of the respondent died in service, at the time of the death she was minor, and on attaining maturity she applied for an appointment on a compassionate basis on 13.10.1999. While the pendency of such application she got married on 01.12.2001. It was the contention of the plaintiff that the respondent has knowingly concealed the fact that she is married.  The Hon’ble High Court referred to the judgment given in the case of Smt. Vimla Srivastava Vs. The State Of U.P. And Another 2016(1) ADJ 21 (DB) wherein the Hon’ble court held that “This Court held that exclusion of married daughter from the ambit of expression of “family” as defined under Rule 2(c) of the Rules is illegal and unconstitutional, hence was struck down.” Additionally, the Hon’ble High Court observed that “it is evident that when the respondent filed an application seeking compassionate appointment, she was not married as she is stated to have married on December 01, 2001, whereas the application for compassionate appointment was filed on October 13, 1999. Hence, it is not a case of concealment of fact in the application filed by the respondent. ” Finally, the Hon’ble High Court dismissed the appeal. Click Here To Read The Judgment Judgment Reviewed by: Rohan Kumar Thakur The facts of the case were that the father of the respondent died in service, at the time of the death she was minor, and on attaining maturity she applied for an appointment on a compassionate basis on 13.10.1999. While the pendency of such application she got married on 01.12.2001. It was the contention of the plaintiff that the respondent has knowingly concealed the fact that she is married.  The Hon’ble High Court referred to the judgment given in the case of Smt. Vimla Srivastava Vs. The State Of U.P. And Another 2016(1) ADJ 21 (DB) wherein the Hon’ble court held that “This Court held that exclusion of married daughter from the ambit of expression of “family” as defined under Rule 2(c) of the Rules is illegal and unconstitutional, hence was struck down.” Additionally, the Hon’ble High Court observed that “it is evident that when the respondent filed an application seeking compassionate appointment, she was not married as she is stated to have married on December 01, 2001, whereas the application for compassionate appointment was filed on October 13, 1999. Hence, it is not a case of concealment of fact in the application filed by the respondent. ” Finally, the Hon’ble High Court dismissed the appeal. Click Here To Read The Judgment Judgment Reviewed by: Rohan Kumar Thakur The Hon’ble High Court referred to the judgment given in the case of Smt. Vimla Srivastava Vs. The State Of U.P. And Another 2016(1) ADJ 21 (DB) wherein the Hon’ble court held that “This Court held that exclusion of married daughter from the ambit of expression of “family” as defined under Rule 2(c) of the Rules is illegal and unconstitutional, hence was struck down.” Additionally, the Hon’ble High Court observed that “it is evident that when the respondent filed an application seeking compassionate appointment, she was not married as she is stated to have married on December 01, 2001, whereas the application for compassionate appointment was filed on October 13, 1999. Hence, it is not a case of concealment of fact in the application filed by the respondent. ” Finally, the Hon’ble High Court dismissed the appeal. Click Here To Read The Judgment Judgment Reviewed by: Rohan Kumar Thakur Additionally, the Hon’ble High Court observed that “it is evident that when the respondent filed an application seeking compassionate appointment, she was not married as she is stated to have married on December 01, 2001, whereas the application for compassionate appointment was filed on October 13, 1999. Hence, it is not a case of concealment of fact in the application filed by the respondent. ” Finally, the Hon’ble High Court dismissed the appeal.

Chief Justice s Court Serial No. 40 IN THE HIGH COURT OF JUDICATURE AT ALLAHABAD SPECIAL APPEAL DEFECTIVE No. 6621 Writ A No. 424917) Reserved on October 26 2021 Delivered on November 25 2021 State of U.P. through Secretary Ministry of Labour and others Through: Mr. Rama Nand Pandey Advocate Through: Mr. Om Prakash Singh Advocate Coram: HON BLE RAJESH BINDAL CHIEF JUSTICE HON BLE PIYUSH AGRAWAL JUDGE RAJESH BINDAL C.J Order dated January 25 2021 passed by learned Single Judge has been challenged by the State by filing the present intra Court The respondent had approached this Court challenging the order dated September 1 2017 whereby the order of her appointment on compassionate basis was cancelled on the ground that she had concealed the factum of her being married at the time of initial appointment 2 9Special AppealNo. 6621 Learned Standing Counsel appearing for the appellants submitted that it is a case where respondent had concealed the factum of her being married at the time of the compassionate appointment hence there being concealment of fact her appointment is liable to be cancelled. Relying upon Rule 2(c)(iii) of U.P. Recruitment of Dependents of Government Servants Dying in Harness Rules 1974 hereinafter referred to as “the Rules”) it is submitted that married daughter is not included in the definition of the “family”. That being so the appointment granted to the respondent on compassionate basis was liable to be withdrawn. As such there was no error in the order withdrawing compassionate appointment granted to the respondent and learned Single Judge has wrongly quashed the same On the other hand learned counsel for the respondent submitted that exclusion of unmarried daughter from the definition of the family vide Rule 2(c)(iii) of the Rules was struck down by this Court in Smt. Vimla Srivastava Vs. State Of U.P. And Another 2016(1) ADJ 21of the Rules. Special Leave Petition No. 226416against the same was dismissed by Hon ble Supreme Court vide order dated July 23 It is further submitted that at the time when the respondent filed application for appointment on compassionate basis she was not married hence there was no concealment of fact as such. Marriage took place thereafter. She being in service for the last 15 years and having family to support should not be thrown out of service. At present she would be over age for entry into service book. 3 9Special AppealNo. 6621 Heard learned counsel for the parties and perused the paper As is evident from the fact on record father of the respondent who was working as Labour Inspector in the Labour Department died during service in September 1980. The respondent was an infant at that time. She attained majority in the year 1998. Only thereafter she filed application for appointment on compassionate basis on October 13 1999. Her case remained pending for a period of about six years. During interregnum period on December 1 2001 she got married. In pursuance of order dated July 21 2006 issued by Government giving appointment to the respondent on a Class III post Deputy Labour Commissioner on November 4 2006 issued appointment letter pursuant whereof the respondent joined service From the aforesaid fact it is evident that when the respondent filed application seeking compassionate appointment she was not married as she is stated to have married on December 01 2001 whereas the application for compassionate appointment was filed on October 13 1999. Hence it is not a case of concealment of fact in the application filed by the respondent Rule 2of the Rules defines “family” as under “2. Definitions. In these rules unless the context otherwise requires c) "family" shall include the following relations of the deceased Government servant i) Wife or husband ii) Sons iii) Unmarried and widowed daughters ” 4 9Special AppealNo. 6621 Validity of the aforesaid provision whereby married daughters were excluded for consideration for appointment on compassionate basis was subject matter of challenge before this Court in Smt. Vimla Srivastava s caseof the Rules is illegal and unconstitutional hence was struck down. Special Leave Petition against the aforesaid judgment was dismissed by Hon ble Supreme Court vide order dated July 23 2019 in Neha Srivastava s case(Rajesh Bindal Judge Chief Justice Whether the order is speaking : Whether the order is reportable : √Yes No

When the allegations against the petitioner are serious in nature, the trial court can be directed to conclude the trial expeditiously: High Court of J&K and Ladakh

This Court no doubt can look in to evidence but cannot appreciate the evidence brought on record by the prosecution as upheld by the High Court of J&amp;K, while referring to the Judgement of Supreme Court in the case of Satish Jaggi v. State of Chhattisgarh, reported in (2007) 11 SCC 195, through a learned bench of Justice Rajnesh Oswal in the case of Kewal Sharma Vs Union Territory of J&amp;K [Bail App No. 79/2021]. The petitioner was facing trial for commission of offence under section 302 RPC in a challan, tilted, State vs Kewal Sharma arising out of FIR bearing No. 109/2014 for commission of offence under section 302 RPC pending before the 2nd Additional Sessions Judge, Jammu. Mr. Anmol Sharma, learned counsel for the petitioner has reiterated the grounds those have been taken in the application. He further argued that the material witnesses have been examined and the whole of the case of prosecution is dependent upon the circumstantial evidence and the petitioner is in custody without there being any evidence against him. Per contra, Mr. Aseem Sawhney, learned AAG, learned counsel for the respondent has vehemently argued that while considering the bail application, the merits are not required to be considered and all the arguments raised by Mr. Anmol Sharma pertained to the merits of the case and as such, in view of the bar contained in section 497 Code of Criminal Procedure regarding the grant of bail in offences exclusively punishable with death or life imprisonment, the petitioner cannot be enlarged on bail. After hearing both the parties and a perusal of the record, the Hon’ble High Court observed that the case against the petitioner is based upon the disclosure statement and the last scene theory. So far as evidence brought on record is concerned, it is not the case where all the material witnesses have turned hostile and have not supported the prosecution story. This Court no doubt can look in to evidence but cannot appreciate the evidence brought on record by the prosecution. The contentions raised by the petitioner that there is in fact no last scene theory and the disclosure does not connect the petitioner with any crime, pertain to the merits and cannot be considered at this stage. A number of other witnesses are yet to be examined and they include the material witnesses as well with regard to the proceeding of the deceased to the house of the petitioner and stated that “The allegations against the petitioner are serious in nature. More so, the contention of the petitioner that the petitioner is entitled to bail on ground of delay is also not sustainable in view of the fact that it is not the case where the prosecution has not led any evidence, rather the prosecution has examined number of witnesses. Otherwise also, due to corona pandemic all the Courts functioned in restricted manner for the last more than one year. But still the trial court can be directed to conclude the trial expeditiously.”

HIGH COURT OF JAMMU AND KASHMIR AND LADAKH Reserved on: 28.10.2021 Pronounced on: 12.11.2021 Bail App No. 79 2021 Through : Mr. Anmol Sharma Advocate Kewal Sharma Union Territory of J&K Through : Mr. Aseem Sawhney AAG Coram: HON’BLE MR. JUSTICE RAJNESH OSWAL JUDGE The petitioner is facing trial for commission of offence under section 302 RPC in a challan tilted State vs Kewal Sharma arising out of FIR bearing No. 109 2014 for commission of offence under section 302 RPC pending before the 2nd Additional Sessions Judge Jammu. The present bail application has been filed by the petitioner on the ground that the petitioner has been in custody since 06.06.2014 and the learned trial court has rejected the bail application without considering the fact that the material witnesses have been examined and further that the evidence led by the prosecution does not connect the petitioner with the commission of offence who has been in custody for the last more than seven years. Mr. Anmol Sharma learned counsel for the petitioner has reiterated the grounds those have been taken in the application. He further argued that the material witnesses have been examined and the whole 2 Bail App No. 79 2021 of the case of prosecution is dependent upon the circumstantial evidence and the petitioner is in custody without there being any evidence against him. Per contra Mr. Aseem Sawhney learned AAG learned counsel for the respondent has vehemently argued that while considering the bail application the merits are not required to be considered and all the arguments raised by Mr. Anmol Sharma pertained to the merits of the case and as such in view of the bar contained in section 497 Code of Criminal Procedure regarding the grant of bail in offences exclusively punishable with death or imprisonment petitioner cannot be enlarged on bail. Heard and perused the scanned record of the trial court. From the record it is evident that the petitioner is facing trial for commission of offence under section 302 RPC pending before the court of 2nd Additional Sessions Judge Jammu. The allegations against the petitioner are that on 28.08.2013 when the deceased Vijay Kumar came to the residence of the petitioner for the purpose of getting money regarding the land purchased by the petitioner from the deceased the petitioner murdered the deceased and cut the body of the deceased into various parts with Axe and further after keeping the body parts in a trunk and bag carried in a vehicle bearing registration No. JK02 BB 4460 and threw in the river Chenab. The charges for commission of offences under sections 302 201 RPC were framed against the petitioner on 10.11.2014 and the prosecution has cited as many as 32 witnesses and out of which many witnesses 3 Bail App No. 79 2021 have been examined by the prosecution and number of other witnesses are yet to be examined. The case against the petitioner is based upon the disclosure statement and the last scene theory. So far as evidence brought on record is concerned it is not the case where all the material witnesses have turned hostile and have not supported the prosecution story. This Court no doubt can look in to evidence but cannot appreciate the evidence brought on record by the prosecution. The contentions raised by the petitioner that there is in fact no last scene theory and the disclosure does not connect the petitioner with any crime pertain to the merits and cannot be considered at this stage. A number of other witnesses are yet to be examined and they include the material witnesses as well with regard to the proceeding of the deceased to the house of the petitioner. The Apex Court in Satish Jaggi v. State of Chhattisgarh reported in11 SCC 195 has held as under: “Normally if the offence is non bailable also bail can be granted if the facts and circumstances so demand. We have already observed that in granting bail in non bailable offence the primary consideration is the gravity and the nature of the offence. A reading of the order of the learned Chief Justice shows that the nature and the gravity of the offence and its impact on the democratic fabric of the society was not at all considered. We are more concerned with the observations and findings recorded by the learned Chief Justice on the credibility and the evidential value of the witnesses at the stage of granting bail. By making such observations and findings the learned Chief Justice has virtually acquitted the accused of all the criminal charges levelled against him even before the trial. The trial is in progress and if such findings are allowed to stand it would seriously prejudice the prosecution case. At the stage of 4 Bail App No. 79 2021 granting of bail the court can only go into the question of the prima facie case established for granting bail. It cannot go into the question of credibility and reliability of the witnesses put up by the prosecution. The question of credibility and reliability of prosecution witnesses can only be tested during the trial.” The allegations against the petitioner are serious in nature. More so the contention of the petitioner that the petitioner is entitled to bail on ground of delay is also not sustainable in view of the fact that it is not the case where the prosecution has not led any evidence rather the prosecution has examined number of witnesses. Otherwise also due to corona pandemic all the Courts functioned in restricted manner for the last more than one year. But still the trial court can be directed to conclude the trial expeditiously. In view of the above the instant application has no merit as such the same is dismissed. The learned trial court is directed to conclude the trial expeditiously and no un necessary adjournments shall be granted to either of the parties. (Rajnesh Oswal Judge JAMMU 12.11.2021 Whether the order is speaking: Whether the order is reportable:

There is no universal rule that the evidence of the deceased’s relatives must be verified in order for the perpetrator to be convicted. Orissa High Court

The fact that the witnesses are related to each other is no criterion for disregarding their evidence. Relative should have no interest to falsely implicate the accused or protect the real culprit. There is no general rule that the evidence of the relations of the deceased must be corroborated for securing the conviction of the offender. Each case depends upon its own facts and circumstances. The judgement was passed by the High Court of Orissa in the case of Benga @ Imam Mahammad v. State of Orissa [CRLA No.19 of 2003] by Division Bench consisting of Hon’ble Justice S. Panda &amp; S. K. Panigrahi. The present appeal has been filed against the judgment of conviction and order of sentence passed by the learned Sessions court, whereby the appellant has been convicted for commission of an offence punishable under Section 302 of the I.P.C. and sentenced to undergo imprisonment for life. Learned Counsel for the appellant submits that out of the two eye-witnesses, the brother of the deceased has turned hostile. He even denied having lodged the F.I.R. and given any statement to the Investigating Officer. On the other hand, a conviction cannot be established only on the basis of the sole testimony of P.W.6 without any proper corroboration from any other independent witness. Additionally, the injury sustained by the appellant has not been explained by the prosecution which vitiates the prosecution story. Further, on his deposition before the Court stated that the police took his signature on some written papers. He further stated that he has not been examined by the police and nothing has been seized in his presence. Learned Counsel for the respondent has submitted that the report of the Medical Officer reveals that the deceased suffered homicidal death due to the injury inflicted by the seized weapon. Further, he relied upon the evidence of P.W.6 who is one of the eye-witnesses and also sustained injuries while trying to save the deceased from the onslaught. Hence, he submits that the prosecution has sufficiently proved the motive of the accused in committing such a heinous crime. Having made the aforesaid submissions, learned Counsel for the State submits that the prosecution has been successful in establishing the truth beyond reasonable doubt that the appellant herein is the author of the crime and that the present appeal ought to be dismissed being devoid of merit. While relying on the case of Gangadhar Raju alias Balachandran vs. State of Tamil Nadu, the court noticed that “It is well settled that the testimony of a related witness cannot be discredited mechanically because the relationship of the witness cannot be a ground to determine the credibility of the testimony.”

AFR HIGH COURT OF ORISSA: CUTTACK CRLA No.19 of 2003 From the judgment dated 20.12.2002 passed by learned Sessions Judge Khurda at Bhubaneswar in S.T. Case No.802.) Benga @ Imam Mahammad State of Orissa Mr. Dharanidhar Nayak Senior Advocate M s. Akash Bhuyan R.K. Pradhan M. Mohanty P.K. Mohanty N.K. Mohanty B. Rout and P.K. Deo Advocates For Respondent: Mr. Sk. Zafarulla Additional Standing Counsel THE HONOURABLE KUMARI JUSTICE S. PANDA HON’BLE SHRI JUSTICE S. K. PANIGRAHI Date of Hearing 19.05.2021Date of judgment 19.05.2021 S. K. Panigrahi J. 1. The present appeal has been directed against the judgment of conviction and order of sentence dated 20.12.2002 passed by the learned Sessions Judge Khurdaat Bhubaneswar in S.T. Case No.82 of 2002 whereby the appellant has been convicted for com mission of offence punishable under Section 302 of the I.P.C. and sentenced to undergo imprison ment for life. 2. Shorn of unnecessary details the substratum of the matter presented before us remain that the deceased was a fish vendor at Unit IV Fish Market Bhubaneswar and used to reside nearby. The appellant used to sell mutton in the said market. The appellant was married to the sister of the deceased and they had one son and two daughters. Ranju allegedly deserted the appellant and left with another man whereafter the appellant refused to take care of the children. The mother of the deceased who also used to reside in the same colony brought the children to her house and started looking after the m. Thereafter there was regular quarrel between the appellant and the deceased over the maintenance of the children. On 31.07.2001 at 8:15 P.M . there was a heightened quarrel between the appellant and the deceased in course of which the appellant attempted to strike at the abdome n of the deceased with a knife M.O. 1) but the blow struck his thigh just below the abdome n as the latter tried to ward it off. The appellant charged again and this time struck the deceased on his forehead. Thereafter the wife of the deceased came to the rescue of her husband and wrenched away the knife from the appellant and threw it on the ground and in the process she sustained injuries on her right palm. 3. The I.I.C. Kharavelanagar Police Station after receiving an anonymous phon e call about the occurrence alerted the police patrol team over V.H.F. and proceeded to the scene of occurrence. When they reached at the spot they found the deceased lying on the ground in pool of blood. The deceased was im mediately shifted to Capital Hospital Bhubaneswar in a police Jeep by the S.I. B.K. Aich. The doctor on casualty duty declared the deceased as ‘brought dead’. Charan Biswal P.W.2) the brother of th e deceased who was present at the spot lodged the F.I.R. with the I.I.C.(P.W.7) Kharavelanagar P.S. Bhubaneswarwhereupon Kharavelanagar P.S. Case No.189 dated 31.07.2001 was registered. 4. During the course of investigation the I.O. proceeded to the village and took the appellantinto his custody. The body of the deceasedwas sent for post morte m examination. The appellant was then arrested and forwarded to the court. The I.O. also effected seizure of knife a pair of blood stained chappal belonging to the deceased another pair blood stained chappal belonging to the accused blood stained earthand sample earthproduced the wearing apparels of the deceased a lungi and a napkin M.O.III) before a police constable who thereby produced it before the I.O. After completion of investig ation charge sheet was submitted against the accused. 5. To bring home the charges the prosecution examined as many as 8 witnesses. P.W.1 is the M edical Officer who conducted autopsy over the deadbody of the deceased.P.W.2 is the brother of the deceased and the informant in the present case. P.W.3 is the police constable who carried the dead body to the hospital and the seizure witness of M.O.II and M.O.III. P.W.4 is an independent witness who has a vegetable shop in Unit IV market and also a seizure witness. P.W.5 is the Medical Officer who has treated P.W.6 who is the wife of the deceased. P.W.7 is the I.I.C. of Kharavelanagar P.S. and P.W.8 is the Investigating Officer. P.W.2 and P.W.6 are the only eye witnesses.On the other hand defence has examined two witnesses. 6. Mr.Dharanidhar Nayak learnedSenior Coun sel appellant submits that out of the two eye witnesses P.W.2 informant) the brother of the deceased has turned hostile. He even denied to have lodged the F.I.R. and given any state ment to the Inve stigating Officer. On the other hand conviction cannot be established only on the basis of the sole testimon y of P.W.6 without any proper corroboration from an y other independent witness. Additionally the injury sustained by the appellant has not been explained by the prosecution which vitiates the prosecution story. Further P.W.4 on his deposition before the Court stated that the police took his signature on som e written papers. He further stated that he has not been examined by the police and nothing has been seized in his presence. Therefore without any seizure the prosecution case cannot be established. Further P.W.5 in her evidence opined that she tried to rescue her husband from the appellant and thereby sustained injuries. Howe ver in the cross exa mination she has admitted that both the injuries could not have been inflicted by the same weapon. P.W.6 in her 161 CrPC statement has not mentioned at which part of the body the appellant made an assault. This casts aspersion s on h er role as an eye witness. Therefore the prosecution should not rely on her deposition. The Investigating Officerhas admitted in his cross examination that he has not reflected in the C.D. or in the seizure list that he has sealed the M.O.I and M.O.VI and neither has he produced the seal before the court. Therefore after seizure without any seal on the material casts doubt on the prosecution case. Moreo ver the depositions and evidences of the prosecution witnesses are contradictory to each other. In view of the above he urged that the accused be entitled to the benefit of doubt as the prosecution has failed to prove the case against him beyond reasonable doubt. 7. The plea of the appellant is that on the night of occurr ence he and the deceased had a liquor bout during which the deceased had quarrel with some pe ople and those people came to the Unit IV market and attacked both of them. 8. Per contra learned Counsel for the State has submitted that the report of the Medical Officer reveals that the deceased suffered homicidal death due to the injury inflicted by the seized weapon who is one of the eye witnesse s and also sustained injuries while trying to save the deceased from the onslaught.Hence he sub mits the prosecution hassufficiently proved the motive of the accused in co mmitting such a heinous crime. Having made the aforesaid submissions learned Counsel for the State submits tha t the prosecution has been successful in establishing the truth beyond reasonable doubt that the appellant herein is the author of the crime and that the present appeal ought to be dismissed being devoid of merit. 9. Heard learned Counsel for the parties.It can be sum marised that the learned Court below in order to bring home the culpability of the appellant has relied upon the following circumstances namely Statement of eye witnesses Corroboration of witnesse s’ depositions. While doing so the Trial Court has proceeded to hold that these circumstances establish a complete chain which prove beyond reaso nable doubt that the appella nt has com mitted the murder of the 10. Upon perusal of the evidence produced before the Trial Court with regard to the first circumstance i.e. statement of the eye witness stated hereinabove the evidence of P.W.6 has been relied upon.The evidenc e of an eyewitness if credible constitutes needless to say the best possible evidence. There is wealth of judicial authority for the proposition that conviction may rest on the sole testimon y of an eyewitness sans any other evidence provided alwa ys the evidence of the eyewitness is absolutely credible. In a recent case of Dali p Ku ma r v St ate o f D elhi1 Delhi High Court iterated that: is required “14. As the value of evidenc e inc reases however so does the rigour and strictness of the scrutiny to which the evidence to be subjected. While therefore upholding the principle that conviction can rest on the sole testimony of an eye witness w ithout any supportive evidence whatsoever the Supreme Court has been at pains to also hold that in all such cases the c redibility of the evidence of the eye witness is required to be conclusively established. For this the court is required to assess among other things the evidence of tendered during investigation when compared w ith his evidence during trial and to examine whether the evidence tendered the eye witness as 1CRL.A.45 2002 &Crl. M.A.10587 2019 during trial is cogent and coherent and free from any disabling inconsistencies as well as the extent to which the evidence of the eye witness is consistent with the evidence of other witnesses tendered during trial. While embarking on this exerc ise needless to say the court is required to be mindful of the distinction between minor and major inconsistencies and may only take cognizance of those inconsistenc ies which dent the case of the prosecution. At the same time inconsistenc ies even if minor may if they are suffic iently large in number substantially weaken the credibility of the testimony of the w itness concerned. 15. In the ultimate eventuate these are all factors of which the criminal court is bound by oath to be duly sensitised. At all times the court is required to be alive to the fact that the facts c umulatively seen and the evidence holistically assessed may exonerate accused or may cast doubt on his guilt and to the legal position that in either c ase the accused is entitled to acquittal.” Further the Supreme Court in the case of Ama r Singh vs The State4 SCC 343 In the instant case with a view to base a conviction on the evidence of an ocular witness and circumstantial evidence the prosecution has established all the pieces of incriminating circumstances by reliable and clinching evidence and the circumstances also leads to a perfect flow of the chain of eve nts which would permit no other conclusion than the guilt of the accused. The circumstances present in the cases are not depende nt upon any h ypothesis. The present case is not based on suspicion and it cannot falsify the statement of an ocular eye witness even if she is related or interested witness. Further if it is found that the appreciation of evidence in a case which is entirely based on circumstantial evidence is on a different footing than a case like the present one wherein an ocular witness is present and stated what she has been at the time of occurrence. Had it been a case of only on circumstantial evidence this would have vitiated by serious errors and the Court would have certainly interfered. 13. The Hon’ble Apex Court in the case of C.Chenga Reddy and Ors. v. Stat e of A.P. 4 has dealt with a case where su spicion has been allowed to take the place of reason and has held in no uncertain terms that 4(1996) 10 SCC 193 “21. In a c ase based on circumstantial evidence the settled law is that the circ umstances from which the conclusion of guilt is draw n should be fully proved and such circumstances must be conc lusive in nature. Moreover all the c irc umstances should be complete and there should be no gap left in the chain of evidence. Further the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence. I n the present case the courts below have overlooked these settled princ iples and allowed suspic ion to take the place of proof besides relying upon some inadmissible evidence.” instant case the circumstantial evidence intercepted by the testimon y of one ocular witness which itself is sufficient to complete the chain without any ‘ifs’ and ‘buts’ or any kind of hypothetical premise. 14. Thegeneral presumption that gover ns the criminal prosecution is that related witness would not falsely testify against an innocent person as they would prefer to see the real culprits getting punished as held in Jar nail Sin gh vs. Stat e of Punja b 5. However testimon y of such witnesses should be analysed with caution for its credibility as held in G ang adh ar Beh era & Others vs. Stat e of O disha6. It is well settled that the testimo ny of a related witness cann ot be discredited mechanically because rela tionship of the witness cannot be a ground to determine the credibility of the testimony as held in 5(2009) 9 SCC 719 6 2003 SCC32 Raju alias Balachandran vs. State of Tamil Nadu 7 and reiterated in A. Alagupandian vs. State of Tamil Nadu. 8 In Balraje vs. State of Maharashtra9 the apex Court has succinctly held that : “If after careful analysis and scrutiny of their evidence the version given by the witnesses appears to be clear cogent and credible there is no reason to discard the same”. Hence it is the truthfulness of the statement that the law takes into account and the credibility of a related witness is not dependent upon its relationship with either party and the court should exercise care and caution to determine the admissibility of its testimonial by relying only on the truth. A mere relationship of the witness would be no ground to reject it. A close relative who is a natural witness the circumstances of the case cannot be regar ded as an interested 15. Similarly in Bhagwan Swarup V.State of U.P.10 State of U.P. V. Paras Nath Singh11and Swarn Singh V.State of Punjab1 2 the Apex Court held that: “The fact that the witnesses are related to each for disregarding evidence. Relative should have no interest to is no criterion 7. AIR 2013 SC 983 8 Criminal Appeal No.1315 OF 200996 SCC 673 10AIR 1971 SC 429 11AIR1973 SC 1073 12 1976 Cri. L.J. 1757 the relations of falsely implicate the accused or protect the real culprit. There is no general rule that the evidence the deceased must be corroborated for securing the conviction of the offender. Each case depends upon its own facts and circumstances..” 16. The Investigating Officer has been successful in corroborating the prosecution story. The seized weapon used in the crime and other articles at the instance of the accused the testimo ny of P.W.6 does form a formidable chain establishing that the accused is the real brain behind the crime. The entire circumstantial evidence and the testimon y of P.W.6 show beyond reasonable doubt regarding the involve ment of the accused without any iota of doubt. 17. For evidence introduced and to be made admissible in courts requires a degree which should exclude falsity and help expose the correct facts in a trial. Witnesses disputably stand at the pinnacle of the justice delivery sequence. The testimo ny should be such it clarifies situation while maintaining a favourable attitude towards the side for whom the statement is being given. When the witnesses are not able to depose correctly or turn ‘hostile’ in the court of law it shakes public confidence in the criminal justice delivery system. Accentuating this view Bentham said: “witnesse s are the eyes and ears of justice”. Howe ver it seem s the ‘eyes and ears’ have defied the prosecution in so far as prosecution witnesse s Nos.2and 5 have turned hostile. Their alleged stateme nts made to the police Under Section 161 of Code of Criminal Procedure were not confronted to them and marked as exhibits and further the I.O. has not spoken in his evidence anything about the alleged stateme nts of the above hostile witnesses recorded Und er Section 161 of Cr.P.C. as held by the Apex Court in three Judges Bench in the case of V.K. Mishra v. State of Uttarakhand13: “16. Sec tion 162 Cr.PC bars use of statement of w itnesses recorded by the polic e exc ept for the limited purpose of contradiction of suc h w itnesses as indic ated there. T he statement made by a w itness before the police Under Sec tion 161(1) CrPC c an be used only for the purpose of contradicting suc h w itness on w hat he has stated at the trial as laid dow n in the proviso to Section 162(1) CrPC. T he statements under S ection 1 61 CrPC rec orded during the investigation a re not substantive pieces of evidenc e but c an be used primarily for the limited purpose:of contradicting suc h w itness by an acc used under Section 1 45 of the Evidence Act the contradiction of suc h w itness also by the prosec ution but w ith the leave of the Court and iii) the re examination of the witness if necessary. 17. The court c annot suo motu make use of statements to police not proved and ask questions w ith reference to them which are inconsistent with the testimony of the witness in the court. The words in Section 162 CrPC "if duly proved" clearly show that the record of the statement of w itnesses cannot be admitted evidence straightway nor can be looked into but they must be duly proved for the purpose of contradiction by eliciting admission from the w itness during cross examination and also during the cross examination of the investigating officer. The statement before the 1 3(2015) 9 SCC 588 investigating officer c an be used for contradiction but only after strict compliance with Section 145 of the Evidence Act that is by draw ing attention to the parts intended for contradiction.” 18. Nonetheless even at the advent of hostility the court expect s the prosecution to endeavour in corroborating the ‘hostile’ testimo nies as a last ditch effort into buttressing its side of the story and has rightly done so. However the prosecution has taken the aid of the solitary ocular witness along with the circumstantial evidence and avoided the o nset of ‘defeatism’. Consequentially the testimo nies of the witnesses in this case are not inadmissible in its entirety. The seizure witness P.W.5 turned hostile during cross examination and clearly denied the seizure of articles but the use of the M.O.I in the crim e is certain and not otherwise negated. 19. With the above backdrop and discussion this Court come s to an irresistible conclusion that the prosecution has been successful in bringing home the charges against t he appellant beyond reasonable doubt and that the Court below has appropriately dealt with the evidence and the attuning circumstances in proper perspective. Mere fact that the solitary witness is related to the deceased or did not state the incident in the sam e language or in a manner which is natural in the opinion of the court does n ot affect in any way the credibility of the witness. In view of the discussion made hereinabove the court below has maintained a positive judicial attitude towards victim justice and while considering the credibility of evidence or testimo nial the court has also exercised due care and caution to arrive at the truth. There see ms to be absence of any bias or presumptions while connecting the chain and have perfectly corroborated with the circumstantial evidence. 21. Accordingly the Criminal Appeal filed by the appellant is dismissed. The judgment of convicti on and order of sentence dated 20.12.2002 passed by the learned Sessions Judge Khurda atBhubaneswar in S.T. Case No.82 of 2002 is hereby It is brought to the notice that the appellant is on bail by order of this Court dated 02.07.2008. In such view of the matter the bail bonds stand cancelled and the trial court is directed to issue warrant of arrest against the appellant to suffer remaining part of the sentence. The LCR be returned forthwith to th e court from which it was received. S.K. Panigrahi J.) S. Panda J.) Or issa High Court Cu tta ck Th e 19 th day of March 2021 A KK LNB A KP

Otiose Effect shall apply upon the judgement in case of non maintainability of suit: High Court of Delhi.

Otiose Effect shall apply upon the judgement in case of non maintainability of suit: High Court of Delhi. The above has been observed in the recent case of ALOK KUMAR LODHA V. ASIAN HOTELS (NORTH) LTD. [IA NOS.5173/2021 &amp; 5174/2021], listed in the Delhi High Court. The final proceedings of the above case were held on September 15th 2021, and the said proceedings were presided by a single judge bench of JUSTICE JAYANT NATH. The facts, as presented before the court of law, are as follows. As part of the Asian Games, the Hyatt Hotel was launched subsequent to allotment of land under a lease deed. The plaintiff, through the original allotted, paid a total sum of Rs.8.47 lakhs to the defendant in 1991 which was received as security deposit. In furtherance to the above, the petitioner was served with a revocation of license notice during the pandemic, along with other shops. It was contended, by the petitioners, that the said notices are illegal and do not related to any of the illegal breaches mentioned in the agreement. Along with the above, the defendant had also blocked the movement and access of the plaintiff towards the shop. The petitioners, by placing reliance on two of the judgments, of Supreme Court of India, namely, KASTURI V. IYYAMPERUMAL &amp; ORS, [2005 (6) SCC 733]; AND MA SHWE MYA V. MAUNG PO HNAUNG, [AIR 1922 PC 249], contended that that under the license agreement the defendant could only have mortgaged the property for construction purposes at best and not for any other purpose. The construction however of the building was completed in 1980’s and no such mortgage could be carried out thereafter. In response to the above, the defendants stated that the plaintiff had no rights against the banks and financial institutions. It was further asserted that before, declaring any judgment, the rights and claims of plaintiff in the impugned property are to be verified. The defendants also followed their contention through the precedent of Deccan Paper Mills Company Ltd. v. Regency Mahavir Properties &amp; Ors., [2021 (4) SCC 786], and stated that the suit is non-maintainable since there is an arbitration clause in the agreement. Court, after hearing both the sides, analysing facts, and considering a perusal of all evidences, held: Court also referred in the matter of REVAJEETU BUILDERS AND DEVELOPERS VS. NARAYANASWAMY AND SONS &amp; ORS [(2009) 10 SCC 84], the court declared that the impugned amendments are bona fide and such amendments are necessary for adjudication of the dispute. “Merely getting relief from the court as presently sought may not constitute sufficient relief for the plaintiff.” The court also opined that “If the plaintiff were to succeed this court would pass appropriate declaration declaring that the plaintiffs have rights in the property or have an irrevocable license in their favor. However, if any such relief is granted by this court, it would be otiose in view of the fact that the property already stands mortgaged to the proposed defendants”

IN THE HIGH COURT OF DELHI AT NEW DELHI Judgment Reserved on: 16.08.2021 Judgment Pronounced on: 15.09.2021 CS(COMM) 189 2020 ALOK KUMAR LODHA Through: Mr.Avishkar Singhvi and Mr.Nipun Plaintiff Katyal Advs. ASIAN HOTELSLTD. ..... Defendant Through: Mr.Vikram Nankani Sr.Adv. with Kumar Mr.Sanjay Aggarwal Singh Ms.Aakanksha Kaul and Ms.Manyaa Chandok Advs. for the defendants. HON BLE MR. JUSTICE JAYANT NATH JAYANT NATH J. IA Nos.5173 2021 & 5174 2021 IA No.5173 2021 is filed by the plaintiff under Order 1 Rule 10 CPC seeking impleadment of necessary and proper parties as defendants. IA No.5174 2021 is field by the plaintiff under Order 6 Rule 17 CPC for amendment of the plaint. The present suit is filed by the plaintiff seeking a decree of declaration that the licence in favour of the plaintiff in respect of the shop premises bearing No.L 83 Hotel Hayatt Regency Delhi Bhikaji Cama Place New Delhi is irrevocable and perpetual and the purported revocation of the license by the defendant is illegal void and bad in the eyes of law. A decree IA Nos.5173 2021 & 5174 2021 in CS(COMM) 189 2020 is also sought for declaration declaring that the plaintiff has unfettered right to occupy and use the said premises shop under the irrevocable license till the documents of transfer conveyance are executed by the defendant. Other connected reliefs are also sought. It is the case of the plaintiff that as part of the Asian Games the Hyatt Hotel was launched subsequent to allotment of land under a lease deed dated 22.07.1982 by DDA. It was a part of an initiative to create 5 star iconic property with high end hospitality. It is the case of the plaintiff that the plaintiff through the original allottee paid a total sum of Rs.8.47 lakhs to the defendant in 1991 which was received as security deposit for the said shop premises L 83. It is stated that the said amount was substantially higher than the then prevailing value of the shop. On 02.09.1991 a license agreement was executed by the plaintiff and the defendant company that regulated the terms of occupation of the plaintiff for the shop in question situated in the defendant hotel. The agreement was to be renewed periodically every five years. It is the case of the plaintiff that under the agreement valuable consideration was transferred being Rs.8.47 lakhs which was paid for the subject shop. There was no further additional payment or premium payable by the plaintiff. It is stated that the interest in the property was perpetual permanent and irrevocable in law. On 29.05.2020 it is the case of the plaintiff that to the utter shock and surprise of the plaintiff a revocation of license notice was served during the ongoing pandemic and amidst the lockdown. Several other licensees who have occupied the shops for almost 40 years were also served such notices. These notices are unrelated to any alleged breach. The plaintiff impugns the said communication stating the same to be illegal and wholly contrary to the IA Nos.5173 2021 & 5174 2021 in CS(COMM) 189 2020 agreed terms. The defendant have also blocked free ingress and egress of the plaintiff to the arcade access to the shop. Hence the present suit. To complete the narration of facts I may mention that when the present matter came up for hearing before the court after filing the defendant entered appearance on receipt of an advance copy of the paperbook. The defendant raised an objection that the suit is not maintainable in view of section 8 of the Arbitration and Conciliation Act. With the consent of the parties the Co ordinate Bench heard learned counsel for parties on the issue of maintainability of the suit as also the interim injunction application. This court vide judgment dated 21.07.2020 returned a prima facie finding that the plaintiffs have a right in their favour and interest in land which is more than that of a lessee or at least that of an irrevocable license. The court also held that the suit and the application are liable to be dismissed with liberty to the parties to avail the remedy of arbitration in view of the arbitration clause in the license agreement. Both sides filed an appeal before the Division Bench. The Division Bench by judgment dated 24.12.2020 set aside the judgment of the Co ordinate Bench of this court dated 21.07.2020 stating that the order of dismissal of the suit on a verbal plea of section 8 of the Arbitration and Conciliation Act is not an order referring the parties to arbitration. The Division Bench set aside the said judgment in its entirety including prima facia findings of interest or rights of the parties. The matter was remanded back. Liberty was granted to the defendant Hotel if it so desires to on or before 15.01.2021 prefer an application under section 8 of the Arbitration and Conciliation Act which will be considered and decided in accordance with law. The defendants have filed the said application under section 8 of IA Nos.5173 2021 & 5174 2021 in CS(COMM) 189 2020 the Arbitration and Conciliation Act. The same is pending adjudication. The plaintiff has now filed IA No.5174 2021 under Order 6 Rule 17 CPC seeking amendment of the plaint. It is the case of the plaintiff that pursuant to a reply filed by the defendant hotel in these proceedings the plaintiff to its utter shock learnt for the first time about the mortgage carried out by the defendant of the entire hotel to certain banks. It is stated that the said mortgage carried out by the defendant was not revealed by the defendant earlier. The mortgaging of the property is for the purposes other than construction of the hotel which was admittedly completed in year 1984. It is stated that the defendant have surreptitiously created several mortgages over the present premises without properly disclosing to the banks financial institutions that a considerable portion of the hotel was conveyed transferred for extraordinary premium received in lieu thereof in the years 1981 2005. It is stated that the said mortgages have been created by the defendant without disclosure to the plaintiff despite the plaintiff having substantial rights in law under the terms of license and contemporaneous documents. Hence it is pleaded that the mortgages created by the defendant in favour of the financial institutions banks are illegal and void ab initio to the extent it encumbers the interest held by the plaintiff in the subject premises from 02.09.1991. Hence consequential amendments are sought to be made in the plaint pertaining to the rights of the plaintiff. The prayer clause is also sought to be amended seeking a decree of declaration against the defendant that the mortgages including the mortgage deeds which have been executed in favour of the banks is void and illegal to the extent that it encumbers any right title and interest of the plaintiff in the subject premises. Another application filed by the plaintiff is IA No.5173 2021 which is IA Nos.5173 2021 & 5174 2021 in CS(COMM) 189 2020 under Order 1 Rule 10 CPC which seeks to implead the banks and the financial institutions as defendants No.2 to 7. I have heard learned counsel for the plaintiff and learned senior counsel for the defendant. 10. The learned counsel for the plaintiff has vehemently urged that the mortgages carried out by the defendant in favour of financial institutions i.e. the proposed defendants No.2 to 7 came to the knowledge of the plaintiff only after filing of the present suit. It is pleaded that in terms of the license agreement the defendant had no right to mortgage the interest of the plaintiff. It is further stated that under the license agreement the defendant could only have mortgaged the property for construction purposes at best and not for any other purpose. The construction however of the building was completed in 1980’s and no such mortgage could be carried out thereafter. Hence it is urged that consequential reliefs have to be sought in the present suit and hence the present application. Reliance is placed on the judgments of the Supreme Court Kasturi v. Iyyamperumal & Ors. 2005SCC 733 and Ma Shwe Mya v. Maung Po Hnaung AIR 1922 PC 249. 11. Learned senior counsel appearing for the defendants have pointed out The mortgage in question was carried out in 1980’s. There is no challenge to the said mortgage in the present suit. The same cannot be as follows: permitted now. It is further stated that the plaintiff has no right against the banks and financial institutions. Hence the present amendment application does not lie. It is further stated that in any case the prayer of the plaintiff for declaration of relief and rights in the suit property have to first be adjudicated before IA Nos.5173 2021 & 5174 2021 in CS(COMM) 189 2020 any relief can be claimed against the proposed defendants No.2 to 7. It is only after the plaintiff is successful in claiming any rights in the property that the issue of adjudication of the rights of the third parties would arise. It is further urged that there is an arbitration clause in the agreement between the parties and hence this suit is liable to be stayed. An appropriate application has been filed by the defendant. Reliance is placed on the judgment of Supreme Court in the case of Deccan Paper Mills Company Ltd. v. Regency Mahavir Properties & Ors. 2021SCC 786. In rejoinder learned counsel for the plaintiff has pointed out that the mortgages were carried out sometime in the year 2012. In fact defendants have failed to provide full details of the mortgage. The same does not pertain to 1980’s when construction took place. No details are given by the defendant. IA No.5174 2021 I will first deal with the above IA under Order 6 Rule 17 CPC. I may note that the suit is presently at the initial stages. The defendants have opposed the present suit and have filed an application under Section 8 of the Arbitration and Conciliation Act seeking stay dismissal of the present proceedings. It is the case of the plaintiff that subsequent to the filing of the suit they have learnt about the creation of the mortgages by the defendant of the property claimed by the plaintiff with proposed defendants No. 2 to 7. The plaintiff claims that the mortgages carried out by the defendants are illegal and void to the extent that they affect the alleged rights of the plaintiff in the suit property. Defendants deny the said contention of the plaintiffs stating that under the terms of the agreement between the parties they have a right to IA Nos.5173 2021 & 5174 2021 in CS(COMM) 189 2020 create the mortgage. It is further stated that the mortgages were carried out long back and plaintiff has failed to carry out any challenge to the said mortgages. Other pleas are also raised. It is settled law that at the time of carrying out amendments to the pleadings the merits and demerits of the proposed amendments are not to be gone into. 17. Reference in this context may be had to the judgement of the Supreme Court in Rajesh Kumar Aggarwal and Ors. vs. K.K. Modi and Ors. AIR 2006 SC 1647 where the court held as follows: “19. While considering whether an application amendment should or should not be allowed the Court should not go into the correctness or falsity of the case in the amendment. Likewise it should not record a finding on the merits of the amendment and the merits of the amendment sought to be incorporated by way of amendment are not to be adjudged at the stage of allowing the prayer for amendment. This cardinal principle has not been followed by the High Court in the instant case.” 18. Hence at this stage it is not for this court to go into the correctness and falsity of the case as is sought to be made out in the amendments. In this context reference may also be had to the judgment of the Supreme Court in the case of Revajeetu Builders and Developers vs. Narayanaswamy and Sons & Ors 10 SCC 84. The Supreme Court held as follows: “63. On critically analyzing both the English and Indian cases some basic principles emerge which ought to be taken into consideration while allowing or rejecting the application for amendment: 1) Whether the amendment sought is imperative for IA Nos.5173 2021 & 5174 2021 in CS(COMM) 189 2020 proper and effective adjudication of the case 2) Whether the application for amendment is bona fide or mala fide 3) The amendment should not cause such prejudice to the other side which cannot be compensated adequately in terms of money 4) Refusing amendment would in fact lead to injustice or lead to multiple litigation 5) Whether the proposed amendment constitutionally or fundamentally changes the nature and character of the case and 6) As a general rule the court should decline amendments if a fresh suit on the amended claims would be barred by limitation on the date of application. These are some of the important factors which may be kept in mind while dealing with application filed under Order VI Rule 17. These are only illustrative and not exhaustive.” In my opinion the proposed amendments are bona fide. The proposed amendments are necessary and proper for complete adjudication of the dispute between the parties. In the absence of such additions to the plaint the plaintiff would not be in a position to get full relief as is being sought. Merely getting relief from the court as presently sought may not constitute sufficient relief for the plaintiff. If the plaintiff were to succeed this court would pass appropriate declaration declaring that the plaintiffs have rights in the property have an irrevocable license in their favour. However if any such relief is granted by this court it would be otiose in view of the fact that IA Nos.5173 2021 & 5174 2021 in CS(COMM) 189 2020 the property already stands mortgaged to the proposed defendants No.2 to 7. In view of the above the present application is allowed. IA. No.5173 2021 21. As noted above this application is filed under Order 1 Rule 10 CPC seeking to implead the proposed defendants No.2 to 7 to the plaint. It is the case of the plaintiff that the defendant has subsequent to the filing of the suit mortgaged the entire property including the rights claimed by the plaintiff in the present suit to banks financial institutions being proposed defendants No.2 to 7. Hence the present application to implead defendants No.2 to 7. In this context reference may be had to the judgment of the Supreme Court in the case of Kasturi v. Iyyamperumal & Ors. 189 2020 on 21.07.2020 it was vehemently pleaded by the defendant that there exists mortgages on the suit land and that no right of ownership lease or license in perpetuity can be created in favour of the third parties licensees unless the mortgagees are impleaded as parties. It was further pleaded that suit is bad for non joinder of the necessary and proper parties. This court in its judgment dated 21.07.2020 had noted the said pleas of the defendant. Relevant portion of the said judgment dated 21.07.2020 reads as follows: “87.At this stage it will also be appropriate to note the objection of the defendant that since there exists mortgages on the suit land no right of ownership lease or license in perpetuity can be created in favour of the third parties licensees unless the mortgagees are not impleaded as parties. Therefore the suit is bad for non joinder of the necessary parties. ........”. 26. Clearly in view of the pleas taken by the defendant in court it does not now lie for them to plead that the proposed defendants No.2 to 7 are not necessary or proper parties. They cannot be permitted to resile from the submissions made before the Co ordinate Bench of this court when the same matter was argued in the first round. 27. Accordingly the present application is allowed. Defendants No.2 to 7 are impleaded to the present suit. CS(COMM) 189 2020 Amended plaint if not filed be filed within ten days. Thereafter issue notice to the newly impleaded defendants No. 2 to 7 returnable for SEPTEMBER 15 2021 v JAYANT NATH J. IA Nos.5173 2021 & 5174 2021 in CS(COMM) 189 2020 Page 10 of

If offence is proven in both case and counter case judicial officer is required to trial both cases together – Madras High Court

“As rightly pointed out by the learned Additional Public Prosecutor , the police standing order is a guidelines for the investigating officer how to conduct investigation, particularly, when there is a case and case in counter, it is not necessarily one complaint must be accepted and other must be rejected and there can be only one charge.” These were stated by the single bench of Honourable Mr. Justice Dr. G. Jayachandran in the case of T.Nagaraj v. State through Inspector of Police The petitioner herein T.Nagaraj is a practicing Advocate and member of the Bar Association, Tuticorin. The second respondent R.Jeyapal, aged about 72 years, is also an Advocate and member of the Bar Association, Tuticorin. On 22.02.2017 at about 10.10 a.m., the second respondent/defacto complainant and his son Aldrin Marshal went to the Bar Association building and abused the petitioner in filthy language and questioning him how the absconding accused can come to bar and started attacking the petitioner with iron rod. He was intimidated by them that he will face death if he come to the Court Complex. The advocates, who were in the Bar Association room, rescued the petitioner and sent him to Tuticorin Government Hospital. On intimation from the Government Hospital, the first respondent police received the complaint from the petitioner and registered a case against Jeyapaul, his son Aldrin Earmarshal and Subbu Muthuramalingam for the offences under Sections 341, 294(b), 323 and 506(ii) IPC. In this case, the complaint of the petitioner herein has been investigated and final report has already been filed against the second respondent and two others in C.C.No.121 of 2019 on the file of the learned Judicial Magistrate, Aruppukottai. A unique submission made by the learned counsel for the petitioner that the language used under Section 294(b) IPC is whoever to the annoyance of others does any obscene act in any public place, or sings, recites or utters any obscene song, ballad or words, in or near any public place. When there is no public within the bar association room, the alleged utterance made by the petitioner herein will not fall under the definition of Section 294(b) IPC. This submission is extension of the arguments that the bar association is not a public place. The said argument is nothing but the manifestly erroneous assumption in the minds of a few advocates that they are above all laws and they are immune from all laws. It is not necessary when annoyance caused all present there should jointly give the complaints, it is sufficient if any one among there can set law in motion. Thus, the single bench of Honourable Mr. Justice Dr. G. Jayachandran dismissed this Criminal Original petition by stating  complaint of the second respondent, which has been investigated and completed against the petitioner herein and taken on file as C.C.No.122 of 2019 by the learned Judicial Magistrate, Aruppukottai has to be tried together with the case registered, investigated and charge sheeted by the first respondent and now transferred, renumbered and taken on file as C.C.No.121/2019 by the learned Judicial Magistrate. Since the final report against the petitioner herein has not only made out, a case to be tried for offence under Section 294(b) IPC., but also under 506(i) IPC.

Crl.O.P(MD)No.134817BEFORE THE MADURAI BENCH OF MADRAS HIGH COURTDATED : 13.12.2021CORAM:THE HONOURABLE MR.JUSTICE DR.G.JAYACHANDRANCrl.O.P(MD)No.134817andCrl.M.P(MD)Nos.9082 & 90817T.Nagaraj... Petitioner Sole Accused vs 1.State through Inspector of Police South Police Station Tuticorin and 506(i) of IPC. since the complaint is not maintainable. 2. The brief facts of the case as found in this quash petition: The petitioner herein T.Nagaraj is a practicing Advocate and member of the Bar Association Tuticorin. The second respondent R.Jeyapal aged about 72 years is also an Advocate and member of the Bar Association Tuticorin. On 22.02.2017 at about 10.10 a.m. the second respondent defacto complainant and his son Aldrin Marshal went to the Bar Association building and abused the petitioner in filthy language and questioning him how the absconding accused can come to bar and started attacking the petitioner with iron rod. He was intimidated by them that he will face death if he come to the Court Complex. The advocates who were in the Bar Association room rescued the petitioner and sent him to Tuticorin Government Hospital. On intimation from the Government Hospital the first respondent police received the complaint from the petitioner 2 14 https: www.mhc.tn.gov.in judis Crl.O.P(MD)No.134817and registered a case against Jeyapaul his son Aldrin Earmarshal and Subbu Muthuramalingam for the offences under Sections 341 294(b) 323 and 506(ii) IPC. 3. About the same occurrence the said Jeyapaul the second respondent herein has forwarded the complaint to the Principal District Judge Tuticorin stating that when he and his son were entering into the Court Complex Nagarajwas sitting on a table in the Bar Association office room and was writing seeing him Jeyapaul reported to the other members of the Bar and asked how the accused in an attempt to murder case can come to Bar Association. Hearing this Nagaraj bounced on him saying he came to Bar Association only to murder him and used abusing language against him which has caused shame and mental torture. Therefore Jeyapaul had sought protection to carry on his profession. 4. This complaint was received by the Principal District Judge Tuticorin and has forwarded to the police at 2.45 p.m. The final report filed in this complaint is now sought to be quashed in this petition. 3 14 https: www.mhc.tn.gov.in judis Crl.O.P(MD)No.1348175. While the complaint of Nagaraj received in the hospital premises was registered as Cr.No.1417 the subsequent complaint of Jeyapal forwarded through the Principal District Judge Tuticorin was registered in Cr.No.1417 for offence under Sections 506(i) and 294(b) IPC. From the complaint of the said Nagaraj which is the basis for registration of Cr.No.1417 it is stated that there is previous enmity between the said Jeyapal and Nagaraj regarding the boycotting of Courts and on 30.11.2016 his complaint was registered against the petitioner herein in Cr.No.1416 alleging an attempt to murder of Jeyapaul and in that case Nagaraj applied for anticipatory bail and the petition is pending. While so his visit to Bar Association Tuticorin on 22.02.2017 has triggered the fight between Nagaraj the petitioner herein and the Jeyapal the second respondent. 6. The respondent police having taken up both the complaint for investigation had filed final report against the petitioner herein in C.C.No.1517 and as against the second respondent and two others in Cr.No.1517. 7. In view of the transfer petition filed by the second respondent herein the case is now transferred to the learned Judicial Magistrate Aruppukottai from the 4 14 https: www.mhc.tn.gov.in judis Crl.O.P(MD)No.134817learned Judicial Magistrate No.I Tuticorin vide a common order passed by this Court in Crl.O.P(MD)No.203 and 7618 dated 22.02.2019. 8. In the present petition to quash the proceedings against the petitioner who is the sole respondent in Cr.No.1417 taken on file in C.C.No.1517 by the learned Judicial Magistrate No.I Tuticorin and transferred and renumbered as C.C.No.1219 on the file of the learned Judicial Magistrate Aruppukottai would submit that the statement of witnesses specifically admit that the alleged occurrence has taken place inside the Bar Association building and therefore it will not fall within the meaning of definition of public place to attract offence under Section 294(b) IPC. Further it is contended that the ingredients for the offence under Section 506(i) IPC also not made out either in the complaint or in the 161(3) Statement of the witnesses. The investigating officer has not followed the Police Standing Order related to the case and case in counter. 9. The complaint of the second respondent lodged belatedly is only to counterblast the complaint of the petitioner who sustained injury and got 5 14 https: www.mhc.tn.gov.in judis Crl.O.P(MD)No.134817admitted in the hospital. As per the judgment of this Court rendered in Crl.O.P.No.56020 dated 26.08.2020 when there is a case and case in counter the investigating officer should conduct the investigation impartially and one case which is true to be concluded with filing of final report and other false case has to be dropped as mistake of fact whereas the respondent police has filed two final reports. 10. Relying upon the said judgment the learned counsel for the petitioner would submit that there cannot be two final reports for the same incident. 11. This Court totally disagree with the above proposition of law canvassed by the learned counsel for the petitioner and reason will be stated later. 12. As far as Section 294(b) IPC is concerned the learned counsel for the petitioner took all pain to strain is nerves to impress upon this Court that three necessary ingredients to attract Section 294(b) IPC lacks in the present case and therefore the final report is liable to be quashed. According to the counsel the three ingredients for 294(b) IPC arethe alleged occurrence must be in a public 6 14 https: www.mhc.tn.gov.in judis Crl.O.P(MD)No.134817place.the word uttered must be obscene in the presence of others Such occurrence must cause annoyance to others who are present. 13. Referring the dictionary meaning of the preposition “of” and the word “public place” the learned counsel for the petitioner would submit that the Bar Association Room is not a public place. The complaint alleging annoyance to others must be by general public and not by individual the expression annoyance ought to have been sustained by the complainant as well as the witnesses who alleged to have been present at the time of occurrence. 14. The learned counsel for the petitioner would state that neither in the complaint nor in 161(3) Statement of the witnesses specifically mentioned the word uttered by the petitioner caused annoyance. Therefore in the absence of ingredients to attract Section 294(b) IPC the final report is unsustainable. For the better appreciation of the submission made by the learned counsel for the petitioner Section 294(b) IPC is extracted below: 294: whoever to the annoyance of others:Does any obscene act in any public place7 14 https: www.mhc.tn.gov.in judis Crl.O.P(MD)No.134817(b) Sings recites or utters any obscene song ballad or words in or near any public place shall be punished with imprisonment of either description for a term which may extend to three months or with fine or with both”. 15. The place of occurrence according to the prosecution as found in the rough sketch enclosed along with the final report indicates that it is the Bar Association room is abutting the common passage. 16. The complaint of the second respondent reveals that when he questioned the presence of the petitioner in the Bar room the petitioner said he has come to the bar only to kill him and started abusing him with degrading words. This has been corroborated and endorsed by the other witnesses like Aldrin Earmarshal and Kavaskarrajan.17. Further more on perusing the complaint given by the petitioner herein which he cannot now deny this Court find that he admits the interception by the second respondent and his son questioning his visit to the bar room being an 8 14 https: www.mhc.tn.gov.in judis Crl.O.P(MD)No.134817absconding accused in an attempt to murder case. He was rescued by the other advocates were present there. Now looking at Section 294(b) IPC to attract the said section any utterance of word made annoyance of others or near any public place shall be punished imprisonment of either description for a term which may extend to three months or with fine or with both.18. In the instant case it is alleged in the complaint that the obscene words uttered by the petitioner herein in the bar association room which is to be considered as common public place. Bar room can be decided only as a public place since it is within the court campus. The ingredients of Section 294(b) IPC is squarely attracted.19. Bar Association space are provided to the Advocates by the Court for their convenience to meet their clients. There cannot be any exclusivity or privacy for them to call it as a private place. In certain pronouncement of Court while dealing with the expression public place viz. a viz. legislation like NDPS Act or Motor Vehicles Vct the words public place interpreted in the context of the said legislation the judgment rendered in respect of those legislation and 9 14 https: www.mhc.tn.gov.in judis Crl.O.P(MD)No.134817definition under those legislation cannot be telescoped into IPC when an intend of legislation is to prosecute the offences affecting the public health safety convenience decency and morals under chapter XIV of IPC. 20. A very unique submission made by the learned counsel for the petitioner that the language used under Section 294(b) IPC is whoever to the annoyance of others does any obscene act in any public place or sings recites or utters any obscene song ballad or words in or near any public place. When there is no public within the bar association room the alleged utterance made by the petitioner herein will not fall under the definition of Section 294(b) IPC. This submission is extension of the arguments that the bar association is not a public place. The said argument is nothing but the manifestly erroneous assumption in the minds of a few advocates that they are above all laws and they are immune from all laws. It is not necessary when annoyance caused all present there should jointly give the complaints it is sufficient if any one among there can set law in motion. 21. The other contention that in a case and case in counter the investigating officer has not followed the police standing order is not a appealing 10 14 https: www.mhc.tn.gov.in judis Crl.O.P(MD)No.134817ground to quash the proceedings. As rightly pointed out by the learned Additional Public Prosecutor the police standing order is a guidelines for the investigating officer how to conduct investigation particularly when there is a case and case in counter it is not necessarily one complaint must be accepted and other must be rejected and there can be only one charge. In law if offence is made out in both the case and case in counter the investigating officer is bound to file his final report in both cases and the judicial officer would try both the case jointly and decide the veracity of the witnesses. 22. In this case the complaint of the petitioner herein has been investigated and final report has already been filed against the second respondent and two others in C.C.No.1219 on the file of the learned Judicial Magistrate Aruppukottai. 23. The complaint of the second respondent which has been investigated and completed against the petitioner herein and taken on file as C.C.No.1219 by the learned Judicial Magistrate Aruppukottai has to be tried together with the case registered investigated and charge sheeted by the first respondent 11 14 https: www.mhc.tn.gov.in judis Crl.O.P(MD)No.134817and now transferred renumbered and taken on file as C.C.No.121 2019 by the learned Judicial Magistrate. Since the final report against the petitioner herein has not only made out a case to be tried for offence under Section 294(b) IPC. but also under 506(i) IPC. 24. With the above direction this Criminal Original petition is dismissed. Consequently connected miscellaneous petitions are closed. 13.12.2021Index : Yes NoInternet : Yes NoamNote :In view of the present lock down owing to COVID 19 pandemic a web copy of the order may be utilized for official purposes but ensuring that the copy of the order that is presented is the correct copy shall be the responsibility of the advocate litigant concerned.12 14 https: www.mhc.tn.gov.in judis Crl.O.P(MD)No.134817To1.The Inspector of Police South Police Station Tuticorin.2.The Judicial Magistrate No.I Tuticorin.3.The Additional Public Prosecutor Madurai Bench of Madras High Court Madurai.13 14 https: www.mhc.tn.gov.in judis Crl.O.P(MD)No.134817DR.G.JAYACHANDRAN J.amCrl.O.P(MD)No.13481713.12.202114 14

Section 15 of the Mines and Mineral (Development & Regulation) Act, 1957 is exclusively reserved to the State Government and the State Government : Jammu and Kashmir High Court

In the exercise of the power to frame statutory rules in respect of minor minerals, has already promulgated the statutory rules in terms of SRO 105 of 2016 in the matter of allotment of leases and licenses of minor minerals in the Union Territory of Jammu and Kashmir. This was held in the judgment passed by a single judge bench comprising of HON’BLE MRS. JUSTICE SINDHU SHARMA, in the matter M/s New J.K. Roadways V. Union Territory of J&amp;K and others. [CMAM No. 34/2014], dealt with an issue where the petitioner filed a petition challenging the e-auction notices issued by the District Mineral Officers of different Districts. The grievance of the petitioner is that the Ministry of Mines, Government of India has come up with detailed guidelines issued purportedly under Section 20A of Mines and Mineral (Development &amp; Regulation) Act, 1957 which clearly provide pre-embedded clearances before putting the mineral blocks to e-auction process.  Learned counsel appearing for the petitioner, contended that all e-auction notices issued by the respondents are bad in the eyes of law as the pre-embedded clearances as mandated by the Government of India have not been obtained before initiating e-auction process. The petitioner has neither participated in those e-auction, nor has he raised any grievance, as is projected in the writ petition before any authority. Confronted with the aforesaid position, learned counsel for the petitioner placed reliance on the communication of the J&amp;K Pollution Control Board to contend that the matter had been taken at the relevant point of time with the Board. A perusal of the communication of the Board made it abundantly clear that the grievance which the petitioner has now projected in this writ petition was never agitated before any authority including the Board. The Board vide its communication appears to have responded to the representation of the petitioner regarding the role of the Board in the matter of mining operations. The Board clarifies that for any type of mining activity, not only the environmental clearance from the competent authority is required, but consent to establish and consent to operate from the Board under Water (Prevention and Control of Pollution) Act 1974 and Air (Prevention and Control of Pollution) Act, 1981 is also a sine quo non.  No other document, letter or communication was brought to the notice of the Court by the learned counsel for the petitioner which could demonstrate the bona fide of the petitioner with regard to raising of the grievance on the first available opportunity. No explanation has been tendered to justify the wait of about three weeks for challenging the e-auction notices. The process of e-auction appears to have proceeded further and is stated to be at the stage of finalization. After hearing both sides, the Hon’ble High Court of Jammu and Kashmir dismissed the petition and held that the petition filed by the petitioner lacks bona fide and, therefore, this Court is not inclined to exercise its discretionary power vested under Article 226 of the Constitution. Click here to view judgement

Sr. No. 1 HIGH COURT OF JAMMU AND KASHMIR CM 2123 2020 in WP(C) 950 2020 CM 2124 2020 Cav 581 2020 PetitionerSuhail Ahmad Khan Through : Mr. S.A.Naik Sr. Advocate with Mr. Shabir Ahmed Advocate Union Territory of J&K and others Through : Mr. F.A.Natnoo AAG On video Conference Voice Call from residence) Coram:HON’BLE MR. JUSTICE SANJEEV KUMAR JUDGE Mr. F.A.Natnoo learned AAG appears for the caveators. Caveat stands Cav 581 2020 discharged. CM 2124 2020 This is an application seeking extension of time for annexing the requisite Court fee along with attested affidavits. For the reasons mentioned in the application it is allowed. 2 WPC 950 2020 WP(C) 950 2020 The petitioner is aggrieved and has challenged the e auction notices issued by the District Mineral Officers of different Districts on 27.05.2020 28.05.2020 29.05.2020 30.05.2020 and 01.06.2020 etc. The grievance of the petitioner is that the Ministry of Mines Government of India has come up with detailed guidelines issued purportedly under Section 20A of Mines and Mineral Act 1957 which clearly provide pre embedded clearances before putting the mineral blocks to e auction process. Learned counsel appearing for the petitioner therefore contends that all e auction notices issued by the respondents are bad in the eyes of law as the pre embedded clearances as mandated by the Government of India have not been obtained before initiating e auction process. Having heard learned counsel for the petitioner and perused the record I am of the view that the petitioner has no cause to maintain this petition. As noted above most of the e auction notices were issued on 27.05.2020 28.05.2020 and 30.05.2020 and one or two e auction notices have also been issued on 01.06.2020. The petitioner has neither participated in those e auction nor has he raised any grievance as is projected in the writ petition before any authority. Confronted with the aforesaid position learned counsel for the petitioner placed reliance on the communication of the J&K Pollution Control Boardissued vide its No. PCB LSJ PS 20 738 dated 05.06.2020 to 3 WPC 950 2020 contend that the matter had been taken at the relevant point of time with the 07 A perusal of the communication of the Board dated 05.06.2020 makes it abundantly clear that the grievance which the petitioner has now projected in this writ petition was never agitated before any authority including the Board. The Board vide its communication dated 05.06.2020 appears to have responded to the representation of the petitioner regarding the role of the Board in the matter of mining operations. The Board clarifies that for any type of mining activity not only the environmental clearance from the competent authority is required but consent to establish and consent to operate from the Board under Water Act 1974 and Air Prevention and Control of Pollution) Act 1981 is also a sine quo non. No other document letter or communication has been brought to the notice of this Court by the learned counsel for the petitioner which could demonstrate the bona fide of the petitioner with regard to raising of the grievance on the first available opportunity. No explanation has been tendered to justify the wait of about three weeks for challenging the e auction notices. The process of e auction appears to have proceeded further and is stated to be at the stage of It is at this point of time the petitioner for reasons not forthcoming from the petition has approached this Court to somehow stall the e auction of minor minerals undertaken by the Union Territory of J&K. Even a look at the order of Ministry of Mines Government of India dated 03.06.2020 laying down the guidelines for e auction of mineral blocks with pre embedded clearances for mining projects makes it clear that the States and the Union Territories have 4 WPC 950 2020 been enjoined to identify at least five mineral blocks for e auction with pre embedded clearances which would be e auctioned along with other mineral blocks. It further provides that based on the experience from e auction of the identified mineral blocks on pilot basis further steps will be taken towards mainstreaming the concept of auction with pre embedded clearances as per National Mineral Policy 2019 approved by the Cabinet. Suffice it to notice that these guidelines were issued by the Ministry of Mines in terms of Section 20A of the Act only on 03.06.2020 while as the impugned e auction notices had already been floated. The identification of five mineral blocks for e auction with pre embedded clearances may have to be resorted to by the respondents in the next auctions in terms of the communication of the Ministry of Mines dated 03.06.2020 and would not apply to the process which was already set in motion by issuing the impugned e auction notices prior to coming into operation of the guidelines aforesaid. Otherwise also the petition filed by the petitioner lacks bona fide and therefore this Court is not inclined to exercise its discretionary power vested under Article 226 of the Constitution. That apart the communication dated 3.06.2020ex facie applies to the minerals only and may not comprehend within its ambit the „minor minerals‟ which expression is separately defined under Section 3of the Act. It is also pertinent to note that in terms of Section 15 of the Act the power to frame statutory rules in respect of minor minerals is exclusively reserved to the State Government and the State Government in the exercise of aforesaid power has already promulgated the statutory rules in terms of SRO 105 of 2016 which is being followed by the respondents in the matter of allotment of 5 WPC 950 2020 leases and licences of minor minerals in the Union Territory of Jammu and Kashmir. Ministry‟s guidelines issued in terms of Section 20A of the Act can at the most treated to be instructions to remodel their Rules on the lines For the foregoing reasons I find no merit in this writ petition. The same suggested in the guidelines. is accordingly dismissed. Jammu 29.06.2020 SANJEEV KUMAR) JUDGE Whether the order is speaking: Yes. Whether the order is reportable: Yes No.

Non-examination of all witnesses by the prosecution shall create a reasonable doubt, holding the accused not guilty: High Court of Calcutta

If there are two witnesses to an incident, and they have not been produced and examined in the court of law by the prosecution, it will give rise to a reasonable doubt thereby acquitting the accused, This was decided in the case of Soumik Roy  vs State of West Bengal [CRA 546 of 2017]  by Hon’ble Justice Bibek Chaudhari  in the High Court of Calcutta. The appeal of this case was filed against an order passed by the Additional Sessions Judge convicting the appellant under Section 2- 354A/376 of the Indian Penal Code and sentencing him to suffer rigorous imprisonment for one year for the offence under Section 354A of the Indian Penal Code. The original facts of the case are that the victim was a patient who had gone to a medical centre to get an X-ray. One technician (the appellant in this case) came to the room and closed the door. Then he inserted his finger in her rectum after which he left and the woman informed her husband that ultimately led to the police complaint. The contention of the appellant is that the prosecution failed to produce the statement made before the police at the first instance immediately after the occurrence and the written statement of the defacto complainant which is treated by the police as FIR is not as FIR. It is only a statement made by her under Section 161 of the Code of Criminal Procedure. The other contention was that there were infirmities in the evidence of the victim lady which is why it cannot be taken as the solitary foundation for the conviction of the appellant. Also, it was stated that the prosecution failed to examine witnesses during the court proceedings. The most important contention that was put forth by the appellant was that when two plausible views with regard to an incident are forthcoming, the court shall accept the version that supports the accused and the accused would have been acquitted from the ‘charge on benefit of doubt’. Taking in view all the above reasons, the court noted down relevant cases like the Ramakant Rai vs. Madan Rai &amp; Ors. (2002) 12 SCC 395 where it was held “Law cannot afford any favour other than the truth and to constitute reasonable doubt, it must be free from any over emotional response. Doubts must be actual and substantial doubts as to the guilt of the accused persons arising from the evidence or from the lack of it, as opposed to mere vague apprehensions. A reasonable doubt is not an imaginary, trivial or a merely possible doubt, but a fair doubt based upon reason and common sense. It must grow out of the evidence in the case.” Relying upon this case, it was held that “It is a well-known and well followed principle in criminal jurisprudence that the prosecution is under obligation to prove the guilt of the accused beyond reasonable doubt. In this case the accused has clearly mentioned the presence of two more people in the X-ray room at the time of conducting X-ray of the de facto complainant. The said witnesses confirmed the fact that no such incident took place in the X-ray room in their presence.” The court categorically said that The criminal justice system does not need the prosecution to prove absolute guilt of the accused but when there are two eye witness presented before the court who accepted their presence and claimed that no such event had taken place on that day and the prosecution failed to cross examine them and raise a doubt about credibility of their evidence, then there is an actual doubt present in this situation as to whether the incident actually took place or not.

IN THE HIGH COURT AT CALCUTTA CRIMINAL APPELLATE JURISDICTION APPELLATE SIDE The Hon’ble JUSTICE BIBEK CHAUDHURI CRA 5417 With CRAN 17CRAN 17CRAN 20Soumik Roy Vs State of West Bengal For the Appellants: Mr. Milan Mukherjee Sr. Adv. For the State: Ms. Kabita Mukherjee Adv. Mr. Manas Dasgupta Adv. Mr. Biswajit Manna Adv. Mr. Swapan Banerjee Adv. Mrs. Purnima Ghosh Adv. Heard on: January 21 2021. Judgment on: March 5 2021. BIBEK CHAUDHURI J. : The instant appeal is directed against the judgment and order of conviction dated 31st August 2017 and 1st September 2017 respectively passed by the learned Additional Sessions Judge 5th Court at Howrah in Sessions Trial Case No.216 convicting the appellant under Section 354A 376 of the Indian Penal Code and sentencing him to suffer rigorous imprisonment for one year for the offence under Section 354A of the Indian Penal Code and also to suffer rigorous imprisonment for seven years and to pay fine of Rs.5000 in default to suffer a further rigorous imprisonment for six months for the offence under Section 376 of the Indian Penal Code. The appellant has assailed the judgment and order of conviction and sentence passed by the trial court on the ground that the prosecution failed to produce the statement made before the police at the first instance immediately after the occurrence and the written statement of the defacto complainant which is treated by the police as FIR is not as FIR but a statement made by her under Section 161 of the Code of Criminal Procedure and this being the position the so called FIR is hit by Section 162 of the Code of Criminal Procedure. Secondly there are infirmities in the evidence of the victim lady. Though the testimony of the prosecutrix could be acted upon and be the basis of conviction without being corroborated in material particulars if her testimony is trustworthy and free from infirmities there are infirmities in the oral evidence of the prosecutrix and therefore it cannot be taken as the solitary foundation for the conviction of the appellant. Thirdly the prosecutrix went to have an X ray of her waist in a diagnostic centre at Bally in the district of Howrah. For the purpose of conducting X ray she wore a gown provided to her by the diagnostic centre. The appellant was a technician of X ray department of the said diagnostic centre. As a technician he naturally touched the victim lady corrected her posture and position on the X ray table and the victim lady might think that she was inappropriately touched. There is absolutely no evidence to show that the victim lady was sexually harassed or she was revised by the appellant when the appellant allegedly inserted his finger inside the vagina of the victim lady. Fourthly some employees of the said diagnostic centre were examined by the Investigating Officer and they were cited as witnesses in the charge sheet on behalf of the prosecution. During trial however the prosecution failed to examine those witnesses. The said witnesses deposed as defence witnesses and stated that they were present at the time of conducting X ray of the waist of the victim lady and the appellant did not commit any offence as alleged by her. The learned trial judge failed to appreciate the evidence adduced by the defence in proper perspective and convicted the appellant only on the basis of sole testimony of the prosecutrix. It is also urged by the learned Counsel for the appellant that when two plausible views with regard to an incident are forthcoming the court shall accept the version that supports the accused and the accused would have been acquitted from the charge on benefit of doubt. On the above grounds the judgment and order of conviction passed by the learned trial judge is under challenge in the instant appeal. Let me now state the salient facts of the case: That on 11th January 2015 at about 8.45 hours the defacto complainant and her husband went to LASCO Medicare Centre at Bally for X ray of her waist. Before conducting X ray one lady staff of the said diagnostic centre helped the defacto complainant to wear the X ray gown and then she left the place closing the door of the X ray room. Then a technician laid the defacto complainant down on the X ray table for X ray of her waist. At that time he touched her breast and then turned her on the opposite side and inserted his finger into her rectum. There was no other person except the defacto complainant and the said technician in the X ray room at that time. After her X ray being done she came out from the X ray room and informed the incident to her husband. Then they called her family members over phone and also informed the police. Police came there and took the said technician to custody. Subsequently the defacto complainant came to know the name of the appellant. On the basis of the said complaint police submitted charge sheet against the appellant under Section 345A 376 of the Indian Penal Code. The case was committed the Court of Sessions. Subsequently it was transferred to the 5th Court of the learned Additional Sessions Judge Howrah for trial. The accused appellant pleaded not guilty when the charge was framed and read over and explained to him. During trial prosecution examined six witnesses. Amongst them defacto complainant deposed as PW1 and PW2 is her husband. PW3 is the Medical Officer attached to T.L Jaiswal Hospital. He conducted Medico Legal Examination of the defacto complainant and prepared a report which was marked as exhibit 2 1 during trial of the case. PW4 is a close relative of the defacto complainant. PW5 is a seizure witness and PW6 is the Investigating Officer of Bally P.S Case No.15 which was registered on the basis of written complaint filed by the prosecutrix. 8. Mr. Milan Mukherjee learned Senior Counsel on behalf of the appellant submits that from the written complaint it is found that after her X ray was done the defecto complainant came out from the X ray room and informed her husband that the technician laid her down on the X ray table and touched her breast and inserted his finger in her rectum. Thereafter he inserted his finger in her vagina twice. After narrating the incident to her husband she called her family members to the said diagnostic centre over phone. Then she informed the incident to Bally Police Station over phone. Police came to the said diagnostic centre and took the appellant to the police station. Subsequently she came to know that the name of the said technician is Soumik Ray who committed the offence upon the defacto complainant. Showing the contents of the FIR it is submitted by Mr. Mukherjee that the defacto complainant first informed the matter to the police over phone. Acting on such phone call police came and took the appellant to the police station. As per rule of business it is the bounden duty of the Police Officer to record the information which they received over phone from the defacto complainant in the GD Book maintained by the police station. The said GD Book has not been produced during trial of the case. It is therefore not possible for the court to ascertain as to whether the said telephonic call was a cryptic information about the incident or a detailed statement of the said incident. If the telephonic version contained detailed information about the incident such information ought to have treated as the FIR and the statement which was considered as FIR and on the basis of which Bally P.S Case No.15 was registered should be treated not as FIR but a statement of the defacto complainant made under Section 161 of the Code of Criminal Procedure. It is further pointed out by the learned Senior Counsel for the information made by the defacto complainant must be held to be detailed information about the incident because acting on such information police came to the said diagnostic centre and took the appellant to the police station. Thus it is contended by Mr. Mukherjee that the prosecution withheld the first information made by the defacto complainant to the police immediately after the occurrence over telephone. The concerned GD Book was not placed during trial of the case and only on this ground the appellant is entitled to get the benefit of doubt. It is further submitted by Mr. Mukherjee the learned Senior Counsel that the victim defacto complainant is a married lady aged about 41 years at the relevant point of time. From the sketch map it is ascertained that there are series of rooms in a row in the said diagnostic centre where different diagnostic works of the other patients were being conducted. Had it been the fact that the appellant inappropriately touched the private parts of the defacto complainant it was very natural for her to raise alarm but she did not shout at the time of occurrence. She did not tell the incident to any other person of the said diagnostic centre. The investigation officer examined other employees of the said diagnostic centre and recorded their statement under Section 161 of the Code of Criminal Procedure but the said witness were not examined by the prosecution. They were however examined as DW1 and Dw2 by the defence. DW1 Smt. Kalpana Bhowmick stated in her evidence that on 11th January 2015 during the X ray of defacto complainant she along with the appellant and one Prosenjit Malick were all along present in the X ray room. The husband of the defacto complainant was also present at the time of conducting her X ray in the X ray room. Prosenjit Malick deposed in this case as DW2. At the relevant point of time he was posted as Senior Radiographer at LASCO Medical. The appellant used to work at the relevant point of time as a junior technician under DW2. On 11th January 2015 DW2 the appellant and a lady of attendant namely Kalpana Bhowmick were present inside the X ray room at the time of conducting X ray of the defacto complainant. Her husband was also present in the X ray room. It is submitted by Mr. Mukherjee that there is no reason to disbelieve the evidence of DW1 and DW2. From their evidence it is ascertained that at the time of X ray of the defacto complainant they were present in the X ray room. Thus it was not possible for the appellant to commit such offence in presence of other members of staff in the X ray room. 12. Even assuming but not admitting that the defacto complainant had felt that the appellant touched her body inappropriately or that he inserted finger into her vagina it might so happen that the appellant had to touch her to help her to lie down on the X ray table in correct position and posture for taking perfect X ray image of her waist. There is also no reason to disbelieve the evidence of DW1 and DW2. Thus when two views are forthcoming regarding the incident it was the duty of the court to accept the view that was in favour of the accused because in such case the accused was entitled to get benefit of doubt. 13. Learned P.P in Charge on the other hand has supported the finding of the learned trial judge and submits that there is no infirmity in the finding arrived at by the learned trial judge and the instant appeal is liable to be dismissed. 14. Having heard the learned Counsels for the appellant and the respondent and on perusal of the entire materials on record as well as the judgment delivered by the learned trial judge I like to state at the outset that depending on the facts of the case it could be clearly stated that the police arrested the appellant before the official complain was lodged on the basis of a telephonic information made by the defacto complainant after the incident. The learned Senior Counsel for the appellant tried to impress upon me that non production of the relevant GD Book is fatal for the prosecution because had the GD Book been produced it might have been found that the said telephonic information was actually the first information report recorded by the police officer in the GD Book. However in the case of Lalita Kumari vs. Government of U.P reported in2 SCC 1 the Hon’ble Supreme Court held that the absence of GD will not vitiate the FIR. It may at best be treated as a lapse on the part of the prosecution but the merit of the case would be determined on the basis of the evidence adduced by the witnesses during trial of the case. In the case of Ramsin Bavaji Jadeja vs. State of Gujarat reported in MANU SC 0670 1994 the Supreme Court laid down that if the telephonic message is cryptic in nature and the officer in charge proceeds to the place of occurrence on the basis of that information to find out the details of the nature of the offence itself then it cannot be said that the information which had been received by him on telephone shall be deemed to be First Information Report. The object and purpose of giving such telephonic message is not to lodge the First Information Report but to request the officer in charge of the police station to reach the place of occurrence. On the other hand if the information given on telephone is not cryptic and on the basis of that information the officer in charge is prime facie satisfied about the commission of a cognizable offence and he proceeds from the police station after recording such information to investigate such offence then any statement made by any person in respect of the said offence including about the participants shall be deemed to be a statement made by a person to the police officer “in the course of investigation” covered by Section 162 of the Code of Criminal Procedure. That statement cannot be treated as First Information Report. But any telephonic information about commission of a cognizable offence irrespective of the nature and details of such information cannot be treated as First Information Report. 16. Again in Damodar vs. State of Rajasthan reported MANU SC 0726 2003 the Supreme Court has observed that even when the telephone message is not cryptic and on the basis of information the officer in charge of the police station is prima facie satisfied about the commission if a cognizable offence and he proceeds from the police station after recording such information to investigate such offence then any statement made by any person in respect of the said offence including about the participants shall not be deemed to be a statement made by a person to the police officer in the course of investigation covered by Section 162 of the Code of Criminal Procedure. In the instant case it is found from the FIR as well as evidence of defacto complainant that she informed the incident to the local police over phone and on the basis of such information police came to the said diagnostic centre and took the appellant to the police station. There is no cross examination to the defacto complainant on the point as to whether she made detailed report over phone to the police officer or not. 18. Prosecution case cannot be disbelieved altogether and thrown away on the ground that no relevant GD Book was produced by the prosecution. Relying on the ratio laid down in Damodareven if a telephonic information discloses commission of cognizable offence which led the police to rush to the PO such information might not be treated as FIR. In the instant case Bally P.S Case No.15 was registered on the basis of the written complaint submitted by the defacto complainant. So the said written complaint is the FIR and the learned trial judge did not take any wrong decision while treating the said written complaint as FIR of this case. It is a well known and well followed principle in criminal jurisprudence that the prosecution is under obligation to prove the guilt of the accused beyond reasonable doubt. In this case the accused has clearly mentioned the presence of two more people in the X ray room at the time of conducting X ray of the defacto complainant. They are Kalpana Bhowmik and Prasenjit Malik 7 SCC 56 was pleased to hold that the doubts would be called reasonable if they are free from a zest for abstract speculation. Law cannot afford any favour other than the truth and to constitute reasonable doubt it must be free from any over emotional response. Doubts must be actual and substantial doubts as to the guilt of the accused persons arising from the evidence or from the lack of it as opposed to mere vague apprehensions. A reasonable doubt is not an imaginary trivial or a merely possible doubt but a fair doubt based upon reason and common sense. It must grow out of the evidence in the case. This principle is also laid down in the case of Ramakant Rai vs. Madan Rai & Ors. reported in12 SCC 395. 20. The criminal justice system does not need the prosecution to prove absolute guilt of the accused but when there are two eye witness presented before the court who accepted their presence and claimed that no such event had taken place on that day and the prosecution failed to cross examine them and raise a doubt about credibility of their evidence then there is an actual doubt present in this situation as to whether the incident actually took place or not. 21. Last but not the least I have already recorded that the victim lady was accompanied by her husband to the diagnostic centre for X ray of her waist on the date and time of occurrence. When the alleged offence was committed upon her she did not raise any alarm. Even she did not make any objection against the alleged act of the appellant. She silently allowed the offence to be committed upon her. Only after she came out from the X ray room she told the incident to her husband. What was very natural and probable for them at that juncture is first to make a complaint against the appellant to the management of the said diagnostic centre. However without making such complaint to the management of the said diagnostic centre she informed the matter to her family members and then to the police. 22. By not examining the members of staff of the said diagnostic centre who were examined during investigation by the Investigating Officer the prosecution tried to suppress the truth behind the incident. In view of such circumstances I am not in a position to affirm the judgment and order of conviction and sentence passed against the appellant by the learned Additional Sessions Judge 5th Court at Howrah in Sessions Trial Case No.216. 24. Accordingly the instant appeal is allowed on contest however without costs. 25. Accordingly the judgment and order of conviction and sentence passed by the learned Additional Sessions Judge 5th Court Howrah in Sessions Trial Case No.216 against the appellant is set aside. 26. The appellant is acquitted from the charge under Sections 354A 376 IPC set at liberty and released from the bail bond. 14 27. Let a copy of this judgment be sent to the learned trial court along with lower court record. Bibek Chaudhuri J.)

Bald assertions and allegations cannot be the basis of passing directions: High court of Punjab and Haryana

A single judge passed an order on the 2nd of may 2021 where he dismissed a mandamus under article 226 of the Indian Constitution read with section 482 Cr.P.C. “Saving of inherent powers of High Court” to be directed towards the official respondents to make the required enquiry regarding the matter and to register an FIR against the officials of the Municipal committer and as well as the contractor who was given work through tender and the consequential work being of low quality. Since the prayer was dismissed, the appellant challenged the order before this high court. This judgment and final order were given in the high court of Punjab and Haryana at Chandigarh on the 19th of July 2021 by Hon’ble justice Augustine George Mashih and Hon’ble Mr. Justice Ashok Kumar Verma in the case of Vikram Singh vs. the State of Haryana and others C.M. No. 1465-2021 &amp; LPA-592-2021. According to the counsel for the appellant based on the fact that the appellant is an RTI activist (Right to Information act), he sought certain information regarding the allegations made in the writ petition about the fraud made by the contractor in connivance with the officials of the municipal committee, Kalayat. Based on the information he gathered from the residents of that area that a low-grade material has been used to carry out the work which was assigned to the contractor. Allegations have been made that the contractor failed to fulfill the requisite criteria which were laid down for a tenderer to be eligible for consideration, however, forged and fabricated documents have been appended. The payment for the work has also been made to the contractor without following the norms in connivance with the officials of the municipal committee. Therefore, due to the above accusation, the appellant claims that the order passed by the single judge cannot sustain as he dismissed the writ petition, the appellant prayed before the court to direct the respondents to take necessary action in accordance with the law. The court after hearing the case stated that they have gone through the records and the order passed by the single judge but have not found any grounds for interfering with the impugned order however with regard to the eligibility of the contractor as well as the execution of the work in pursuance to the allotted tender the court held that the appellant made no objection to this matter. Now regarding the substandard quality of the products which has been used in the execution of the work which was allotted to the contractor through the tender after investigation no order of any authority or report of any laboratory shows the substandard use of material.

on 21 07 IN THE HIGH COURT OF PUNJAB AND HARAYANA AT CHANDIGARH106 C.M. No. 1465 2021 & LPA 592 2021Date of decision:19.07.2021VIKRAM SINGH...APPELLANTVs. STATE OF HARYANA AND OTHERS...RESPONDENTSCORAM:HON BLE MR. JUSTICE AUGUSTINE GEORGE MASIHHON BLE MR. JUSTICE ASHOK KUMAR VERMAPresent:Mr. Yashdeep Nain Advocate for the appellant. AUGUSTINE GEORGE MASIH J.C.M. No. 1465 2021Prayer in this application is for condonation of delay of 18 daysin filing the present appeal.Keeping in view the averments made in the application whichis supported by the affidavit of the applicant appellant the presentapplication is allowed. Delay of 18 days in filing the present appeal standscondoned. LPA 592 2021 This intra Court appeal has been preferred by the appellant petitioner challenging the order dated 02.03.2021 passed by the learnedSingle Judge wherein writ petition preferred under Article 226 of theConstitution of India read with Section 482 Cr. P.C. for issuance of amandamus directing the official respondents to enquire into the matter andthereafter to register an FIR against the erring officials of the MunicipalCommittee Kalayat as well as the contractor who was assigned the workthrough a tender as it is asserted that the issuance of the tender and the on 21 07 LPA 592 20212 consequential work which has been done being of low quality indicatesconnivance of the officials of the Municipal Committee Kalayat standsdismissed.Learned counsel for the appellant submits that the appellant is aRTI activist and on this basis he has sought information with regard to theallegations made in the writ petition on the basis of which he had assertedbefore the Court in the writ petition about the fraud having been played bythe contractor in connivance with the officials of the Municipal Committee Kalayat. His submission is that a low grade material has been used forcarrying out the work assigned to the contractor which was complained ofby the residents of the area. Allegations have also been made that thecontractor who was allotted the work did not fulfil the requisite criterialaid down for a tenderer to be eligible for consideration. Forged andfabricated documents have been appended relating to the experience of thecontractor. Payment has also been made to the contractor without followingthe norms in connivance with the officials of the Municipal Committee. He therefore contends that the order passed by the learned Single Judgedismissing the writ petition cannot sustain. Prayer has thus been made forsetting aside the said order and for remanding the case back to the learnedSingle Judge for fresh decision or for directing the respondents to take anappropriate action in accordance with law.We have considered the submissions made by the learnedcounsel for the appellant and with his assistance have gone through therecords of the case as well as the judgment of the learned Single Judge butdo not find any ground for interfering with the said impugned order.It is not in dispute that the matter with regard to the eligibility on 21 07 LPA 592 20213 of the contractor who had been allotted the contract as well as the executionof the work in pursuance to the allotted tender would be a purelycontractual obligation and governed by the terms and conditions thereof.The appellant has no connection or concern with the same as at the timewhen the work was allotted to the contractor no objection whatsoever wasraised by the appellant. Now what has been sought to be projected is thesubstandard quality of the products which have been used in execution ofthe work which was allotted. No order of any competent authority or reportof any laboratory has been placed on record to show the substandard use ofmaterial.As regards the allegations of fraud and connivance of theofficials of the Municipal Committee is concerned again there is noevidence to that effect. In the absence of these aspects interference by thisCourt while exercising its extraordinary writ jurisdiction is uncalled for.Bald assertions and allegations cannot be made the basis for passingdirections which may be prayed for by a person who has approached thisCourt.In view of the above the present appeal being devoid of meritstands dismissed.(AUGUSTINE GEORGE MASIH) JUDGE JUDGEJuly 19 2021pjWhether speaking reasoned:Yes NoWhether Reportable:Yes No

Re-examination of a witness u/s311 CRPC-Not to be denied only because case is not covered u/s138 Evidence Act-criteria u/s311 CRPC different than criteria for Sec-138 Evidence Act.- High Court of Punjab and Haryana.

Re-examination of a witness u/s311 CRPC-Not to be denied only because case is not covered u/s138 Evidence Act-criteria u/s311 CRPC different than criteria for Sec-138 Evidence Act.- High Court of Punjab and Haryana. Section 311 of CrPC defines the “Power to summon material witness, or examine person present”. Any Court may, at any stage of any inquiry, trial or other proceeding under this Code, summon any person as a witness, or examine any person in attendance. The landmark judgement passed by the single bench of HON’BLE JUSTICE RAJBIR SEHRAWAT in BHUPINDER KAUR VS STATE OF PUNJAB (CRM-M-38052-2013(O&amp;M)) dealt with the issue mentioned above. In this case the petitioner’s son goes missing, Who was forced to live separately from petitioner by his in laws (wife’s parents) the accused in this case was his son’s father in law who was found last with the victim (son), The petitioner approached the police station after several trial of finding his son, but the police officer denied to register her complain. The petitioner approached the court and then FIR got registered but no action was taken after that. During   trial the portion alleged by the petitioner in the FIR, had not come in her deposition, the petitioner moved an application under Section 311 CrPC for permitting her to be re-examined. This application was dismissed by the trial Court. Therefore, the present revision petition has been filed. The learned counsel for the petitioner mentioned that mentioned that she had disclosed the sequence of the facts before the trial Court a the petitioner being a widowed lady of old age, who had lost her only son had not properly understood the import of deposition made by her, objection raised by the public prosecutor and the effect of omission in her deposition. The interest of justice would be severely impaired and further contended by the counsel for the petitioner that the trial Court has totally misunderstood inter se import of Section 311 CrPC and Section 138 of the Indian Evidence Act. Therefore, the trial Court has considered only Section 138 of the Indian Evidence Act. The learned counsel for the state contended submitted that the trial Court has rightly dismissed the application and stated that examination-in-chief and the cross-examination are absolute and there is nothing in her cross-examination which requires her to be re-examined as per Section 138 of the Indian Evidence Act. Hence, the present petition deserves to be dismissed The Hon’ble court analyzed the facts of the present case and the arguments of both the parties and opined that “this Court finds that the trial Court has dismissed the application filed by the petitioner merely on the ground that the case of the petitioner is not covered under Section 138 of the Indian Evidence Act. This is not correct application of Section 311 CrPC by the trial Court. The trial Court is primarily concerned with arriving at the truth about the facts in issue. Therefore, the parameters for exercising powers under Section 311 CrPC. are well defined. the petition is allowed. The trial Court is directed to grant one effective opportunity to the petitioner to get herself re-examined.”

on 24 01 CRM M 38052 2013(O&M) 1 206 IN THE HIGH COURT OF PUNJAB AND HARYANA ATCHANDIGARH CRM M 38052 2013Date of decision: 16.01.2019Bhupinder Kaur ...PetitionerVersusState of Punjab and others ...RespondentsCORAM: HON BLE MR. JUSTICE RAJBIR SEHRAWATPresent:Mrs. Baljit Mann Advocate for the petitioner.Mr. Rajat Bansal AAG Punjabfor respondent No.1 State.Mr. Lovekirat S. Chahal Advocatefor respondents No.2 and 3.RAJBIR SEHRAWAT J.vide which the application under Section 311 Cr.P.C. filedby the petitioner seeking her re examination as a witness in the trial in caseFIR No.37 dated 13.07.2010 under Sections 365 120 B of IPCat Police Station Phase XI SAS Nagar Mohali(Annexure P 1) has been dismissed.The facts leading to the filing of the present petition are that thepetitioner herein is a widow who had only son namely Gurdeep Singh.The son of the petitioner was married to the daughter of the accused JagbirSingh on 13.11.2008. The accused Jagbir Singh was serving as Sub Inspector in the Punjab Police and was posted at CIA Mohali. However asthe facts unfold the matrimonial aspect between the son of the petitionerand the daughter of the accused Jagbir Singh did not go well. Therefore the on 24 01 CRM M 38052 2013(O&M) 2 accused Jagbir Singh himself got lodged an FIR on 29.05.2009 involvingthe present petitioner and her son with the alleged offences under Sections343 323 506 406 420 34 of IPC and Section 25 of Arms Act at PoliceStation Phase VIII Mohali. However the matter did not stop there.Another FIR was got lodged on 02.06.2009 by Ranjit Kaur the wife of theaccused Jagbir Singh. Feeling pressurized because of these FIRs the petitioner andher son had entered into a settlement with the accused Jagbir Singh and hiswife so that the FIRs could be got quashed. The interesting conditionimposed for settlement of the FIRs was that son of the petitioner namely Gurdeep Singh would leave his widowed mother and would start living withthe accused along with his wife besides paying the other miscellaneousexpenses for settling the FIRs. As a result the son of the petitioner startedliving with the family of the accused Jagbir Singh and the FIRs were gotquashed through petitions filed on the basis of the compromise. However on 03.07.2010 the son of the petitioner came to meether and he had informed the petitioner that he was feeling distressedbecause he had a quarrel with his wife and mother in law the previousnight. But on 04.07.2010 son of the petitioner left the house of thepetitioner complainant. Thereafter he did not return to the petitioner. Shehad made several calls to her son on his mobile phones. At about 1.00 p.m. on 04.07.2010 he said that he would come to meet the petitioner. However thereafter he stopped picking up the calls. After 8.00 p.m. on the sameday the mobile phone of the son of the petitioner was not reachable . Thereafter the petitioner started searching for her son.However she could not get any clue about whereabout of her son. Hence on 24 01 CRM M 38052 2013(O&M) 3 she approached the police on 06.07.2010 and lodged a missing report. Thepolice registered a DDR on the statement of the petitioner in which she hadstated that her son had gone missing and she does not have any clueregarding whereabouts her son. Also she stated that she does not have anysuspicion against anybody. Later on one Satnam Singh met the petitioner and informed herthat on 04.07.2010 itself he happened to have met the son of the petitioner.He was in apparent hurry. When Satnam Singh questioned the son of thepetitioner as to why he was in hurry the later informed that he had beencalled by his father in law. Thereafter son of the petitioner went supposedly to his father in law. Accordingly the petitioner contacted thefather in law his son namely the accused Jagbir Singh. However nosatisfactory reply was given by him. This lead the petitioner to approach thepolice again to make a statement describing all these happenings. Inaddition to these facts the petitioner also disclosed to the police that in themeantime on 03.07.2010 itself the wife of the son of the petitioner namely Jaspreet Kaur had left for USA. It was also disclosed that the petitionerwent to the house of the accused Jagbir Singh to know about the exactsituation however their house was found locked. On the basis of thisgamut of circumstances the petitioner asserted in the statement thataccused Jagbir Singh his daughter Jaspreet Kaur and his wife Ranjit Kaur all three have conspired to eliminate the son of the petitioner. On the basisof this statement the FIR was got registered by the petitioner. However since the dead body of the son of the petitioner was not recovered therefore the case was registered under Sections 365 read with Section 120 B of IPCand Section 364 of IPC added later on. on 24 01 CRM M 38052 2013(O&M) 4 In the meantime one more fact needs to be noted that despitethe petitioner approaching the police the police were not registering theFIR. Therefore the petitioner had to approach the Court of Magistrate underSection 156 Cr.P.C. for getting the FIR registered. Only thereafter the FIRwas registered by the police. However despite the FIR having been registered the policewere neither investigating the case nor any report was filed before the Court therefore the petitioner had to approach the High Court seeking a directionthat the investigation of the case be handed over to some independentagency higher Authorities. This Court ordered that the Special InvestigationTeambe constituted to investigate the case.After investigation of the case the police filed challan againstaccused Jagbir Singh. Regarding the other two accused the SIT hadrepresented before the Court that no evidence sufficient to file report underSection 173 Cr.P.C. was found against Jaspreet Kaur and Ranjit Kaur.Hence no challan was filed against them. The trial of the case started and the statement of the petitionerwas recorded. Besides her the other two witnesses namely Gurjit SinghPW 1 and Rashpal Singh PW 3 were also examined. The statement of theother witnesses duly reflects towards the discord and quarrel between theson of the petitioner and his wife and mother in law. However thepetitioner instead of deposing as to the facts as contained in the FIR shedeposed before the trial Court as per the version given in the DDR whichwas recorded in the first instance. The statements of the witnesses of thepetitioner have also been attached with the petition. A perusal of the statement of the petitioner before the Court on 24 01 CRM M 38052 2013(O&M) 5 also shows that the public prosecutor had raised the objections qua omissionof certain portions which were mentioned in the FIR but which had notcome in the statement of the petitioner made before the Court. The publicprosecutor had sought to get the petitioner declared as a hostile witness.However the trial Court had not accepted the objection and refused todeclare the petitioner as hostile witness. Thereafter the cross examinationof the petitioner was also completed.Finding that the portion regarding the aspect of conspiracyhatched by Jagbir Singh his wife and daughter to eliminate the son of thepetitioner as was alleged by the petitioner in the FIR had not come in herdeposition the petitioner moved an application under Section 311 Cr.P.C.for permitting her to be re examined. This application was dismissed by thetrial Court. Therefore the present revision petition has been filed.While arguing the case learned counsel for the petitioner hassubmitted that she had disclosed the sequence of the facts before the trialCourt and also deposed that she had the suspicion that Jagbir Singh theaccused eliminated her son. However inadvertently she could not includein her examination in chief the aspect which related to the conspiracy of theaccused Jagbir Singh his wife Ranjit Kaur and his daughter Jaspreet Kaur.It is further submitted that the public prosecutor had immediately realizedthis aspect. Therefore even a prayer was made by the public prosecutor thathe be permitted to cross examine the petitioner qua the facts pertaining toconspiracy as mentioned by the petitioner in the FIR. However thatrequest was also declined. Hence it is contended that the petitioner being awidowed lady of old age who had lost her only son had not properlyunderstood the import of deposition made by her objection raised by the on 24 01 CRM M 38052 2013(O&M) 6 public prosecutor and the effect of omission in her deposition. However ifthe aspect of conspiracy is not permitted to be brought on record then theinterest of justice would be severely impaired. Hence it would result in agreat in justice and the trial would be rendered incomplete qua theallegations involved in the case. Therefore the learned counsel for thepetitioner has argued that the application moved by the petitioner whichhas been dismissed by the trial Court be ordered to be allowed. It is further contended by the counsel for the petitioner that thetrial Court has totally misunderstood inter se import of Section 311 Cr.P.C.and Section 138 of the Indian Evidence Act. Therefore the trial Court hasconsidered only Section 138 of the Indian Evidence Act to arrive at aconclusion whether the petitioner should be permitted to be re examined ornot. The consideration as required by Section 311 Cr.P.C. for examinationor re examination of a witness as was prayed for by the petitioner was noteven adverted to by the trial Court. Hence as is clear from the order thetrial Court has not even recorded its satisfaction whether re examination ofthe petitioner would be necessary for the just decision of the case or not. Still further it is contended by the learned counsel for thepetitioner that by any means the petitioner is not introducing any new case.The facts as are sought to be brought on record in the deposition of thepetitioner are already contained in the FIR got registered by the petitioner.Learned counsel for the petitioner has also argued that even the defense hasnot dared to put any question to the petitioner in her cross examination regarding the aspect of conspiracy which was stated by the petitioner in theFIR. Rather to avoid the factum of conspiracy coming on record of the case the defense has not even put the FIR or its contents to the petitioner in her on 24 01 CRM M 38052 2013(O&M) 7 cross examination. Hence in a way the defense has admitted the contentsof FIR qua the conspiracy.On the other hand learned counsel for respondents No.2 and 3has submitted that the first version of the incident is as was given by thepetitioner and contained in the DDR dated 06.07.2010. However in thesaid DDR the names of the answering respondents were not mentioned.There is no allegation of any conspiracy. On the contrary the version asgiven by the petitioner is that she did not know as to where the son of thepetitioner has gone. It is further contended that although in the versiongiven in the FIR on 13.07.2010 the petitioner has tried to introduce thenames of respondents No.2 and 3 however there are no specific allegationsagainst them. In the FIR also the names of respondents No.2 and 3 arementioned only in a passing reference made by the petitioner to the effectthat the respondents No.2 and 3 have also conspired to eliminate the son ofthe petitioner. It is further contended by the learned counsel for respondentsNo.2 and 3 that the examination in chief of the petitioner was recorded on27.09.2012. Despite that she had not deposed anything showing theculpability of respondents No.2 and 3. The petitioner had made a detailedstatement to the Court. The accused had restricted the cross examination ofthe petitioner only qua the case alleged against him. Respondents No.2 and3 were not even present before the Court at the relevant time. Therefore any omission to cross examine the petitioner on any aspect cannot be takenas adverse against respondents No.2 and 3. It is further contended that eventhe SIT constituted pursuant to the order passed by this Court hadexonerated the respondents No.2 and 3. Therefore the application underSection 311 Cr.P.C. has rightly been dismissed by the Court below the same on 24 01 CRM M 38052 2013(O&M) 8 being conjectural in nature.Learned counsel for the State has referred to the reply filed bythe State and submitted that the trial Court has rightly dismissed theapplication. The petitioner was granted ample opportunity to depose freelywhen she was being examined in examination in chief. It is furthercontended that examination in chief and the cross examination are absoluteand there is nothing in her cross examination which requires her to be re examined as per Section 138 of the Indian Evidence Act. Hence thepresent petition deserves to be dismissed. Before proceeding further it would be apposite to refer to theprovisions of Section 311 Cr.P.C. and Section 138 of the Indian EvidenceAct which are as under: Section 311 Cr.P.C.“311. Power to summon material witness or examine personpresent. Any Court may at any stage of any inquiry trial orother proceeding under this Code summon any person as awitness or examine any person in attendance though notsummoned as a witness or. recall and re examine any personalready examined and the Court shall summon and examine orrecall and re examine any such person if his evidence appearsto it to be essential to the just decision of the case.Section 138 of the Indian Evidence Act138. Order of examinations.—Witnesses shall be firstexamined in chief thencross examined thenre examined. The examination and cross examination must relateto relevant facts but the cross examination need not beconfined to the facts to which the witness testified on hisexamination in chief. Direction of re examination.—The re examination shall bedirected to the explanation of matters referred to in cross on 24 01 CRM M 38052 2013(O&M) 9 examination and if new matter is by permission of the Court introduced in re examination the adverse party may furthercross examine upon that matter. ”A perusal of the above provisions makes it clear that theprovision of Section 138 of the Indian Evidence Act is to be pressed intoservice on mere desire of the witness or a party who is examining thewitness. This section is only a rule of evidence and defines the order ofexamination of witness. This Section however provides that in case of suchre examination the same shall be restricted to the additional question whichhave arisen during the cross examination of the witness. Still further thesection provides that if a witness is re examined then such a witness can becross examined by the other side however that can be done only if newmatter is introduced in re examination with the permission of the Court.Therefore this shows that Section 138 has a well defined scope as to whenit is to be invoked and is bounded by parameters specified therein. Thesection can be freely used by the witness or party for re examinationirrespective of the permission of the Court subject to the scope of re examination prescribed by this Section. On the other hand Section 311 Cr.P.C. is a rule of procedure oftrial by a Court and is relating to the discretion of and duty cast upon theCourt. This Section does not give any right as such to any party to movethe Court for calling or recalling of a witness for examination or re examination. However this section gives ample powers to the Trial Courtthat it can call any person as a witness whether in the attendance of theCourt or not. The Court can examine and re examine any witness as itdeems fit. But this Section further casts a duty upon the trial Court that ifsuch evidence appears to be essential for the just decision of the case then 1 on 24 01 CRM M 38052 2013(O&M) 10 the trial Court shall be duty bound to call such person to appear as a witnessin examination or re examination as the case may be. Therefore Section311 Cr.P.C. is mainly relating to the discretion of the Court in one part anda duty caste upon the trial Court in the second part. The common strainrunning through both the parts of Section 311 Cr.P.C. is the just decision ofthe case and the interest of justice that would be served if any such witnessis examined or re examined by the Court. The above explained scope of Section 311 Cr.P.C. and Section138 of the Indian Evidence Act makes it clear that there is absolutely noover laping between the two sections. Merely because the case of a party isnot covered under Section 138 of the Indian Evidence Act would not be anyground to debar such a party or witness to move an application underSection 311 Cr.P.C. The provision of Section 311 Cr.P.C. is independentand irrespective of Section 138 of the Indian Evidence Act. While applying its mind on the aspect of permittingexamination or re examination of a witness under Section 311 Cr.P.C. thetrial Court need not restrict itself to enquire into an aspect whether such re examination has become necessary because of some facts coming in cross examination or not as is required under Section 138 of Indian Evidence Act.The sole criteria for exercising power vested under Section 311 Cr.P.C. isthe interest of justice and the necessity of such examination or re examination for just decision of the case. If any other element is introducedwhile exercising power under Section 311 Cr.P.C. then it would not beunjustified to say that there is a material irregularity in exercise power bythe trial Court. Applying the above said propositions of law to the facts of the 1 on 24 01 CRM M 38052 2013(O&M) 11 present case this Court finds that the trial Court has dismissed theapplication filed by the petitioner merely on the ground that the case of thepetitioner is not covered under Section 138 of the Indian Evidence Act. Thisis not correct application of Section 311 Cr.P.C. by the trial Court. ThisCourt agrees with the submissions made by learned counsel for thepetitioner that while exercising power under Section 311 Cr.P.C. in thepresent case the trial Court has not even adverted to the criteria which isrequired to be taken into consideration as per the mandate under Section 311Cr.P.C. Learned counsel for the petitioner has rightly pointed out that thetrial Court has not even recorded its satisfaction that re examination of thepetitioner is not required for just decision of the case or that it is not in theinterest of justice to permit her to get re examined. Therefore this Courtfinds that the order passed by the trial Court is not as per the mandate theprovision of Section 311 Cr.P.C. Although the learned counsel for the respondents hassubmitted that the trial Court has observed in the impugned order that theexamination in chief is detailed one and the petitioner had the ampleopportunity to depose against respondents No.2 and 3 in examination in chief and cross examination still she has not deposed therefore she did notdeserve to be granted any opportunity to re examine herself. However thisCourt finds that there is no such observation by the trial Court. The trialCourt has only given details of the statement made in examination in chiefby the petitioner and it is observed that the statement of the petitioner hasrestricted the case to the allegations against the accused Jagbir Singh andshe has carried forward the same stand in cross examination. After theseobservation the trial Court has again taken the case towards the scope of 1 on 24 01 CRM M 38052 2013(O&M) 12 Section 138 of the Indian Evidence Act instead of deciding it as per thecriteria required under Section 311 Cr.P.C. Otherwise also on this aspect this Court does not find any forcein the arguments of learned counsel for the respondents No.2 and 3 becauseof two reasons: Firstly the cross examination of the petitioner was not ather discretion. The questions during the cross examination were chosen bythe defense. The petitioner was only being honest while answering thequestions straightway as per the law. Hence she had not gone to volunteerand disclose these facts in the cross examination for which she is nowbefore the Court in an application under Section 311 Cr.P.C. This restrictionof the petitioner only to the questions asked during the cross examinationreflects upon the simpleton nature of the petitioner. Secondly the trial Courthas also not taken note of the fact that the examination in chief of thepetitioner was not unquestioned. As mentioned above the objection of thepublic prosecutor qua omission qua the part of conspiracy had immediatelycome on record. However that objection was over ruled by the trial Court.This had effectively prevented the full facts coming on record of the case which can now be brought on record only through re examination of thepetitioner. Be that as it may the criminal prosecution of an accused is thefunction of the public penal law the offence being a conduct of the accusedagainst the society as such. It is only for this reason that the absolutediscretion is given to the courts to examine or re examine any witness as itdeems fit to arrive at a just decision. Therefore mere fact that in the firstinstance the part of conspiracy was omitted while disposing in examination in chief cannot be a reason or criteria for declining an application moved 1 on 24 01 CRM M 38052 2013(O&M) 13 under Section 311 Cr.P.C. The ultimate test which the trial Court wasrequired to apply was whether the statement which the petitioner now wantsto make is necessary for just decision of the case or not. Needless to saythat the application under Section 311 Cr.P.C. cannot be declined by thetrial Court even if the same is allegedly intended to fill up the lacuna left inthe case of the prosecution. Any supposed lacuna which is pleaded by thedefense and which is allegedly sought to be filled up by the witness istotally irrelevant for the purpose of power to be exercised under Section311 Cr.P.C. The trial Court is primarily concerned with arriving at the truthabout the facts in issue. Therefore the parameters for exercising powersunder Section 311 Cr.P.C. are well defined that it may be exercised in acase where it appears to Court to be necessary in the interest of justice andthis power is bound to be exercised by the Court when the same is necessaryfor the just decision of the case. Hence this Court finds that the dismissal of the application bythe Court below is not as per the standards of law as prescribed undersection 311 Cr.P.C. In ordinary course the matter should have been remanded tothe trial Court for fresh decision on application under Section 311 Cr.P.C.However this Court finds that the case pertains to the year 2010. Evenbefore this Court the present petition is pending since 2013 and theproceedings before the trial Court are stayed since then even qua the mainaccused. Therefore this Court does not consider it appropriate to remit thematter to the trial Court for the limited purpose of re decision on theapplication under Section 311 Cr.P.C. Rather keeping in view the fact thatthe factum which the petitioner intends to bring on record now through re 1 on 24 01 CRM M 38052 2013(O&M) 14 examination already find mentioned in the FIR and Section 311 Cr.P.C. isnot invoked for the purpose of introducing any new fact and coupled withthe fact that the accused respondent shall be having full opportunity tocross examine on these aspect once again this Court deems it appropriatethat the present petition be allowed and the trial Court be directed to permitthe petitioner to get herself re examined in the trial. Although there may becertain aspects which may positively reflect in favour of the petitioner tobring her case clearly within requirements of Section 311 Cr.P.C. however this Court has refrained from expressing any opinion on any aspectwhatsoever lest it should effect the case of the accused or either of theparties.In view of the above the petition is allowed. The trial Court isdirected to grant one effective opportunity to the petitioner to get herself re examined. The defense shall also be entitled to consequently cross examine the petitioner.(RAJBIR SEHRAWAT) JUDGE16.01.2019hemlataWhether speaking reasoned :YesNoWhether Reportable :YesNo

Privilege granted to the Petitioner by the police under Section 41A of the Code gives the petitioner benefit of merits: High Court Of Patna

Alleged of lifting the soil and sand of the land illegally the petitioner took the merits of the case as he was allowed by the authorities as per Section 41A of the code. The court allowed the plea and disposed of the matter. The Hon’ble High Court of Patna before Justice Mr. Ahsanuddin Amanullah in the matter Pintu Kumar and others v. The State of Bihar[Criminal Miscellaneous No. 37763 of 2020].  The facts of the case were that the petitioner was apprehended arrest in connection to a case instituted under Sections 379 of the Indian Penal Code and 379 of the Mines and Minerals (Development and Regulation ) Act, 1957. It was alleged that the petitioners who are the driver and owner of the vehicle have lifted the sand of the field illegally.  Though learned counsel for the petitioners submitted that he has a good case on merits in that CCTV footage of the scene of the occurrence would indicate that the petitioners’ tractor was in a queue waiting for the challan from the contractor and that this false case was instituted due to a parking dispute, the police have granted the pleadings because they found substance in the petitioners’ stand during their investigation. In light of the foregoing, skilled counsel suggested that he be allowed to drop the current petition and return to the Court if there is apprehension or likelihood of their arrest in the current matter in the future. Because such material was not known to him at the time of the filing of the current petition, learned counsel argued that it was not expressed, but the Court may record his argument. The Learned Additional Public Prosecutor found no sort of act of suppressing the matter on merits and asked the court to consider the plea. The Hon’ble High Court Of Patna held,” Having considered the facts and circumstances of the case and submissions of learned counsel for the parties, the Court finds the stand taken by learned counsel for the petitioners to be reasonable. Since, as of now, there is no apprehension of arrest as the agency which could affect such arrest i.e., the police itself has granted the privilege of Section 41A of the Code, as prayed for by learned counsel for the petitioners, the present petition stands disposed of off as withdrawn with liberty to again move this Court in future, if there is genuine apprehension of the arrest of the petitioners in connection with the present case.”

IN THE HIGH COURT OF JUDICATURE AT PATNA CRIMINAL MISCELLANEOUS No. 377620 Arising Out of PS. Case No. 261 Year 2020 Thana HISUWA District Nawada Pintu Kumaraged about 38 years Son of Late Ram Lakhan Prasad Singh Resident of Village Mohalla Dasturpar Daruara PS Noorsarai Rajesh Kumar aged about 45 years Son of Krishnandan Singh Resident of Village Mohalla Dasturpar Daruara PS Noorsarai District The State of Bihar ... Petitioner s For the Petitioner s For the State Mr. Arun Kumar Advocate Mr. Dashrath Mehta APP CORAM: HONOURABLE MR. JUSTICE AHSANUDDIN AMANULLAH ... Opposite Party s ORAL JUDGMENT Date : 23 07 2021 The matter has been heard via video conferencing. 2. Heard Mr. Arun Kumar learned counsel for the petitioners and Mr. Dashrath Mehta learned Additional Public Prosecutorfor the State 3. The petitioners apprehend arrest in connection with Hisua PS Case No. 2620 dated 10.08.2020 instituted under Sections 379 of the Indian Penal Code and 379 of the Mines and MineralsAct 1957. 4. The allegation against the petitioners who are the owner and driver of the tractor in question is of lifting sand Patna High Court CR. MISC. No.377620 dt.23 07 2021 5. Learned counsel for the petitioners submitted that though on merits he has a good case inasmuch as the CCTV footage of the place of occurrence would indicate that the petitioners’ tractor was in a queue waiting for the challan from the contractor and due to there being some dispute relating to parking this false case has been instituted but since the police during investigation have found substance in the stand of the petitioners they have themselves granted the petitioners the privilege under Section 41A of the Code of Criminal Procedure 1973 (hereinafter referred to as the ‘Code’). Thus learned counsel submitted that in view of the aforesaid he may be permitted to withdraw the present petition with liberty to again move the Court if in future there is apprehension or likelihood of their arrest in the present case. Learned counsel submitted that since such information was not available with him at the time of filing of the present petition it has not been stated but the Court may record his submission 6. Learned APP submitted that since the petitioners are not pressing the matter on merits the Court may consider the plea 7. Having considered the facts and circumstances of the case and submissions of learned counsel for the parties the Court finds the stand taken by learned counsel for the petitioners to be reasonable. Since as of now there is no apprehension of arrest as Patna High Court CR. MISC. No.377620 dt.23 07 2021 the agency which could effect such arrest i.e. the police itself has granted the privilege of Section 41A of the Code as prayed for by learned counsel for the petitioners the present petition stands disposed off as withdrawn with liberty to again move this Court in future if there is genuine apprehension of arrest of the petitioners in connection with the present case (Ahsanuddin Amanullah J

No compromise can be done for offences u/s 377 IPC and POCSO Act against small children: Delhi High Court

Offences u/s 377 of the Indian Penal Code and POCSO Act are heinous/grave and the FIR for the same cannot be quashed merely on the grounds of compromise between the parties. Delhi High Court gave the judgment in the case of Sunil Raikwar vs. State &amp; others [CRL M.C 186 of 2021] headed over by the bench of Hon’ble Justice Subramonium Prasad. In the above-cited case, the petitioner had filed a petition for quashing FIR filed against him for the offences charged u/s 377 of IPC and u/s 4 of Protection of Children from Sexual Offences (POCSO). The respondent in the case had filed the FIR against the petitioner alleging that the petitioner sodomized his 7 years old son. In the further investigation, it was observed that there was enough material evidence to prove the charges against the petitioner under IPC and POCSO Act. Later on, an instant petition was filed by the parties to quash the FIR against the petitioner on the ground that due to the intervention of elders of the society and friends, the parties have decided to amicably put an end to the disputes and differences. Respondents agreed to let go of the petitioner despite his wrong doings and made an affidavit stating the same. Referring to the case of State of Maharashtra v. Vikram Anantrai Doshi &amp; Ors. (2014) 15 SCC 29), High Court bench stated that offences u/s 377 IPC and u/s 4 of POCSO Act are non-compoundable and for quashing the criminal proceedings under said act, scanning of the entire facts must be done to find out the thrust of allegations and the crux of the settlement. Court held that merely on the facts of compromise between the parties, FIR cannot be quashed for non-compoundable offences. HC contended that even though u/s 482 CrPC gives the power to quash the proceedings for non-compoundable offences but in the present case, such power cannot be exercised because it involves heinous offence and mental depravity which is not private in nature but affects the entire society. HC stated that “While exercising its powers, the High Court is to examine as to whether the possibility of conviction is remote and bleak and continuation of criminal cases would put the accused to great oppression and prejudice and extreme injustice would be caused to him by not quashing the criminal cases”. The court observed that in the decision of whether FIR should be quashed in the criminal proceedings or not, that too on the grounds of compromise between the parties, it revolves around the facts and circumstances of each case and no exhaustive elaboration of principles can be formulated. While giving the judgment in the case, HC stated that the petitioner had been accused of offences under IPC and POCSO Act and the victim was a 7-year-old child, and the offence alleged on the petitioner is grave and heinous. HC contended that “The POCSO Act was enacted only because sexual offences against children were not being adequately addressed by the existing laws and the purpose of the Act was to provide protection to children from sexual assault and sexual harassment and for safeguarding the interest and well being of children. Permitting such offences to be compromised and quashing FIRs will not secure the interest of justice”. The court said that the act done with the child shows the mental depravity of the offender which cannot be excused. Hence, HC gave the judgment that the father of the victim has no right to quash the FIR against the offender because he himself is not the victim and the court has to safeguard and protect the interest of children against the onslaught by bad forces.

IN THE HIGH COURT OF DELHI AT NEW DELHI CRL.M.C. 186 2021 Date of decision: 29th January 2021 ..... Petitioner Through Mr. Amit Gupta Advocate IN THE MATTER OF: SUNIL RAIKWAR THE STATE AND ANR. HON BLE MR. JUSTICE SUBRAMONIUM PRASAD SUBRAMONIUM PRASAD J. ..... Respondents Through Ms. Kusum Dhalla APP for the State Mr. Rahul Raheja Advocate for R 2 The petitioner has filed this petition under Section 482 CrPC for quashing FIR No.389 2019 dated 22.11.2019 registered at Police Station Patel Nagar for offences under Section 377 IPC read with Section 4 of the Protection of Children from Sexual Offences Act15 SCC 29). The High Court cannot mechanically quash FIRs for non compoundable offences by exercising powers under Section 482 CrPC just CRL.M.C. 186 2021 because parties have decided to bury their hatchets. It is well settled that the power under Section 482 CrPC is to be distinguished on the powers which lies on the court to compound the offences compoundable under Section 320 of the Code. No doubt under Section 482 of the Code High Court has the power to quash even in those cases which are not compoundable where the parties have settled the matter between themselves but the power has to be exercised fairly and with caution. The Supreme Court in Narinder Singh & Ors v. State of Punjab & Anr reported as6 SCC 466 has observed as 29. In view of the aforesaid discussion we sum up and lay down the following principles by which the High Court would be guided in giving adequate treatment to the settlement between the parties and exercising its power under Section 482 of the Code while accepting the settlement and quashing the proceedings or refusing to accept the settlement with direction to continue with the criminal proceedings: 29.1. Power conferred under Section 482 of the Code is to be distinguished from the power which lies in the Court to compound the offences under Section 320 of the Code. No doubt under Section 482 of the Code the High Court has inherent power to quash the criminal proceedings even in those cases which are not compoundable where the parties have settled the matter between themselves. However this power is to be exercised sparingly and with caution. 29.2. When the parties have reached the settlement and on that basis petition for quashing the criminal proceedings is filed the guiding factor in such cases would be to secure: i) ends of justice or ii) to prevent abuse of the process of any court. CRL.M.C. 186 2021 While exercising the power the High Court is to form an opinion on either of the aforesaid two objectives. 29.3. Such a power is not to be exercised in those prosecutions which involve heinous and serious offences of mental depravity or offences like murder rape dacoity etc. Such offences are not private in nature and have a serious impact on society. Similarly for the offences alleged to have been committed under special statute like the Prevention of Corruption Act or the offences committed by public servants while working in that capacity are not to be quashed merely on the basis of compromise between the victim and the offender. the other hand 29.4. On those criminal cases having overwhelmingly and predominantly civil character particularly those arising out of commercial transactions or arising out of matrimonial relationship or family disputes should be quashed when the parties have resolved their entire disputes among 29.5. While exercising its powers the High Court is to examine as to whether the possibility of conviction is remote and bleak and continuation of criminal cases would put the accused to great oppression and prejudice and extreme injustice would be caused to him by not quashing the criminal cases." Similarly in Parbatbhai Aahir & Ors v. State of Gujarat & Anr reported as9 SCC 641 the Supreme Court has observed as under: 16. The broad principles which emerge from the precedents on the subject may be summarised in the following propositions: 16.1. Section 482 preserves the inherent powers of the High Court to prevent an abuse of the process of any court or to secure the ends of justice. The provision does not confer new powers. It only recognises and preserves powers which inhere in the High Court. CRL.M.C. 186 2021 16.2. The invocation of the jurisdiction of the High Court to quash a first information report or a criminal proceeding on the ground that a settlement has been arrived at between the offender and the victim is not the same as the invocation of jurisdiction for the purpose of compounding an offence. While compounding an offence the power of the court is governed by the provisions of Section 320 of the Code of Criminal Procedure 1973. The power to quash under Section 482 is attracted even if the offence is non compoundable. 16.3. In forming an opinion whether a criminal proceeding or complaint should be quashed in exercise of its jurisdiction under Section 482 the High Court must evaluate whether the ends of justice would justify the exercise of the inherent power. 16.4. While the inherent power of the High Court has a wide ambit and plenitude it has to be exercisedto secure the ends of justice orto prevent an abuse of the process of any court. 16.5. The decision as to whether a complaint or first information report should be quashed on the ground that the offender and victim have settled the dispute revolves ultimately on the facts and circumstances of each case and no exhaustive elaboration of principles can be formulated. 16.6. In the exercise of the power under Section 482 and while dealing with a plea that the dispute has been settled the High Court must have due regard to the nature and gravity of the offence. Heinous and serious offences involving mental depravity or offences such as murder rape and dacoity cannot appropriately be quashed though the victim or the family of the victim have settled the dispute. Such offences are truly speaking not private in nature but have a serious impact upon society. The decision to continue with the trial in such cases is founded on the overriding element of public interest in punishing persons for serious offences. 16.7. As distinguished from serious offences there may be CRL.M.C. 186 2021 criminal cases which have an overwhelming or predominant element of a civil dispute. They stand on a distinct footing insofar as the exercise of the inherent power to quash is concerned. 16.8. Criminal cases involving offences which arise from commercial financial mercantile partnership or similar transactions with an essentially civil flavour may in appropriate situations fall for quashing where parties have settled the 16.9. In such a case the High Court may quash the criminal proceeding if in view of the compromise between the disputants the possibility of a conviction is remote and the continuation of a criminal proceeding would cause oppression and prejudice and 16.10. There is yet an exception to the principle set out in propositions 16.8. and 16.9. above. Economic offences involving the financial and economic well being of the State have implications which lie beyond the domain of a mere dispute between private disputants. The High Court would be justified in declining to quash where the offender is involved in an activity akin to a financial or economic fraud or misdemeanour. The consequences of the act complained of upon the financial or economic system will weigh in the balance." 10. The Supreme Court in Shiji & Ors v. Radhika & Anr reported as 2011) 10 SCC 705 has observed as under: “18. Having said so we must hasten to add that the plenitude of the power under Section 482 CrPC by itself makes it obligatory for the High Court to exercise the same with utmost care and caution. The width and the nature of the power itself demands that its exercise is sparing and only in cases where the High Court is for reasons to be recorded of the clear view that continuance of the prosecution would be nothing but an abuse of the process of law. It is neither necessary nor proper for us to enumerate the situations in which the exercise of power under CRL.M.C. 186 2021 Section 482 may be justified. All that we need to say is that the exercise of power must be for securing the ends of justice and only in cases where refusal to exercise that power may result in the abuse of the process of law. The High Court may be justified in declining interference if it is called upon to appreciate evidence for it cannot assume the role of an appellate court while dealing with a petition under Section 482 of the Criminal Procedure Code. Subject to the above the High Court will have to consider the facts and circumstances of each case to determine whether it is a fit case in which the inherent powers may be In the present case the petitioner has been accused of offences under Section 377 IPC and Section 4 of the POCSO Act. The victim is a small boy of seven years. The offence alleged against the petitioner is grave. The POCSO Act was enacted only because sexual offences against children were not being adequately addressed by the existing laws and the purpose of the Act was to provide protection to children from sexual assault and sexual harassment and for safeguarding the interest and well being of children. Permitting such offences to be compromised and quashing FIRs will not secure the interest of justice. An offence under Section 377 IPC committed on a child of seven years or an offence under Section 4 of the POCSO Act shows the mental depravity of the offender and cannot be said to be private in nature. It has serious impact on the society. 12. The father of the victim cannot be permitted to settle the dispute with the accused. He is not the victim and the courts have to safeguard and protect the interest of children against onslaught by bad forces. We cannot lose sight of the fact that the accused is being prosecuted for an offence that shocks the value system of a society and this is not a matter that can be permitted to be settled as a compoundable minor offence. Deterrence to CRL.M.C. 186 2021 others committing similar offence is a must and they cannot get a signal that anything and everything can be compromised. A perusal of the charge sheet which records the statement of the child given to the investigating officer shows that there is sufficient material to proceed against the petitioner for offences under Section 377 IPC and Section 4 of the POCSO Act. Needless to say that this is only a prima facie reaction and the court trying the case is expected to decide the case without being inhibited by any remarks made hereunder. The court cannot permit quashing of the FIR because the father the victim has decided to enter into a compromise with petitioner accused. 13. This court is desisting from imposing any costs on the parties for filing a petition under Section 482 CrPC for quashing of FIR in respect of a heinous offence against a small child on the ground that the parties have entered into a compromise as it will cause serious prejudice to the rights of the petitioner. 14. Accordingly the present petition is dismissed. JANUARY 29 2021 SUBRAMONIUM PRASAD J. CRL.M.C. 186 2021

Consideration of the matters involving tribal communities would not be complete without a reference to the constitutional provision of the Sixth Schedule.: Meghalaya High Court

Cases between the parties, particularly those who belongs to the Scheduled Tribe community of the State of Meghalaya as far as jurisdiction is concerned, in view of the provision of Paragraphs 4 and 5 of the Sixth Schedule of the Constitution of India, lies with the respective District Council Courts as upheld by the High Court of Meghalaya through the learned bench led by Justice W. Diengdoh in the case of Shri Donbok Buam &amp; 3 Ors. Vs. Superintendent of Police &amp; Anr. and Shri. Donbok Buam Vs. Superintendent of Police &amp; Anr. ( Crl.Rev.P. No. 3 of 2021 with Crl.Rev.P. No. 4 of 2021). A brief background of the case is that a complaint was filed against the Petitioners herein by one Smti Baiamonlang Tariang, which case after investigation culminated in filing of the charge sheet and registration of GR Case and in another complaint against the Petitioner No.1 u/s 506 IPC was instituted before the said Judicial Magistrate, Amlarem. The Petitioners have then preferred an application before the Court of the Deputy Commissioner (Judicial) at Jowai u/s 408 Cr.P.C r/w Rule 2 and 14 of the Khasi Syiemship (Administration of Justice) Rules, 1950, seeking for transfer of the above cases to the District Council Court on the ground that both parties are members of the tribal community of the State of Meghalaya and as such, the District Council Court has exclusive jurisdiction to try cases of this kind. Again, as stated above, the learned Deputy Commissioner (Judicial) vide impugned order had dismissed the respective applications on the ground that no power is vested on the Court of the Addl. Deputy Commissioner to transfer original cases from one criminal court within its jurisdiction to other criminal courts under the jurisdiction of the District Council Court. Mr. E. Nongbri, learned counsel for the Petitioner has submitted that the learned Deputy Commissioner (Judicial) has failed to comprehend the import of the constitutional provision of the Sixth Schedule to the Constitution of India wherein at paragraphs 4 and 5 of the same, it is clearly stipulated that trial of suits and cases between the parties all of whom belonged to Scheduled Tribe within the area of the District Council are to be tried by courts constituted by the said District Council. It was therefore submitted that this Court exercising its jurisdiction under Article 227 of the Constitution of India r/w Section 401 and 407 Cr.P.C may be pleased to set aside the impugned order dated 10.03.2021 and to direct the transfer of the GR case in question to the District Council Court for trial. Mr. T.L. Jyrwa, learned GA for Respondent No. 1 and Ms. P.S. Nongbri, learned counsel for Respondent No. 2 in response to the contention and submission made by the learned counsel for the Petitioner has fairly and candidly conceded that the proposition of law as advanced is correct and that the authorities cited by the learned counsel for the Petitioner are relevant to the subject matter and as such, no strong objection is raised for the impugned order to be set aside and quashed and consequently for transfer of the above GR cases to the District Council Court, Jowai. After the perusal of the facts and arguments by the respective parties, the Hon’ble Court held, “In the light of the above, the impugned order dated 10.03.2021 cannot stand the scrutiny of law and procedure and are liable to be set aside and quashed. Consequently, the petitions in question are hereby allowed and the learned Additional Deputy Commissioner(Judicial), Jowai is hereby directed to transfer the cases of the Petitioner(s) to the Court of the Judge, District Council Court, Jowai who will then proceed to dispose of the same or endorse the cases to any Court of competent jurisdiction.”

Serial No. 01 Regular List HIGH COURT OF MEGHALAYA AT SHILLONG Crl.Rev.P. No. 21 with Crl.Rev.P. No. 21 Date of Decision: 25.11.2021 Shri Donbok Buam & 3 Ors. Shri. Donbok Buam Vs. Superintendent of Police & Anr. Vs. Superintendent of Police & Anr. Hon’ble Mr. Justice W. Diengdoh Judge For the Petitioner Appellant(s) For the Respondent(s) i) Whether approved for reporting in Law journals etc.: Mr. E. Nongbri Adv. Mr. T.L. Jyrwa GA. Ms. R. Colney GA. for R 1. Ms. P.S. Nongbri Adv. for R 2. ii) Whether approved for publication in press: The issue involved in these two cases is one in the same that is with regard to trial of cases before the District Council Court where both parties belongs to the tribal community of the State of Meghalaya. Therefore it is deemed convenient to take up these cases and to pass a common order. The grievance of the Petitioners is that the learned Addl. Deputy CommissionerWest Jaintia Hills Jowai on an application filed by the Petitioners for transfer of a criminal case being GR Case No. 218 referred to in Crl.Rev.P. No. 21 and GR Case No. 418 referred to in Crl.Rev.P. No. 4 of 2021 from the court of the learned Judicial Magistrate Amlarem Sub Division to the District Council Court Jowai the learned Addl. Deputy Commissioner vide order dated 10.03.2021 in both cases has rejected the prayer made. Hence these petitions. A brief background of the case is that a complaint was filed against the Petitioners herein by one Smti Baiamonlang Tariang which case after investigation culminated in filing of the charge sheet and registration of GR Case No. 218 u s 477 188 34 IPC and in another complaint against the Petitioner No.1 herein being GR Case No. 43 of 2018 u s 506 IPC was instituted before the said Judicial Magistrate Amlarem. The Petitioners have then preferred an application before the Court of the Deputy Commissionerat Jowai u s 408 Cr.P.C r w Rule 2 and 14 of the Khasi SyiemshipRules 1950 seeking for transfer of the above cases to the District Council Court on the ground that both parties are members of the tribal community of the State of Meghalaya and as such the District Council Court has exclusive jurisdiction to try cases of this kind. Again as stated above the learned Deputy Commissioner Judicial) vide impugned order had dismissed the respective applications on the ground that no power is vested on the Court of the Addl. Deputy Commissioner to transfer original cases from one criminal court within its jurisdiction to other criminal courts under the jurisdiction of the District Council Court. 5. Mr. E. Nongbri learned counsel for the Petitioner has submitted that the learned Deputy Commissioner has failed to comprehend the import of the constitutional provision of the Sixth Schedule to the Constitution of India wherein at paragraphs 4 and 5 of the same it is clearly stipulated that trial of suits and cases between the parties all of whom belonged to Scheduled Tribe within the area of the District Council are to be tried by courts constituted by the said District Council. It is also the submission of the learned counsel that the Court below has failed to appreciate the relevant judicial pronouncements by the High Court as well as the Hon’ble Supreme Court in this regard particularly the case of State of Meghalaya v. Richard Lyngdoh:2 GLR 238 and also the case of State of Meghalaya v. Melvin Sohlangpiaw:3 SCC 711 which are some of the conclusive authorities as regard the issue of jurisdiction of the District Council Court to try suits and cases between members of the Scheduled Tribe community. Further submitting that the learned court below has failed to appreciate the law provided in the Khasi SyiemshipOrder 1950 and has passed the impugned order in clear violation of the said provision of law. It is therefore submitted that this Court exercising its jurisdiction under Article 227 of the Constitution of India r w Section 401 and 407 Cr.P.C may be pleased to set aside the impugned order dated 10.03.2021 and to direct the transfer of the GR case in question to the District Council Court for trial. 9. Mr. T.L. Jyrwa learned GA for Respondent No. 1 and Ms. P.S. Nongbri learned counsel for Respondent No. 2 in response to the contention and submission made by the learned counsel for the Petitioner has fairly and candidly conceded that the proposition of law as advanced is correct and that the authorities cited by the learned counsel for the Petitioner are relevant to the subject matter and as such no strong objection is raised for the impugned order to be set aside and quashed and consequently for transfer of the above GR cases to the District Council Court Jowai. 10. While appreciating the submission and contentions of the learned counsels for the parties the issue involved is no longer res integra as the same has been laid to rest by way of several judicial pronouncements of the High Court as well as of the Supreme Court. However for the limited purpose in the facts and circumstances of the case in hand it may be profitable to refer to some of those judicial pronouncements to bring clarity to the dispute between the parties. 11. Consideration of the matter would not be complete without a reference to the constitutional provision of the Sixth Schedule. Extracts of paragraphs 4 and 5 of the Sixth Schedule to the Constitution of India is reproduced herein below: “4. Administration of justice in autonomous districts and autonomous regions.—(1) The Regional Council for an autonomous region in respect of areas within such region and the District Council for an autonomous district in respect of areas within the district other than those which are under the authority of the Regional Councils if any within the district may constitute village councils or courts for the trial of suits and cases between the parties all of whom belong to Scheduled Tribes within such areas other than suits and cases to which the provisions of sub paragraphof paragraph 5 of this Schedule apply to the exclusion of any court in the State and may appoint suitable persons to be members of such village councils or presiding officers of such courts and may also appoint such officers as may be necessary for the administration of the laws made under paragraph 3 of this Schedule …” “5. Conferment of powers under the Code of Civil Procedure 1908 and the Code of Criminal Procedure 1898 on the Regional and District Councils and on certain courts and officers for the trial of certain suits cases and offences.—(1) The Governor may for the trial of suits or cases arising out of any law in force in any autonomous district or region being a law specified in that behalf by the Governor or for the trial of offences punishable with death transportation for life or imprisonment for a term of not less than five years under the Indian Penal Code or under any other law for the time being applicable to such district or region confer on the District Council or the Regional Council having authority over such district or region or on courts constituted by such District Council or on any officer appointed in that behalf by the Governor such powers under the Code of Civil Procedure 1908 or as the case may be the Code of Criminal Procedure 1898 as he deems appropriate and thereupon the said Council court or officer shall try the suits cases or offences in exercise of the powers so conferred............” In the case of State of Meghalaya v. Richard Lyngdoh(supra) at paragraph 8 the Gauhati High Court had observed as follows: “8. Administration of Justice in the Tribal areas of the State of Meghalaya is carried on as per the provisions of Paragraphs 4 and 5 of the Sixth Schedule to the Constitution of India and in terms of Khasi Syiemships Order 1950 the Rules for Administration of Justice and Police in Khasi and Jaintia Hills 1937 the United Khasi Jaintia Hills Autonomous District Rules 1953 Rules for Administration of Justice and Police in the Garo Hills 1937 and the Garo Hills Autonomous DistrictRules 1953”. 13. Again at paragraph 19 of the abovementioned judgment the Gauhati High Court has observed as follows: “19. What logically follows from a combined reading of sub paragraph of paragraph 5 and sub paragraph of paragraph 4 of the Sixth Schedule to the Constitution of India is that when an offence punishable either under the Indian Penal Code or under any other law is one which is punishable with imprisonment for a term of less than five years the Regional or District Council Court shall be the only competent court to try such offences if the accused as well as the complainant belong to the Scheduled Tribe of an area falling under one and the same autonomous district or autonomous region where the District or Regional Council Court is situated. However even if the complainant as well as the accused belong to Scheduled Tribe of a given District Council the District Council Court cannot try such an accused for an offence if the offence is such which is punishable with death imprisonment for life or imprisonment for a term of not less than five years unless the Governor in exercise of his powers under sub paragraph of paragraph 5 of the Sixth Schedule empowers the Regional or District Council Court to try such an offence. Moreover even if a Governor has empowered a Judge of a District Council Court or a District Council Court to try offences which are punishable with death transportation for life or imprisonment for a term of not less than five years such a Judge or District Council Court will still not be competent to try criminal cases which are not confined to persons belonging to the Scheduled Tribes falling under one and the same autonomous district council where the District Council Court is situated or exercises jurisdiction”. 14. Yet again at paragraph 36 the Gauhati High Court while discussing the case of U Yur Rynjah v. State: Criminal Revision No. 767 the Government Notification No L.J. 69 73 58 dated 30th January 1981 was referred to and has held that “ In the aforesaid circular it was directed that under the Meghalaya Autonomous District Administration of Justice Miscellaneous Provision) Act the Deputy Commissioner and an Assistant to the Deputy Commissioner have no power to try any case which is exclusively triable by any Court constituted by the District Council under paragraph 4 of the Sixth Schedule to the Constitution and that any such case which at any stage after the Deputy Commissioner or Assistant to him has taken cognizance of transpires to be so triable shall have to be transferred to the competent court of the District Council immediately. Following the above direction the learned Additional Deputy Commissioner observed that in the circumstances the case was triable only by the District Council Court and that either the Deputy Commissioner or Assistant to him had no jurisdiction excepting taking cognizance of the offence and that as soon as the cognizance of the offence is taken the Deputy Commissioner or Assistant to him is to transfer the case to the competent court i.e. the Court constituted by the Governor under paragraph 5 of Sixth Schedule of the Constitution of India”. 15. The Hon’ble Supreme Court in the case of Melvin Sohlangpiaw v. Melvin Sohlangpiaw(supra) has in essence confirmed the position which found place in the case of Richard Lyngdoh(supra) inasmuch as cases between the parties particularly those who belongs to the Scheduled Tribe community of the State of Meghalaya as far as jurisdiction is concerned in view of the provision of Paragraphs 4 and 5 of the Sixth Schedule of the Constitution of India lies with the respective District Council Courts. Extracts of para 10.4 of the said Melvin Sohlangpiaw case reads as follows: “10.4. ..Reading Para 5 in conjunction with Para 4 inevitably leads to the conclusion that all such criminal cases are triable by the courts constituted under Para 4 of Schedule VI irrespective of the fact that de jure complainant is the State as long as both the accused and the victim of the offence belong to the same Scheduled Tribe”. In the light of the above the impugned order dated 10.03.2021 cannot stand the scrutiny of law and procedure and are liable to be set aside and quashed. 17. Consequently the petitions in question are hereby allowed and the learned Additional Deputy Commissioner(Judicial) Jowai is hereby directed to transfer the cases of the Petitioner(s) to the Court of the Judge District Council Court Jowai who will then proceed to dispose of the same or endorse the cases to any Court of competent jurisdiction. 18. Matters disposed of accordingly. No cost. Judge “D. Nary PS”

Court is not inclined to interfere in writ petition if it lacks in merit. : Uttarakhand High Court

“In view of the aforesaid reasoning, this Court is not inclined to interfere in the writ petition. Hence, the writ petition lacks merit and the same is accordingly dismissed.” Said Justice Sharad Kumar Sharma  of the Uttarakhand High Court in the matter of Puran Lal Bhanu alias Puran v. Ram Singh and Another [Writ Petition (M/S) No. 843 of 2021] This order was passed under the facts that the petitioner before this Court, claiming to be the owner of the land by virtue of the sale deeds executed in his favour on May 28, 1996, and December 31, 1997. If the sale deeds are considered, the property that has been disclosed to him is admittedly shown to be khasra No. 1377/1, with an area of 0.081 hectares, located in village mauja Badamawala (West Hope Town) pargana Pachhwadoon, District Dehradun, and the property covered in the second sale deed is yet again a part of the property that was lying in khasra No.1377/1.The suit accompanied with it an application, under Order 39 Rules 1 &amp; 2 of the CPC.  The learned counsel for the petitioner had placed his arguments from the following perspectives:- First and foremost, the suit was unmaintainable. His reasoning is that because the property in question has been recorded in the revenue records as a revenue land, the suit would be barred by the provisions of Section 331 of the U.P.Z.A. &amp; L.R. Act. Second, the learned counsel for the petitioner asserted that there is a dispute over the property’s boundaries. In that regard, if the plaintiff’s property is taken into account exclusively, it describes the boundary of the property, which was the subject matter of the suit, and it goes without saying that the injunction granted to the plaintiffs/respondents by the impugned orders would obviously relate to the property, which is the subject matter of the suit itself, the boundary of which has been described. Even if it is assumed for a moment that there may be a case, it still necessitates a factual appraisal of evidence, which must be decided by formulation of an issue and not at the stage of granting an injunction under Order 39 Rules 1 &amp; 2 of the CPC.  The third argument advanced by the petitioner’s learned counsel is that there is no prima facie case in favour of the plaintiffs/respondents.

HIGH COURT OF UTTARAKHAND AT NAINITAL Writ PetitionNo. 8421 Puran Lal Bhanu Alias Puran Ram Singh and Another …Respondents Advocates : Mr. Sanjay Bhatt Advocate for the petitioner. Hon’ble Sharad Kumar Sharma J. The brief facts which emerges for consideration based on the pleadings raised in the writ petition are that the petitioner before this Court claiming himself to be the owner of the land by virtue of the sale deeds which were executed in his favour on 28.05.1996 and 31.12.1997. If the sale deeds are taken into consideration wherein the property which has been disclosed to be conveyed to him is admittedly shown to be khasra No. 1377 1 having an area of 0.081 hectares situated in village mauja Badamawalapargana Pachhwadoon District Dehradun and the property covered in the second sale deed is yet again a part of the property which was lying in khasra no. 1377 1 having an area of 0.018 hectares i.e. 0.20 acres of mauja Badamawalapargana Pachhwadoon District The plaintiffs have instituted a suit being Suit No. 2312 Ram Singh and another Vs. Pooran Singh for the grant of a decree of permanent injunction on 16.11.2012 in relation to the property which was more particularly described at the foot of the plaint which is described hereunder: Hkwfe ijxuk iNoknwu] rglhy fodkluxj ftyk nsgjknwu] ftldh lhek sa fuEukuqlkj gS%& iwjc esa if”pe esa mRrj esa nf{k.k esa ikuh dh xwy o mlds mijkUr Hkwfe Jh keZiky cnkekokyk &NksVwokyk xzkeh.k ekxZA ikuh dh xwy o mlds mijkUr Hkwfe Jherh ikuks nsohiRuh Jh tokgj flagA The suit accompanied with it an application under Order 39 Rules 1 & 2 of the CPC. The same was considered by the Court of Civil Judge Vikas Nagar Dehradun and the Application which was preferred under Order 39 Rules 1 2 of the CPC was considered under terms and the parameters which had been judicially laid down for the grant of injunction pendentilite the civil proceedings the learned Court while recording its finding on issue No. 1 i.e. the prima facie case the learned trial Court has specifically recorded a finding that as far as the subject matter of the suit is concerned admittedly the plaintiffs respondents happen to be the record owners of the disputed property given in the plaint and the entries in the revenue record too stand as such and while considering the stand taken by the petitioner defendant in his written statement paper No. 82A1 the Court had yet again recorded that by the two sale deeds the property which has been conveyed to him and shown to be lying with khasra No. 1377 1 which is not the subject matter of the suit itself and hence the application under Order 39 Rules 1 & 2 of the CPC was allowed which was put to challenge by the petitioner under Order 43 Rule 1(r) of CPC by preferring a Miscellaneous Civil Appeal being Appeal No. 19 Shri Puran Singh Vs. Shri Ram Singh and another. The same has been dismissed by the Court of Additional District Judge Vikas Nagar Dehradun. These are the two orders which are put to challenge by the petitioner by invoking writ jurisdiction under Article 227 of the Constitution of India. 3 The learned counsel for the petitioner had placed his arguments from the following perspectives: Firstly that the suit was not maintainable. The rationale behind his argument is that the property in question since having been recorded in the revenue records as a revenue land the suit itself would be barred by the provisions contained under Section 331 of the U.P.Z.A. & L.R. Act. With all humility at my command this aspect of maintainability of a suit cannot be an issue to be considered at this stage in the writ petition at the time when an Application under Order 39 Rules 1 & 2 of the CPC is being considered which has been held to be an interlocutory proceedings by virtue of a Full Bench judgement of Allahabad High Court reported in AIR 1991 All. 114 Ganga Saran Vs. Civil Judge Hapur Ghaziabad and others. Even otherwise also the said aspect of maintainability of a suit would always be a subject matter of determination on appreciation of fact under the given set of circumstances of each case and there cannot be a common yardstick which could be applied to decide the issue about the maintainability of the suit and that is why the legislature has provided the protection by Section 331A of the U.P.Z.A & L.R. Act. Hence at this stage this aspect ought to be resisted to be ventured into by the writ Court under Article 227 of the Constitution when it is ceased with the miscellaneous proceedings under Order 39 Rules 1 & 2 of CPC as any finding by this Court may affect the proceedings of suit itself. Secondly the learned counsel for the petitioner submitted that there is dispute of identifiability of the boundaries of the property. So far as that aspect is concerned if the plaint property 4 is exclusively taken into consideration it describes the boundary of the property which was the subject matter of the suit and it goes without saying that obviously the injunction granted by the impugned orders to the plaintiffs respondents would relate to the property which is the subject matter of the suit itself the boundary of which had been described therein and its scope cannot be enlarged to be argued as contended by the learned counsel for the petitioner it was under the pretext of description of the boundary that his property lying in khasra No. 1377 1 which is alleged is being sought to be included within it. Even if for a moment it is presumed that might be a case then too it requires a factual appreciation of evidence which has to be decided by formulation of an issue and not at the stage of grant of an injunction under Order 39 Rules 1 & 2 of the CPC. The third argument as extended by the learned counsel for the petitioner is that there is no prima facie case in favour of the plaintiffs respondents. I am not in agreement with the argument as has been extended by the learned counsel for the petitioner for the reason being that there are concurrent findings of facts which has been recorded by both the Courts below that the plaintiffs respondents stand recorded as against the khasra No. 2559 and 2560 in the revenue records and those entries still subsist in their favour and since they being the record holders the prima facie case stands established against them and the presumption of their right would flow from Section 44 of the Land Revenue Act 1901. Even otherwise also as per the principles enunciated by the Hon’ble Apex Court in a judgement as reported in 2004 SCC 488 Maharwal Khewaji TrustFaridkot Vs. Baldev Dass particularly a reference may be had to para 10 of the said judgement which has dealt with the aspect as to what is the spirit of Order 39 Rules 1 & 2 of the CPC as formulated by the legislature. Para 10 of the said judgment reads as under: “10. Be that as it may Mr. Sachhar is right in contending that unless and untill a case of irreparable loss or damage is made out by a party to the suit the court should not permit the nature of the property being changed which also includes alienation or transfer of the property which may lead to loss or damage being caused to the party who may ultimately succeed and may further lead to multiplicity of proceedings. In the instant case no such case of irreparable loss is made out except contending that the legal proceedings are likely to take a long time therefore the respondent should be permitted to put the scheduled property to better use. We do not think in the facts and circumstances of this case the lower appellate court and the High Court were justified in permitting the respondent to change the nature of property by putting up construction as also by permitting the alienation of the property whatever may be the condition on which the same is done. In the event of the appellant s claim being found baseless ultimately it is always open to the respondent to claim damages or in an appropriate case the court may itself award damages for the loss suffered if any in this regard. Since the facts of this case do not make out any extraordinary ground for permitting the respondent to put up construction and alienate the same we think both the courts below namely the lower appellate court and the High Court erred in making the impugned orders. The said orders are set aside and the order of the trial court is restored.” In view of the aforesaid reasoning this Court is not inclined to interfere in the writ petition. Hence the writ petition lacks merit and the same is accordingly dismissed. Sharad Kumar Sharma J.)

If one does not fulfill the criteria prescribed in the Government Policy for identification as Rajya Andolankari, they cannot claim to be declared as Rajya Andolankari: High Court of Uttarakhand.

Upon identification as Rajya Andolankari, a person becomes entitled to several benefits, monetary or otherwise, therefore, the State Government, in its wisdom, has laid down certain criteria for identification as Rajya Andolankari. Hence a person has to fulfill such criteria to be identified as Andolankari. A single Judge bench comprising Hon’ble Justice Manoj Kumar Tiwari, in the matter of Rohitash Thakur &amp; others Vs. State of Uttarakhand &amp; others (WRIT PETITION (M/S) No. 1300 of 2016), dealt with an issue where two writ petitions were heard and decided together because of common questions of fact and law, seeking To issue a writ, order or directions in the nature of “certiorari”, quashing the office order by the way of which the authority has refused to identify the petitioner as “Uttarakhand Rajya Andolankari” and to issue a writ, order or directions in the nature of Mandamus directing the respondents to take a fresh decision over the representations made by the petitioners. In the present case, as per the petitioners, they participated in Uttarakhand Rajya Andolan. The petitioners filed a writ petition seeking a direction to the Competent Authority to conclude the process of verification of petitioners as Rajya Andolankari because the petitioners were not given the benefits that were available to Rajya Andolankari. The writ was disposed of by state counsel to make representation at district magistrate to consider it in the light of Government Policy. The district magistrate further rejected it, and thereby the petitioners approached this court.  Additional C.S.C pointed out the order passed by the District Magistrate that those petitioners could not produce any evidence in support of their claim that they had actively participated in the Uttarakhand Rajya Andolan. He also submitted that the petitioners did not have their name in the L.I.U. Report or in any other document enumerated in the Government Order. Further submitted that the only evidence the petitioner had to support his claim was a news item published in some local weekly newspaper named as ‘Laghu Bharat’. But also contended, that such news report could not be considered as a basis for the benefits to Rajya Andolankari. The court observed that-“In the absence of any evidence in support of their claim, petitioners have no legally enforceable right to be declared as Rajya Andolankari.” Thereby the writ petition was rejected and dismissed.

IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL ON THE 20TH DAY OF JULY 2021 HON’BLE SHRI JUSTICE MANOJ KUMAR TIWARI WRIT PETITIONNo. 13016 Rohitash Thakur & others. ....Petitioners State of Uttarakhand & others. ...Respondents WRIT PETITIONNo. 218 WRIT PETITIONNo. 218 There is no representation for the petitioners. Mr. T.S. Phartiyal and Mr. Rakesh Kunwar Additional C.S.C. for the State of Uttarakhand) Since common questions of fact and law are involved in these writ petitions therefore these petitions are clubbed together and are being heard & decided together. However for the sake of convenience facts of WPMS No. 13016 are being considered. According to the petitioners they participated in Uttarakhand Rajya Andolan. Since the benefits available to Rajya Andolankari were not given to them therefore they filed WPMS No. 2437 of 2013 seeking a direction to the Competent Authority to conclude the process of verification of petitioners as Rajya Andolankari. The said writ petition was disposed of vide order dated 14.03.2014 in the light of statement made by learned State Counsel that if petitioners make representation the same shall be considered by the District Magistrate in the light of Government Policy. Since the representation submitted by the petitioners has been rejected by the District Magistrate vide order dated 13.06.2014 therefore petitioners have again approached this Court seeking the following reliefs: “1. To issue a writ order or directions in the nature of “certiorari” quashing the office order dated 13.6.2014 passed by respondent No. 3 by the way of which the authority has refused to identify the petitioner as “Uttarakhand Rajaya Andolankari”. 2. To issue a writ order or directions in the nature of Mandamus directing the respondents to take fresh decision over the representations made by the petitioners impartially and in accordance with the selection identification process adopted by the authorities in case of Heard learned Additional C.S.C. and perused the record. A perusal of the order passed by District Magistrate impugned in the writ petition reveals that petitioners could not produce any evidence in support of their claim that they had actively participated in the Uttarakhand Rajya Andolan. Learned Additional C.S.C. has drawn attention of this Court to Government Order dated 22.10.2008 in which criteria has been laid down for identification as Rajya Andolankari which is annexed as Annexure No. 1 to the writ petition. Based on the said document learned Additional C.S.C. submits that name of the petitioners does not find mention in the L.I.U. Report or in any other document enumerated in the Government Order dated 22.10.2008. He further submits that as per 3 the pleading made in the writ petition the only evidence which petitioners have in support of their claim is a news item published in some local weekly newspaper named as ‘Laghu Bharat’. He submits that such news report cannot be made the basis for the benefits available to Rajya Andolankari. He further submits that name of none of the petitioners’ figures in the L.I.U. Report or any other report available with the Police record. It is not in dispute that upon identification as Rajya Andolankari a person becomes entitled to several benefits monetary or otherwise therefore the State Government in its wisdom has laid down certain criteria for identification as Rajya Andolankari. A person who does not fulfill the criteria as prescribed in the as Rajya Andolankari cannot claim to be declared as Rajya Andolankari. In the absence of any evidence in support of their claim petitioners have no legally enforceable right to be declared as Rajya Andolankari. In such view of the matter the relief as claimed in the writ petition cannot be granted. In the absence of any evidence produced by the petitioners District Magistrate was justified in rejecting petitioners’ representation. dismissed. Accordingly the writ petitions fail and are Arpan

There is no bar in intimating the candidates through SMS, more particularly when large number of candidates had to appear in the subsequent process: Supreme Court

In any event, though indulgence was shown in the earlier cases, a line has to be drawn at some stage as otherwise, the recruitment process undertaken by the competent authorities would be meaningless without a time line and the next recruitment process will also get effected since determination of the number of vacancies for the next process will keep fluctuating as held by the Hon’ble Supreme Court through the learned bench led by Justice A.S. Bopanna in the case of State of Uttar Pradesh and Ors v. Pankaj Kumar (CIVIL APPEAL NO. 6860 OF 2021) (Arising out of SLP (CIVIL) No.5006 of 2020). The brief facts leading to the present appeal is that the appellants had published an advertisement in the year 2015 to recruit Police Constables to the Provincial Armed Constabulary (Male) by direct recruitment. The respondent herein was one of the candidates who had responded to the said advertisement and submitted his application. In order to complete the process of selection, the documents were to be verified and the candidates were to be subjected to physical fitness test which was to be made subsequently as the next stage of recruitment process. The issue presently is with regard to the respondent being unable to appear for the physical fitness test and the verification of documents which he alleges is for want of written communication. According to the appellants, the candidates who were required to appear for the physical fitness test and document verification were intimated by issuing SMS over the mobile phone, the number of which had been furnished in the application. Several other candidates who had received such SMS had appeared and taken part in the process of document verification and the physical fitness test. The respondent who had not appeared, made out a grievance about appellants not intimating the respondent through post. According to the respondent, as per rule, a call letter was required to be issued. The Learned Single Judge though did not record a finding with regard to there being violation or non­compliance of any rule, had arrived at the conclusion that there was inadvertence on part of the respondent since an applicant would not have deliberately not participated in the process of recruitment. The appellants herein, claiming to be aggrieved by such direction issued by the Learned Single Judge filed an intra court appeal in Special Appeal No.366/2019 before the Division Bench of the High Court. The Division Bench has further indicated that there is no dispute to the fact that except for the SMS sent to the respondent no other mode of information was sent and in that view the Division Bench approved the direction issued by the Learned Single Judge whereby an opportunity has been granted to the respondent to appear for the document verification and physical fitness test. After the perusal of the facts and arguments, the Hon’ble Court held, “The process herein had commenced in the year 2015 and the document verification along with the physical fitness test was held in 2018. Several candidates who were permitted pursuant to the order of the High Court had taken part in early January 2019. Since, sufficient time has elapsed thereafter it would not be appropriate to make an exception in the case of the respondent at this stage as otherwise the trickle would continue. We are therefore of the opinion that the learned Single Judge as also the Division Bench of the High Court was not justified in their conclusion. The order dated 12.03.2019 passed by the learned Single Judge and the order dated 29.08.2019 passed in Special Appeal by the Division Bench are set aside. Consequently, the Writ petition No.693 (SS) of 2019 titled Pankaj Kumar vs. State of U.P. and Ors. stands dismissed.”

dated 29.08.2019 passed by the Division Bench of the High Court of Judicature at Allahabad Lucknow Bench Lucknow in Appeal thereby upholding the judgment and order dated Digitally signed bySanjay KumarDate: 2021.11.1813:51:42 ISTReason:Signature Not Verified 2 the candidates who had responded to the said advertisement and submitted his application. Pursuant thereto the admit card was issued to the respondent and the initial fitness examination was held. In order to complete the process of made subsequently as the next stage of recruitment process The issue presently is with regard to the respondent being unable to appear for the physical fitness test and the According to the appellants the candidates who were verification were intimated by issuing SMS over the mobile phone the number of which had been furnished in the application. Several other candidates who had received such intimating the respondent through post. In that light the respondent filed the writ petition bearing SS No.693 of 2019 document verification and the physical fitness test of the respondent pertaining to his height weight and chest measurement and to declare the result after completing the process. The case put forth was that the appellants had not adhered to the requirement contemplated under the Uttar Pradesh Constable and Head Constable Rules 2008. According to the respondent as per rule a call letter was required to be issued. Since such call letter has not been issued to the respondent he was unable to take part in the Learned Single Judge though did not record a finding with part of the respondent since an applicant would not have that circumstance as a matter of equitable consideration the fitness test for the post of Constable in pursuance to the direction issued by the Learned Single Judge filed an intra the portion of the observations made by the Learned Single Judge wherein an equitable consideration was made has for the SMS sent to the respondent no other mode of information was sent and in that view the Division Bench approved the direction issued by the Learned Single Judge 5. Mr. Pradeep Misra learned counsel representing the appellants while assailing the order passed by the Learned Single Judge as also the Division Bench has contended that test. It is his further contention that the negligence of the further process should be to his own detriment and cannot interfere with the process of selection which has been At this belated stage no indulgence can be shown when is made to the information notification dated 15.05.2018 wherein the details of the process of selection had been furnished. The candidates were required to keep track of the put forth by him herein. It is contended that though one opportunity had been granted as a concession to about 151 process cannot be a continuing one as and when individuals candidates seek to reopen the selection process claim as that of the respondent and the Division Bench had and concluded in all respects in the year 2018 request for opportunity at this belated stage ought not to have been 6. Mr. Sarvesh Kumar Dubey learned counsel for the by the Learned Single Judge and approved by the Division Bench of the High Court. It is his contention that the Rules but no such intimation was issued to the respondent. It is further process in the selection would not be sufficient. He contends that the mobile number would be furnished by the candidates at the time of making an application and in the the application there could be no assumption that the course to ensure proper service would be through postal Bench has arrived at the conclusion that an opportunity is not be jeopardized. He therefore seeks that this appeal be reached by the Division Bench of the High Court it would respondent by recording a finding with regard to the non­ compliance of any requirement envisaged under the Rule or procedure provided in the advertisement calling for by postal communication or any other mode. In that view there is no bar in intimating the candidates through SMS more the subsequent process and majority of the candidates have appeared for document verification and physical fitness test is concerned it is not his case that he had not received the SMS. It is only a technical contention that he ought to have been intimated through postal communication. When a case the appellants have sent the SMS to the very number indicate that the respondent did not possess the said mobile connection as on the date the SMS was sent. Further the argument as put forth by the learned counsel for the respondent that one may not retain the same number after is furnished for issue of postal communication. In a given case the person may not reside in the same address which is is made. In such circumstance it is for the candidate to intimate any change to the authorities since such change or her own interest such intimation is to be made. In the same cannot at his own convenience make request to be permitted to participate in the selection process which has already concluded not having utilized the opportunity which opportunity. It is no doubt true that as contended by the respondent in the objection statement an opportunity was process as indicated in the notice dated 14.01.2019 issued pursuant to directions issued by the High Court in the writ petitions which were filed. It is to be noticed that the respondent had chosen to file the writ petition by merely part in the process on 15.01.2019 and he had not been In that background it is to be noted that another learned Single Judge of the High Court in a similar No.903 of 2019. The order of the learned Single Judge was otherwise the recruitment process undertaken by the and the next recruitment process will also get effected since year 2015 and the document verification along with the were permitted pursuant to the order of the High Court had taken part in early January 2019. Since sufficient time has elapsed thereafter it would not be appropriate to make an exception in the case of the respondent at this stage as 11. We are therefore of the opinion that the learned Single Judge as also the Division Bench of the High Court was not justified in their conclusion. The order dated 12.03.2019 and the order dated 29.08.2019 passed in Special Appeal Consequently the Writ petition No.693 of 2019 titled 13. Pending application if any stands disposed of

Mere Possession or recovery of currency notes is not sufficient for offence u/s 7 of Prevention of Corruption Act: Supreme Court of India

Mere recovery of currency does not prove the charge of corruption against the accused. It has to be proved beyond a reasonable doubt that the accused voluntarily accepted money knowing it to be a bribe. Supreme Court of India gave the judgment in the case of N Vijayakumar vs. State of Tamil Nadu by stating the above-cited reasons. The bench was presided over by Hon’ble Justice Subhash Reddy and Justice M.R Shah. In the instant case, the accused (appellant) worked as Sanitary Inspector in Madurai Municipal Corporation. His supervisor made allegations against the accused that he demanded an amount of Rs 500/- and a cell phone as a motive or reward to do an official act in the exercise of his official function. And therefore, allegations were made against the accused u/s 7, 13(2), and 13(1)(d) of the Prevention of Corruption Act, 1988. For the offences stated above, the accused was tried before the Special Court and was acquitted after examining the oral and documentary evidence. But when the appeal was made in the High Court, the acquittal was reversed and the accused was held convicted for offences u/s 7, 13(2), and 13(1)(d) of the Prevention of Corruption Act, 1988 with imprisonment for 1 year and fine of Rs 5000/-. It was argued that the High Court had reversed the orders of the trial court without recording valid and cogent reasons and the order passed by the High Court was in violation of section 362 of CrPC. On the contrary, the respondent’s counsel argued that the proof was enough to prove that the accused demanded money and a cell phone but the trial court had acquitted the accused without proper investigation and the decision taken by the High Court was right. When the matter reached the Supreme Court, the Bench examined the witnesses and came to the conclusion that there were ill feelings between the appellant and the respondent (Supervisor). It was observed that merely the recovery of tainted money, divorced from the circumstances under which the money was found is not sufficient to convict the accused when the substantive evidence is not reliable. And it was further contended that the material contradictions were observed in the depositions of the witnesses, which gave the benefit of doubt to the accused. The appellant’s counsel contended that in the case of Hakeem Khan vs. State of Madhya Pradesh, the court had considered the powers of an appellate court for interference in cases where acquittal is recorded by the trial court. In the said judgment it was held that if the “possible view” of the trial court is not agreeable for the High Court, even then such “possible view” recorded by the trial court cannot be interdicted. Hence, the Supreme Court came to the conclusion that mere recovery of the money does not prove the charge against the accused while referring to the judgments in the case of C.M Girish Babu vs. CBI (High court of Kerala) and B.Jayaraja vs. State of Andhra Pradesh. The SC bench stated that while considering the case under the section mentioned above, it is reiterated to prove the charge, it has to prove beyond a reasonable doubt that the accused voluntarily accepted money knowing it to be a bribe. The absence of proof of demand for illegal gratification and mere possession or recovery of currency notes is not sufficient to constitute the offence under the above-mentioned sections.

Crl.A.@S.L.P.(Crl.)Nos.4729 320 the file of Special Court for Trial of Prevention of Corruption Act Cases Madurai has filed these appeals aggrieved by the conviction recorded vide judgment dated 28.08.2020 and 22.09.2020 and Crl.A.@S.L.P.(Crl.)Nos.4729 320 read with 13(1)(d) of the Prevention of Corruption Act 1988read with 13(1)(d) of the Act period of March 2003 when PW­2 has approached him on 09 th and 10th of October 2003 such a demand was made as such appellant 10th of October 2003 as a motive or reward to do an official act in exercise of his official function and thereby he has committed the aforesaid offences and he has pleaded not guilty. Therefore he During the trial on prosecution side 12 witnesses were examined i.e Crl.A.@S.L.P.(Crl.)Nos.4729 320 trial court by judgment dated 25.02.2014 acquitted the appellant Criminal Appeal No.6 of 2015 before the Madurai Bench of Madras High Court. The Madurai Bench of Madras High Court by impugned judgment and orders has reversed the acquittal and convicted the appellant for the offences under Section 7 13(2) and conviction recorded and sentence imposed by the impugned judgments and orders passed by the High Court accused is before We have heard Sri S. Nagamuthu learned senior counsel Sri Nagamuthu learned senior counsel appearing for the appellant by taking us to the evidence and other material on record has submitted that the well reasoned judgment of the trial court Crl.A.@S.L.P.(Crl.)Nos.4729 320 Murugesan & Ors. v. State through Inspector of Police 10 court is a “possible view” having regard to evidence on record and even if other view is possible same is no ground to reverse the trial court is a “possible view” and without recording any contra submitted that there is no finding recorded by the High Court a “possible view”. It is submitted that in view of the material contradictions the trial court has disbelieved the testimony of PW­2 3 and 5 by recording valid reasons but the High Court without assigning any reasons has believed these witnesses. It is submitted believed unless it is held that the view taken by the trial court Crl.A.@S.L.P.(Crl.)Nos.4729 320 court. It is also submitted that having regard to reasons recorded findings recorded by the trial court cannot be said to be either testimony of crucial witnesses and without noticing the same the High Court has convicted the appellant and imposed the sentence vide order dated 15.09.2020. However thereafter again the appeal Court on 22.09.2020 and convicted the appellant for the offence imposed the sentence of one year rigorous imprisonment for the offence under Section 7 of the Act. It is submitted that the said judgment of conviction rendered on 22.09.2020 and the order of Criminal Procedure. It is submitted that once the judgment is Crl.A.@S.L.P.(Crl.)Nos.4729 320 under Section 7 of the Act also. Lastly it is submitted that the pronounced after a period of more than six months i.e. on On the other hand Sri M. Yogesh Kanna learned counsel appearing for the respondent­State has submitted that from the evidence of PW­2 3 5 and PW­11 it is clearly proved that on 10.10.2003 the appellant­accused has demanded and accepted PW­2 for the extension of contract. It is submitted that inspite of appellant and same is rightly reversed by the High Court as such there are no grounds to interfere with the same. It is further submitted that in terms of the amended prayer the appellant has questioned only the judgment dated 22.09.2020 and the order imposing sentence on 29.09.2020 as such there is no challenge to the minor contradictions the trial court has acquitted the appellant Crl.A.@S.L.P.(Crl.)Nos.4729 320 as such the view taken by the trial court was not a “possible view” Having heard the learned counsels on both sides we have carefully perused the impugned judgments and the judgment of acquittal rendered by the Special Court and other oral and In these appeals it is to be noticed that PW­2 is the key on contract basis for Ward No.8 of Madurai Municipal Corporation was examined as PW­1 and the complainant Thiru D. Gopal was examined as PW­2. It is evident from the deposition of PW­2 3 5 and 11 that they reached the office of the accused at 05:30 p.m. on office at 05:45 p.m. on his bike and took his seat. PW­2 in his with other witnesses Sri Shanmugavel and Sri Ravi Kumaran Crl.A.@S.L.P.(Crl.)Nos.4729 320 coated currency notes and cell phone which were received by the accused and kept in the left side drawer of the table. The official his deposition that when they reached the office of the accused he met on 09.10.2003 along with PW­5 the appellant­accused has 09.10.2003. It is also clearly deposed by PW­2 in the cross­ examination that he was ill treated by the accused several times earlier as he belonged to scheduled caste community. From his and the PW­2. It is also clear from the evidence after handing over currency and cell phone he along with other witnesses who have accompanied him they came out of the office and signalled to the Crl.A.@S.L.P.(Crl.)Nos.4729 320 is also clear from the evidence that though the trap was at about There is absolutely no evidence to show that why such inordinate that only on demand of anti­corruption officials the accused had taken and produced the money and cell phone which was in the drawer of the table. The Circle Health Inspector of Madurai the office and he has also deposed that he was not aware about Rs.500 ­ and cell phone by whom and when it was kept. He too has deposed in the cross­examination that only on the direction of the 5 is also in similar lines. Another key witness on behalf of the prosecution is PW­11 i.e. the Deputy Superintendent of Police Bodinayakkanur Sub­Division who was working as the Deputy Superintendent of Police Vigilance and Anti­corruption Wing Madurai during the relevant time. He also in his deposition has Crl.A.@S.L.P.(Crl.)Nos.4729 320 Sodium Carbonate Solution at 19:00 hrs. It is clear from the deposition of all the witnesses i.e. PW­2 3 5 and 11 that trap was at 07:00 p.m. Further in the cross­examination PW­11 has clearly stated that when they were monitoring the place of occurrence for of the office of the appellant. Added to the same admittedly after not recorded as required under Rule 47 Clause 1 of the Vigilance TLO has asked the bribe amount and cell phone the accused Crl.A.@S.L.P.(Crl.)Nos.4729 320 Mainly it is contended by Sri Nagamuthu learned senior court is a “possible view” having regard to evidence on record. It is in support of its findings for acquittal. Under Section 378 Cr.PC no regarding the powers of the appellate court while dealing with an “42. From the above decisions in our considered view reappreciate and reconsider the evidence upon Crl.A.@S.L.P.(Crl.)Nos.4729 320 of such power and an appellate court on the Various expressions such as “substantial and compelling reasons” “good and sufficient grounds” “very strong circumstances” “distorted conclusions” “glaring mistakes” etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal Such phraseologies are more in the nature of “flourishes of language” to emphasise the review the evidence and to come to its own An appellate court however must bear in mind that in case of acquittal there is double presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly the accused having secured his acquittal the court should not disturb the finding of acquittal the learned senior counsel for the appellant this Court has Crl.A.@S.L.P.(Crl.)Nos.4729 320 considered the powers of the High Court in an appeal against acquittal recorded by the trial court. In the said judgment it is not to reverse the acquittal to that of the conviction. The relevant view” distinguishing from “erroneous view” and “wrong view” is discussed are paragraphs 32 to 35 of the judgment which read as the principles of law referred to earlier ought not to Crl.A.@S.L.P.(Crl.)Nos.4729 320 is conscious and not without good reasons. The said expression is in contradistinction to expressions such as “erroneous view” or “wrong view” which at first 33. The expressions “erroneous” “wrong” and “possible” are defined in Oxford English Dictionary in 2) unjust dishonest or immoral possible.—(1) capable of existing happening or 34. It will be necessary for us to emphasise that a formed irrespective of the correctness or otherwise of hierarchical structure may be termed as erroneous or But such a conclusion of the higher court would not the arena of a possible view. The correctness or be tested on the basis of what the superior judicial authority perceives to be the correct conclusion. A possible view on the other hand denotes a conclusion fundamental distinction between the two situations Crl.A.@S.L.P.(Crl.)Nos.4729 320 trial court had founded its order of acquittal in the however be disagreement on the correctness of the relatable to the evidence and materials on record are Further in the case of Hakeem Khan & Ors. v. State of Madhya Pradesh 5 SCC 719 this Court has considered powers of the trial court is not agreeable for the High Court even then such not verdict of trial court cannot be interdicted and the High court Crl.A.@S.L.P.(Crl.)Nos.4729 320 of acquittal and that it would not be safe to convict has been stated above was that given the time of 6.30 p.m. to 7.00 p.m. of a winter evening it would be dark and therefore identification of seventeen persons would that the only independent witness turned hostile and examined would certainly create a large hole in the prosecution story. Apart from this the very fact that conclusion that nothing was premeditated and there was in all probability a scuffle that led to injuries on may be right in stating that the trial court went aggressor but the trial court s ultimate conclusion leading to an acquittal is certainly a possible view on distance and arrived by bus after the incident took By applying the above said principles and the evidence on Crl.A.@S.L.P.(Crl.)Nos.4729 320 another view is possible same is no ground to interfere with the judgment of acquittal and to convict the appellant for the offence and 11 that the currency and cell phone were taken out from the was not tested by PW­11 till 07:00 p.m. There are material contradictions in the deposition of PW­2 and it is clear from his disbelieved PW­2 3 and 5 by recording several valid and cogent reasons but the High Court without appreciating evidence in proper Crl.A.@S.L.P.(Crl.)Nos.4729 320 perspective has reversed the view taken by the trial court. Further PW­2 3 and 5 can be believed unless it is held that the view taken by has not proved the case beyond reasonable doubt to convict the Babu v. CBI Cochin High Court of Kerala3 SCC 779 and in Act 1988 it is reiterated that to prove the charge it has to be proved beyond reasonable doubt that accused voluntarily accepted money knowing it to be bribe. Absence of proof of demand for illegal Crl.A.@S.L.P.(Crl.)Nos.4729 320 proved. It is also fairly well settled that initial presumption of innocence in the criminal jurisprudence gets doubled by acquittal “7. Insofar as the offence under Section 7 is offence and mere recovery of currency notes cannot constitute the offence under Section 7 unless it is proved beyond all reasonable doubt that the accused The above position has been succinctly laid down in reference may be made to the decision in C.M Cri) 89] and C.M. Girish Babu v. CBI3 SCC 8. In the present case the complainant did not accused is concerned. The prosecution has not Crl.A.@S.L.P.(Crl.)Nos.4729 320 to any demand made by the accused. When the in the initial complaint before LW 9 and made any demand the evidence of PW 1 and the tainted currency notes from the possession of the accused. In fact such possession is admitted by the accused himself. Mere possession and recovery of the currency notes from the accused without proof of 7. The above also will be conclusive insofar as the in the absence of any proof of demand for illegal gratification the use of corrupt or illegal means or abuse of position as a public servant to obtain any 9. Insofar as the presumption permissible to be be drawn under Section 20 of the Act that such any official act. Proof of acceptance of illegal Crl.A.@S.L.P.(Crl.)Nos.4729 320 we are of the view that the demand for and acceptance of bribe amount and cell phone by the appellant is not proved beyond reasonable doubt. Having regard to such evidence on record the judgment of the High Court is fit to be set aside. Before recording conviction under the provisions of Prevention of Corruption Act courts have to take utmost care in scanning the evidence. Once conviction is recorded under provisions of Prevention of Corruption Crl.A.@S.L.P.(Crl.)Nos.4729 320 judgment and conviction for the offence under Section 7 of the Act has submitted that as per the amended copy of the memo the 29.09.2020 and there is no challenge to the earlier judgment of conviction dated 28.08.2020 and the order of sentence dated 15.09.2020 but at the same time it is to be noticed when the judgment is subsequently rendered on 22.09.2020 for the offence order dated 29.09.2020 the appellant had filed interlocutory application seeking amendment and the same was allowed by this Court. In that view of the matter merely because in the amended memo the appellant has not mentioned about the judgment dated 28.08.2020 and the order dated 15.09.2020 same is no ground to by the learned counsel for the State also are of no assistance in support of his case to sustain the conviction recorded by the High Crl.A.@S.L.P.(Crl.)Nos.4729 320 the impugned judgments of conviction dated 28.08.2020 and 22.09.2020 and orders imposing sentence dated 15.09.2020 and from the custody unless otherwise his custody is required in