Datasets:

d0r1h

/

ILC

like 0

Company may continue arbitration despite approval of CIRP : Supreme Court

The issue whether a company involved in arbitration proceedings may continue the arbitration proceedings even after CIRP has been been approved by COC of the company was considered by the division bench of Supreme Court consisting of Justice AM Khanwilkar and Dinesh Maheswari in the matters between  Fourth Dimension Solutions Ltd. v. Ricoh India Ltd. Civil Appeal No. –5908 of 2021 decided on 21.1.2022. The facts of this are defendant Ricoh owed the appellant Rs.511 crores. It is stated that NCLT has approved a resolution plan that dismisses the appellant’s (Fourth Dimension Solutions Ltd.) claims, even though the appellant is the highest operational creditor of the respondent company Ricoh India. The Supreme Court also upheld the resolution plan, despite the appellant’s objection that the same decision was pending before NCLAT. However, while the higher court approved the plan, it directed NCLAT to decide on the merits of appellant’s objection to the substantive resolution plan. Despite this, NCLAT said it would be impossible for the court to do so, as the Supreme Court approved the resolution plan. The NCLAT took a contrary position and rejected the appellant’s objection to the resolution plan. Thus forcing the appellant approached the Supreme Court. The counsel on behalf of the Appellant contended  that they would be left with no “recourse to satisfy his legitimate claims” even though it is the highest operational creditor and has Rs. 511 crores owed to it. It has also invoked arbitration proceedings against Ricoh but it was adjourned sine die after filing insolvency petition. The counsel on behalf of the Respondent contended  that the operational creditors of the company seek permission under the insolvency proceedings to continue the arbitration proceedings even though the COC of the company have already approved the CIRP. The Supreme Court held continuance of arbitration proceeding is permitted and dismissed the appeal, giving the parties the freedom to pursue all claims brought to them in the proceedings pending at the relevant time. It was stated that arbitration proceeding are continuing between the parties. If so, all disputes available to both parties will be settled on its own merits in accordance with the law in the proceedings in question.

IN THE CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 5908 OF 2021 FOURTH DIMENSION SOLUTIONS LTD. Appellant(s VERSUS RICOH INDIA LTD. & ORS. Respondent(s O R D E R Heard learned counsel for the parties. It is indisputable that the Resolution Plan approved by the Committee of Creditors has been finally upheld by this Court vide judgment dated 10.03.2021 in Civil Appeal Nos. 2943 29420 titled as "Kalpraj Dharamshi & Anr. vs. Kotak Investment Advisors Ltd. Anr.” and connected cases reported in 2021 SCC During the hearing of the stated appeal it was brought to the notice of the Court that the appellant had preferred some appeal before the National Company Law Appellate Tribunal and it was still pending at the relevant time. This Court in paragraph 160 of the judgment therefore directed that the said appeal shall proceed on merits. Pursuant to that liberty the concerned appeal has now been decided by the NCLAT vide impugned judgment. In our opinion it was sufficient for the NCLAT to dispose of the appeal before it by restating the factual position noted while considering the Plan submitted for approval before the Committee of Creditors. In paragraph 48 of the impugned judgment the NCLAT has noted thus "... The name of the Appellant was mentioned in the list of Operational Creditors. On 29.11.2018 the RP published updated list of Creditors of the Corporate Debtor wherein the admitted claims of the Appellant was indicated as Nil with an appended note: "2. The claims pertaining to FDSL have been disputed and are proceedings before the Arbitrators Appellate Authorities. The liability is subjected to outcome of these proceedings". In light of this factual position in our opinion the appeal needs to be disposed of by restating the said fact with liberty to the parties to pursue all contentions available to them in the proceedings pending at the relevant time if any. It is stated that some arbitration proceedings were pending between the parties. If so all contentions available to both sides be decided in the said proceedings on its own merits in accordance with The civil appeal is disposed of accordingly. Pending applications if any stand disposed of SECTION XVII S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS Civil Appeal No(s). 5908 2021 FOURTH DIMENSION SOLUTIONS LTD. Appellant(s VERSUS RICOH INDIA LTD. & ORS. Respondent(s IA No.122022 2021 EXEMPTION FROM FILING C C OF THE IMPUGNED JUDGMENT and IA No.122020 2021 EX PARTE STAY and IA No.122021 2021 Date : 21 01 2022 This appeal was called on for hearing today CORAM : HON BLE MR. JUSTICE A.M. KHANWILKAR HON BLE MR. JUSTICE DINESH MAHESHWARI For Appellant(s) Mr. Kapil Sibal Sr. Adv Mr. P.P. Chaudhary Sr. Adv Mr. David Rao Adv Mr. M.S. Vishnu Sankar Adv Mr. Koshy John Adv Mr. Sanjeet Purohit Adv Mr. Sriram Parakkat Adv Ms. Athira G. Nair Adv Mr. Atul Sharma Adv Mr. Michael Rao Adv M S Lawfic AOR Ms. Ruby Singh Ahuja Adv Ms. Hancy Maini Adv Mr. Ashutosh P. Shukla Adv M S. Karanjawala & Co. AOR For Respondent(s) Mr. Mukul Rohatgi Sr. Adv M S. Khaitan & Co. AOR UPON hearing the counsel the Court made the following O R D E R The civil appeal is disposed of in terms of the signed order. Pending applications if any stand disposed of DEEPAK SINGH) COURT MASTER (NSH Signed order is placed on the file

Arbitration, Conciliation and Mediation are the Alternative Dispute Resolution for solving civil nature disputes: High court of Allahabad

 The objective of Arbitration is to settle the dispute which arose between the parties by one or more arbitrators appointed by them by going through the documents and evidence and the same issue was held in the judgement passed by a single bench judge Hon’ble Rajeev Singh, J. In the matter Ishwar Singhal Versus State Of U.P. Thru. Prin. Secy. Home. Lko & Others Counsel [- U/S 482/378/407 No. – 1979 of 2020] dealt with an issue mentioned above. Learned A.G.A. raised a preliminary objection that in the present case, First Information Report and its consequential proceedings are challenged as the investigation is still pending, therefore, application (u/s 482 Cr.P.C.) is not maintainable in terms of law laid down by Full Bench of this Court in the case of Ram Lal Yadav and Others vs. The State of U.P. and Others reported in 1989 Cr. LJ 1013, decided on 01.02.1989 and answered that after lodging the FIR, no interference is permissible by this Court in the exercise of its inherent powers, hence, no relief can be granted despite the issue is already resolved in the Mediation Centre. Learned counsel for the applicants has submitted that mediation was successfully concluded and opposite party No.4 join her matrimonial home with her husband and children on 07.07.2021 and settlement agreement was signed at the Mediation and Conciliation Centre of this Court by the applicant  (husband) and opposite party No.4 (wife) along with their respective counsels of the parties and they also agreed to withdraw the proceeding of Case. The counsel for the applicants has submitted that in the law laid down by the Full Bench of this Court in the case of Ram Lal Yadav (supra) relied upon learned A.G.A. is wrongly interpreted as in the aforesaid judgment, it is held that after lodging the FIR, which discloses the commission of a cognizable offence, statutory powers of Police, under Section 156 Cr.P.C. The court perused the facts and arguments presented in the case  Law Commission in its 40th report observed that the statutory power under Section 561 A Cr.P.C. is extended only the inherent power of to High Court. One may compare it with the recognition of the inherent powers of all civil courts by Section 151 Cr.P.C. Later on, Law Commission in its 41st reports recommended that inherent power of Section 561-A Cr.P.C. be extended to all Criminal Courts to prevent abuse of process of any Court or otherwise to secure the ends of justice, but the legislature did not accept the recommendation of commission to extend the inherent power as mentioned in Section 561-A of Criminal Procedure Code, 1898.

AFR Judgment reserved on 01.11.2021 Judgment delivered on 11.01.2022 Case : U S 482 378 407 No. 19720 Applicant : Ishwar Singhal @ Tinu & Others Opposite Party : State Of U.P. Thru. Prin. Secy. Home. Lko & Counsel for Applicant : Durgesh Kumar Singh Counsel for Opposite Party : G.A. Vinod Kumar Hon ble Rajeev Singh J Heard Sri Durgesh Kumar Singh learned counsel for the applicant Shri Anirudh Singh learned A.G.A. for the State and Shri Vinod Kumar learned counsel for the opposite party No.4. This applicationhas been filed with request that the matter may be referred to the Mediation and Conciliation Centre of this Court in relation to FIR No.5019 under Sections 323 354 498A 504 I.P.C. and Section 3 4 of Dowry Prohibition Act 1961 Police Station Mandion District Lucknow and also quashed the entire proceeding in relation to FIR No.5019is not maintainable in terms of law laid down by Full Bench of this Court in the case of Ram Lal Yadav and Others vs. The State of U.P. and Others reported in 1989 Cr. LJ 1013 decided on 01.02.1989 and answered that after lodging the FIR no interference is permissible by this Court in exercise of its inherent powers hence no relief can be granted despite the issue is already resolved in the Learned counsel for the applicants has submitted that marriage of applicant No.1 was solemnized with the opposite party No.4 on 01.07.2009 and they were enjoying their matrimonial life and out of their wedlock two children were born namely Shourya and Tejal but due to some trivial issues FIR in question was lodged on 14.06.2019 by the opposite party No.4. In the present case investigation was started and mediation was also initiated before the court below but the applicant No.1 was not satisfied with the mediation proceeding initiated before the court below hence present applicationwas filed and with the consent of learned counsel for the applicant as well as learned counsel for the opposite party No.4 matter was sent to the Mediation and Conciliation Centre of this Court on 31.07.2020. The order dated 31.07.2020 reads as under: Vakalatnama filed by Shri Vinod Kumar Advocate on behalf of opposite party No.4 is taken on record. Heard learned counsel for the applicants as well as learned A.G.A. for the State and Shri Vinod Kumar learned counsel for opposite party No.4. The present 482 Cr.P.C. application has been filed to quash the entire proceedings arising out of F.I.R. dated 14.06.2019 lodged by the complainantagainst the applicants in Case Crime No. 5019 under Sections 323 354 498 A 504 of I.P.C. and 3 4 Dowry Prohibition Act 1961 Police Staton Madiaon District Lucknow and to refer this matter to the Mediation and Conciliation Center High Court. The instant dispute is the outcome of strained matrimonial relations between applicant No.1 and opposite party No.4. It has been submitted by learned counsel for the applicant that earlier the mediation process was started to amicably settle the dispute between applicant No.1 and opposite party No.4 however due to some wrong advice given by the Advocate of the applicants they could not take part in the mediation process and therefore one more opportunity be provided to the parties to settle their disputes amicably if possible through the process of mediation. Learned counsel for the opposite party No.4 is not having any objection to the request of learned counsel for the applicants. Having regard to the submissions advanced by learned counsel for the applicants and learned counsel for opposite party No.4 the matter is referred to the Mediation Center of this Bench on deposit of Rs. 15 000 which shall be deposited by the applicants within a week from today with the Senior Registrar of this Bench. When the Mediation Center will start functioning a communication will be sent by the Mediation Center of this Bench to the parties and on the first appearance of opposite party No.4 before the Mediation Centre Rs. 13 000 out of Rs. 15 000 which shall be deposited by the applicants shall be paid to her to meet out her expenses of travelling etc. Mediation Center will try its best to persuade the parties to arrive at a settlement and will submit a report to this Court within two months from the start of mediation. List this case in the Ist week of November 2020. Till then no coercive measure shall be taken against the applicants in the Learned counsel for the applicants has submitted that mediation was successfully concluded and opposite party No.4 join her matrimonial home with her husband and children on 07.07.2021 and settlement agreement was singed at the Mediation and Conciliation Centre of this Court by the applicant No.1and opposite party No.4along with their respective counsels of the parties and they also agreed to withdraw the proceeding of Case i.e.Case Crime No.5019and6 SCC 466. The relevant part of the judgment reads as under: 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 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 Jitendra Raghuvanshi And Others vs. Babita Raghuwanshi and another reported in 4 SCC 58. The relevant part of the judgment reads as under: 8. It is not in dispute that matrimonial disputes have been on considerable increase in recent times resulting in filing of complaints under Sections 498 A and 406 IPC not only against the husband but also against the relatives of the husband. The question is when such matters are resolved either by the wife agreeing to rejoin the matrimonial home or by mutual settlement of other pending disputes for which both the sides approached the High Court and jointly prayed for quashing of the criminal proceedings or the FIR or complaint by the wife under Sections 498 A and 406 IPC whether the prayer can be declined on the sole ground that since the offences are non compoundable under Section 320 of the Code it would be impermissible for the Court to quash the criminal proceedings or FIR or complaint 9. It is not in dispute that in the case on hand subsequent to the filing of the criminal complaint under Sections 498 A and 406 IPC and Sections 3 and 4 of the Dowry Prohibition Act 1961 with the help and intervention of family members friends and well wishers the parties concerned have amicably settled their differences and executed a compromise settlement Pursuant thereto the appellants filed the said compromise before the trial court with a request to place the same on record and to drop the criminal proceedings against the appellants herein. It is also not in dispute that in addition to the mutual settlement arrived at by the parties the respondent wife has also filed an affidavit stating that she did not wish to pursue the criminal proceedings against the appellants and fully supported the contents of the settlement deed. It is the grievance of the appellants that not only the trial court rejected such prayer of the parties but also the High Court failed to exercise its jurisdiction under Section 482 of the Code only on the ground that the criminal proceedings relate to the offences punishable under Sections 498 A and 406 IPC which are non compoundable in nature 12. After considering the law laid down in State of Haryana v. Bhajan Lal 1992 Supp SCC 335 : 1992 SCC 426] and explaining the decisions rendered in Madhu Limaye v. State of Maharashtra4 SCC 551 : 1978 SCC 10] Surendra Nath Mohanty v. State of Orissa5 SCC 238 : 1999 SCC998] and Pepsi Foods Ltd. v Judicial Magistrate5 SCC 749 : 1998 SCC1400] this Court held:4 SCC 675 : 2003 SCC848] SCC p 680 para 8 “8. … We are therefore of the view that if for the purpose of securing the ends of justice quashing of FIR becomes necessary Section 320 would not be a bar to the exercise of power of quashing. It is however a different matter depending upon the facts and circumstances of each case whether to exercise or not such a power.” Considering matrimonial matters this Court also held:4 SCC 675 : 2003 SCC848] SCC p. 682 para “12. The special features in such matrimonial matters are evident It becomes the duty of the court to encourage genuine settlements of matrimonial disputes.” 17. In the light of the above discussion we hold that the High Court in exercise of its inherent powers can quash the criminal proceedings or FIR or complaint in appropriate cases in order to meet the ends of justice and Section 320 of the Code does not limit or affect the powers of the High Court under Section 482 of the Code Parbatbhai Aahir and Others vs. State of Gujrat and Another reported in9 SCC 641. The relevant part of the judgment reads 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 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 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 dispute 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 B.S. Joshi And Others vs. State of Haryana And Another reported in 2003) 4 SCC 675. The relevant part of the judgment reads as under : 8. It is thus clear that Madhu Limaye case4 SCC 551 : 1978 SCC10] does not lay down any general proposition limiting power of quashing the criminal proceedings or FIR or complaint as vested in Section 482 of the Code or extraordinary power under Article 226 of the Constitution of India. We are therefore of the view that if for the purpose of securing the ends of justice quashing of FIR becomes necessary Section 320 would not be a bar to the exercise of power of quashing. It is however a different matter depending upon the facts and circumstances of each case whether to exercise or not such a power. Considering matrimonial matters this Court also held 12. The special features in such matrimonial matters are evident. It becomes the duty of the court to encourage genuine settlements of 15. In view of the above discussion we hold that the High Court in exercise of its inherent powers can quash criminal proceedings or FIR or complaint and Section 320 of the Code does not limit or affect the powers under Section 482 of the Code Gian Singh vs. State of Punjab and Another reported in 10 SCC 303. The relevant part of the judgment reads as under: 61. the power of the High Court in quashing a criminal proceeding or FIR or complaint in exercise of its inherent jurisdiction is distinct and different from the power given to a criminal court for compounding the offences under Section 320 of the Code. Inherent power is of wide plenitude with no statutory limitation but it has to be exercised in accord with the guideline engrafted in such power viz. :to secure the ends of justice orto prevent abuse of the process of any court. In what cases power to quash the criminal proceeding or complaint or FIR may be exercised where the offender and the victim have settled their dispute would depend on the facts and circumstances of each case and no category can be prescribed. However before exercise of such power the High Court must have due regard to the nature and gravity of the crime Heinous and serious offences of mental depravity or offences like murder rape dacoity etc. cannot be fittingly quashed even though the victim or victim s family and the offender have settled the dispute. Such offences are not private in nature and have a serious impact on society. Similarly any compromise between the victim and the offender in relation to the offences under special statutes like the Prevention of Corruption Act or the offences committed by public servants while working in that capacity etc. cannot provide for any basis for quashing criminal proceedings involving such offences. But the criminal cases having overwhelmingly and predominatingly civil flavour stand on a different footing for the purposes of quashing particularly the offences arising from commercial financial mercantile civil partnership or such like transactions or the offences arising out of matrimony relating to dowry etc. or the family disputes where the wrong is basically private or personal in nature and the parties have resolved their entire dispute. In this category of cases the High Court may quash the criminal proceedings if in its view because of the compromise between the offender and the victim the possibility of conviction is remote and bleak and continuation of the criminal case would put the accused to great oppression and prejudice and extreme injustice would be caused to him by not quashing the criminal case despite full and complete settlement and compromise with the victim. In other words the High Court must consider whether it would be unfair or contrary to the interest of justice to continue with the criminal proceeding or continuation of the criminal proceeding would tantamount to abuse of process of law despite settlement and compromise between the victim and the wrongdoer and whether to secure the ends of justice it is appropriate that the criminal case is put to an end and if the answer to the above question(s) is in the affirmative the High Court shall be well within its jurisdiction to quash the criminal proceeding Learned counsel for the applicants has also relied on the recent judgment of Hon ble Supreme Court in the case of Ramawatar vs State of Madhya Pradesh reported in 2021 SCC Online SC 966. The relevant part of the judgment reads as under: 19. Having considered the peculiar facts and circumstances of the present case in light of the afore stated principles as well as having meditated on the application for compromise we are inclined to invoke the powers under Article 142 and quash the instant Criminal proceedings with the sole objective of doing complete justice between the parties before us. We say so for the reasons that Firstly the very purpose behind Section 3(1)(x) of the SC ST is to deter caste based insults and intimidations when they are used with the intention of demeaning a victim on account of he she belonging to the Scheduled Caste Scheduled Tribe community. In the present case the record manifests that there was an undeniable pre existing civil dispute between the parties. The case of the Appellant from the very beginning has been that the alleged abuses were uttered solely on account of frustration and anger over the pending dispute. Thus the genesis of the deprecated incident was the afore stated civil property dispute Considering this aspect we are of the opinion that it would not be incorrect to categorise the occurrence as one being overarchingly private in nature having only subtle undertones of criminality even though the provisions of a special statute have been attracted in the present case Secondly the offence in question for which the Appellant has been convicted does not appear to exhibit his mental depravity. The aim of the SC ST Act is to protect members of the downtrodden classes from atrocious acts of the upper strata of the society. It appears to us that although the Appellant may not belong to the same caste as the Complainant he too belongs to the relatively weaker backward section of the society and is certainly not in any better economic or social position when compared to the victim. Despite the rampant prevalence of segregation in Indian villages whereby members of the Scheduled Caste and Scheduled Tribe community are forced to restrict their quartes only to certain areas it is seen that in the present case the Appellant and the Complainant lived in adjoining houses. Therefore keeping in mind the socio economic status of the Appellant we are of the opinion that the overriding objective of the SC ST Act would not be overwhelmed if the present proceedings are quashed Thirdly the incident occurred way back in the year 1994. Nothing on record indicates that either before or after the purported compromise any untoward incident had transpired between the parties. The State Counsel has also not brought to our attention any other occurrence that would lead us to believe that the Appellant is either a repeat offender or is unremorseful about what transpired Fourthly the Complainant has on her own free will without any compulsion entered into a compromise and wishes to drop the present criminal proceedings against the accused Fifthly given the nature of the offence it is immaterial that the trial against the Appellant had been concluded Sixthly the Appellant and the Complainant parties are residents of the same village and live in very close proximity to each other. We have no reason to doubt that the parties themselves have voluntarily settled their differences. Therefore in order to avoid the revival of healed wounds and to advance peace and harmony it will be prudent to effectuate the present Learned counsel for the applicants has submitted that in the law laid down by the Full Bench of this Court in the case of Ram Lal Yadav relied by learned A.G.A. is wrongly interpreted as in the aforesaid judgment it is held that after lodging the FIR which discloses the commission of a cognizable offence statutory powers of Police under Section 156 Cr.P.C. to investigate the case registered on the basis of information no interference is permissible in the investigation in the exercise of its inherent powers under Section 482 Cr.P.C. and this Court has no jurisdiction to direct a police officer not to arrest the accused during the pendency of investigation of the case but High Court can always issue a writ of mandamus under Article 226 of the Constitution restraining the police officer for misusing his legal power in relation to arrest. 10. Learned counsel for the applicants has submitted that provisions of anticipatory bail under Section 438 Cr.P.C. was omitted in the State of U.P. vide U.P. Act No.176 w.e.f. 28.11.1975 the protection of pre arrest was not available therefore application u s 482 Cr.P.C.) was being filed restraining the police from arrest during investigation and in the case of Ram Lal Yadav this controversy was decided that under Section 482 Cr.P.C. Police Officer cannot be restrained from arresting the accused persons during the course of investigation but by way of writ of mandamus this power can be used. This question is already settled in the case of State of Haryana and Others vs. Bhajan Lal and Others reported in 1992) Supp 1 SCC 335 that First Information Report can be quashed either under Section 482 Cr.P.C. or under Article 226 of the Constitution. The relevant part of the judgment reads as under: 102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice though it may not be possible to lay down any precise clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be 1) Where the allegations made in the first information report or the complaint even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.(2) Where the allegations in the first information report and other materials if any accompanying the FIR do not disclose a cognizable offence justifying an investigation by police officers under Section 156(1 of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code 3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused 4) Where the allegations in the FIR do not constitute a cognizable offence but constitute only a non cognizable offence no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code 5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused 6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act to the institution and continuance of the proceedings and or where there is a specific provision in the Code or the concerned Act providing efficacious redress for the grievance of the aggrieved party 7) Where a criminal proceeding is manifestly attended with mala fide and or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge Learned counsel for the applicants has submitted that in the case of Ramawatarthe Hon ble Supreme Court has held that even at the stage of appeal against the conviction order power of inherent jurisdiction can be invoked to do the complete justice therefore in the present case First Information Report and its consequential proceedings may be quashed in terms of settlement agreement executed before the Mediation and Conciliation Centre of this Court. Learned A.G.A. as well as learned counsel for the opposite party No.4 fairly conceded this fact that matter was sent to the Mediation and Conciliation Centre of this Court on 31.07.2020 and it was successfully concluded and presently opposite party No.4 is residing with her husbandand children 13. Considering the arguments of learned counsel for the applicants learned counsel for the opposite party No.4 as well as learned A.G.A. and going through the record it is evident that FIR was lodged by the opposite party No.4due to some trivial issues and during the course of investigation First Information Report and its consequential proceedings were challenged before this Court and thereafter matter was referred to the Mediation and Conciliation Centre of this Court with the consent of counsel for the opposite party No.4 on the first date and it was successfully concluded and settlement agreement was executed between the parties and opposite party No.4 join her matrimonial home on 07.03.2021 and enjoying her life with her husbandand children. 14. As in the case of Ram Lal Yadavthere is no bar from interference in the FIR in applicationas this question was already decided in the case of Bhajan Lal that inherent powers can be invoked in seven conditions which reads as under: Where the allegations made in the first information report or the complaint even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused 2) Where the allegations in the first information report and other materials if any accompanying the FIR do not disclose a cognizable offence justifying an investigation by police officers under Section 156(1 of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code 3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused 4) Where the allegations in the FIR do not constitute a cognizable offence but constitute only a non cognizable offence no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code 5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused 6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Actto the institution and continuance of the proceedings and or where there is a specific provision in the Code or the concerned Act providing efficacious redress for the grievance of the aggrieved party 7) Where a criminal proceeding is manifestly attended with mala fide and or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge 15. As in Criminal Procedure Code 1898 there was no such provision in relating to inherent jurisdiction of High Court but the legislature added Section 561 A by inserting in 1923 Act No.XVII of 1923. Section 561 A of the Criminal Procedure Code 1898 which reads as under: Saving of inherent power of High Court Nothing in this Code shall be deemed to limit or affect the inherent power of the High Court to make such orders as ma be necessary to give effect to any order under this Code or to prevent abuse of the process of any Court or otherwise to secure the ends of justice The Law Commission in its 40th report observed that the statutory power under Section 561 A Cr.P.C. is extended only the inherent power of High Court. One may compare it with the recognition of the inherent powers of all civil courts by Section 151 Cr.P.C. Later on Law Commission in its 41st reports recommended that inherent power of Section 561 A Cr.P.C. be extended to all Criminal Courts to prevent abuse of process of any Court or otherwise to secure the ends of justice but the legislature did not accept the recommendation of commission to extend the inherent power as mentioned in Section 561 A of Criminal Procedure Code 1898. Para 46.2st report of Law Commission is reproduced as under: Section 561 A recognises the inherent powers of the Section 561 A High Court to do real and substantial justice between parties. Assuming its existence the Section provides that nothing in the Code shall be deemed to limit or affect the inherent power of the High Court to give effect to any order under the Codeor otherwise to secure the ends of justice. Fourteenth Report. Vol. II page 829 the Law Commission observed: This statutory recognition however extends only to the inherent powers of the High Court. One may compare it with the recognition of the inherent powers of all civil courts by Section 151 Criminal Procedure In a number of decisions before and after the enactment of Section 561A various High Courts have also recognised the existence of such power in subordinate Courts. We would therefore recommend a statutory recognition of such inherent power which has been recognized as vesting in all subordinate criminal courts. However the general principle of law is that the inherent power of a court can be exercised only to give effect to orders made by it or to prevent abuse of its own processes We agree with this recommendation. We do not however consider it necessary or desirable to go further and recognise and inherent power in Courts of Session and other Courts of Appeal to pass appropriate orders to prevent the abuse of the process of any We propose that the Section may be expanded as follows: 561 A. Nothing in this Code shall be deemed to limit or saving of inherent powers of Criminal Courts affect the inherent power a) of the High Court to make such orders as may be necessary to give effect to any order under this Code or to prevent abuse of the process of any Court or otherwise to secure the ends of justice or b) of any Criminal Court to make such orders as may be necessary to prevent abuse of its process or otherwise to secure the ends of justice In the case of Ram Lal Yadav the provision of anticipatory bail under Section 438 Cr.P.C. was not existing therefore there was a delima to get the remedy of pre arrest during investigation then it was clarified by this Court that High Court has no inherent powers under Section 482 Cr.P.C. to interfere with the arrest of accused persons during the course of investigation but it was clarified that High Court can always issue a writ of mandamus under Article 226 of the Constitution restraining the police officer for misusing his legal power in relation to arrest and FIR can be quashed under Section 482 Cr.P.C. which is covered under the principle laid down by Hon ble Supreme Court in the Case of Bhajan Lal this Court held that Investigating Officer can not be restrained from arresting the accused of a cognizable offence. The Hon ble Supreme Court in the case of Bhajan Lal and Ramawatar already held that FIR and its consequential proceedings can be quashedtherefore this Court is of the view that impugned FIR and its consequential proceedings is liable to be quashed in terms of settlement agreement of parties before Mediation and Conciliation Centre of this Court. 19. For the discussions made above the present application is allowed and First Information Report No.5019 under Sections 323 354 498A 504 I.P.C. and Section 3 4 of Dowry Prohibition Act 1961 Police Station Mandion District Lucknow is 20. Office is directed to communicate this order to the Chief Judicial Magistrate concerned forthwith. Order Date : 11.01.2022

The petitioner was at best consuming narcotics drugs which he used to buy from the sellers in the group: High Court Of Delhi

It is directed that the petitioner be released on bail on his furnishing a personal bond in the sum of ₹1 lakh with two surety bonds of the like amount each, subject to the satisfaction of the learned Trial Court/CMM/Duty Magistratewas upheld by the High Court Of Delhi through the learned bench led by HON’BLE MS. JUSTICE MUKTA GUPTA in the case of NAMAN SHARMA Vs STATE THROUGH NARCOTICS CONTROL BUREAU (BAIL APPLN. 3673/2021) on March 04, 2022. Brief facts of the case are that the petitioner seeks regular bail in case No. VIII/46/DZU/2021 under Sections 8(c)/20/22/29 of the NDPS Act on a complaint filed by the respondent-NCB. Learned counsel for the petitioner contended that as per the statement recorded under Section 67 of the NDPS Act which is inadmissible in evidence, the best case of the respondent is that the petitioner used to consume Ganja in the year 2017 and the payments thereof were made in the year 2021. Even as per the investigation, the group was created by Mohd. Aslam and Parichay Arora and merely because the petitioner was also made an Admin of the group, the liability of the entire group cannot be fastened on the petitioner. Learned counsel for the respondent stated that in view of the embargo under Section 37 of the NDPS Act, no case for grant of bail to the petitioner is made out as there is every possibility that on being released on bail, the petitioner will again indulge in same kind of activities The Court observed “it is evident that the petitioner was at best consuming narcotics drugs which he used to buy from the sellers in the group. Complaint has already been filed by the respondent; the petitioner is in judicial custody since 4th September 2021 and is no more required for investigation. Consequently, this Court deems it fit to grant bail to the petitioner.” The Court held that it is directed that the petitioner be released on bail on his furnishing a personal bond in the sum of ₹1 lakh with two surety bonds of the like amount each, subject to the satisfaction of the learned Trial Court/CMM/Duty Magistrate, out of which, one surety would be a family member of the petitioner; further subject to the conditions that the petitioner will not leave the country without the prior permission of the Court concerned. The petitioner will appear before the NCB office at Kolkata on the first Monday of every calendar month at 6.00 P.M. Click here to read the Judgement

IN THE HIGH COURT OF DELHI AT NEW DELHI NAMAN SHARMA Reserved on: February 24 2022 Decided on: March 04 2022 BAIL APPLN. 3673 2021 ….. Petitioner Represented by: Mr. Anurag Bindal Mr. Ankur Gupta and Mr. B. Khan Advocates. STATE THROUGH NARCOTICS CONTROL ..... Respondent Represented by: Mr. Rajesh Manchanda Special P.P. for the NCB. HON BLE MS. JUSTICE MUKTA GUPTA MUKTA GUPTA J. By this petition the petitioner seeks regular bail in case No. VIII 46 DZU 2021 under Sections 8(c) 20 22 29 of the NDPS Act on a complaint filed by the respondent NCB. Learned counsel for the petitioner contends that even as per the statement recorded under Section 67 of the NDPS Act which is inadmissible in evidence the best case of the respondent is that the petitioner used to consume Ganja in the year 2017 and the payments thereof were made in the year 2021. Even as per the investigation the group was created by Mohd. Aslam and Parichay Arora and merely because the petitioner was also made an Admin of the group the liability of the entire group cannot be fastened on BAIL APPLN. 3673 2021 the petitioner. Even from the transactions of payments made to Mohd. Aslam and Neil Singhvi by the petitioner at best four or five transactions have been shown wherein amounts transferred are ₹11 000 ₹5700 ₹1000 ₹2000 etc. The petitioner is not a drug trafficker. Though not admitting even if at some stage the petitioner consumed the drugs the same would not amount to dealing in a drug trafficking racket. He further states that the similarly placed co accused namely Devesh Vasa has been granted bail by this Court and Aashray Pandey has been granted bail by the learned Special Court and hence on parity the petitioner be also granted bail. The petitioner was working after completing his studies at Kolkata when he was picked up by the officers of the respondent and implicated in this case. The complaint has been filed and the petitioner is no more required for investigation. Learned counsel for the respondent states that in view of the embargo under Section 37 of the NDPS Act no case for grant of bail to the petitioner is made out as there is every possibility that on being released on bail the petitioner will again indulge in same kind of activities and the petitioner being a part of the larger drug network his role cannot be segregated from the other accused. Case of the prosecution in nutshell is that on the basis of an information Guhan Sarvothaman was intercepted at the IGI Airport on 4th August 2021. On his search 30 gms. of ganja and 0.45 gms. of Ecstasy were recovered. In the interrogation he revealed about his friend Rahul Mishra his address and the possibility of recovery of contraband from his house. Search was made at the house of Guhan Sarvothaman at Greater Noida resulting in recovery of 1 kg of ganja and ₹15.5 lakhs in cash. Search was also made at the house of Rahul Mishra at Faridabad from where 1.05 kg of ganja was recovered. Guhan Sarvothaman further BAIL APPLN. 3673 2021 disclosed about one accused Aashray Pandey who was intercepted at Ambience Mall with a parcel containing 410 gms. of ganja. Guhan Sarvothaman also informed about one Tareena Bhatnagar who had promised to get him high quality ganja and for which she had paid a sum of ₹6 lakhs to Jasbir Singh. Thus the links of Jasbir Singh were sought to be traced and it was found that Jasbir Singh operated under the pseudo name Optims Prime and Sharadha Surana operated under the pseudo name Beanskey on Telegram App in Orient Express Group. The Orient Express Group wherein number of people were indulging in sale and purchase of narcotics was created by Parichay Arora and Mohd. Aslam and the petitioner was one of the Admins of the said social media group. On the disclosure of Jasbir Singh and Sharadha Surana search was conducted at the house of Suvashish Roy at Greater Noida from where 1.250 kgs. of Ganja 16 gms. Ecstasy pills 6 gms. Heroine 40 gms. of Charas and 130 gms. of suspected psychotropic substance in different coloured little pills were found and 39.700 gms. concentrate of cannabis and 2.530 gms. liquid cannabis from a parcel at Foreign Post Office Kolkata. One more accused Raghunath Kumar was identified who was recognized as Shopper stop on Wicket App who used to arrange narcotics drugs. According to the investigation the contraband was marketed on social media platforms and then delivered to the customers consumers through parcels. Admittedly even as per the prosecution no recovery of contraband was made from the petitioner and the only evidence against him is that he was one of the Admins of Orient express group which was created by Mohd. Aslam and Parichay Arora and that the petitioner had transferred certain sums of money. As per the statement of accounts placed on record a sum of ₹11 000 was transferred by the petitioner to Mohd. Aslam on 21st June BAIL APPLN. 3673 2021 2020 ₹5700 to Neil Singhvi on 9th October 2020. Further two transactions of ₹1000 each and a transaction of ₹2300 have been made to Parichay Arora. Even in the statement of the petitioner recorded under Section 67 of the NDPS Act which is not admissible in evidence in view of the decision of the Hon’ble Supreme Court reported as 4 SCC 1 Tofan Singh Vs. State of Tamil Nadu it is stated that in August 2020 during the lockdown the petitioner was looking to buy weed for his consumption through telegram thus used the keywords like ‘weeds marijuana’ when he entered into two groups where he got scammed of ₹3500 . In the same group there was a user named Chico who asked the petitioner to join another group where there was a seller with the user name Pptheplugwho sent him some weed for the first time in advance without paying him which made him believe that he was a real seller. Later Aslam and Parichay Arora started adding more people in the group and made it a group of 200 members. In the group there were 5 7 sellers who used to send weed parcels via courier services and the petitioner was one of them who used to buy for his consumption. From the facts of the complaint as noted above and even based on the statement under Section 67 of the NDPS Act and the money transactions it is evident that the petitioner was at best consuming narcotics drugs which he used to buy from the sellers in the group. Complaint has already been filed by the respondent the petitioner is in judicial custody since 4th September 2021 and is no more required for investigation. Consequently this Court deems it fit to grant bail to the petitioner. It is therefore directed that the petitioner be released on bail on his furnishing a personal bond in the sum of ₹1 lakh with two surety bonds of the like amount each subject to the satisfaction of the learned Trial BAIL APPLN. 3673 2021 Court CMM Duty Magistrate out of which one surety would be a family member of the petitioner further subject to the conditions that the petitioner will not leave the country without the prior permission of the Court concerned and in case of change of residential address and or mobile number the same will be intimated to the Court concerned by way of an affidavit. Further the petitioner will appear before the NCB office at Kolkata on the first Monday of every calendar month at 6.00 P.M. Petition is disposed of. Order be uploaded on the website of this Court. MUKTA GUPTA) MARCH 04 2022 BAIL APPLN. 3673 2021

Cases of Two Petitioners Identical Will Be Barred By Limitation And Laches: Patna High Court

The two orders issued in exaltedly similarly qualified cases when the cases of the two petitioners are identical to the petitioners in the two cases is barred by limitation and laches is upheld by the High Court of Patna through the learned bench led by HONOURABLE MR. JUSTICE P. B. BAJANTHRI in the case of Md. Ushman Ansari Vs. State Of Bihar (Civil Writ Jurisdiction Case No.6586 of 2020). Brief facts of the case are that on August 17, 1995, the petitioners’ services were terminated. Similarly situated individuals approached the Court, and on July 25, 2007 decisions were issued in favour of petitioners’ colleague. Following that, on 02.12.2010, decided in favour of similarly situated persons. The petitioners are the fence sitter, as evidenced by the record that they submitted representation for the first time on February 10, 2012. After that he hasn’t come back to the Court in approximately eight years. As a result, in accordance with the Supreme Court’s decision in the matter of State of Jammu and Kashmir vs. R.K. Zalpuri and others, the current petition is hopelessly barred by limitation and laches. The petitioners in this writ petition seek indulgence before this Hon’ble Court for the purpose of disposing of the present writ petition in accordance with the two orders issued in exaltedly similarly qualified cases because the cases of these two petitioners are identical to the petitioners in the two cases, i.e., Prem Prakash Singh and another Versus The State of Bihar and others , Sanjay Kumar and others Versus The State of Bohar and others. The court also stated that, while exercising its jurisdiction under Article 226 of the Constitution, the Court must evaluate whether adjudication of a writ petition involves any complicated and disputed factual issues and whether they may be satisfactorily resolved, and whether the petition discloses all material facts. Moreover, the Court must also evaluate the petitioner has any other or effective remedy for resolving the dispute, and the person invoking the jurisdiction is guilty of unexplained delay and laches; and ex facie barred by any statutes of limitation; and grant of relief is against public policy or barred by any valid law among other factors. The court hence disposed the petition.

IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.65820 1. Md. Ushman Ansari Son of Md. Siddque Ansari Resident of Village Khapra P.O. and P.S. Akorhigola District Rohtas at Sasaram 2. Krishna Singh Son of Sri Moti Lal Singh Resident of Laxman Bigha P.S Indrapuri District Rohtas at Sasaram ... Petitioner s The State of Bihar through Principal Secretary Road Construction Department Govt. of Bihar Patna The Engineer in Chief cum Chief Engineer Road Construction Department Govt. of Bihar Patna The Superintending Engineer Road Construction Department Bhojpur Circle Ara District Ara The Executive Engineer Road Construction Department District Ara The District Magistrate Cum Collector Ara District Ara ... Respondent s For the Petitioner s Mr. Arun Kumar No. 1 Advocate For the Respondent s Mr.contained in Annexure 1 and order dated 02.12.2010 passed in C.W.J.C. No. 7772 2006contained in Annexure 2 because case of these two petitioners are exactly similar to the cases of the petitioners of aforementioned two cases contained in Annexure 1 and 2 as they have been terminated by the same letter contained in Annexure 5 Patna High Court CWJC No.65820 dt.20 12 2021 And further for issuance of any other wit or writs direction or directions as it may be deceased fit and proper to the facts and circumstances of this case.” Petitioners’ services were terminated on 17.08.1995 Similarly situated persons have approached this Court and orders were passed in favour of petitioners’ colleague on 25.07.2007 in C.W.J.C No. 11776 on 2006. Thereafter C.W.J.C. No. 77706 decided on 02.12.2010 in respect of similarly situated persons. The petitioners are fence sitter as is evident from the record that they have submitted representation for the first time on 10.02.2012. Thereafter he has not approached this Court for about eight years. Therefore the present petition is hopelessly barred by limitation and laches in terms of the Apex Court decision in the case of State of Jammu and Kashmir V s R.K. Zalpuri and others reported in AIR 2016 SC 3006 paragraph 20 has held as under “20. Having stated thus it is useful to refer to a passage form City and Industrial Development Corporation V s. Dosu Aardeshir Bhiwandiwala and others {(2009) 1 SCC 168} wherein this Court while dwelling upon jurisdiction under Article 226 of the Constitution has expressed thus: “The Court while exercising its jurisdiction under Article 226 is duty bound to consider whether a) Adjudication of writ petition involves any complex and disputed question of facts and whether they can be satisfactorily resolved b) The petition reveals all material facts Patna High Court CWJC No.65820 dt.20 12 2021 c) The petitioner has any alternative or effective remedy for the resolution of the dispute d) Person invoking the jurisdiction is guilty of unexplained delay and laches e) Ex facie barred by any laws of limitation f) Grant of relief is against public policy or barred by any valid law and host of other factors” Accordingly petition stands dismissed. P. B. Bajanthri J GAURAV S.

Swachh Bharat Mission’s objective is to ensure open defecation free cities and scientific collection and processing of solid waste: Bombay High Court

The guidelines of Swachha Bharat Mission (Urban) Scheme of the Government envisages that beneficiary households will be targeted irrespective of whether they lived in authorized / unauthorized colonies of notified / non-notified slums under SBM (Urban) scheme. A single-judge bench of Milind Jadhav J., while adjudicating the matter Municipal Corporation of Mumbai v. Nirmal Nagar Co-op Housing Society; [APPEAL FROM ORDER (ST) NO. 9596 OF 2021]; dealt with the issue of responsibility of Municipal Corporation. Plaintiff is a federation of several cooperative housing societies. The learned counsel appearing for the plaintiff contended that the Corporation was redeveloping and reconstructing an already existing dilapidated toilet block standing on an open portion / space. This is the factual position and the Plaintiff has suppressed the same while approaching the trial court. He submitted that the original toilet block having 40 toilet seats was in a very bad condition and practically unusable pursuant to which several complaints were received. The WC pans were in broken condition; bottoms of the doors were corrugated and damaged completely; vent pipes were damaged at many places and the overall condition was filthy and bad. The photographs of the original toilet block which are part of the paper book were also referred to and attention of the Court was drawn thereto. The same has not been denied by the learned counsel for the Plaintiff which is material. Further, he stated that the toilet block reconstruction is being done under the Central Government’s Swachha Bharat Abhiyaan Scheme. He submitted that construction of latrines did not require permission of the local bodies in as much as the land holding authorities did not have the authority to disallow construction of latrines under the Swachha Bharat Mission (Urban) for censused. In any event, it was submitted that reconstruction of the toilet block was in place of the old toilet block and not a new construction; it was in the larger public interest and would serve the population of the slum areas of Deepakwadi and Nirmalnagar who were using the earlier toilet block and who would now be benefited by the new toilet block structure; it was in the interest of residents of the locality and in absence of a clear right, title and interest, the Plaintiff Federation could not oppose the same.

on 18 05 2021 on 22 03 civil ao st 9596 21 & ia st 9597 21.docR.M. AMBERKAR(Private Secretary) IN THE HIGH COURT OF JUDICATURE AT BOMBAYCIVIL APPELLATE JURISDICTIONAPPEAL FROM ORDERNO. 9596 OF 2021WITHINT. APPLICATIONNO. 9597 OF 2021Municipal Corporation of Greater Mumbaithrough Assistant MunicipalCommissioner H East Ward...Appellant VersusNirmal Nagar 1 Co operative HousingSociety Association Ltd & Ors...Respondents...................Mr. N.V. Walawalkar Senior Advocate a w Ms. Madhuri More i byMrs. A.K. Savla for the Appellant Mr. Sachin Kadam for Respondent No. 1 ................... CORAM : MILIND N. JADHAV J. RESERVED ON : MAY 7 2021. PRONOUNCED ON : MAY 18 2021.JUDGMENT: Heard Mr. N.V. Walawalkar learned SeniorAdvocate for the Appellant Original Defendant No. 1 and Mr.Sachin Kadam for Respondent No. 1 Plaintiff.2. This Appeal from Order is filed to challenge theorder dated 09.03.2021 passed by City Civil Court Dindoshi Mumbai in Notice of Motion No. 21 in S.C. Suit No. 7 of2021 whereby the trial Court has made the said Notice ofMotion absolute in terms of prayer clauses(b) and(b) andof the Notice of Motionreads thus: "(a) That pending hearing and final disposal of the above suit thisHon ble Court be pleased to direct the Defendant No. 1 to stay itshands and remove the partly carried out construction activity at thesuit plot of land bearing C.T.S. No. 418 being red portion shown inlay out planThat pending hearing and final disposal of the above suit thisHon ble Court be pleased to direct the Defendant No. 3 toimplement the Hon ble Court s order and restrain any person fromcarrying out any construction on the suit plot of land bearing C.T.S.No. 418 as shown in red colour in the lay out plan bearing Exhibit"E" hereto and also to maintain law and order at siteThat pending hearing and final disposal of the above suit thisHon ble Court be pleased to grant temporary order and injunctionrestraining the Defendant No. 1 its officers servants agents andperson or persons claiming through or under them from carrying outany construction activities of public toilet in the suit premises shownin red colour in the lay out plan on plot bearing C.T.S. No. 418 beingExhibit "E" hereto."3. By consent of the parties the Appeal from Orderis taken up for hearing. For the sake of convenience weshall refer to the parties as they were referred to before thetrial Court i.e Appellant will be referred to as Defendant No.1 Respondent No. 1 herein will be referred to as Plaintiff andRespondent Nos. 2 & 3 will be referred to as Defendant No. 2& Defendant No. 3 respectively.4. Briefly stated Plaintiff is a Federation of severalCo op. housing societies in Nirmal Nagar Area BandraMumbai. Suit bearing L.C. Suit No. 21 has been filedby the Plaintiff for the following reliefs: on 18 05 2021 on 22 03 civil ao st 9596 21 & ia st 9597 21.doc"(a) That this Hon ble Court be pleased to declare that the work beingcarried out at the said site more particularly described in lay out planin red ink on the plot of land bearing C.T.S. No. 418 of constructionof toilet by the Defendant No. 1 is illegal bad in law null and voidand is without proper permission of Competent Authority or of thePlaintiffThat this Hon ble Court be pleased to direct the Defendant No. 1 tostay its hands and remove the partly carried out construction activityat the suit plot of land bearing C.T.S. No. 418 being red portionshown in the lay out planThat this Hon ble Court be pleased to direct the Defendant No. 3 toimplement the Hon ble Court s order and restrain any person fromcarrying out any construction on the suit plot of land bearing C.T.S.No. 418 as shown in red colour in the lay out plan being Exhibit "E"hereto and also to maintain law and order at siteThat this Hon ble Court be pleased to grant permanent order andinjunction restraining the Defendant No. 1 its officers servants agents and person or persons claiming through or under them fromcarrying out any construction activities of public toilet in the suitpremises shown in red colour in the lay out plan on plot bearingC.T.S. No. 418 being Exhibit "E" hereto."5. Mr. Walawalkar learned Senior Advocateappearing for the Appellant Defendant No. 1 Corporationhas assailed the impugned order dated 09.03.2021 andcontended that the Corporation was redeveloping andreconstructing an already existing dilapidated toilet blockstanding on an open portion space in C.T.S. No. 418.This is the factual position and the Plaintiff has suppressedthe same while approaching the trial court. He submittedthat the original toilet block having 40 toilet seats was in avery bad condition and practically unusable pursuant towhich several complaints were received from the localMunicipal Councillor of Beat 95 and a local organization on 18 05 2021 on 22 03 civil ao st 9596 21 & ia st 9597 21.doccalled Prabhati Nirmal Sudhar Samitee. Thereafter theofficers of the Corporation jointly visited and inspected theoriginal toilet block structure along with the local Councillorand local residents from Nirmalnagar and Deepakwadi theoriginal toilet block was constructed in the year 2010 11from the MLA fund of then MLA Mr. PrakashSawant the WC pans were in broken condition bottoms of the doorswere corrugated and damaged completely vent pipes weredamaged at many places and the overall condition was filthyand bad. The photographs of the original toilet block whichare part of the paper book were also referred to andattention of the Court was drawn thereto. The same has notbeen denied by the learned counsel for the Plaintiff which ismaterial.5.1. Mr. Walawalkar submitted that considering thepopulation of the locality in Deepakwadi and Nirmalnagar asurvey was carried out by appointing CBO called PrathaSamajik Sanstha which reported that 57 toilet seats were therequirement considering that there were 788 ladies and 873gents residing in the said area. Accordingly estimation planning designing and construction of the RCC communitytoilet block was planned and executed to have 67 toiletseats. The Competent Authority for administrative sanction on 18 05 2021 on 22 03 civil ao st 9596 21 & ia st 9597 21.docapproved the proposal submitted by the Assistant Engineer(Maintenance department) H East ward on 19.03.2020 workorder was issued to Defendant No. 3 on 14.07.2020 andimmediately thereafter during the last monsoon the oldtoilet block was demolished and reconstruction workcommenced. Though Defendant No.2 MHADA had inquiredwith Defendant No. 1 Corporation about the permission itwas put to the notice of MHADA that the Secretary of UrbanDevelopment Department had directed that no NOC wouldbe required from the land holding authorities. NeverthelessMr. Walawalkar submitted that the Corporation shallapproach MHADA if so required and complete the formalitiesas both the Corporation and MHADA being instrumentalitiesof the State are planning authorities and carry out similarfunctions. 5.2. He submitted that the toilet block reconstructionis being done under the Central Government s SwachhaBharat Abhiyaan Scheme. He submitted that construction oflatrines did not require permission of the local bodies in asmuch as the land holding authorities did not have theauthority to disallow construction of latrinesunder the SwachhaBharat Missionfor censused structures noted in on 18 05 2021 on 22 03 civil ao st 9596 21 & ia st 9597 21.doc2011 census. In any event it was submitted thatreconstruction of the toilet block was in place of the oldtoilet block and not a new construction it was in the largerpublic interest and would serve the population of the slumareas of Deepakwadi and Nirmalnagar who were using theearlier toilet block and who would now be benefited by thenew toilet block structure it was in the interest of residentsof the locality and in absence of a clear right title andinterest the Plaintiff Federation could not oppose the same.5.3. While referring to the impugned order Mr.Walawalkar submitted that the finding given in paragraphNo. 14 is prima facie on the face of record incorrect. Hesubmitted that it has been held in the impugned order thatDefendant No. 1 cannot enter on private land by any privateperson even though the work of construction of public toiletis in the larger public interest. He submitted that this findingand terming Defendant No. 1 as an encroacher on theprivate land owned by Defendant No. 2 MHADA forunauthorized construction of public toilet is incorrect in factand law. He submitted that the impugned order is passedon the basis that the Corporation is constructing a freshstructure toilet block without looking into the record thatthere existed an earlier toilet block of 40 seats. This aspect on 18 05 2021 on 22 03 civil ao st 9596 21 & ia st 9597 21.docis missing in the entire impugned order. The impugned orderproceeds on the basis that the Plaintiff is the owner of C.T.S.No. 418 and this is incorrect and erroneous in as much asthe Plaintiff does not have any conveyance in its favour.Merely on the basis of a lay out it cannot be assumed thatthe Plaintiff becomes the owner of C.T.S. No. 418 and morespecifically of the open space where other constructionshave been in place since long. He submitted that theargument of the Plaintiff that there are two other toiletblocks within 30 meters of the said site cannot becountenanced as proper estimation planning and executionof the present toilet block has been done based upon thepopulation of the area on the basis of the 2011 census. Hetherefore persuaded the Court to set aside and quash theimpugned order and allow the Appeal from Order filed by theCorporation in the larger public interest.6. PER CONTRA It is the case of the Plaintiff thatDefendant No. 1 Corporation suddenly started carrying outwork of construction of a public toilet block on an openportion of land in C.T.S No. 418. The case pitched by thelearned counsel appearing for the Plaintiff is that DefendantNo.1 Corporation suddenly out of blue started constructionwork of a public toilet structure on a portion of open plot of on 18 05 2021 on 22 03 civil ao st 9596 21 & ia st 9597 21.docland in C.T.S. No. 418. Plaintiff has asserted that the openspace where the toilet is being constructed is being used bythe members of the Plaintiff s Federation of Socieities for thepast several years Plaintiff is in settled possession of thesaid open space and is the owner of the said open space ofland Defendant No.1 Corporation has no right or permissionfrom Defendant No. 2 MHADA to construct or startconstructing on the said open space of land. This case isstated in paragraph Nos. 14 and 15 of the plaint.6.1. At the outset Mr. Kadam on a query put by theCourt has very candidly admitted that the case stated inparagraph No. 15 is incorrect in as much as there wasalready an old dilapidated toilet structure standing on thesaid open portion space in C.T.S. No. 418 for several yearsand since it was in a precarious condition the Corporationdemolished the same and started construction of a newtoilet block with 67 seats for the benefit of the slumdwellers users. On the issue of title Mr. Kadam is not in aposition to show any document or evidence of title to thesaid open portion space where the public toilet blockstructure is being reconstructed and redeveloped by theCorporation save and except agitating that the entire C.T.S.No. 418 comprises of several buildings who are members of on 18 05 2021 on 22 03 civil ao st 9596 21 & ia st 9597 21.docthe Plaintiff Federation and the said buildings haveapproached MHADA for the purpose of redevelopment andMHADA has granted permission to the Plaintiff forredevelopment of the said lay out subject to conditions.Thus it is the case of the Plaintiff that by virtue of the layout being sanctioned by MHADA and the offer letter beinggiven to the Plaintiff Plaintiff has become the owner of landi.e C.T.S. No. 418 which includes the open portion spacewhere Defendant No. 1 Corporation is constructing thetoilet block. Therefore it is imperative on the part ofDefendant No. 1 Corporation to obtain permission andsanction from Defendant No. 2 MHADA as well as seekpermission of the Plaintiff Federation. Apart from the abovesubmission admittedly there is no documentary evidence ofany registered conveyance of C.T.S. No. 418 in favour of thePlaintiff Federation. 6.2. Mr. Kadam submitted that most of the societies inthe lay out are owners of their respective structures as thesame has been conveyed to them by Defendant No. 2MHADA. In view thereof several societies have becomeowners of the open land appurtenant to their respectivestructures and the land beneath their respective structures.Hence the Plaintiff has become owner of C.T.S. No. 418 in on 18 05 2021 on 22 03 civil ao st 9596 21 & ia st 9597 21.docits entirety. Mr. Kadam finally submitted that if the toiletblock is constructed on the said open portion space it willgive a reduced return of FSI to the various flat occupiers andmembers of the societies after redevelopment. Therefore he supported the impugned order and stated that it wascorrectly passed and the same needs to be upheld bydismissing the Appeal from Order and the Interim Applicationfiled by the Corporation.7. Submissions of the parties have been on pleadedlines. Perused the material on record and pleadings. 8. In its pleadings Plaintiff has not produced anydocumentary evidence of its title to C.T.S. No. 418.Therefore to accept the case of the Plaintiff that theFederation is the owner of C.T.S. No. 418 is difficult.Although the Plaintiff has produced an offer letter andsanctioned lay out of C.T.S. No. 418 the same does notcertify that the Plaintiff is the owner of C.T.S. No. 418.Certainly the members of the societies of the PlaintiffFederation are the owners of their respective buildings andthe land beneath the buildings and the area appurtenantthereto but to claim ownership of the open space portion1 on 18 05 2021 on 22 03 civil ao st 9596 21 & ia st 9597 21.docwhere the original toilet block existed or any other structurestanding on C.T.S. No. 418 without any documentaryevidence of tile of transfer and conveyance from DefendantNo. 2 MHADA cannot be accepted by the Court. Thus it isproved that the Plaintiff lacks title in respect of C.T.S. No.418. 8.1. That apart the critical fact which determines thecase of the parties is the fact that construction of the presentpublic toilet block is not a fresh construction. Admittedly theold toilet block of 40 seats was already present at the site onthe open portion space in C.T.S. No. 418. It wasdilapidated unusable and therefore under the SwachhaBharat Abhiyaan Scheme after following the due process oflaw reconstruction and redevelopment of the old toilet blockis contemplated executed and implemented. Thus thecase of the Plaintiff therefore cannot be countenanced thatthe Corporation is an encroacher of C .T.S. No. 418 andstarted construction of toilet block suddenly withoutpermission from MHADA or without permission from thePlaintiff. 8.2. The construction of the toilet block is a sociallybeneficial project for the residents of Deepakwadi and1 on 18 05 2021 on 22 03 civil ao st 9596 21 & ia st 9597 21.docNirmalnagar under the Swachha Bharat Abhiyaan Scheme. Itis surprising that despite the old toilet block being in placetill the last monsoon the averments of the Plaintiff that theopen space has been in existence since development and layout and also used by all the societies forming part andparcel of the said lay out is on the face of record false. It isan admitted position that C.T.S. No. 418 is surrounded byhutments and the old toilet block provided succour to thesehutments. Since it was in an unusable state of affairs thesame is now being remodelled reconstructed andredeveloped for the benefit of the existing slum dwellers whowere originally using the old toilet block. The affidavit dated19.01.201 filed by the Junior Engineerof theCorporation on behalf of Defendant No.1 Corporation exhibitsthe aforesaid facts. For the purpose of reference paragraphNo. 7 of the said affidavit which is relevant is extracted asunder: "7. Without prejudice to the aforesaid contentions which are withoutprejudice to another the true facts pertaining to the present case are asfollows :(a) I say and submit that the plaintiff herein has filed the presentsuit praying therein that this Hon ble Court be pleased to granttemporary order and injunction restraining the Defendant No.1 itsofficers servants agents and person or persons claiming throughthem from carrying out any construction activities of public toilet inthe suit premises shown in red colour in the lay out plan on plotbearing C.T.S.No.418 being Exhibit "E" and further prayed that theDefendant No.1. To stay its hands and remove the partly carriedout construction activity at the suit plot of land bearing C.T.S.No.418 red portion shown in the lay out plan.1 on 18 05 2021 on 22 03 civil ao st 9596 21 & ia st 9597 21.doc(b) I say and submit that oral complaints were received fromlocal Municipal Councilor of Beat 95 as he had received complaintletter from local organization naming Prabhati Nirmal SudharSamitee regarding bad condition of toilet block at Nirmalnagar.Hereto annexed and marked as Exhibit A is the copy ofcomplaint letter dt. 30.07.2019 from local organization namingPrabhati Nirmal Sudhar Samitee regarding bad condition oftoilet block at Nirmalnagar to the local Municipal Councilor ofBeat 95.(c) I say and submit that the accordingly the Defendant No.1had jointly inspected the site along with Local Councilor and localresidents from Nirmalnagar and Deepakwadi then it was observedthat the existing toilet block which had name board of MHADAAuthority stating that the said toilet is constructed through MLAfund of Hon ble MLA Shri. PrakashSawant in the year 2010 11 WC pans are in broken condition GI Doors bottoms corrugatedand damaged vent pipes got damaged at many places of said toiletblock overall it was in bad condition. Hereto annexed and markedas Exhibit B is the copy of photographs.(d) I say and submit that accordingly these Defendants hadcarried out survey at Deepakwadi by appointed CBO naming PrathaSamajik Sanstha which had reported that the total 57 numbers toiletseats were required as per the present population in that locality i.e.total 788 nos. of ladies and 873 nos of gents. Therefore theseDefendants had prepared estimate for planning designing andconstruction of RCC Community toilet block under LOT 11R inwhich it is proposed to reconstruct the above mentioned toilet inG+2 RCC structure having total nos. of 67 seats against the existing40 seats as per surveyed by appointed CBO. Hereto annexed andmarked as Exhibit C is the copy of survey conducted by CBO.(e) I say and submit that thereafter the Assistant Engineer(Maintenance Department) H East ward had submitted the saidproposal tot he Competent Authority for administrative sanction andsame was obtained u no. DMC Z III 8214 dated 19 03 2020.Hereto annexed and marked as Exhibit D is the copy ofsanction u no. DMC Z III 8214 dated 19 03 2020.(f) I say and submit that after obtaining administrative sanctionfrom Competent Authority the Defendant No.3 had issued workorder having P.O. no. 4100061615 dated 14.07.2020 to theappointed contractor M s API Civilcon Pvt Ltd for the construction ofRCC Community toilet block under LOT 11R at Nirmal Nagar inBeat 95 H East ward. Hereto annexed and marked as Exhibit Eis the copy of work order having P.O.no. 4100061615 dated14.07.2020 to the appointed contractor M s API Civilcon Pvt Ltdfor the construction of RCC Community toilet block under LOT11R at Nirmal Nagar in Beat 95 H East ward.(g) I say and submit that after the demolition of old toilets the1 on 18 05 2021 on 22 03 civil ao st 9596 21 & ia st 9597 21.docreconstruction work was started after monsoon that was from01.11.2020. Hereto annexed and marked as Exhibit F is thecopy of photographs of reconstruction of toilet work.(h) I say and submit that the Defendant No.1 received letterfrom Defendant No.2 i.e. MHADA dt. 09.12.2020 stating that theongoing toilet construction work is on vacant MHADA land andinformed to stop the work. Hereto annexed and marked asExhibit G is the copy of letter from Defendant No.2 i.e. MHADAto Defendant No.1 MCGM.(i) I say and submit that however the Defendant No.1 i.e.MCGM replied to Defendant No.2 i.e. MHADA on 21.12.2020 statingthat the construction work of toilet block is going on by demolishingexisting old toilet block and also as there are directions fromSecretary of Urban Development Department stating that No NOCshould be required from land holding authorities . Hereto annexedand marked as Exhibit H is the copy of the Defendant No.1 i.e.MCGM replied to Defendant No.2 i.e. MHADA on 21.12.2020.(j) I say and submit that the work of LOT 11R is under CentralGovernments SWACHHA BHARAT ABHIYANN SCHEME.However as per the clarification received from Chief Secretary ofUrban Development Department regarding NOC Permissionsrequired by the Urban Local Bodies it clearly mentioned that landholding authorities do not have the authority to disallow constructionof latrines on their land and therefore no NOC should be requiredfrom land holding authorities such as Railways Ports CRZ Environment Customs NHAI Archaeology Forest etc. forconstruction of latrinesfor census structure notedin 2011 census. Hereto annex and marked as Exhibit I is thecopy of the letter from Chief Secretary of Urban DevelopmentDepartment to the Additional Municipal Commissioner dt.21.09.2015 along with Circular dated 04.06.2015.(k) I say that the above mentioned toilet at Nirmalnagar wastaken for construction of G+2toilet block is not on openland it has being constructed by demolishing existing old 40 seatedtoilet block under same scheme. I say and submit that theDefendant No.3 reconstructing toilets block as per letter received toteh Defendant No.1 from Chief Secretary of Urban LandDevelopment Department under the scheme of the CentralGovernments SWACHHA BHARAT ABHIYANN. I say and submitthat the said construction of toilets is in the larger public interesttherefore the Plaintiff as well as Defendant No.2 cannot obstruct theconstruction of toilet blocks as it is in the interest of residents of thatlocality."8.3. From the above it is discernible that theCorporation has not encroached upon C.T.S. NO. 418 as a1 on 18 05 2021 on 22 03 civil ao st 9596 21 & ia st 9597 21.docrank encroacher to construct the toilet block and there is ahistory to the construction of the new toilet block whichcannot be lost sight of. Under the Brihanmumbai MahanagarPalika Swachha Bharat Abhiyaan Scheme it is contemplatedthat toilet block should be constructed in various slums ofMumbai through the concerned ward office and accordingly after following the due process of law the same has beendone. The total number of residents who would be using theredeveloped public toilet block to be constructed by theCorporation would be as follows: "Total House : 420Total Adults: 1461Female 696Male 765Total of above 10 yrs.Boys 33Girls 40Total of below 10 yrs.Boys 75Girls 52Total Public : 1661"8.4. A budget of Rs. 2 09 61 500 has been sanctionedfor this work and technically verified by the ExecutiveEngineer H East Ward and the work order has been given.Apart from the aforesaid issues it is important to understandthe need and necessity of the hour. What is significant tonote is the fact that the new toilet block will be coming up onthe same place where the old existing toilet block wasstanding. The Plaintiff had never objected to the old existing1 on 18 05 2021 on 22 03 civil ao st 9596 21 & ia st 9597 21.doctoilet block which was constructed in the year 2010 11 anddetails of the same is placed on record and it is only now thatthe Plaintiff has sought to object on the ground of title andentitlement to C.T.S. No. 418. Not a single documentevidencing title or entitlement of the Plaintiff has beenplaced before the Court to support the impugned orderthough it has been admitted that Defendant No. 2 MHADA isthe owner of C.T.S. NO. 418. 8.5.The primary objective of construction of toiletblock is required to be considered. The State of Maharashtraunder the Swachha Bharat Missionhas maintainedthat the scheme is implemented with the objective ofensuring open defecation free cities and scientific collectionand processing of solid waste. The guidelines of SwachhaBharat MissionScheme of the Governmentenvisages that beneficiary households will be targetedirrespective of whether they lived in authorized unauthorized colonies of notified non notified slums underSBMscheme. When the Plaintiff does not have titleto C.T.S. No. 418 merely on the basis of the lay out it cannotclaim entitlement to the land where the old toilet blockexisted which does not belong to the Plaintiff. The old toiletblock and the land beneath it never belonged to the Plaintiff1 on 18 05 2021 on 22 03 civil ao st 9596 21 & ia st 9597 21.docFederation and was on an open portion space of C.T.S. No.418 with a definitive purpose and what has been done now isto redevelop and reconstruct the original dilapidated toiletblock at the same place. Therefore the Plaintiff cannot claimentitlement to the land beneath the original toilet block orthe area of the original toilet block or the structure of theoriginal toilet block. The case of the Plaintiff therefore fails. 9. In view of the above discussion and findings theimpugned order dated 09.03.2021 needs to be interferedwith and is quashed and set aside. The Appeal from Order(St) No. 95921 stands allowed with no order as tocost.10. In view of the Appeal from Order being allowed no orders are required to be passed in Interim Application(st) No. 95921. The same stands disposed of. 1

Confession made in police custody cannot be used in trial for offence under NDPS Act: High Court of Delhi

When no circumstantial evidence is found and person is arrested merely under Section 67 for recording of NDPS Act for confession statement, such arrest holds no legal validity, and the accused shall be granted bail. This was decided in the case of by Mohit Aggarwal vs. Narcotics Control Bureau [BAIL APPLN. 2585/2020 & Crl.M.(B) 8044/2020] Hon’ble Justice Suresh Kumar Kait in the High Court of Delhi. The facts of the case are that petitioner was business in the name of Madhav Pharma for sale, purchase and transport of various medicines while holding valid drug license under Form 20B & 21B of Drugs & Cosmetics Act, 1945. pleaded that no contraband was recovered from his possession and he has been falsely implicated in this case. He got involved into the case after secret information was given to the an Intelligence officer of the a parcel containing NRX tablets.  Thereafter, as per law, search was conducted, and drugs were seized after sending legal notice to the owner to accompany the raiding team. After a series of investigations , upon recovery of contraband and based on voluntary statements, petitioner was arrested under Sections 8,22 and 29 NDPS Act. His application for bail was dismissed and hence this petition. The counsel for petitioner submitted that the rejection of bail by the trial court is without application of mind, as the learned trial court has failed to appreciate that name of petitioner popped up. Also, the person on whose voluntary statement, the arrest was made, has not named the petitioner herein and he has retracted from his statement. Also, no other material evidence has been placed on record to establish petitioner’s involvement in the offence in question. Special Public Prosecutor contended that court shall support the rejection of bail application as the offence committed by the petitioner comes under the category of recovery of commercial quantity and since there is an embargo of Section 37 of NDPS Act. He further submitted that the analysis of call detail records of petitioner and other co-accused in this case shows criminal conspiracy for their involvement in illicit trafficking of drugs. The court considered the contentions put forth by both the parties. It observed that he solitary ground to involve petitioner in the present case is his statement made under Section 67 of NDPS Act, which he had retracted at the first opportunity available to him. The court also reproduced Section 67 of NDPS Act which empower the concerned authorities to ‘examine any person acquainted with the facts and circumstances of the case. The court referred to the case of Tofan Singh Vs. State of Tamil Nadu 2020 SCC Online SC 882 where it was held “That a statement recorded under section 67 of the NDPS Act cannot be used as a confessional statement in the trial of an offence under the NDPS Act.”  

IN THE HIGH COURT OF DELHI AT NEW DELHI Reserved on: 04.03.2021 Pronounced on: 16.03.2021 BAIL APPLN. 2585 2020 & Crl.M.(B) 8044 2020 MOHIT AGGARWAL Through: Mr. Ramesh Gupta Senior Advocate Petitioner with Mr.S.P.Singh Rathore & Mr. Shailendera Singh Advocates NARCOTICS CONTROL BUREAU ..... Respondent Through: Mr. Rajesh Manchanda Standing Counsel for NCB with Mr. Rajat Manchanda HON BLE MR. JUSTICE SURESH KUMAR KAIT In case SC No. SC 1334 2020 titled as NCB Vs. Gaurav Aggarwal & Ors petitioner is facing trial for the offences under Sections 8 22 & 29 of Narcotic Drugs and Psychotropic Substances Act 1985. Petitioner was arrested by the officials of Narcotic Control Bureauon 11.01.2020 and is in judicial custody since 11.01.2020. Vide present petition petitioner is seeking bail while claiming to be innocent and of having been falsely implicated in the present case. The present petition has been filed on the ground that petitioner is a BAIL APPLN. 2585 2020 law abiding citizen and is running business in the name of Madhav Pharma for sale purchase and transport of various medicines while holding valid drug license under Form 20B & 21B of Drugs & Cosmetics Act 1945. Petitioner has pleaded that he has maintained all records complying with all the terms and conditions of the license. Petitioner has further pleaded that no contraband was recovered from his possession and he has been falsely implicated in this case. The crux of the prosecution case as per complaint dated 09.01.2020 is that upon receipt of secret information by Chetan Sharma Intelligence Officerthat one parcel bearing Airway Bill No. D90471207 booked by one Gaurav Kumar from Agra for delivery to one Manoj Kumar at Ludhiana Punjab is lying at DTDC Khasra No. 16 06 Smalakha Kapasehra New Delhi is suspected of containing NRX tablets and if captured huge quantity of narcotic tablets can be recovered. This information was reduced into writing and was placed before Amit Kumar Tiwary Superintendent who directed Manoj Kumar Junior Intelligence Officer to constitute a team and take further action as per law. Thereafter Manoj Kumar Junior Intelligence Officer along with other members of the constituted raiding team namely Raj Kumar Maurya Intelligence Officer BAIL APPLN. 2585 2020 Ajay Kumar Speoy and N.P. Singh Driver collected the DD kit weighing machine I.O. kit and other related seizing material and seal of Narcotic Control Bureau DZU 2. The team left the Delhi office and reached at above mentioned address and met Durgesh Prasad Vigilance Senior Executive of DTDC. After introducing themselves by showing their identify cards informed about their purpose of coming and requested him and his colleague one Aas Mohd. Khan to become independent witnesses for the search and seizure proceedings to which they accepted. Manoj Kumar Junior Intelligence Officer offered these independent witnesses to search him and his team members to which they declined. Thereafter the suspected article was opened in the presence of these two independent witnesses. On opening the said parcel it was found to be jute bag on which and on the bill the name of the consignor was written as Gaurav Kumar Agra and consignee was written as Manoj Kumar Campa Cola Chowk Ludhiana 141003. 4. When the said jute bag was opened a brown card box was found which contained 50 000 tablets of Tramadol weighing 20 kg. Since these were being sent as mis declared item without bill and were in contravention of the NDPS Act therefore seizure proceedings were initiated after due BAIL APPLN. 2585 2020 procedure. A notice under Section 67 of NDPS was issued to independent witnesses Durgesh Prasad and Aas Mohd. Khan. Thereafter Manoj Kumar Intelligence Officer collected relevant information about Gaurav Kumar of Agra and Manoj Kumar of Ludhiana from DTDC office and as mentioned on Airway Bill and prepared disclosure to this effect. The disclosure statement of Manoj Kumar Yadav Intelligence Officer was placed before Amit Kumar Tiwary Superintendent who directed Sh. Sachin Kumar Intelligence Officer to take action against Gaurav Kumar of Agra and Manoj Kumar of Ludhiana as per law. On the next day i.e. 10.01.2020 after making relevant entries in the test memo form the samples seized from the office of DTDC on 09.01.2020 were sent to Chemical Engineer CRCL Pusa Road New Delhi through Sh. Yogesh Kumar Sharma Sepoy. On the same day i.e. 10.01.2020 Manoj Kumar Yadav Junior Intelligence Officer gave his seizure report to Amit Kumar Tiwary Superintendent. Consequent upon marking of aforesaid disclosure Manoj Kumar Yadav Junior Intelligence Officer on 10.01.2020 along with members of his fresh constituted raiding team reached at the office of DTDC Mathura Road Agra and Gaurav Kumar Aggarwal was called at the DTDC office by their staff members and there he was served BAIL APPLN. 2585 2020 with notice under Section 67 of NDPS Act. On the same day i.e. 10.01.2020 Gaurav Kumar Aggarwal in the office of DTDC office gave his voluntary statement under Section 67 of NDPS Act before Anand Kumar Intelligence Officer. He was fully apprised of the procedure prescribed under Section 67 of NDPS Act however Gaurav Kumar Aggarwal accepted his guilt and stated that on 06.01.2020 he had booked a parcel in the name of Manoj Kumar Campa Cola Chowk Ludhiana Punjab with DTDC courier Sikandra Road Agra containing 50 000 tablets of Tramadol which was purchased by him from Mohit Aggarwal without bill. He admitted that the said parcel contained 50 000 tablets of Tramadol which fall under contraband narcotic drugs were without prescription and bill therefore on the parcel it was mentioned “surgical items”. The said Gaurav Kumar Agarwal further stated that Mohit Aggarwal purchased these medicines from Pramod Jaipuri @ Davinder Khandelwal and gave their mobile numbers. He further disclosed that Pramod Jaipuria lives in Jaipur but his son in law Gaurav Khandelwal used to look after his business in Agra and he had a godown of drugs in Agra and that whenever Pramod Jaipuria visited Agra he lived in Hotel Chanderlok Raja Mandi. He BAIL APPLN. 2585 2020 further disclosed that he knew house and shop of Mohit Aggarwal and can identify them and their places if NCB officials ask him to accompany. Thereafter Gaurav Kumar took the raiding team to Mohit Kumar Aggarwal on whose disclosure raiding team reached the house of Doji Ram where Pramod Kumar Jaipuria @ Davinder Khandelwal was running his godown there the raiding team met one Rambir the watchman who disclosed that the godown belonged to Pramod Kumar Jaipuria @ Davinder Khandelwal who was doing business of medicines and he called him up on his mobile and informed that the NCB team has come to his godown and after hearing this Pramod Kumar Jaipuria @ Davinder Khandelwal disconnected the phone and switched off his mobile. Thereafter upon following the due procedure as per law the search was conducted at the godown and huge quantity of drugs covered under the NDPS Act was seized. On the said day itself notice under Section 67 of the NDPS Act was served upon Mohit Aggarwal. Both Gaurav Kumar Aggarwal and Mohit Aggarwal voluntarily agreed to accompany the raiding team to Delhi. On 10.01.2020 Sachin Kumar Intelligence Officer along with his raiding team headed towards office of DTDC at Ludhiana. When Manoj Kumar reached at DTDC office and asked for his parcel Sachin Kumar BAIL APPLN. 2585 2020 Intelligence Officer spoke to him and told him their purpose of coming there and on asking about the parcel Manoj Kumar stated that he is a whole seller of medicines and is involved in the sale and purchase of medicines and he accepted to have placed an order for 50 000 tablets of Taramol from Gaurav Kumar Aggarwal and that he had come to collect the parcel and also that he had all the relevant documents at his shop Tredwell Health Care and if the NCB officials accompany him to the shop he can show the entire documents. The NCB team members along with local police officials visited his shop and Manoj Kumar showed certain documents which were found to be not relating to narcotics. On verification of those documents it revealed that Manoj Kumar did not have any document with regard to sale and purchase of narcotic drugs. Upon further inspection of stock available at his shop it was further revealed that a huge quantity of different narcotic drugs were available at his shop without any relevant document in that regard and Manoj Kumar admitted to have sold a few without any prescription and bill and so the medicine stock was sealed under the provisions of NDPS Act. On that day i.e. 10.01.2020 Manoj Kumar was served with Notice under Section 67 of NDPS Act and he gave his voluntary statement before Sachin Kumar Intelligence Officer. BAIL APPLN. 2585 2020 9. On the next day i.e. 11.01.2020 petitioner Mohit Kumar Aggarwal gave his voluntary statement under Section 67 of NDPS Act before Sh.R.K. Maurya Intelligence Officer wherein he admitted his guilt and complicity for the commission of offence of this case. He stated that two three years ago he took a shop on rent and started business of medicines and Gaurav Kumar Aggarwal used to buy medicines from his shop. He further stated that Gaurav Kumar Aggarwal had purchased five boxes of Tramodol out of which one box of 50 000 tablets was bought from Pramod Jaipuria. He also admitted that he can identify Pramod Jaipuria and his godown situated in Agra. 10. For the recovered narcotic substances i.e. 50 000 tablets of Tramadol from DTDC courier weighing 20 kgs 6 64 940 tablets capsules weighing 328.82kg 1400 injections amounting to 1.4 ltrs and 80 corex amounting to 8 ltrs syrup seized from Agra & 9 900 tablets weighing 990 gms the seizure memos were prepared by the Intelligence Officers concerned and sent for examination. 11. Consequent upon recovery of contraband and on the basis of voluntary statements Mohit Kumar Aggarwal was arrested on 11.01.2020 for the offences under Sections 8 22 and 29 NDPS Act as per procedure BAIL APPLN. 2585 2020 prescribed. On 12.01.2020 Shri R.K.Maurya Intelligence Officer gave the arrest report of Mohit Kumar Aggarwal under Section 57 of the NDPS Act to Amit Kumar Tiwary Superintendent NCB DZU. 12. Petitioner‟s application for bail was dismissed by the learned trial court vide order dated 21.07.2020 while observing as under: “In present case also the present accused is found connected as per the statement of co accused he purchased the said recovered drugs from the present accused and thereafter at the instance of both the accused huge recovery of contraband was effected. The accused persons were also found connected through mobile phones. The twin conditions envisaged u S 37 are required to be satisfied before granting the bail to the accused. At this stage it cannot be held that there are no reasonable grounds exist that accused is not guilty of the offence alleged. The reasonable ground mean something more than prima facie ground. Merely the factum that there is no documentary evidence is no ground that no prima facie case is made out. The judgment of Surender Khanna as relied by the Ld. Counsel for accused is not applicable at this stage. Apex Court in case titled as Mohd. Fasrin Vs. State Crl. Appeal No. 296 2014 dated 04.09.2019 held that even if confession made to the investigating officers are held to be admissible under Section 67 of Narcotic Drugs BAIL APPLN. 2585 2020 and Psychotropic Substances Act 1985 the Court has to be satisfied that it is a voluntary statement free from any pressure and also that the accused was apprised of his rights before recording the confession. Thus it cannot be held that at this stage statement u S 67 of NDPS Act cannot be looked to see the prima facie case. At this stage this Court is not supposed to appreciate the probative value of the material on record however only has to see the prima facie case. The recovered contraband is commercial in nature thus there is definite bar u S 37 NDPS Act over the release of accused on bail however it cannot be held at this stage there are reasonable grounds to believe that accused is not guilty of the offence and is not likely to commit any offence while on bail. Considering the material on record and in view of the above discussion I found no ground to release the applicant accused Mohit Aggarwal on bail. Hence the present application is dismissed.” 13. At the hearing learned senior counsel for petitioner submitted that the rejection of bail by the trial court is without application of mind as the learned trial court has failed to appreciate that name of petitioner popped up in this case when accused Gaurav Kumar Aggarwal in his voluntary statement took petitioner‟s name and the said voluntary statement was partly BAIL APPLN. 2585 2020 recorded in Agra and partly in Delhi and accused Gaurav Kumar Aggarwal has retracted from his statement at the first available opportunity itself. Learned senior counsel pointed out that accused Gaurav Kumar Aggarwal had taken the NCB team to the shop of petitioner and the shop was searched by the NCB team but nothing incriminating was recovered from the shop. It is next contended by learned senior counsel for petitioner that petitioner was served with notice under Section 67 of NDPS Act and his statement was recorded by R.K.Maurya Intelligence Officer and the petitioner had retracted from the said statement on the first available opportunity. 15. Learned senior counsel also submitted that in the statement of Manoj Kumar of Ludhiana recorded under Section 67 of NDPS Act he has not named petitioner herein and he has retracted from his statement. It has also been pointed out that the tablets and material seized on 09.01.2020 is different from the description of medical tablets details of which have been sought by prosecution vide summon dated 27.04.2020 under Section 67 of NDPS Act and also that details of batch number and manufacturer are not mentioned therein. 16. Leaned senior counsel for petitioner vehemently submitted that apart BAIL APPLN. 2585 2020 from retracted statements of co accused involved in this case no other material evidence has been placed on record to establish petitioner‟s involvement in the offence in question. In support of petitioner‟s case reliance has been placed upon decisions of Constitution Bench of Supreme Court in Hari Charan Kurmi Anr. Vs. State of Bihar6 SCR 623 Kashmira Singh Vs. State of Madhya Pradesh AIR 1952 SC 159 Mohd. Fasrin Vs. State 2019SCC 811 and Surinder Kumar Khanna Vs. Intelligence Officer Directorate of Revenue Intelligence 8 SCC 271. Reliance has also been placed upon recent decision of Hon‟ble Supreme Court in Tofan Singh Vs. State of Tamil Nadu 2020 SCC OnLine SC 882. 18. On the other hand learned Special Public Prosecutor appearing for respondent NCB supported the impugned order dated 21.07.2020 rejecting petitioner‟s bail application and submitted that the offence committed by the petitioner comes under the category of recovery of commercial quantity and since there is an embargo of Section 37 of NDPS Act the present petition deserves to be dismissed. Reliance was placed upon decision of Hon‟ble Supreme Court in State of Kerala & Ors. Vs. Rajesh & Ors.12 SCC BAIL APPLN. 2585 2020 19. Learned Special Public Prosecutor appearing for respondent NCB further submitted that petitioner has tendered his voluntary statement under Section 67 of NDPS Act before the competent officer wherein he has admitted his guilt. He further submitted that the analysis of call detail records of petitioner and other co accused in this case shows criminal conspiracy for their involvement in illicit trafficking of drugs. It was next submitted that statement tendered by petitioner under Section 67 of NDPS Act is admissible in evidence and has evidentiary value as per NDPS Act. Learned Special Public Prosecutor submitted that reliance placed upon various afore noted decision is of no help to the case of petitioner as in those cases the aspect of statement of accused recorded has not been dealt with. Thus dismissal of the present petition is sought by Special Public Prosecutor appearing for respondent NCB. 21. The rival contentions raised by both the sides have been considered. 22. As per the prosecution case 50 000 tablets of Tramadol weighing 20 kgs 6 64 940 tablets Capsules weighing 328.82kg 1400 injections amounting to 1.4 ltrs and 80 corex amounting to 8 ltrs syrup & 9 900 tablets weighing 990 gms were recovered in this case. It is an admitted case of both the sides that name of petitioner popped BAIL APPLN. 2585 2020 up in this case in the statement made by co accused Gaurav Kumar Aggarwal. It is also an admitted case that at the behest of Gaurav Kumar Aggarwal the NCB team visited the shop of petitioner and upon search nothing incriminating was recovered. The solitary ground to involve petitioner in the present case is his statement made under Section 67 of NDPS Act which he had retracted at the first opportunity available to him. 24. Pertinently Section 67 of NDPS Act reads as under: “67. Power to call for information etc. —Any officer referred to in section 42 who is authorised in this behalf by the Central Government or a State Government may during the course of any enquiry in connection with the contravention of any provisions of this Act — a) call for information from any person for the purpose of satisfying himself whether there has been any contravention of the provisions of this Act or any rule or order made thereunder b) require any person to produce or deliver any document or thing useful or relevant to the enquiry c) examine any person acquainted with the facts and circumstances of the case.” 25. A perusal of petitioner‟s statement recorded under Section 67 of NDPS Act on 09.01.2020 reveals that Gaurav Kumar Aggarwal used to buy medicines from his shop and on the said day i.e. 09.01.2020 he along with BAIL APPLN. 2585 2020 NCB team came to his shop and introduced him to them and they told him that they had come to inquire about 50 000 tramadol tablets which were sent by Gaurav Kumar Aggarwal to Manoj in Ludhiana and he admitted that a few days ago he had purchased 05 boxes of tramadol tablets from Pradeep Jaipuria illegally which were bought by Gaurav Kumar Aggarwal out of which he had returned 03 boxes due to money crisis and those 03 boxes he had returned to Pradeep Japuria. In his statement petitioner admitted that he along with Gaurav Kumar Aggarwal had escorted the NCB team to the godown of Pradeep Jaipuria. Besides petitioner has admitted that on two three occasions he had sold narcotic tablets purchased from Pradeep Jaipuria to Gaurav Kumar Aggarwal for extra amount of Rs.2 000 . 26. The petitioner‟s statement was recorded for the second time on 10.01.2020 at the NCB office however its copy has not been placed on record. Petitioner had retracted from his statements on the first available opportunity made available to him. 27. Recently the Hon‟ble Supreme Court by majority view while answering to a reference with regard to the evidentiary value of Section 67 of NDPS Act in Tofan Singhhas held as under: “158. We answer the reference by stating: BAIL APPLN. 2585 2020 That the officers who are invested with powers under section 53 of the NDPS Act are “police officers” within the meaning of section 25 of the Evidence Act as a result of which any confessional statement made to them would be barred under the provisions of section 25 of the Evidence Act and cannot be taken into account in order to convict an accused under the NDPS Act. ii) That a statement recorded under section 67 of the NDPS Act cannot be used as a confessional statement in the trial of an offence under the NDPS Act.” In the aforesaid view of the matter the Hon‟ble Supreme Court sent back the appeals and special leave petitions to the Division Benches of the Hon‟ble Supreme Court to hear them in the light of aforesaid view. 29. Reciting a dissenting view in Tofan Singh Hon‟ble Ms. Justice Indira Banerjee observed that any statement made or document or other thing given to an authorised officer referred to in Section 42 of the NDPS Act or an officer invested under Section 53 with the powers of an Officer in Charge for the purpose of investigation of an offence under the said Act in the course of any inquiry investigation or other proceeding may be tendered in evidence in the trial of an offence under the said Act and proved in accordance with law. The Hon‟ble Judge also observed that she BAIL APPLN. 2585 2020 was unable to agree that a statement recorded under Section 67 of the NDPS Act cannot be used against an accused offender in the trial of an offence under the NDPS Act. On this aspect the aforesaid Bench of the Hon‟ble Supreme Court observed as under: “262. An officer empowered under Section 53 with the powers of an Officer in Charge of a Police Station for the investigation of an offence also has the power to make an inquiry. This is clear from the language used in Section 53A(1) of the NDPS Act. The words “A statement made and signed by a person before any officer empowered under Section 53 for the investigation of offences during the course of any inquiry or proceedings by such officer” clinches the issue. The officer empowered under Section 53 with the power of an Officer in Charge of a Police Station can obviously make an inquiry within the meaning of Section 67 to find out whether there has been any contravention of the NDPS Act. A statement made before such an officer in course of any inquiry or other proceeding which is taken down in writing and signed by the person making it may in certain circumstances be relevant for the purpose of proving in any prosecution for an offence under the NDPS Act the truth of the facts it contains.” 30. Further on the value of a confession made by a person Hon‟ble Ms.Justice Indira Banerjee held as under: BAIL APPLN. 2585 2020 “308. A confession made by an accused person is irrelevant in a criminal proceeding if it appears to the Court that the confessions may have been elicited by any inducement threat or promise from a person in authority and sufficient in the opinion of the Court to give the accused person reasonable grounds for supposing that by making the confession he would gain any advantage or avoid any disadvantage in respect of proceedings against him. 309. As observed by this Court the State of Rajasthan v. Raja Ram “confessions may be divided into two classes judicial and extra judicial. Judicial confessions are those which are made before a Magistrate or a Court in the course of judicial proceedings. Extra judicial confessions are those which are made by the party elsewhere than before a Magistrate or Court. Extra judicial confessions are generally those that are made by a party to or before a private individual which includes even a judicial officer in his private capacity. It also includes a Magistrate who is not especially empowered to record confessions under Section 164 of the Code or a Magistrate so empowered but receiving the confession at a stage when Section 164 does not apply. As to extra judicial confessions two questions arise :were they made voluntarily andare they true ”. xxx xxx xxx BAIL APPLN. 2585 2020 “An extra judicial confession if voluntary and true and made in a fit state of mind can be relied upon by the Court. The confession will have to be proved like any other fact. The value of the evidence as to confession like any other evidence depends upon the veracity of the witness to whom it has been made. The value of the evidence as to the confession depends on the reliability of the witness who gives the evidence. It is not open to any court to start with a presumption that extra judicial confession is a weak type of It would depend on the nature of circumstances the time when the confession was made and the credibility of the witnesses who speak to such a xxx xxx xxx “If the evidence relating to extra judicial confession is found credible after being tested on the touchstone of credibility and acceptability it can solely form the basis of conviction. The requirement of corroboration as rightly submitted by the learned counsel for the respondent accused is a matter of prudence and not an invariable rule of law.” 31. With afore noted pertinent observations Hon‟ble Ms. Justice Indira Banerjee held that provisions of Cr.P.C. do not apply to an inquiry investigation under the NDPS Act except to the limited extent provided in BAIL APPLN. 2585 2020 Section 50(5) and 51 of the Act. It was further held that “the decision of Hon’ble Supreme Court in Raj Kumar Karwalwhich has reaffirmed the verdict of three Constitution Benches does not require reconsideration and nor does Kanhaiyalalrequire reconsideration.” 32. Keeping in mind the observations made in Tofan Singhand upon a bare reading of petitioner‟s statement recorded on 09.01.2020 it is apparent that petitioner has not admitted that he was a party to the transaction or in possession of recovered and seized contraband substance. Though he has admitted in custody to have illegally traded the tablets under the NDPSbut since no recovery has been affected from his person or shop in this case prosecution can only attempt to prove its case on the basis of circumstantial evidence that is to say by corroborating the call detail record or other material available and reliance cannot be solely placed upon disclosure statement of co accused to keep him behind bars especially when the recoveries of the instance were before the arrest of the petitioner and the statement given by co accused has been retracted at the first available opportunity. 33. Respondent NCB has placed reliance upon Hon‟ble Supreme Court‟s decision in State of Kerala Vs. Rajesh (ii)and Section 29 of NDPS Act and the High Court without noticing Section 37 of the NDPS Act granted bail to the accused on parity basis with other co accused in that case who were already on bail. The Hon‟ble Supreme Court observed that “the High Court had failed to record a finding under Section 37 of the NDPS which is a sine qua non for granting bail to the accused under the NDPS Act”. Appeal preferred by the prosecution was allowed and order of the High Court was set aside and bail granted to the accused was cancelled. 34. Pertinently the provisions of Section 37 of NDPS Act read as under: “37. Offences to be cognizable and non bailable — 1) Notwithstanding anything contained in the Code of Criminal Procedure 1973— every offence punishable under this Act shall be a) cognizable b) no person accused of an offence punishable for 2[offences under section 19 or section 24 or section 27A and also for offences involving commercial quantity] shall be released on bail or on his own bond unless — i) the Public Prosecutor has been given an opportunity to oppose the application for such release and BAIL APPLN. 2585 2020 where the Public Prosecutor opposes application the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail. 2) The limitations on granting of bail specified in clauseof sub sectionare in addition to the limitations under the Code of Criminal Procedure 1973 or any other law for the time being in force on granting of bail.]” In the case in hand investigation is said to be complete. As per impugned order dated 21.07.2020 complaint charge sheet has already been filed however besides confessional statement recorded under Section 67 of NDPS Act no other material is forthcoming. Since no incriminating material was recovered at the instance of petitioner this strengthens the view of this Court that petitioner is not likely to commit offence if released on bail. Moreover nothing stops the prosecution to prove its case on merits during trial. In the aforesaid view of the case requirements under Section 37 of NDPS Act are fulfilled. In the peculiar facts and circumstances of the case without commenting on the merits petitioner is directed to be released forthwith on his furnishing personal bond in the sum of Rs.25 000 and one surety in the like amount to the satisfaction of trial court duty magistrate subject to the BAIL APPLN. 2585 2020 condition that: Petitioner shall not directly or indirectly tamper with the evidence or influence the witnesses of the case ii) Petitioner shall provide his mobile number to the IO and ensure that he is reachable. 37. The petition is allowed in aforesaid terms. Pending application also 38. A copy of this order be transmitted to the Jail Superintendent concerned and trial court for information and necessary compliance. SURESH KUMAR KAIT) JUDGE stands disposed of. MARCH 16 2021 BAIL APPLN. 2585 2020

A cheque is issued for consideration until the contrary is proved : Delhi High Court

Revisional power of the High Court cannot be equated with the power of an appellate court. The High Court bench consisting of J. Subramonium Prasad decided upon the power of the High Court and the burden of proof under Section 138 of the Negotiable Instruments Act, 1881, in the matter of G. D. Kataria v. AVL Leasing & Finance Ltd. [CRL. REV. P. 774/2018 & CRL. M. (B). 1392/2018]. The respondent financed a bus for the petitioner by giving a loan. In discharge of the liability the petitioner handed over three cheques drawn on Bank of Punjab Limited. When the respondent deposited these cheques they were returned as unpaid/dishonoured for the reason “Funds Insufficient”. Notice under Section 138 of the Negotiable Instruments Act was issued by the respondent asking the petitioner to make the payment within 15 days of the receipt of the notice. Upon failure of thus, a complaint was filed before the court of the Metropolitan Magistrate who convicted the accused. This was challenged before Additional Sessions Judge who imposed simple imprisonment for a period of 2 months along with a fine of Rs. 13 Lakhs. The counsel for the petitioner contended that the failure on part of the respondent to submit their books of accounts was fatal to the case of the respondent. He contended that the courts below ought to have drawn adverse inference against the respondent when the respondent deliberately did not produce the books of accounts even though the respondent had undertaken to produce the books of accounts. Relying on the case of M. S. Narayana Menon v. State of Kerala [(2006) 6 SCC 39], he argued that it was for the complainant/respondent herein to produce the books of accounts and without producing the books of accounts it cannot be said that there was a debt due and subsisting and the cheques have been issued for discharge of debt.

IN THE HIGH COURT OF DELHI AT NEW DELHI CRL.REV.P. 774 2018 & CRL.M.(B).1392 2018 Date of decision: 03rd February 2021 G D KATARIA ..... Petitioner Through Mr. Medhanshu Tripathi Advocate IN THE MATTER OF: AVL LEASING & FINANCE LTD Respondent Through Mr. Anuj Soni Advocate HON BLE MR. JUSTICE SUBRAMONIUM PRASAD SUBRAMONIUM PRASAD J. The instant revision petition is directed against the order dated 27.08.2018 passed by the Additional Session Judge Special JudgeWest District Tis Hazari Court Delhi in Criminal Appeal being CA No. 153 2018 whereby the Additional Session Judge has dismissed the appeal and has affirmed the order dated 26.04.2018 passed by the Metropolitan Magistrate in CC No.8073 2016 convicting the petitioner herein for offences punishable under section 138 of Negotiable Act 1881(Provisio) of N.I. Act read with Section 357(1)(3) of Cr.P.C. The facts leading to the instant revision petition are as under: a) The respondent is a leasing and financing company. The respondent financed a bus for the petitioner by giving a loan. In discharge of the liability the petitioner handed over three cheques drawn on Bank of Punjab Limited. Rajouri Garden Delhi bearing number 327226 dated 13.04.2003 for an amount of Rs. 1 lakh number 327227 dated 28.07.2003 for an amount of Rs. 3 lakhs and number 327338 dated 27.07.2003 for an amount of Rs. 2 84 000 in favor of the respondent. b) When the respondent deposited these cheques they were returned as unpaid dishonored reason "Funds c) Notice as required under Section 138 of the N.I. Act was issued by the respondent calling upon the petitioner herein to make the payment within 15 days of receipt of the notice. The payment was not received and a complaint was filed under Section 138 of the N.I. Act before the court of the Metropolitan Magistrate West District Tis Hazari Court d) Before the Metropolitan Magistrate it was contended by the petitioner herein that he took a loan for purchasing a bus with registration number DL1 PA 5798 and at the time of taking the loan 36 blank signed cheques were given as security towards CRL.REV.P. 774 2018 the repayment of the loan. It is stated that in October 2002 the petitioner herein handed over the vehicle to the respondent company for getting the vehicle converted to CNG and entered into a new lease agreement but neither was the said vehicle returned to the petitioner herein nor were the accounts related to the hire purchase agreement settled. It was stated before the Metropolitan Magistrate that as the vehicle is in the possession of the respondent herein and the cheque given by the petitioner accused had been misused. It was stated before the Metropolitan Magistrate that the bus No.DL1 PA 5798 was re possessed by the respondent. It was also stated the a No Objection Certificate dated 30.08.2003 along with form 35 was issued by the issuing authority and the respondent herein had given a No objection with regard to the bus bearing No.DL1 PA 5798. The Metropolitan Magistrate after examining the documents found that the deposition of the accused petitioner herein is inconsistent with the evidence on record. The Metropolitan Magistrate also found that in relation to bus number DL1 PA 5798 accused petitioner herein had deposed complainant respondent herein has already sold the bus but officer from Transport Department Delhi placed on record the RC which shows that the accused petitioner herein is the owner of the bus. As per the RC bus number DL1 PA 5798 is registered in the name of the accused and NOC has been issued by hypothecatee on 10.09.2003. The Metropolitan CRL.REV.P. 774 2018 Magistrate held that the averments of the accused petitioner herein in relation to the sale of this vehicle despite payment of 13 installments is incorrect as the ownership of the vehicle still vests with the accused petitioner herein. g) The Metropolitan Magistrate after examining the documents came to the conclusion that this case pertains to the bus bearing registration number DL1 P 7279. h) The Metropolitan Magistrate found that the accused petitioner herein and the complainant respondent herein had dealings in relation to two buses. It was found that the petitioner had another bus bearing No. DL1 P 7279 which was under the loan of the Motor & General Finance Ltd. Company in the year 1995. The loan was taken over by the respondent company. The Metropolitan Magistrate held that AR of the complainant deposed that a sum of Rs. 8 Lakhs was lent to the accused in the year 2001 wherein certain payments were made to the accused and the remaining payment was made to MGF India Limited. The Metropolitan Magistrate held that this was consistent with the testimony of the accused wherein he has admitted that he cleared his loan with MGF India Limited in 2001 CW 1 also deposed that one bus was in the name of the accused and the other bus was financed and the amount deposited by the complainant company was against the bus which was already in the name of the accusedThe Metropolitan Magistrate therefore held accused petitioner herein has not been able to rebut the presumption that the cheques had been paid for discharge of The Metropolitan Magistrate by an order dated 26.04.2018 convicted the petitioner herein for offences under Section 138 any liability. of the N.I. Act. m) The above said judgment was challenged before the Additional Session Judge in CA No. 153 2018. After going through the records the Additional Session Judge upheld the judgment dated 02.07.2018 passed by the Metropolitan Magistrate West District Tis Hazari Courts Delhi in CC No.8073 2016 convicting the petitioner and also the order on sentence dated 12.07.2018 passed by the Metropolitan Magistrate West District Tis Hazari Courts Delhi in CC No.8073 2016 imposing simple imprisonment for two months period and fine of Rs. 13 Lakhs. n) The Additional Session Judge after going through the material on record found that the three cheques were issued by the CRL.REV.P. 774 2018 petitioner towards legally enforceable debt due to respondent. Heard Mr. Medhanshu Tripathi learned counsel appearing for the petitioner and Mr. Anuj Soni learned counsel appearing for the respondent. 4. Mr. Medhanshu Tripathi learned counsel for the petitioner contends that the failure on part of the respondent to submit their books of accounts is fatal to the case of the respondent. He would contend that the courts below ought to have drawn adverse inference against the respondent when the respondent deliberately did not produce the books of accounts even though the respondent had undertaken to produce the books of accounts. 5. Mr. Medhanshu Tripathi learned counsel for the petitioner would rely on the judgment of the Supreme Court in M.S. Narayana Menon v. State of Kerala reported as 6 SCC 39 to contend that it was for the complainant respondent herein to produce the books of accounts and without producing the books of accounts it cannot be said that there was a debt due and subsisting and the cheques have been issued for discharge of debt. 6. Mr. Tripathi would further contend that the Metropolitan Magistrate had erred in relying upon the improved testimony of the respondent company. He would further contend that the vehicle had been re possessed and sold and therefore nothing was due and payable. On the other hand Mr. Anuj Soni learned counsel for the respondent would support the support the judgments of the courts below to contend that all the points now being raised have already been dealt with by the Metropolitan Magistrate in his judgment and which has not been disturbed by the appellate Court. Section 118 of the N.I. Act raises a presumption that a cheque is issued for consideration until the contrary is proved. It is well settled CRL.REV.P. 774 2018 position that the initial burden in this regard lies on the accused to prove the non existence of debt by bringing on record such facts and circumstances which would lead the court to believe the non existence of debt either by direct evidence or by preponderance of probabilities. In the present case other than mere ipse dixit of the petitioner that there was no debt due and payable nothing is on record to show that the cheques were not issued for discharge of liability for the bus. The second bus bearing registration No. DL 1 PA 5798 stood in the name of the accused. There is nothing to show that the liability for the first bus bearing registration No. DL1 P 7279 has been discharged. 10. The purpose of introducing Section 138 of the N.I. Act was to bring sanctity in commercial transactions. In Dalmia CementLtd. v. Galaxy Traders & Agencies Ltd. reported as 6 SCC 463 the Supreme Court observed as under: to negotiable “3. The Act was enacted and Section 138 thereof incorporated with a specified object of making a special provision by incorporating a strict liability so far as the cheque a negotiable instrument is concerned. The law law of commercial world legislated to facilitate the activities in trade and commerce making provision of giving sanctity to the instruments of credit which could be deemed to be convertible into money and easily passable from one person to another. In the absence of such instruments including a cheque the trade and commerce activities in the present day world are likely to be adversely affected as it is impracticable for the trading community to carry on with it the bulk of the currency in force. The negotiable instruments are in fact the instruments of credit being convertible on account of legality of being negotiated and are easily passable from one hand to CRL.REV.P. 774 2018 another. To achieve the objectives of the Act the legislature has in its wisdom thought it proper to make such provisions in the Act for conferring such privileges to the mercantile instruments contemplated under it and provide special penalties and procedure in case the obligations under the instruments are not discharged. The laws relating to the Act are therefore required to be interpreted in the light of the objects intended to be achieved by it despite there being deviations from the general law and the procedure provided for the redressal of the grievances to the litigants. Efforts to defeat the objectives of law by resorting to innovative measures and methods are to be discouraged lest it may affect the commercial and mercantile activities in a smooth and healthy manner ultimately affecting the economy of the country.” 12. Two courts below have looked into the entire records of the case and have come to the conclusion that the cheques have been given in discharge of debt. The petitioner only seeks to take advantage of the fact that the respondent did not produce the books of accounts to rebut the initial presumption which was for the petitioner to show that the amount of loan taken by him and the amount that should be repaid in order to discharge the initial burden and the petitioner has failed to discharge the initial onus of 13. The scope of the revision petition under Sections 397 401 Cr.P.C. read with Section 482 Cr.P.C. is extremely narrow. In State v. Manimaran reported as 13 SCC 670 the Supreme Court observed as under: “16. As held in State of Kerala v. Puttumana Illath Jathavedan Namboodiri2 SCC 452 : 1999 SCC275] ordinarily it would not be appropriate CRL.REV.P. 774 2018 In State of Haryana v. Rajmal reported as 14 SCC 326 the Supreme Court observed as under: the courts below recorded for the High Court to reappreciate the evidence and come to its own conclusion on the same when the evidence has already been appreciated by Magistrate as well as by the Sessions Court in appeal. the concurrent findings of fact in our view the High Court was not right in interfering with the concurrent findings of fact arrived at by the courts below and the impugned order cannot be sustained.” in upsetting A.P. v. Pituhuk the exercise of the High Court “14. In State Rao9 SCC 537 : 2001 SCC 642] this the revisional Court held jurisdiction of concurrent finding of the facts cannot be accepted when it was without any reference to the evidence on record or to the finding entered by the trial court and the appellate court regarding the evidence in view of the fact that revisional jurisdiction is basically supervisory in nature. It has been also held by this Court in Amar Chand Agarwalla v. Shanti Bose4 SCC 10 : 1973 SCC Cri) 651 : AIR 1973 SC 799] that the revisional jurisdiction of the High Court under Section 439 CrPC is to be exercised only in an exceptional case when there is a glaring defect in the procedure or there is a manifest error on a point of law resulting in a flagrant miscarriage of justice. Report.)” In State of Kerala v. Puttumana Illath Jathavedan Namboodiri reported as 1999) 2 SCC 452 the Supreme Court observed as under: “5. Having examined the impugned judgment of the High CRL.REV.P. 774 2018 Court and bearing in mind the contentions raised by the learned counsel for the parties we have no hesitation to come to the conclusion that in the case in hand the High Court has exceeded its revisional jurisdiction. In its revisional jurisdiction the High Court can call for and examine the record of any proceedings for the purpose of satisfying itself as to the correctness legality or propriety of any finding sentence or order. In other words the jurisdiction is one of supervisory jurisdiction exercised by the High Court for correcting miscarriage of justice. But the said revisional power cannot be equated with the power of an appellate court nor can it be treated even as a second appellate jurisdiction. Ordinarily therefore it would not be appropriate for the High Court to re appreciate the evidence and come to its own conclusion on the same when the evidence has already been appreciated by the Magistrate as well as the Sessions Judge in appeal unless any glaring feature is brought to the notice of the High Court which would otherwise tantamount to gross miscarriage of justice. On scrutinizing the impugned judgment of the High Court from the aforesaid standpoint we have no hesitation to come to the conclusion that the High Court exceeded its jurisdiction in interfering with the conviction of the respondent by re appreciating the oral evidence. The High Court also committed further error in not examining several items of evidence relied upon by the Additional Sessions Judge while confirming conviction of the respondent. In this view of the matter the impugned judgment of the High Court is wholly unsustainable in law and we accordingly set aside the same. The conviction and sentence of the respondent as passed by the Magistrate and affirmed by the Additional Sessions Judge in appeal is confirmed. This appeal is allowed. Bail bonds furnished stand cancelled. The respondent must surrender to serve the sentence.” CRL.REV.P. 774 2018 14. Having gone through the material on record this court does not find that the judgment of the courts below require any interference. The learned counsel for the petitioner has not been able to demonstrate that the findings of the courts below are perverse. The fact that the respondent did not file the books of accounts is not fatal to the case of the respondent. It was open to the petitioner to produce his books of accounts to rebut the presumption and bring out a prima facie case that there was no debt due and payable on the date the cheques were dishonoured. The petitioner has not been able to discharge the initial burden on him to rebut the presumption under Section 118 of the N.I. Act. The fact that the petitioner took financial assistance from the respondent is admitted. The petitioner has not been able to show as to how there was no subsisting debt on the date when the cheques were dishonoured due to insufficiency of funds. 15. No case has been made out which would warrant interference under 16. Accordingly the revision petition is dismissed along with the pending Section 397 401 Cr.P.C. application. FEBRUARY 03 2021 SUBRAMONIUM PRASAD J. CRL.REV.P. 774 2018

Bail denied, prima facie materials showing involvement in deep-rooted conspiracy to cause such a huge loss to the Bank: Orissa High Court

Granting bail to the petitioner in economic offences of this nature would be against the larger interest of public and State as it involves criminal misappropriation and cheating of huge amount of public money and there is also reasonable apprehension of tampering with the witnesses. This was said in the case of Ashwini Kumar Patra vs Republic Of India [BLAPL No.214 of 2021] by Justice S.K. Sahoo in the High Court of Orissa.  The facts of the case date back to  07.01.2021 when the petitioners application for bail in the Court of learned Special Judge, CBI was rejected mainly on the ground that prima facie the petitioner appears not only to have illegally processed the housing loans in favour of the borrowers by abusing their official positions but also submitted invalid/ false post- sanction inspection reports in the Bank and that if the petitioner is enlarged on bail, there would be every chance of his influencing the prosecution witnesses and tampering with the prosecution evidence. Assailing the order of the Special Judge, the petitioners filed an application under Section 439 of Cr.P.C. for grant of bail. Petitioner contended that the petitioner’s job in the capacity of Assistant Marketing Manager was not to verify the documents provided by the builders rather it was the duty of the Manager, Advance and Chief Manager of the Bank to scrutinize such documents and to obtain prior approval of plan before disbursing the loan amounts. Secondly, it was contended that since investigation has been completed and the petitioner is a local man and he has been dismissed from the services of the Bank, there is no chance of his absconding or tampering with the evidence, therefore, the bail application may be sympathetically considered. Learned Special Public Prosecutor contended that the petitioner has mentioned false or fictitious statements while processing the credit information and net-worth assessment of the borrowers in the loan proposals, which clearly reflects his malafide intention of concealing the facts and deviating the procedures of the Bank. Secondly, it was contended that the quantum of misappropriation amount being very high and the petitioner being a local person, he is very likely to influence and gain over the witnesses in case he is enlarged on bail and therefore, the bail application should be rejected. The Court referred to the case of Prahalad Singh Bhati -Vrs.- NCT, Delhi [(2001) SCC 674] wherein it was said that “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, 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”

IN THE HIGH COURT OF ORISSA CUTTACK BLAPL No.2121 In the matter of an application under section 439 of the Code of Criminal Procedure in connection with R.C. Case No.09(A) of 2019 pending in the Court of Special Judge CBI Court No.I Ashwini Kumar Patra Petitioner Mr. Devashis Panda versus Republic of India Opposite Party Mr. Sarthak Nayak Special Public ProsecutorS.K. SAHOO J. JUSTICE S.K. SAHOO Date of Hearing : 23.04.2021 Date of Judgment: 26.04.2021 The petitioner Ashwini Kumar Patra has filed this application under section 439 of Cr.P.C. for grant of bail in connection with R.C. Case No.09(A) of 2019 pending in the Court of learned Special Judge CBI Court No.I Bhubaneswar in which charge sheet has been submitted under sections 409 420 and 471 read with section 120 B of the Indian Penal Code and section 13(2) read with section 13(1)(d) of the Prevention of Corruption Act 1988 namely Shri Bhubaneswar Mohapatra the then Chief Manager Shri Ashwini Kumar Patra the then Marketing Officer and Shri Rajesh Kumar Patanga the then Manager entered into a criminal conspiracy with three private builders seven borrowers of housing loan and some unknown bank officials in the year 2017 and by abusing their respective official positions housing loans were sanctioned in favour of the borrowers on the basis of false fictitious documents information including fake fictitious ITRs defective KYC 3 documents information and without verifying the documents by violating the guidelines of the Bank. It is also alleged that the petitioner along with other accused Bank officials without obtaining approved plan legal scrutiny search report etc. released the entire loan amounts in favour of the accused builders on behalf of the borrowers without ensuring completion of construction of the houses BJB Nagar 02 Suryanagar 02 & Jaydeb Vihar 03 in Bhubaneswar reportedly sold by builders GDS Builders Pvt. Ltd. Surnag Builders Pvt. Ltd. and Mrs. Puspanjali Patro). It is also alleged that the disbursed loan amounts were allegedly diverted by the accused builders for other purposes and such act on the part of the petitioner along with others have caused undue wrongful loss to the tune of Rs.5 19 16 340 as on 31.05.2019 to the Bank and corresponding wrongful gain to themselves. The Superintendent of Police CBI ACB Bhubaneswar on receipt of the written complaint and on prima facie finding that the complaint disclosed commission of cognizable offence punishable under sections 120 B 420 467 468 and 471 of the Indian Penal Code and section 13(2) read with section 13(1)(d) of the Prevention of Corruption Act 1988 registered the same as R.C. No. 09(A) 2019 BBS dated 01.07.2019 and on getting prior approval from the competent authority of the Bank as per section 17 A of the Prevention of Corruption Act 1988 for initiating CBI investigation against the bank officials into the alleged matter 4 proceeded with the investigation. In course of investigation the investigating officer recorded the statements of the witnesses seized the incriminating documents and arrested the petitioner along with others and submitted charge sheet against the petitioner for commission of offences under sections 409 420 and 471 read with section 120 B of the Indian Penal Code and section 13(2) read with section 13(1)(d) of the Prevention of Corruption Act 1988 and the allegation that the petitioner conspired with the then Chief Manager of the Bank builder Uma Shankar Patro three other private builders and seven borrowers of housing loans and misappropriated Rs.5 19 16 340 and that all the loans were processed recommended and inspected by the petitioner is not at all correct. He further submitted that out of 6 twenty five charge sheet witnesses who are officials of the Bank I.T.Os Insurance officials GEQD and CBI I.O. only one private charge sheet witness i.e. C.S.W. No.19 namely Aswin Kumar Patro is related to the co accused Uma Shankar Patro who is to prove that all borrowers are either workers known persons relatives of the workers in GDS Builders Pvt. Ltd. or Dwaraka Jewellers in which the builder co accused is a partner. It is further submitted that since investigation has been completed and the petitioner is a local man and he has been dismissed from the services of the Bank there is no chance of his absconding or tampering with the evidence therefore the bail application may be sympathetically considered. Mr. Sarthak Nayak learned Special Public Prosecutor CBI on the other hand filed his written note of argument along with copy of chargesheet and vehemently opposed the prayer for bail and argued that the petitioner had sourced processed and recommended the housing loan accounts in the names of ten borrowers on the basis of fake documents being in conspiracy with other co accused persons. The petitioner initiated the disbursement of the loan amounts from the respective housing loan accounts of the accused borrowers to the bank accounts of the accused builders without obtaining the consent of the borrowers and flouting the bank norms prescribed in respect of disbursement of the loans. It is further contended that the petitioner had made recommendations for the sanction of the loans mentioning the false net worth of the accused borrowers without obtaining 7 supporting documents of assets and liabilities misleading the sanctioning authority for which the Bank suffered a loss to the tune of Rs.2 33 71 963 and much work was pending at the construction site on date. Learned counsel further submitted that the Bank initiated disciplinary action against the petitioner and dismissed him from services of the Bank on finding his complicity and involvement in the alleged act of conspiracy. It is further submitted that though as per the Bank’s circular instructions it is mandatory to forward all the loans involving the mortgage of the property to a Centralized Processing Centre which is functioning in the premises of the Regional Office of the Bank but the petitioner processed the loans and recommended for sanction which was ultimately sanctioned and disbursed directly in the branch thereby entering into a criminal conspiracy. It is contended that the Bank’s Master Circular of Home Loans reveals that all the documents submitted by the borrowers need to be scrutinized verified and checked for their genuineness by the officers of the Bank 8 who will collect and process the loan proposals but in the case in hand all the loan proposals were processed by the petitioner himself in his user name through the Bank’s loan processing software and thus it is obvious that he should collect all the required documents check for their genuineness either directly or logically as per the Bank’s circular before making recommendation for sanction. It is further contended that the petitioner has not even obtained any such documentary proofs towards the assets and liabilities of the borrowers but had mentioned false or fictitious statements while processing the credit information and net worth assessment of the borrowers in the loan proposals which clearly reflects his malafide intention of concealing the facts and deviating the procedures of the Bank. Learned counsel for the CBI further urged that the quantum of misappropriation amount being very high and the petitioner being a local person he is very likely to influence and gain over the witnesses in case he is enlarged on bail and therefore the bail application should be rejected. four flats were in ready to occupy condition but three flats in the names of borrowers namely Smt. Swapna Sikha Shri Manoj Kumar Patra and Shri Ajay Kumar Parida were partially constructed but full loan amounts to the builder from the three loan accounts of the aforesaid borrowers were disbursed by the accused Bank officials. The that 9 further revealed that the aforesaid post sanction inspection reports in the case of three flats located at B. K. Sastry Enclave IRC Village and Jayadev Vihar Bhubaneswar are invalid false as the completed buildings mentioned in the said inspection reports had not yet completed and that full amount of the sanctioned limits in the loan accounts of the borrowers was disbursed by the Bank to the bank account of the company M s. GDS Builders Pvt. Ltd. through transfer mode. The investigation further revealed that Sri Bhubaneswar Mohapatra the then Chief Manager of the Bank had full knowledge of all the disbursements made in the alleged housing loan accounts of the accused borrowers to the bank accounts of the accused builders sellers as he along with the petitioner had signed initialed the respective disbursement vouchers and the signatures initials of Sri Bhubaneswar Mohapatra and the petitioner have been duly identified by the other bank officials who were acquainted with the same and are the chargesheet witnesses in the case. The investigation further revealed that no consent of the borrowers was obtained before debiting from their loan accounts and all the seven housing loan proposals were processed by the petitioner being the Asst. Manager of the Bank and Sri Bhubaneswar Mohapatra the then Chief Manager had sanctioned the loan in the capacity of Branch Manager basing on the recommendations of the petitioner. In the chargesheet it is mentioned that the Bank suffered a total loss of Rs.2 33 71 963 in such 10 act of conspiracy and cheating with a corresponding wrongful gain to the accused persons. So far as the accusation against the petitioner is concerned in the chargesheet it has been summarized as under: a) Non observance of due diligence: amount payments. The petitioner has not observed due diligence mandated by the circular instruction of the Bank) in respect of margin money KYC occupation net worth of the borrower property being purchased as well as income source of the borrower. The petitioner has not obtained any such document to show the payment of the margin money by the borrower. The bank account statements of the borrowers at no point of time has an amount more than Rs.10 000 which shows that they could not afford for such high b) Preparation of actually conducting the inspection: inspection reports without The petitioner has not followed the guidelines of the Bank while conducting the inspections. The pre sanction inspection reports are prepared sitting at the branch itself as admitted by the processing officer during investigation) without actually conducting the inspection. Further the details of occupation and net worth of the borrowers mentioned in the inspection reports are found false. The statements mentioned in the post sanction inspection reports are also found false as no such building structures are found at the site on date. c) Non forwarding of the loan proposals to ULP and sanction at the branch itself: 11 As per the circular instructions of the Bank issued during 2015 the petitioner should forward the loan proposals involving mortgage of property to a special designated loan processing centre Union Loan Pointand should not sanction at the branch without specific permission of the Regional Head. The petitioner has sanctioned all the loans at the branch itself ignoring the instructions of the Bank as specific permission of the Regional Head to sanction the loans is not held on record. Further the ULP is functioning in the premises adjacent to the branch in the same compound. The branch has to conduct due diligence part and submit all the relevant documents to ULP for necessary processing and sanction of the loans. This shows the willful ignorance towards the guidelines of the Bank and involvement of the petitioner in the criminal conspiracy with the builders and others. d) Disbursement of the loans without ensuring the progress of the constructions: The petitioner has not ensured the progress of the constructions and authorized for disbursement of the loan amounts violating the Bank’s instructions in respect of the disbursement of the loans. Further no such documents like consent of the borrower request of the builder are held on record. All the post sanction reports are found false. The processing officer has mentioned in the post sanction reports that a two storied building structure is completed in the project site and finishing work is going on but actually no such structures are found at the site as on date and the statements mentioned in the inspection reports are all false. The petitioner in spite of ensuring the 12 correctness of the reports and progress of the work has authorized for disbursal of the loans. The petitioner has also ignored to apply his mind while disbursing the loans because logically it is not possible to complete the construction within a period of three to eight weeks. But the loans are all disbursed within a period of three or eight weeks from the date of sanction. e) Processing of loans based on false income and net worth of the borrowers: The circular instructions of the Bank mandates the branch officers officials to ensure the genuineness of the income and net worth of the borrowers by supporting documents like Bank statements salary slips income computations balance sheets profit and loss statements documents related to the assets and liabilities and credit information bureau reports etc. The petitioner has not obtained any such documents from the borrowers in the instant case and relied upon the data submitted by the borrowers during the processing stage which is otherwise in violation of the laid down norms. The accusation against the petitioner commission of economic offences which are considered to be grave offences and are to be viewed seriously. Such offences affect the economy of the country as a whole and it involves deep rooted conspiracy and huge loss of public fund. It is committed with cool calculation and deliberate design solely with an eye on personal profit regardless of the consequence to the community. In such type of 13 offences while granting bail the Court has to keep in mind inter alia the larger interest of public and State. The nature and seriousness of an economic offence and its impact on the society are always important considerations in such a case and those aspects must squarely be dealt with by the Court while passing an order on bail applications. 7 Supreme Court Cases 439 State of Gujarat Vrs. MohanLal Jitamalji Porwal reported in 2 Supreme Court Cases 364). held as follows: In the case of Y.S. Jagan Mohan Reddy it is “34. Economic offences constitute a class apart and need to be visited with a different approach in the matter of bail. The economic offence having deep rooted conspiracies and involving huge loss of public funds need to be viewed seriously and considered as grave offences affecting the economy of the country as a whole and thereby posing serious threat to the financial health of the country. 35. While granting 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 of the accused circumstances which are peculiar to the accused reasonable possibility of securing the presence of the accused at the trial reasonable apprehension of the witnesses being tampered with the larger interests of public State and other similar considerations.” In case of Mohan Lal Jitamalji Porwalit is held as follows: 14 “5.......The entire community is aggrieved if the economic offenders who ruin the economy of the State are not brought to book. A murder may be committed in the heat of moment upon passions being aroused. An economic offence is committed with cool calculation and deliberate design with an eye on personal profit regardless of the consequence to the Community. A disregard for the interest of the community can be manifested only at the cost of forfeiting the trust and faith of the community in the system to administer justice in an even handed manner without fear of criticism from the quarters which view white colour crimes with a permissive eye unmindful of the damage done to the National Economy and National Interest”. Law is well settled that detailed examination of evidence and elaborate discussion on merits of the case need not be undertaken for grant of bail. The Court has to indicate in the bail order reasons for prima facie conclusion why bail was being granted particularly when the accused is charged of having committed a serious offence. In the case of Kalyan Chandra Sarkar Vrs. Rajesh Ranjan alias Pappu Yadav reported in 2004 Supreme Court Cases1977 it is held as follows: “11....The Court granting bail should exercise its discretion in a judicious manner and not as a matter of course. Though at the stage of granting bail a detailed examination of evidence and elaborate documentation of the merit of the case need not be undertaken there is a need to indicate in such orders reasons for prima facie concluding why bail was being granted particularly where the accused is charged of having committed a serious offence. Any order devoid 15 of such reasons would suffer from non application of mind. It is also necessary for the Court to consider among other circumstances the following factors also before granting bail: a) The nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence. b) Reasonable apprehension of tampering with the witness or apprehension of threat to the complainant. c) Prima facie satisfaction of the Court in support of the charge.” the case of Ram Govind Upadhyay Vrs. Sudarshan Singh reported in 2002 Supreme Court Cases Criminal) 688 it is held as follows: “3. Grant of bail though being a discretionary order but however calls for exercise of such discretion in a judicious manner and not as a matter of course. Order of bail bereft of any cogent reason cannot be sustained. Needless to record however that the grant of bail is depended 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 to be coupled with other circumstances warranting the grant of bail. The nature of the basic considerations for the grant of bail. More heinous is the crime the greater is the chance of rejection of the bail though however depended on the factual matrix of the matter.” the offence is one of 16 In the case of Prahalad Singh Bhati Vrs. NCT Delhi reported in 2001 Supreme Court Cases674 it is held as follows: conviction will entail “8.....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 character behaviour means and standing of the accused circumstances which are peculiar to the accused reasonable possibility of securing 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”. In the case of Sanjay Chandra Vrs. CBI reported in A.I.R. 2012 S.C. 830 it is held as follows: “25 …It is no doubt true that the nature of the charge may be relevant but at the same time the punishment to which the party may be liable if convicted also bears upon the issue. Therefore in determining whether to grant bail both seriousness of the charge and the severity of the punishment should be taken into consideration. The grant or refusal to grant bail lies within the discretion of the Court. The grant or denial is regulated to a large extent by the facts and circumstances of each particular case. But at the same time right to bail is not to be denied merely because of the sentiments of the community against the accused. The primary purposes of bail in a criminal case are to relieve the accused of imprisonment to relieve the State of the 17 burden of keeping him pending the trial and at the same time to keep the accused constructively in the custody of the Court whether before or after conviction to assure that he will submit to the jurisdiction of the Court and be in attendance thereon whenever his presence is required”. Adverting carefully tactical and enthralling contentions raised at the Bar by the learned counsel for the respective parties and looking at the oral as well as documentary evidence available on record I find that there is no dispute to the fact that the petitioner was working as Assistant Manager of the Bank at the relevant point of time. The accusation against him is very serious as it prima facie appears that he has not observed due diligence as mandated by the circular instructions of the Bank in respect of margin money KYC occupation the genuineness of the income and net worth of the borrowers i.e. assets and liabilities with supporting documents etc. status of their properties as well as income source of the borrowers. He has not ensured the progress of the constructions and authorized for disbursement of the loan amounts violating the Bank’s in respect of disbursement of the loans. He appears to have submitted pre sanction inspection reports without actually conducting the inspection and stated that construction of the site has been completed even though no such construction was undertaken. Further the details of the occupation and net worth of the borrowers mentioned in the 18 inspection reports are found to be false. He has sanctioned the loans ignoring the instructions of the Bank without specific permission of the Regional Head in that respect. He has relied upon the data submitted by the borrowers during the processing stage which was in violation of the norms of the Bank. The loans were disbursed within a period of three or eight weeks from the date of sanction. The willful ignorance towards the guidelines of the Bank prima facie indicates the criminal conspiracy of the petitioner with the builders and others. The Bank suffered a total wrongful loss of Rs. 2 33 71 963 excluding applicable interest as per the chargesheet. The contentions raised by the learned counsel for the petitioner for grant of bail to the petitioner are not at all convincing rather I find sufficient force in the argument of the learned counsel for CBI. In view of the foregoing discussions it appears that the crime was committed in a cool calculated and organized manner causing wrongful loss of crores to the Bank. There are prima facie materials showing involvement of the petitioner in the deep rooted conspiracy with other co accused persons to cause such a huge loss to the Bank. In my humble opinion granting bail to the petitioner in economic offences of this nature would be against the larger interest of public and State as it involves criminal misappropriation and cheating of huge amount of public money and there is also reasonable 19 apprehension of tampering with the witnesses. Accordingly the bail application sans merit and hence stands rejected. Before parting I would like to place it on record by way of abundant caution that whatever has been stated hereinabove in this order has been so said only for the purpose of disposing of the prayer for bail made by the petitioner. Nothing contained in this order shall be construed as expression of a final opinion on any of the issues of fact or law arising for decision in the case which shall naturally have to be done by the trial Court at the appropriate stage of the trial. 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. S.K. Sahoo Judge Orissa High Court Cuttack The 26th April 2021 PKSahoo

Right to live with a person of his/her choice irrespective of religion professed by them, is intrinsic to right to life and personal liberty: Allahabad High Court

An individual on attaining majority has statutorily conferred a right to choose a partner, which if denied would not only affect his/her human right but also his/her right to life and personal liberty, guaranteed under Article 21 of the Constitution of India. We say so for the reason that irrespective of the conversion being under clout, the mere fact that the couple was living together, the alleged relationship can very well be classified as a relationship in the nature of marriage distinct from the relationship arising out of marriage, in view of the provisions of Protection of Women from Domestic Violence Act, 2005 was held by the Allahabad High Court in case of Salamat Ansari and Ors. Vs State of U.P [Crl. Mis. Writ Petition No- 11367 of 2020] by the bench comprising of Justice Pankaj Naqvi and Justice Vivek Agarwal. In the present case, Salamat Ansari and Priyanka Kharwar @ Alia along with two others have invoked the extraordinary jurisdiction of this Court for seeking quashing of an FIR under Sections 363, 366, 352, 506 IPC and Section 7/8 POCSO Act on the ground that the couple is of the age of majority, competent to contract a marriage, performed Nikah on 19.08.2019 as per Muslim rites and rituals, after Priyanka Kharwar renounced her Hindu identity and embraced Islam. It is further submitted that the couple has been living together as husband and wife for last one year peacefully and happily. It is finally submitted that the FIR lodged by the father of the petitioner, Priyanka Kharwar is prompted by malice and mischief only with a view to bringing an end to martial ties, no offences are made out, FIR is quashed. The Court held that, the judgment in Priyanshi @ Km. Shamren and others Vs. State of U.P. and Another, Smt Noor Jahan Begum @ Anjali Mishra and Another vs. State of U.P. and others, is laying a good law as none of these judgments dealt with the issue of life and liberty of two matured individuals in choosing a partner or their right to freedom of choice as to with whom they would like to live. The Court relied on Shafin Jahan v. Asokan K.M (2018). “Whatever may be the date of birth of the petitioner, the fact remains that she is at present more than 18 years of age. As the petitioner is sui juris no fetters can be placed upon her choice of the person with whom she is to stay, nor can any restriction be imposed regarding the place where she should stay. The court or the relatives of the petitioner can also not substitute their opinion or preference for that of the petitioner in such a matter.” The right to choose a partner irrespective of caste, creed or religion, is inhered under the right to life and personal liberty, an integral part of the Fundamental Right under Article 21 of the Constitution of India. The Apex Court in KS Puttaswamy vs Union of India (2017) while deciding the issue of the right to privacy. Click here to read the judgement

Court No. 43 Case : Crl. Mis. Writ Petition No 113620 Petitioner : Respondent : Counsel for Petitioner : Counsel for Respondent : G.A. Ritesh Kumar Singh Salamat Ansari & 3 Others State of U.P. & 3 Others Rakesh Kumar Mishra Hon ble Pankaj Naqvi J Hon ble Vivek Agarwal J Per Pankaj Naqvi J Heard Sri Rakesh Kumar Mishra learned counsel for the petitioners Sri Ritesh Kumar Singh learned counsel for the informant and Sri Deepak Mishra the learned A.G.A. Learned AGA and the learned counsel for the informant do not propose to file any counter affidavit. With the consent of all the petition is being heard and finally decided under the rules of the This writ petition has been filed seeking a writ of mandamus directing the respondent concerned not to arrest the petitioners with a further prayer for quashing the impugned F.I.R. dated 25.08.2019 registered as Case Crime No. 0199 of 2019 under Sections 363 366 352 506 I.P.C. and Section 7 8 POCSO Act Police Station Vishnupura District Kushi Nagar. 1. Salamat Ansari and Priyanka Kharwar @ Alia along with two others have invoked the extraordinary jurisdiction of this Court for seeking quashment of an FIR dated 28.08.2019 as Case Crime No. 0199 of 2019 under Sections 363 366 352 506 IPC and Section 7 8 POCSO Act Police Station Vishnupura Kushinagar on the premise that the couple is of the age of majority competent to contract a marriage performed Nikah on 19.08.2019 as per muslim rites and rituals after Priyanka Kharwar renounced her Hindu identity and embraced Islam. It is further submitted that the couple has been living together as husband and wife since last one year peacefully and happily. It is finally submitted that the FIR lodged by father of petitioner no. 4 Priyanka Kharwar @ Alia is prompted by malice and mischief only with a view to bring an end to martial ties no offences are made out FIR be quashed 2. Learned AGA and learned counsel for the informant vehemently opposed the submissions on the premise that conversion per se for contracting a marriage is prohibited said marriage has no sanctity in law thus this Court should not exercise its extra ordinary jurisdiction in favour of such a couple. They relied on a judgment of a Learned Single Judge in Writ C No. 570614 decided on 16.12.2014 and its recent reiteration in Writ C No. 142820decided on 23.09.2020 3. There is no dispute that the couple has attained the age of majority as Priyanka Kharwar @ Alia s date of birth as per High School Certificateis 07.07.1999 which is an enlisted document in Juvenile Justice Act 2015 for determining the age of an individual coupled with the fact that the entry of the date of birth is not under challenge. The mere fact that this petition is filed and supported by an affidavit of Priyanka Kharwar @ Alia alleged victim goes to show that she is voluntarily living with Salamat Ansari as a 4. Once age of Priyanka Kharwar @ Alia is not in dispute as she is reported to be around 21 years petitioner nos. 1 to 3 cannot be made accused for committing an offence under Section 363 IPC or 366 IPC as victim on her own left her home in order to live with Salamat Ansari. Similarly once Priyanka Kharwar @ Alia is found not to be a juvenile the offence under Seciton 7 8 POCSO Act is also not made out. Allegations relating to offence under Section 352 506 IPC qua petitioner no. 2 and 3 prima facie in view of above background appear to be exaggerated and malafidely motivated with a view to implicate the family of petitioner no. 1 as petitioner no. 2 and 3 are mother and brother of petitioner no. 1 5. We do not see Priyanka Kharwar and Salamat as Hindu and Muslim rather as two grown up individuals who out of their own free will and choice are living together peacefully and happily over a year. The Courts and the Constitutional Courts in particular are enjoined to uphold the life and liberty of an individual guaranteed under Article 21 of the Constitution of India. Right to live with a person of his her choice irrespective of religion professed by them is intrinsic to right to life and personal liberty. Interference in a personal relationship would constitute a serious encroachment into the right to freedom of choice of the two individuals. We fail to understand that if the law permits two persons even of the same sex to live together peacefully then neither any individual nor a family nor even State can have objection to relationship of two major individuals who out of their own free will are living together. Decision of an individual who is of the age of majority to live with an individual of his her choice is strictly a right of an individual and when this right is infringed it would constitute breach of his her fundamental right to life and personal liberty as it includes right to freedom of choice to choose a partner and right to live with dignity as enshrined in Article 21 of the Constitution of India 6. The Apex Court in Shafin Jahan v. Asokan K.M16 SCC 368 decided on April 9 2018 held as under 74. The principles which underlie the exercise of the jurisdiction of a court in a habeas corpus petition have been reiterated in several decisions of the Court. In Gian Devi v Superintendent Nari Niketan Delhi31 a three judge Bench observed that where an individual is over eighteen years of age no fetters could be placed on her choice on where to reside or about the person with whom she could stay 7. Whatever may be the date of birth of the petitioner the fact remains that she is at present more than 18 years of age. As the petitioner is sui juris no fetters can be placed upon her choice of the person with whom she is to stay nor can any restriction be imposed regarding the place where she should stay. The court or the relatives of the petitioner can also not substitute their opinion or preference for that of the petitioner in such a matter 75. The ambit of a habeas corpus petition is to trace an individual who is stated to be missing. Once the individual appears before the court and asserts that as a major she or he is not under illegal confinement which the court finds to be a free expression of will that would conclude the exercise of the jurisdiction. In Girish v Radhamony a two judge Bench of this Court observed thus 3 In a habeas corpus petition all that is required is to find out and produce in court the person who is stated to be missing. Once the person appeared and she stated that she had gone of her own free will the High Court had no further jurisdiction to pass the impugned order in exercise of its writ jurisdiction under Article 226 of the Constitution." 76. In Lata Singh v State of U.P Bench of two judges took judicial notice of the harassment threat and violence meted out to young women and men who marry outside their caste or faith. The court observed that our society is emerging through a crucial transformational period and the court cannot remain silent upon such matters of grave concern. In the view of the court 17 This is a free and democratic country and once a person becomes a major he or she can marry whosoever he she likes. If the parents of the boy or girl do not approve of such inter caste or inter religious marriage the maximum they can do is that they can cut off social relations with the son or the daughter but they cannot give threats or commit or instigate acts of violence and cannot harass the person who undergoes such inter caste or inter religious marriage. We therefore direct that the administration police authorities throughout the country will see to it that if any boy or girl who is a major undergoes inter caste or inter religious marriage with a woman or man who is a major the couple is not harassed by anyone nor subjected to threats or acts of violence and anyone who gives such threats or harasses or commits acts of violence either himself or at his instigation is taken to task by instituting criminal proceedings by the police against such persons and further stern action is taken against such persons as provided by law." this Court adverted to the social evil of honour killings as being but a reflection of a feudal mindset which is a slur on the nation 78. In a more recent decision of a three judge Bench in Soni Gerry v Gerry Douglas this Court dealt with a case where the daughter of the appellant and respondent who was a major had expressed a desire to reside in Kuwait where she was pursuing her education with her father This Court observed thus 9 She has without any hesitation clearly stated that she intends to go back to Kuwait to pursue her career. In such a situation we are of the considered opinion that as a major she is entitled to exercise her choice and freedom and the Court cannot get into the aspect whether she has been forced by the father or not. There may be ample reasons on her behalf to go back to her father in Kuwait but we are not concerned with her reasons. What she has stated before the Court that alone matters and that is the heart of the reasoning for this Court which keeps all controversies at bay 10. It needs no special emphasis to state that attaining the age of majority in an individual s life has its own significance. She He is entitled to make her his choice The courts cannot as long as the choice remains assume the role of parens patriae. The daughter is entitled to enjoy her freedom as the law permits and the court should not assume the role of a super guardian being moved by any kind of sentiment of the mother or the egotism of the father. We say so without any reservation 79. These principles emerge from a succession of judicial decisions. Fundamental to them is the judgment of a Constitution bench of this Court in Kanu Sanyal v District Magistrate Darjeeling 7. A perusal of the aforesaid judgment manifests that the Apex Court has consistently respected the liberty of an individual who has attained the age of majority 8. The Apex Court in Shakti Vahini Vs. Union of India7 SCC 192 came down heavily on the perpetrators of "honour killings" which the Court found not only horrific and barbaric but also interfering with the right to choose a life partner and the dignity of an individual. The Apex Court held as under: 44. The concept of liberty has to be weighed and tested on the touchstone of constitutional sensitivity protection and the values it stands for. It is the obligation of the Constitutional Courts as the sentinel on qui vive to zealously guard the right to liberty of an individual as the dignified existence of an individual has an inseparable association with liberty. Without sustenance of liberty subject to constitutionally valid provisions of law the life of a person is comparable to the living dead having to endure cruelty and torture without protest and tolerate imposition of thoughts and ideas without a voice to dissent or record a disagreement. The fundamental feature of dignified existence is to assert for dignity that has the spark of divinity and the realization of choice within the parameters of law without any kind of subjugation. The purpose of laying stress on the concepts of individual dignity and choice within the framework of liberty is of paramount importance. We may clearly and emphatically state that life and liberty sans dignity and choice is a phenomenon that allows hollowness to enter into the constitutional recognition of identity of a person.Act 1994(See : Voluntary Health Association of Punjab v. Union of India and others12 and Voluntary Health Association of Punjab v. Union of India and 47. The first argument deserves to be rejected without much discussion. Suffice it to say the same relates to the recognition of matrimonial status. If it is prohibited in law law shall take note of it when the courts are approached Similarly PCPNDT Act is a complete code. That apart the concern of this Court in spreading awareness to sustain sex ratio is not to go for sex determination and resultantly female foeticide. It has nothing to do with the institution of marriage."that even if a marriage is prohibited in law same shall be taken note of only when the courts are approached for recognition of such marriage which finds further corroboration in the case of NandaKumar vs. State of Kerala 16 SCC 602 which after relying upon Shafin Jahanheld that on attaining majority an individual is entitled to make his her choice which is pivotal and cannot be infringed by anyone. The relevant paragraphs are quoted “7. A neat submission which is made by the learned counsel for the appellants is that the High Court has adopted an approach which is not permissible in law by going into the validity of marriage. It is submitted that when Thushara is admittedly a major i.e. more than 18 years of age she has right to live wherever she wants to or move as per her choice. As she is not a minor daughter of respondent No. 4 “custody” of Thushara could not be entrusted to him. 8. Learned counsel for the appellants is right in his submission. Even the counsel for the State did not dispute the aforesaid position in law and in fact supported this submission of the learned counsel for the 12. The Court also emphasised due importance to the right of an adult person which the Constitution accords to an adult person as under 10 SCC 1 while deciding the issue of right to privacy held as under: 298. Privacy of the individual is an essential aspect of dignity. Dignity has both an intrinsic and instrumental value. As an intrinsic value human dignity is an entitlement or a constitutionally protected interest in itself. In its instrumental facet dignity and freedom are inseparably inter twined each being a facilitative tool to achieve the other. The ability of the individual to protect a zone of privacy enables the realization of the full value of life and liberty. Liberty has a broader meaning of which privacy is a subset. All liberties may not be exercised in privacy. Yet others can be fulfilled only within a private space. Privacy enables the individual to retain the autonomy of the body and mind The autonomy of the individual is the ability to make decisions on vital matters of concern to life. Privacy has not been couched as an independent fundamental right. But that does not detract from the constitutional protection afforded to it once the true nature of privacy and its relationship with those fundamental rights which are expressly protected is understood. Privacy lies across the spectrum of protected freedoms. The guarantee of equality is a guarantee against arbitrary state action. It prevents the state from discriminating between individuals. The destruction by the state of a sanctified personal space whether of the body or of the mind is violative of the guarantee against arbitrary state action. Privacy of the body entitles an individual to the integrity of the physical aspects of personhood The intersection between one s mental integrity and privacy entitles the individual to freedom of thought the freedom to believe in what is right and the freedom of self determination. When these guarantees intersect with gender they create a private space which protects all those elements which are crucial to gender identity The family marriage procreation and sexual orientation are all integral to the dignity of the individual. Above all the privacy of the individual recognises an inviolable right to determine how freedom shall be exercised. An individual may perceive that the best form of expression is to remain silent Silence postulates a realm of privacy. An artist finds reflection of the soul in a creative endeavour. A writer expresses the outcome of a process of thought. A musician contemplates upon notes which musically lead to silence. The silence which lies within reflects on the ability to choose how to convey thoughts and ideas or interact with others. These are crucial aspects of personhood. The freedoms Under Article 19 can be fulfilled where the individual is entitled to decide upon his or her preferences. Read in conjunction with Article 21 liberty enables the individual to have a choice of preferences on various facets of life including what and how one will eat the way one will dress the faith one will espouse and a myriad other matters on which autonomy and self determination require a choice to be made within the privacy of the mind. The constitutional right to the freedom of religion Under Article 25 has implicit within it the ability to choose a faith and the freedom to express or not express those choices to the world. These are some illustrations of the manner in which privacy facilitates freedom and is intrinsic to the exercise of liberty. The Constitution does not contain a separate Article telling us that privacy has been declared to be a fundamental right. Nor have we tagged the provisions of Part III with an alpha suffixed right of privacy: this is not an act of judicial redrafting Dignity cannot exist without privacy. Both reside within the inalienable values of life liberty and freedom which the Constitution has recognised. Privacy is the ultimate expression of the sanctity of the individual. It is a constitutional value which straddles across the spectrum of fundamental rights and protects for the individual a zone of choice and self determination 299. Privacy represents the core of the human personality and recognises the ability of each individual to make choices and to take decisions governing matters intimate and personal. Yet it is necessary to acknowledge that individuals live in communities and work in communities. Their personalities affect and in turn are shaped by their social environment. The individual is not a hermit. The lives of individuals are as much a social phenomenon. In their interactions with others individuals are constantly engaged in behavioural patterns and in relationships impacting on the rest of society. Equally the life of the individual is being consistently shaped by cultural and social values imbibed from living in the community 323. Privacy includes at its core the preservation of personal intimacies the sanctity of family life marriage procreation the home and sexual orientation. Privacy also connotes a right to be left alone. Privacy safeguards individual autonomy and recognises the ability of the individual to control vital aspects of his or her life. Personal choices governing a way of life are intrinsic to privacy. Privacy protects heterogeneity and recognises the plurality and diversity of our culture. While the legitimate expectation of privacy may vary from the intimate zone to the private zone and from the private to the public arenas it is important to underscore that privacy is not lost or surrendered merely because the individual is in a public place. Privacy attaches to the person since it is an essential facet of the dignity of the human being 12. We now propose to deal with the judgment passed by learned Single Judge of this Court in Noor Jahanin Writ C No. 581214 l kiFk c ku fd k fd esjk uke fdju iq=h t a=h izlkn fuoklh taxyhiqj Fkkuk Hkkokuhxat ftyk fl)kFkZuxjA kph la0 1 us le{k U k ky l kiFk c ku fd k fd vkt fnukWd 3&11&14 dks fuEufyf[kr c ku ns jgh gwWA esjs firk th dk uke t a=h izlkn gS eSa taxyhiqj ftyk fl)kFkZuxj dh jgus okyh gwWA eSa b.Vj ehfM V rd i<+h gwWA eSa bykgkckn fnukWd 20 vDVwcj lu 2014 dks 5 cts lk adky vkbZ FkhA eSa bykgkckn vdsyh vkbZ FkhA esjk fudkg ukS cts fnu esa bykgkckn esa vCnqy jghe us ccyw mQZ bjQku ds lkFk djk fn k A g fudkg vdcj iqj ftyk bykgkckn esa djk k x k FkkA esjk keZ ifjorZu vCnqy jghe fu0 vdcjiqj ftyk bykgkckn esa djk k x k FkkA g keZ ifjroZu mUgksaus kknh djus ds fy djk k FkkA g keZ ifjorZu mUgksaus ccyw mQZ bjQku tks fd kph la[ k nks gS ds dgus ij djk k FkkA keZ ifjorZu izek.k i= tks fd bl kfpdk dk layXud rhu gS eq>s vCnqy jghe us vdcjiqj bykgkckn esa fn k FkkA bl dkxt ds fo"k esa eSa dqN ugha tkurh gwWA bLyke ds ckjs esa eSa dqN ugha tkurh gwWA dfFkr fudkgukek tks kfpdk dk layXud pkj gS esa fudkg dk LFkku unZ gkbZdksVZ bykgkckn vFkkZr~ gkbZdksVZ ds djhc fy[kk gqvk gSA gkW esjk fudkg ugha gqvkA C ku i o lqudj rLnhd fd k^^ Statement of Petitioner No.1in Writ C No. 625814 kph la0 1 lksue mQZ fiz adk us le{k U k ky l kiFk c ku fd k fd vkt fnukWd 21&11&14 dks fuEufyf[kr c ku ns jgh gwWA esjk uke lksue mQZ fiz adk gSA esjs firk th dk uke Hkxoku flag gSA og d d`"kd gSA og uxyk yks kbZ xkao eseq>s kn ugh gSA Statement of Petitioner No.1in Writ C No. 604914 kph la0&1 us le{k U k ky l kiFk c ku fd k fd vkt fnukWd 13&11&14 dks fuEufyf[kr c ku ns jgh gwWA esjk uke vk lk csxe mQZ vuhrk fo odekZ esjs firk th dk uke Jh f ko lju yky gSA oks dq.Mk izrkix< esa jgrs gSaA eSa ch0 0 rd i<+h gwWA esjk keZ ifjorZu eks0 lyhe us djok k Fkk A s keZ ifjorZu Jh lyeku ds lkFk kknh djokus ds fy djok k FkkA esjk fudkg lyeku us dpgjh] esa djok k A fudkg esa D k gqvk eq>s ekywe ugha A eq>s bLyke ds ckjs esa irk ugha gSA Statement of Petitioner no. 1(girl) in Writ C No. 570614 : uwjtgkW csxe mQZ vatyh feJk oa d vU cuke LVsV vkQ w0ih0 oa vU kph la0 1 vatyh feJk le{k U k ky l kiFk c ku fd k & Jh vf[kys k feJk esjs ikik dk uke gSA g nsofj k esa jgrs gSa eSa bUgha ds lkFk jgrh FkhA eSa b.Vj rd i<+h gqbZ gwWA eSa bLyke keZ ds ckjs esa dqN ugha tkurh gwWA fn0 23 flrEcj 2014 dks esjk keZ ifjorZu eks0 lyhe kph la0 2 ds kj ij djk k x k FkkA tc g keZ ifjorZu djk k x k rc eSa vyx dejs esa cSBh Fkh vkSj ckgj ekSyoh futke vgen cSBs Fks mlh le fudkg gks x k Fkk ekSyoh lkgc us djk k FkkA Jh eks0 lyhe lkM+h dk C kikj djrs gSaA kknh djus ds fy g keZ ifjorZu gqvk FkkA^^ Statement of Petitioner no. 1(girl) in Writ C No. 589114 : esjk uke lksuh mQZ lkfc k] iRuh lxhj vgen gSA esjs firk dk uke jes k pUnz gSA eSa bl kfpdk esa kfpuh la0 1 gwWA eSa 217 lEHky xsV pankSlh ftyk lEHky dh jgus okyh gwWA eS l kiFk c ku djrh gwW fd& esjs firk th esaFkk QSDVzh esa ukSdjh djrs gSaA eSa Lukrd dh Nk=k gwWA eSa bLyke keZ ds ckjs esa ugha tkurh gwWA eq>s kknh ds fy bLyke keZ dqcqy djok k x kA eq>s lxhj vgen kph la0 2 ds mifLFkfr esa bLyke keZ dqcqy djok k x kA g dqcwyukek 15 tqykbZ 2014 dks gqvkA lxhj vgen th us esjs lkFk fudkg 1 vxLr 2014 dks fdlh dkth ls djk kA mUgksaus g fudkg ekSgEen gqlSu ds kj ij djok kA eq>s ugha ekywe fd fudkgukek tks kfpdk layXud la0 2 gS ds vuqlkj fudkg 10 vxLr 2014 dks djok k x k A lxhj vgen kh ks dk dke etnwjh ij djrs gSaA^^ 13. We find from the judgement in Noor Jahan’s case that no doubt the ladies in question could not authenticate their alleged conversion as they were unable to show the knowledge regarding the basic tenets of Islam the writ court against the above background held that the alleged marriage was illegal as it was performed after a conversion which could not be justified in law. 14. We lest not forget that couples in Noor Jahan and other cognate petitions preferred a joint petition on the basis of alleged conversion of one of the partners. Once the alleged conversion was under clout the Constitutional Court was obliged to ascertain the wish and desire of the girls as they were above the age of 18 years. To disregard the choice of a person who is of the age of majority would not only be antithetic to the freedom of choice of a grown up individual but would also be a threat to the concept of unity in diversity. An individual on attaining majority is statutorily conferred a right to choose a partner which if denied would not only affect his her human right but also his her right to life and personal liberty guaranteed under Article 21 of the Constitution of India. We say so for the reason that irrespective of the conversion being under clout the mere fact that the couple was living together the alleged relationship can very well be classified as a relationship in the nature of marriage distinct from the relationship arising out of marriage in view of the provisions of Protection of Women from Domestic Violence Act 2005. 15. The judgment in Priyanshi followed Noor Jahan supra). None of these judgments dealt with the issue of life and liberty of two matured individuals in choosing a partner or their right to freedom of choice as to with whom they would like to live. We hold the judgments in Noor Jahan and Priyanshi as not laying good law 16. We before parting wish to reiterate that we are quashing the FIR primarily on the ground that no offences are made out as discussed above as also the fact that two grown up individuals are before us living together for over a year of their own free will and choice. The ultimate contention on behalf of the informant was that he be afforded visiting rights to meet his daughter. Once petitioner no. 4 has attained majority then it is her choice as to whom she would like to meet. We however expect the daughter to extend all due courtseys and respect to her family 17. We clarify that while deciding this petition we have not commented upon the validity of alleged marriage conversion. 18. In view of above discussion the writ petition succeeds and is allowed. The F.I.R. dated 25.08.2019 registered as Case Crime No 01919 under Sections 363 366 352 506 IPC and Section 7 8 POCSO Act Police Station Vishunpura District Kushi Nagar as well as all consequential proceedings are hereby quashed. Order Date : 11.11.2020 (Vivek Agarwal J)(Pankaj Naqvi J

Suppression of facts in itself is sufficient to dismiss a writ petition: Delhi HC

Suppression of material and vital facts by the petitioner can become a solid ground for dismissal of a petition. The writ Court can dismiss a petition without even looking into the merits of the matter in case of any sort of twisting of the facts on part of the applicant. In the matter of, Amit Kumar Shrivastava vs. Central Information Commission [W.P.(C) 3701/2018], it was held by Hon’ble Mr. Justice Jayant Nath that a non-disclosure of facts on the side of the petitioner can be enough to dismiss a petition. It is the grievance of the petitioner that during the hearing, the respondent believed the verbal submissions of the CPIO instead of the written submissions of the petitioner and allowed them to sustain their stand for non-disclosure of the information in respect of all the points by claiming exemption under Section 8(1) (h) of the RTI Act. The impugned order of the CIC has dismissed the appeal of the petitioner holding that the proceedings initiated by CBI are pending in the appropriate criminal court. Disciplinary proceedings against the petitioner are pending before the concerned Disciplinary Authority and hence, the matter is covered under Section 8(1) (h) of the RTI Act. A case was registered against the petitioner by the CBI on the allegation of criminal conspiracy of cheating by impersonation, demand of illegal gratification and misuse of official position. He was taken into custody by the CBI and was held under suspension. The concerned court took Suo moto cognizance by the Department. These facts give full background of the case but they were not mentioned by the petitioner in the present petition. A reference was given to the judgement of Supreme Court in the case of Prestige Lights Limited vs. State Bank of India, (2007) 8 SCC 449 where the Court held that it is of utmost necessity that when a party approaches a High Court, he must place all the facts before the Court without any reservation. If there is suppression of material facts on the part of the applicant or twisted facts have been placed before the Court, the writ court may refuse to entertain the petition and dismiss it without entering into merits of the matter. The Court stated that, “In the present case, the petitioner has not indicated any possible reason or ground to establish that the disclosure of information as sought by the petitioner would impede prosecution of the offender. It is also relevant to observe that denial of any information available with a public authority, which could assist an alleged offender from establishing his innocence or for pursuing his defence may, in fact, impede the course of justice.” The impugned order of the CIC was quashed and the matter was remanded back to CIC for consideration afresh in terms of the legal position that “cogent reasons have to be given by the public authority as to how and why the investigation or prosecution will get impaired or hampered by giving the information in question.” The petition was disposed of accordingly. Click to read judgement.        

IN THE HIGH COURT OF DELHI AT NEW DELHI Pronounced on: 05.02.2021 AMIT KUMAR SHRIVASTAVA Petitioner in person. Petitioner W.P.(C) 3701 2018 CENTRAL INFORMATION COMMISSION NEW DELHI Through Mr.Amit Bansal Sr. Standing counsel with Ms. Manisha Singh Adv. Respondent. HON BLE MR. JUSTICE JAYANT NATH JAYANT NATH J. This writ petition is filed seeking a writ order or direction to impugn the order dated 15.01.2018 passed by the Central Information Commission The case of the petitioner is that he filed an RTI Application on 05.09.2016 under Rule 6 of the Right to Information Act 2005seeking disclosure of point wise information which was mentioned at serial No. 5(i) to 5(xxv) of the said application. It is claimed that the CPIO did not provide correct information in respect of point 5(i) of the RTI application. The CPIO hid the cases registered under IPC PC Act. It is also claimed that the CPIO misled regarding the other issues. W.P.(C) 3701 2018 Information was not disclosed under Section 8(1)of the RTI Act. The petitioner filed a first appeal on 10.10.2016 before the First Appellate Authority. It is stated that the Appellate Authority did not decide the appeal of the petitioner in the defined period. The petitioner filed a second appeal before the Second Appellate Authority CIC. It is the grievance of the petitioner that during the hearing the respondent believed the verbal submissions of the CPIO instead of the written submissions of the petitioner and allowed them to sustain their stand for non disclosure of the information in respect of all the points by claiming exemption under Section 8(1)of the RTI Act. Hence the present writ petition. I have heard the petitioner in person and learned counsel for the respondent. Both the parties have also filed their written submissions which I have perused. At the outset I may point out that a close look at the writ petition shows that there is suppression of material and vital facts by the petitioner in the present writ petition. A perusal of the impugned order dated 15.01.2018 of the CIC shows that there are serious and grave allegations and proceedings including criminal proceedings and departmental proceedings pending against the petitioner. None of this has been mentioned in the present writ petition. As per the impugned order a case was registered against the petitioner by CBI New Delhi on 05.05.2012 on the allegation of criminal conspiracy of cheating by impersonation demand of illegal gratification and misuse of official position. The petitioner was taken into custody by CBI and was remanded to judicial custody by the CBI Special Court on 25.05.2012. The petitioner was released on bail vide order dated 23.08.2012 W.P.(C) 3701 2018 by the ACMM Patiala House Court on a personal bond and surety bond of Rs. 50 000 . The petitioner was under suspension w.e.f. 24.05.2012 under the relevant provisions of CCS Rules 1965. A charge sheet was filed by CBI against the petitioner after due investigation. The concerned court is said to have taken cognizance of the offence on 16.08.2012. Further the petitioner was placed under deemed suspension suo moto by Department. The suspension was subsequently revoked on 10.03.2015 on the recommendations of the Suspension Review Committee. Further as recommended by the Investigating Agency and DG a charge sheet was issued to the petitioner on 13.08.2013 for major penalty under CCSAct 1956. The impugned order notes that the Departmental and CBI inquiry has not attained finality. None of the above aspects has been mentioned in the present writ petition. These facts give the full background of the case and the RTI application filed. This suppression of facts itself in my opinion is sufficient to dismiss the writ petition. In this context reference may be had to the judgment of the Supreme Court in the case of Prestige Lights Limited vs. State Bank of India 8 SCC 449 where the Supreme Court held as follows: the High Court under Article 226 of “33. It is thus clear that though the appellant Company had Constitution it had not candidly stated all the facts to the Court. The High Court is exercising discretionary and extraordinary jurisdiction under Article 226 of the Constitution. Over and above a court of law is also a court of equity. It is therefore of utmost necessity that when a party approaches a High Court he must place all the facts before the Court without any reservation. If there is suppression of material facts on the part of the applicant or twisted facts have been placed before the W.P.(C) 3701 2018 Court the writ court may refuse to entertain the petition and dismiss it without entering into merits of the matter.” However I have examined the impugned order of the CIC on merits. In the interest of justice I have chosen to decide the present case of its merits. The petitioner filed the RTI application on 05.09.2016 posing 25 queries which read as follows: “5. Particular of information required A) Details of information required: i) Please provide me the list cases which were registered against officer staff of your office alongwith sections of IPC PC Act. ii) Please provide the Name of Officers who has been directed to support the investigation of investigating agency and copy of letter thereof. iii) Please provide the bill no. of four consecutive month of Pay of the officer after direction stated in clauseiv) Please provide the date of joining and copy of joining report of the officer after compliance of direction given in clausePlease provide the copy of all communication(letters) between department and investigating agency of above office mentioned in clausevi) Please provide the date of suspension of the officer mentioned in clausevii) Is the suspension mentioned in clauseresulted to the direction of investigating agency viii) If yes then provide me copy thereof. ix) Is suspension of officer Clause reviewed every three month x) If yes provide me dates of all minutes of suspension review committee and legible copy all minutes of suspension review xi) Is the officer suspended in clausehave been revoked xii) What is the total period of suspension of the officer who have been revoked clauseW.P.(C) 3701 2018 xiii) Provide me copy fundamental rule by which pay officer clauseis fixed. xiv) Is any order passed under rule clausexv) If yes provide me copy thereof. xvi) If not provide me manner of treatment of pay as per rule clausexvii) Is regular increment of officer mention in clausehas been stopped. xviii) If yes provide me copy thereof. xix) If no provide me copy of all periodical increment sheet of the officer mentioned clausefrom 2012. xx) Is the officer mentioned in clauserquested to revoke xxi) If yes provide me dates when he requested to revoke and also provide me copy of reply thereof alongwith copy of note xxii) Is there any direction issued to stop payment of suspension period officer mentioned in clausexxiii) Provide copy of Rule and order to stop the increment suspension period. xxiv) Provide the list and amount of increments w.e.f. 2011 of officer mentioned in clauseyearwise. xxv) Provide me copy of note sheet of file no. II 10(3)Cus Vig. 12 and II 10(3)Cus Vig 12 pt .” A perusal of the above application shows that the same is vague and confusing. The entire focus of the application is on query 5(ii) namely the name of the officer who has been directed to support the investigation of the investigating agency and copy of the letter thereof. Numerous queries are raised regarding the said alleged officer who has been directed to support the investigation of the investigating agency. 10. The impugned order of the CIC has dismissed the appeal of the petitioner holding that the proceedings initiated by CBI are pending in the appropriate criminal court. Disciplinary proceedings against the petitioner are pending before the concerned Disciplinary Authority and hence the W.P.(C) 3701 2018 matter is covered under Section 8(1)of the RTI Act. 11. Section 8(1)of the RTI Act 2005 reads as follows: “Section 8. Exemption from disclosure of information.Notwithstanding anything contained in this Act there shall be no obligation to give any citizen investigation or apprehension or prosecution of offenders information which would the process of I may see how Section 8(1)(h) of the RTI Act has been interpreted by this court. A Division Bench of this Court in Director of Income Tax Investigation) and Ors. vs. Bhagat Singh & Ors. MANU DE 9178 2007 held as follows: “8.Information sought for by the respondent No. 1 relates to fate of his complaint made in September 2003 action taken thereon after recording of statement of Ms. Saroj Nirmal and whether Ms. Saroj Nirmal has any other source of income other than teaching in a private school. This information can be supplied as necessary investigation on these aspects has been undertaken during last four years by the Director of Income Tax Investigation). In fact proceedings before the said Director have drawn to a close and the matter is now with the ITO i.e. the Assessing Officer. Under Section 8(1)(h) information can be withheld if it would impede investigation apprehension or prosecution of offenders. It is for the appellant to show how and why investigation will be impeded by disclosing information to the appellant. General statements are not enough. Apprehension should be based on some ground or reason. Information has been sought for by the complainant and not the assessed. Nature of information is not such which interferes with the investigation or helps the assessed. Information may help the W.P.(C) 3701 2018 respondent No. 1 from absolving himself in the criminal trial. It appears that the appellant has held back information and delaying the proceedings for which the respondent No. 1 felt aggrieved and filed the aforesaid writ petition in this Court. We also find no reason as to why the aforesaid information should not be supplied to the respondent No. 1. In the grounds of appeal it is stated that the appellant is ready and willing to disclose all the records once the same is summoned by the criminal court where proceedings under Section 498A of the Indian Penal Code are pending. If that is the stand of the appellant we find no reason as to why the aforesaid information cannot be furnished at investigation process is not going to be hampered in any manner and particularly in view of the fact that such information is being furnished only after the investigation process is complete as far as Director of Income Tax Investigation) is concerned. It has not been explained in what manner and how information asked for and directed will hamper the assessment proceedings.” this stage as In Union of India vs. Manjit Singh Bali 2018 SCC OnLine Del. 10394 a Coordinate Bench of this court held as follows: “22. The next question to be examined is whether the denial of information sought for by the respondent is justified in terms of Section 8(1)(h) of the RTI Act. Section 8(1)(h) of the RTI Act is set out below for ready reference:— information. “8. Exemption from disclosure of Notwithstanding anything contained in the Act there shall be no obligation to give any citizen h) information which would impede the process of investigation or apprehension or prosecution of offenders ” xxxxx W.P.(C) 3701 2018 23. A plain reading of the aforesaid provision indicates that in order to deny information under Clauseof Section 8(1) of the RTI Act it must be established that the information sought is one which would impede the process of investigation or apprehension or prosecution of the offenders. In the facts of the present case a charge sheet has already been filed and therefore the investigation stage is now over. Thus in order for the petitioner to claim exemption from disclosure under Clause h) of Section 8(1)(h) of the RTI Act it would be essential for the petitioner to indicate as to how such information would impede the investigation or apprehension or prosecution of the offender. In Director of Income Tax v. Bhagat Singha Division Bench of this Court had observed as “Under Section 8(1)(h) information can be withheld if it would impede investigation apprehension or prosecution of offenders. It is for the appellant to show how and why investigation will be impeded by disclosing information to the appellant. General statements are not enough. Apprehension should be based on some ground or 24. In the present case the petitioner has not indicated any possible reason or ground to establish that the disclosure of information as sought by prosecution of the offender. It is also relevant to observe that denial of any information available with a public authority which could assist an alleged offender from establishing his innocence or for pursuing his defence may in fact impede the course of justice. After the investigations are complete the information as sought by the respondent can be denied under Section 8(1)(h) of the RTI Act only if the public authority apprehends that such disclosure would interfere with the course of prosecution or in apprehending the offenders. It will not be open for the public authority to deny information on the ground that such information may assist the offender in pursuing his defence3701 2018 not the import of Section 8(1)(h) of the RTI Act. 25. It is also necessary to bear in mind that the RTI Act is a statutory expression of one of the facets of Article 19(1)(a) of the Constitution of India and any exclusionary clause under the RTI Act must be construed keeping in view the object for providing such exclusion. By virtue of Article 19(2) of the Constitution of India reasonable restrictions in exercise of rights under Article 19(1)(a) of the Constitution of India are sustainable if they are in the interest of the sovereignty and integrity of India the security of the state friendly relations with foreign states public order decency or morality or in relation to contempt of court defamation or incitement to an offence. The exclusion under Section 8(1)(h) of the RTI Act information which would impede process of investigation or apprehension or prosecution of the offenders has to be read in conjunction with Article 19(2) of the Constitution of India. Such denial must be reasonable and in the interest of public 14. Reference may also be had to a judgment of another Coordinate Bench of this court in the case of Bhagat Singh vs. Chief Information Commissioner & Ors. 100 DRJ 63 where the court held as follows: “13. Access to information under Section 3 of the Act is the rule and exemptions under Section 8 the exception. Section 8 being a restriction on this fundamental right must therefore is to be strictly construed. It should not be interpreted in manner as to shadow the very right itself. Under Section 8 exemption from releasing information is granted if it would impede the process of investigation or the prosecution of the offenders. It is apparent that the mere existence of an investigation process cannot be a ground for refusal of the information the authority withholding information must show satisfactory reasons as to why the release of such information would hamper the investigation process. Such reasons should be germane and the opinion of the process being hampered should be reasonable W.P.(C) 3701 2018 and based on some material. Sans this consideration Section 8 1)and other such provisions would become the haven for dodging demands for information. 14. A rights based enactment is akin to a welfare measure like the Act should receive a liberal interpretation. The contextual background and history of the Act is such that the exemptions outlined in Section 8 relieving the authorities from the obligation to provide information constitute restrictions on the exercise of the rights provided by it. Therefore such exemption provisions have to be construed in their terms there See Nathi Devi v. Radha Devi Gupta 2005SCC 201 : 2005DRJ 518[SC] B.R. Kapoor v. State of Tamil Nadu 2001 SCC 231 and V. Tulasamma v. Sesha Reddy 1977 SCC 99). Adopting a different approach would result in narrowing the rights and approving a judicially mandated class of restriction on the rights under the Act which is unwarranted.” this view 15. Similarly in B.S. Mathur vs. Public Information Officer of Delhi High Court 125 DRJ 508 the case pertained to the petitioner therein who was a member of the Delhi Higher Judicial Service. The Full Court decided to place him under suspension pending disciplinary action. This court held as follows: its objects and reasons indicate “19. The question that arises for consideration has already been formulated in the Court s order dated 21st April 2011: Whether the disclosure of the information sought by the Petitioner to the extent not supplied to him yet would “impede the investigation” in terms of Section 8(1)(h) RTI Act” The scheme of the RTI that disclosure of Act information is the rule and non disclosure the exception. A public authority which seeks to withhold information available with it has to show that the information sought is of the nature specified in Section 8 RTI Act. As regards Section 8(1)(h) RTI Act which is the only provision invoked by the Respondent to deny the Petitioner the information sought by him it will have W.P.(C) 3701 2018 to be shown by the public authority that the information sought “would impede the process of investigation.” The mere reproducing of the wording of the statute would not be sufficient when recourse is had to Section 8(1)(h) RTI Act. The burden is on the public authority to show in what manner the disclosure of such information would ‘impede’ the investigation. Even if one went by the interpretation placed by this Court in W.P.(C) No. Additional Commissioner of Police 7930 of 2009 Crime) v. CIC decision dated 30th November 2009] that the word “impede” would “mean anything which would hamper and interfere with the procedure followed in the investigation and have the effect to hold back the progress of investigation” it has still to be demonstrated by the public authority that the information if disclosed would indeed “hamper” or “interfere” with the investigation which in this case is the second enquiry.” 16. What follows from the legal position is that where a public authority takes recourse to Section 8(h) of the RTI Act to withhold information the burden is on the public authority to show that in what manner disclosure of such information could impede the investigation. The word ‘impede’ would mean anything that would hamper or interfere with the investigation or prosecution of the offender. 17. A perusal of the impugned order passed by the CIC shows that it relies upon the other orders passed by the Coordinate Benches of the CIC. It notes that in criminal law an investigation is completed with the filing of the charge sheet in an appropriate court by an investigating agency but in cases of vigilance related inquiries and disciplinary matters the word ‘investigation’ used in Section 8 (h) of the Act should be construed rather broadly and should include all enquiries verification of records and assessments. In all such cases the enquiry or the investigation should be taken as completed only after the competent authority makes a prima facie W.P.(C) 3701 2018 determination about presence or absence of guilt on receipt of the investigation enquiry report from the investigating enquiry officer. Based on the said position the impugned order has accepted the plea of the respondent and disallowed the information under Section 8(h) of the RTI Act. 18. As noted above the legal position as settled by this court is that cogent reasons have to be given by the public authority as to how and why the investigation or prosecution will get impaired or hampered by giving the information in question. In the impugned order there is no attempt made whatsoever to show as to how giving the information sought for would hamper the investigation and the on going disciplinary proceedings. The impugned order concludes that a charge sheet has been filed in the criminal case by the CBI but in the disciplinary proceedings the matter is still pending. Based on this fact simplicitor the impugned order accepts the plea of the respondent and holds that the Section 8 (h) is attracted and the respondents are justified in not giving information to the petitioner. No reasons are spelt out as to how the investigation or prosecution will be hampered. 19. Accordingly in my opinion the order has taken a stand which is contrary to the settled legal position by this court as noted above. I accordingly quash the impugned order of CIC and remand the matter back to CIC for consideration afresh in terms of the above noted legal position. 20. The petition stands disposed of accordingly. FEBRUARY 05 2021 JAYANT NATH J W.P.(C) 3701 2018

Section 482 Cr.PC is exercised to secure ends of justice or to prevent the abuse of the process of any court: High Court Of Meghalaya

Normally in a motor vehicle accident case, seeking payment of compensation would satisfy the offending party (victim), and when they are satisfied they are not interested to continue with prosecution in the criminal proceeding. Such an opinion was held by The Hon’ble High Court Of Meghalaya before The Hon’ble Mr. Justice W. Diengdoh in the matter of  Shri Dapyooki Dkhar &amp; Anr Vs. State of Meghalaya &amp; Anr [Crl. Petn. No.34 of 2021].  The facts of the case are associated with Petitioner no. 2 who was the complainant, who had lodged an FIR under sections 279/337/338/304(A) IPC at the Sadar Police Station, Shillong dated 20.06.2020. Other Petitioner no.1 was the police constable who was serving in the Meghalaya Police. By lodging the FIR, petitioner no.2 brought the attention of the police regarding a motor accident that took place on 17.06.2020 near Delhi Mistan Bhandar, Police Bazaar, Shillong. In the said accident the father of petitioner no.2 got hit by Petitioner no.1 and that his father couldn’t survive due to injuries and expired on 20.06.2020. It was decided by both the petitioners to settle the matter out of the court and according to the terms Petitioner no1 agreed to compensate by giving Rs 4lacs and Petitioner no 2 would withdraw the FIR.  In the meantime, the charge sheet was already filed before the Court of the Chief Judicial Magistrate, Shillong by the Investigating Officer dated 06.11.2020. Since petitioner no 1 was charged with sections 279 and 304(A) IPC which are non-compoundable, the magistrate has no jurisdiction to allow the compromise between the parties under section 320 of Cr.P.C. Learned advocate, Mr. A.S. Siddique representing the petitioners, contended that it was pointless to proceed with the already compromised case and that the case is suitable for the court to quash it by exercising its inherent power under section 482 Cr.P.C. The Hon’ble Court expressed that it was better to look for relevant authorities and decisions by the supreme court to find out if the case can be examined when both parties compromised and decided to settle outside the court and. The Hon’ble Court, after considering all the facts stated that “This being the case, on the strength of the authorities cited, this Court is of the considered opinion that the application of the Petitioners is entitled to be allowed. In view of the above, the dispute between the parties having been resolved, it would be futile to proceed with the said criminal proceeding against the Petitioner No. 1. Accordingly, the proceedings of G.R. Case No. 92(s) of 2020 pending in the court of the learned Judicial Magistrate First Class, Shillong Smti D.M.K. Shadap is hereby quashed and bail bond executed if any stands discharged against the accused therein. Matter is hereby disposed.”

Serial No. 02 Regular List HIGH COURT OF MEGHALAYA AT SHILLONG Crl. Petn. No.321 Date of Decision: 01.10.2021 Shri Dapyooki Dkhar & Anr State of Meghalaya & 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. A.S.Siddique Adv. Mr H. Kharmih. GA. ii) Whether approved for publication in press: The Petitioner No 1 is a police constable serving in the Meghalaya Police and presently posted at SF 10 Unit Headquarter Shillong. The Petitioner No 2 is the Complainant who has lodged an FIR on 20.06.2020 at the Sadar Police Station Shillong which was registered as Sadar P.S.Case No 142(6) OF 2020 under sections 279 337 338 304(A) IPC bringing to the notice of the police the fact about the occurrence of a motor accident which took place on 17.06.2020 near Delhi Mistan Bhandar Police Bazaar Shillong in which his father was dashed by the Scooty of the Petitioner No 1 and on being referred to NEIGHRIMS he succumbed to his injuries on 20.06.2020. That the Petitioner No 1 and the Petitioner No 2 have decided to settle the matter outside court and consequently an Agreement was drawn up between the parties one of the terms being that the Petitioner No 1 would compensate the Petitioner No 2 for the loss of life of his deceased father which was agreed at ₹ 4 00 000 and that the Petitioner No 2 would withdraw the said FIR filed and would not pursue the matter in However in the meantime the Investigating Officer had filed the Charge Sheet on 06.11.2020 before the Court of the Chief Judicial Magistrate Shillong which matter was then registered as G.R. Case No 92(S) of 2020 and the same was endorsed to the Magistrate for trial. The Petitioner No. 1 then entered appearance before the court and was supplied with the copy of the charge sheet. However the charge is yet to be framed against him in the said case. It is further stated in the petition that since the case involving the Petitioner No 1 also includes sections 279 and 304(A) IPC which are non compoundable the Magistrate under section 320 Cr.P.C. has no jurisdiction to allow the compromise between the parties. Hence this instant petition. 6. Mr A.S. Siddique learned Counsel for the Petitioners has submitted that since the Petitioners have already compromised therefore there is no futility in proceeding with the criminal case and as such this is a fit case for this Court to exercise its inherent power under section 482 Cr.P.C. to quash the same. To support his argument the case of “Avinash Chawla v. State & ANR” in CRL. M.C. No. 4942 2015 passed by the High Court of Delhi and the case of “Narinder Singh v. State of Punjab”6 SCC 466 at para 29 was cited. 7. Mr. H. Kharmih learned GA on the other hand has submitted that since some of the sections involved in the said criminal case against the Petitioner No 1 are non compoundable therefore no compromise can be affected and as such this application is liable to be rejected. On appreciation of the submission made by the learned Counsels for the parties the factual matrix being enumerated above it appears that as far as the factum of the motor vehicle accident is concerned there is no dispute that the parties have sorted the matter between themselves and the fact that the Petitioner No 1 has duly compensated the Petitioner No 2 for which the Petitioner No 2 is satisfied is also evident. However that the cause of the said motor vehicle accident has to be determined in the said criminal case proceeded against the Petitioner No 1 some of the offences charged against him being non bailable and non compoundable the question arise as to whether this Court in exercise of its inherent powers under section 482 Cr.P.C. can quash the said proceedings in the light of the compromise made between the parties. 10. Section 482 Cr.PC contemplate the situation where inherent power is vested in the High Court in respect of the following: To give effect to any order under the Cr.PC ii) To prevent abuse of the process of any court and iii) To secure the ends of justice. In the context of the case in hand when the question of settlement between the parties is to be examined as to whether the same can have a bearing on the proceedings of the criminal case against one of the parties to the settlement it would be appropriate to look into the relevant authorities in this regard particularly decisions by the Supreme Court. In the case of “Narinder Singh v. State of Punjab” 6 SCC 466 at para 29 the Hon’ble Supreme Court has laid down certain principles which are a guidance for the High Court to deal with matters while exercising powers u s 482 Cr.PC. In the said paragraph the Supreme Court has held that the High Court u s 482 of the Code has the inherent power to quash criminal proceedings even in cases which are not compoundable where the parties have settled the matter between themselves. However this power has to be exercise to secure ends of justice or to prevent the abuse of the process of any court. In the case of “Ramgopal & Anr v. The State of Madhya Pradesh” in Criminal Appeal No 14812 in an order dated 29.09.2021 the Hon’ble Supreme Court while considering the issue as to whether non compoundable offences can be compounded by a Court or in the alternative whether the High Court in exercise of its inherent powers under section 482 Cr. P.C. could quash non compoundable offences based on a compromise settlement arrived at between the accused and the victim complainant and if so under what circumstances has referred to relevant authorities viz the case of “State of Madhya Pradesh v. Laxmi Narayan & Ors”(2019) 5 SCC 688 where at para 5 of the same it is held as under: “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 on the ground that there is a settlement compromise between the victim and the offender the High Court is required to consider the antecedent 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 same case i.e at paragraph 12 the Hon’ble Supreme Court has observed as under: “ 12. The High Court therefore having regard to the nature of the offence and the fact that parties have amicable settled their dispute and the victim has willingly consented to the nullification of criminal proceedings can quash such proceedings in exercise of its inherent powers under section 482 Cr.P.C. even if the offences are non compoundable. The High Court can indubitably evaluate consequential effects of the offence beyond the body of an individual and thereafter adopt a pragmatic approach to ensure that the felony even if goes unpunished does not tinker with or paralyze the very object of the administration of criminal justice system.” 15. The case of “Avinash Chawla” relied upon by the learned counsel for the Petitioner has been duly covered by the above authorities cited which deals with similar proposition of law. It is generally the case in a motor vehicle accident that seeking payment of compensation would satisfy the offending party and once satisfied they are not interested in continuing with prosecution in the criminal proceeding. The agreement and settlement between the parties as regard the compensation for the death of the victim who is the father of the Petitioner No. 2 has settled the matter as far as Petitioner No. 2 is concerned and as such it could be assumed that the Petitioner No. 1 has paid the penalty for his action akin to the principle of plea bargaining. 17. The factual situation involving the Petitioners herein would indicate that the antecedent of the accused Petitioner No.1 and his conduct particularly the fact that he had paid ₹ 4 00 000 as compensation to the family of the victim is proof enough that the settlement between the parties is made bonafide. 18. This being the case on the strength of the authorities cited this Court is of the considered opinion that the application of the Petitioners is entitled to be allowed. In view of the above the dispute between the parties having been resolved it would be futile to proceed with the said criminal proceeding against the Petitioner No. 1. 20. Accordingly the proceedings of G.R. Case No. 92(s) of 2020 pending in the court of the learned Judicial Magistrate First Class Shillong Smti D.M.K. Shadap is hereby quashed and bail bond executed if any stands discharged against the accused therein. 21. Matter is hereby disposed. No cost. Judge “N. Swer Stenographer”

On an application under Order XXI Rule 97 or Rule 99 CPC, the relevant adjudicating authority is the court dealing with the matter: Supreme Court of India

As per Order XXI Rule 101 CPC, all questions including questions relating to the right, title, or interest in the property arising between the parties to a proceeding on an application under Order XXI rule 97 or rule 99 CPC and relevant to the adjudication of the application shall have to be determined by the Court dealing with the application. For that, a separate suit is not required to be filed. Such an observation was made by the Hon’ble Supreme Court before Hon’ble Justice M.R. SHAH &amp; Hon’ble Justice B.V. NAGARATHNA in the matter of Bangalore Development Authority vs N. Nanjappa and Anr [CIVIL APPEAL NOS. 6996-6997 OF 2021]. The facts arising to the case were that a land admeasuring 01 acres 15 guntas was acquired by BDA in the year 1977 under Section 17 of the Bangalore Development Authority Act, 1976. A final notification came to be issued in respect of the said land vide notification dated 02.08.1978 under Section 19 of the 1976 Act. Award came to be passed vide award dated 12.06.1981 awarding compensation of Rs.17,393.75. It was the contention of the BDA that the possession of the acquired land was taken over by the Government as per the mahazar dated 16.07.1981 and was handed over to the Engineering Section of BDA. But, respondent no.1 herein entered into an agreement of lease with respondent no.2 herein in respect of part of the land in question vide agreement of lease dated 16.08.1999 and now was appealed in court for his ejectment and the possession of the suit property. So, the BDA BDA filed a suit before the City Civil Court, Bangalore, seeking a declaration that the lease agreement between respondent no.1 and respondent no.2 is null &amp; void and also prayed for a permanent injunction to restrain respondent no.1  from executing the decree passed in O.S. No. 3797/2000. But the same was rejected first by the city civil court and then by the court. The Hon’ble Supreme Court observed that “the applications submitted by BDA for impleadment in the execution proceedings and the obstruction against handing over the possession to the decree-holder were required to be adjudicated upon by the Executing Court by impleading the BDA as a party to the execution proceedings and the question relating to the right, title or interest of the BDA in the suit property was required to be adjudicated upon by the Executing Court.” Finally, in view of the above, the Hon’ble Supreme Court allowed the present appeal. The impugned judgment and order passed by the High Court dated 21.03.2016 &amp;  order dated 29.01.2015 passed by the Executing Court was quashed and set aside. Further, BDA was permitted to be impleaded in the execution proceedings. Click Here To Read The Judgment. Judgment Reviewed by: Rohan Kumar Thakur The facts arising to the case were that a land admeasuring 01 acres 15 guntas was acquired by BDA in the year 1977 under Section 17 of the Bangalore Development Authority Act, 1976. A final notification came to be issued in respect of the said land vide notification dated 02.08.1978 under Section 19 of the 1976 Act. Award came to be passed vide award dated 12.06.1981 awarding compensation of Rs.17,393.75. It was the contention of the BDA that the possession of the acquired land was taken over by the Government as per the mahazar dated 16.07.1981 and was handed over to the Engineering Section of BDA. But, respondent no.1 herein entered into an agreement of lease with respondent no.2 herein in respect of part of the land in question vide agreement of lease dated 16.08.1999 and now was appealed in court for his ejectment and the possession of the suit property. So, the BDA BDA filed a suit before the City Civil Court, Bangalore, seeking a declaration that the lease agreement between respondent no.1 and respondent no.2 is null &amp; void and also prayed for a permanent injunction to restrain respondent no.1  from executing the decree passed in O.S. No. 3797/2000. But the same was rejected first by the city civil court and then by the court. The Hon’ble Supreme Court observed that “the applications submitted by BDA for impleadment in the execution proceedings and the obstruction against handing over the possession to the decree-holder were required to be adjudicated upon by the Executing Court by impleading the BDA as a party to the execution proceedings and the question relating to the right, title or interest of the BDA in the suit property was required to be adjudicated upon by the Executing Court.” Finally, in view of the above, the Hon’ble Supreme Court allowed the present appeal. The impugned judgment and order passed by the High Court dated 21.03.2016 &amp;  order dated 29.01.2015 passed by the Executing Court was quashed and set aside. Further, BDA was permitted to be impleaded in the execution proceedings. Click Here To Read The Judgment. Judgment Reviewed by: Rohan Kumar Thakur The Hon’ble Supreme Court observed that “the applications submitted by BDA for impleadment in the execution proceedings and the obstruction against handing over the possession to the decree-holder were required to be adjudicated upon by the Executing Court by impleading the BDA as a party to the execution proceedings and the question relating to the right, title or interest of the BDA in the suit property was required to be adjudicated upon by the Executing Court.” Finally, in view of the above, the Hon’ble Supreme Court allowed the present appeal. The impugned judgment and order passed by the High Court dated 21.03.2016 &amp;  order dated 29.01.2015 passed by the Executing Court was quashed and set aside. Further, BDA was permitted to be impleaded in the execution proceedings.

REPORTABLE IN THE CIVIL APPELLATE JURISDICTION CIVIL APPEAL NOS. 6996 6997 OF 2021 Bangalore Development Authority N. Nanjappa and another JUDGMENT M.R. SHAH J Feeling aggrieved and dissatisfied with the impugned judgment and order dated 21.03.2016 passed by the High Court of Karnataka at Bengaluru in Writ Petition Nos. 37943 37944 2015by which the High Court has dismissed the said writ petitions preferred by the original applicant Bangalore Development Authoritythe BDA has preferred the present appeals The facts leading to the present appeals in a nutshell are as under That land admeasuring 01 acre 15 guntas in Survey No. 12 2 of Geddalahalli Village was acquired by BDA in the year 1977 under Section 17 of the Bangalore Development Authority Act 1976of the Land Acquisition Act 1894 came to be issued on 01.04.1982 evidencing the factum of taking possession of the acquired land. It appears that after a period of approximately 17 years and after vesting of the acquired land in question in favour of BDA respondent no.1 herein entered into an agreement of lease with respondent no.2 herein in respect of part of the land in question vide agreement of lease dated 16.08.1999. That respondent no.1 herein thereafter filed a civil suit being O.S. No 3797 2000 against respondent no.2 herein before the City Civil Court Bangalore for ejectment. It is to be noted that in the said suit the appellant BDA was not arrayed as a party 2.1 The Trial Court vide judgment and decree dated 20.03.2008 dismissed the said suit. However by judgment and order dated 13.06.2012 the High Court allowed the Regular First Appeal No 468 2008 filed by respondent no.1 herein and consequently decreed the suit filed by respondent no.1 herein. Respondent No.2 herein challenged the judgment and order passed by the High Court before this Court by way of special leave petition which came to be dismissed by this Court vide order dated 11.02.2013. Thereafter respondent no.1 herein decree holder filed Execution Petition being E.P.No. 2713 2012. It appears that having come to know of the judgment and decree passed by the High Court allowing the appeal the appellant BDA filed a suit being O.S. No. 2070 2013 before the City Civil Court Bangalore seeking a declaration that the lease agreement between respondent no.1 herein decree holder and respondent no.2 herein judgment debtor vide agreement of lease dated 16.08.1999 in respect of the suit schedule property is null and void and also prayed for permanent injunction to restrain respondent no.1 herein original landownerdecree holder from executing the decree passed in O.S. No. 3797 2000 2.2 BDA also filed two applications under Order XXI Rule 97 read with Section 151 CPC in the execution proceedings for impleadment and for deferring the execution proceedings till disposal of suit filed by it being O.S. No. 2070 2013. The aforesaid two applications filed by BDA came to be rejected by the Executing Court vide common order dated 29.01.2015 mainly on the ground that there was no material on record to show that pursuant to the acquisition the BDA had taken possession of the said land and therefore the BDA cannot obstruct or object to the execution of the decree passed by the competent Court 2.3 Feeling aggrieved and dissatisfied with the common order passed by the Executing Court rejecting the applications filed by BDA under Order XXI Rule 97 r w Rule 101 CPC the obstructor BDA filed two writ petitions before the High Court being Writ Petition Nos. 37943 37944 2015. By the impugned judgment and order the High Court has dismissed the aforesaid two writ petitions. Hence the present appeals are at the instance of the obstructor BDA Learned counsel appearing on behalf of the appellant BDA has vehemently submitted that while rejecting the applications filed by BDA to implead BDA in the execution petition as obstructor both the High Court as well as the learned Executing Court have misread and misinterpreted Order XXI Rule 97 r w Rule 101 CPC. It is submitted that for raising the obstruction objection to the decree which is sought to be executed the obstructor need not be in possession and it is enough that the obstructor claims title with respect to the said property. Though in the present case it is the case of BDA that possession was handed over by Government to BDA Engineering It is submitted that in the present case as such the property land in question has already been acquired by BDA and even the award was also declared way back on 12.06.1981 and even according to BDA the possession of the land in question was already taken over and was handed over to the Engineering Section and thereafter even notification under Section 16(2) of the Land Acquisition Act 1894 was also issued vesting the suit land absolutely with BDA and thereafter collusively and or illegally respondent no.1 herein entered into agreement of lease with respondent no.2 herein. It is submitted that as such in the present case even the substantive suit filed by BDA being O.S. No. 2070 2013 to declare the agreement of lease between the decree holder and judgment debtor is null and void is pending. It is submitted that therefore the Executing Court ought to have allowed the impleadment application filed by BDA who claims the title on the basis of the acquisition of the land under the It is further submitted that Order XXI Rule 97 and Rule 101 CPC are to be read together. It is submitted that as per Order XXI Rule 101 all questions including questions relating to right title or interest in the property arising between the parties to a proceeding on an application under Order XXI rule 97 or rule 99 or their representatives and relevant to the adjudication of the application shall be determined by the Executing Court dealing with the applications. It is further submitted that while raising an obstruction objection to the execution of the decree the obstructor need not prove his its possession but when it claims right title or interest in the suit property the same is required to be determined decided and or adjudicated upon by the Executing Court in such an 3.5 Making the above submissions it is prayed to allow the present Learned counsel appearing on behalf of the respondents have tried to support the orders passed by the High Court as well as the Executing Court. It is submitted that according to the decree holder original landowner the actual possession of the land in question has not been taken over by BDA and the possession of the land in question is with the judgment debtor respondent no.2 herein which is required to be handed over to respondent no.1 herein decree holder pursuant to the judgment passed by the High Court. It is submitted that the Executing Court rightly rejected the applications filed by BDA under Order XXI Rule 97 CPC. It is submitted that as rightly observed by the Executing Court and confirmed by the High Court that though the land in question might have been acquired unless and until the possession by the obstructionist is established and proved such an application under Order XXI Rule 97 CPC is liable to be dismissed and the same was rightly dismissed by the Executing Court and is rightly confirmed by the 5. We have heard the learned counsel for the respective parties at At the outset it is required to be noted that the BDA is claiming right title or interest in the land in question being acquired under the provisions of the 1976 Act. It is required to be noted that the lease agreement between the decree holder and the judgment debtor is subsequent to the acquisition of the suit land. Therefore it is the case on behalf of the appellant BDA that such a transaction is null and void once the suit land for which the lease agreement was executed was acquired under the provisions of the 1976 Act. Moreover the award was also declared and a notification under Section 16(2) of the Land Acquisition Act evidencing taking over possession of the land by BDA was also published. Therefore when the appellant BDA which has submitted the obstruction objection in the execution proceedings filed by the decree holder against the judgment debtor with respect to suit land which was acquired by BDA and when the BDA claims right title or interest in the suit property such obstruction objection was required to be adjudicated upon by the Executing Court while considering the application obstruction under Order XXI Rule 97 or Rule 99 CPC. At this stage Order XXI Rule 97 and Order XXI Rule 101 CPC are required to be referred to and which read as under “97. Resistance or obstruction to possession of immovable property the Court shall proceed to adjudicate upon the application in accordance with the provisions herein contained Question to be determined All questions arising between the parties to a proceeding on an application under rule 97 or rule 99 or their representatives and relevant to the adjudication of the application shall be determined by the Court dealing with the application and not by a separate suit and for this purpose the Court shall notwithstanding anything to the contrary contained in any other law for the time being in force be deemed to have jurisdiction to decide such questions.” Therefore as per Order XXI Rule 101 CPC all questions including questions relating to right title or interest in the property arising between the parties to a proceeding on an application under Order XXI rule 97 or rule 99 CPC and relevant to the adjudication of the application shall have to be determined by the Court dealing with the application. For that a separate suit is not required to be filed. Order XXI Rule 97 is with respect to resistance obstruction to possession of immovable property In the instant case it is the specific case of the appellant BDA that pursuant to the acquisition of the land in question the BDA has become the absolute owner and the said land is vested in the BDA and possession was already taken over by the BDA and the land was handed over to the Engineering Section. Therefore the applications submitted by BDA for impleadment in the execution proceedings and the obstruction against handing over the possession to the decree holder were required to be adjudicated upon by the Executing Court by impleading the BDA as a party to the execution proceedings. Though in the present case a substantive suit being O.S. No. 2070 2013 filed by the BDA against the decree holder and the judgment debtor to declare the lease agreement as null and void is pending irrespective of the same considering Order XXI Rule 101 CPC the question relating to right title or interest of the BDA in the suit property was required to be adjudicated upon by the Executing Court In view of the above the order passed by the Executing Court dismissing the applications filed by the BDA for impleadment in the execution proceedings and or dismissing the obstruction application and the impugned order passed by the High Court are unsustainable and the same deserve to be quashed and set aside Accordingly the present appeals succeed. The impugned judgment and order passed by the High Court dated 21.03.2016 dismissing the writ petitions filed by the appellant herein BDA and order dated 29.01.2015 passed by the Executing Court dismissing the application filed by BDA for impleadment as well as dismissing obstruction application are hereby quashed and set aside. The appellant is permitted to be impleaded in the execution proceedings. The Executing Court is directed to implead the appellant herein BDA in the execution petition and adjudicate upon obstruction objection raised by BDA including the question relating to right title or interest claimed by BDA in the suit land on the basis of the acquisition of the suit property land acquired under the provisions of the 1976 Act in exercise of powers under Order XXI rule 97 r w Rule 101 CPC. The aforesaid shall be completed within a period of six months from the date of receipt of a copy of this judgment The instant appeals are allowed to the aforesaid extent. However in the facts and circumstances of the case there shall be no order as to NEW DELHI DECEMBER 06 2021

The recovery was made from the premises owned by the petitioner, prima facie an offense is made out under the Bihar probation excise act, 2016: High court of Patna

The petitioner was taken into custody after committing an offense under section 30 of the Bihar Prohibition and Excise Act, 2016, “Penalty for unlawful manufacture, import, export, transport, possession, sale, purchase, distribution, etc. of any intoxicant or liquor”. This present petitioner is in connection with Manigachi PS Case No. 136 of 2020 dated 24.06.2020. In the high court of Judicature at Patna, this judgment was given by honorable Mr. Justice Ahsanuddin Amanullah on the 21st of August 2021 in the case of Shravan Roy @ Sharvan Rai and others versus the state of Bihar criminal miscellaneous No.17457 of 2021, Ms. Aprajita Represented as the advocate for the petitioner, and Ms. Pronoti Singh represented the state of Bihar as the additional Public Prosecutor, the proceedings of the court were held via video conference. The following are the facts of the case, the police in Bihar on prior information found out the petitioner and others were dealing with liquor, and hence they visited the spot and when the accused people saw the police approaching, they ran away leaving behind two motorcycles and one person was caught in the process and the police recovered liquor from the petitioner from various places including his hut. The counsel representing the petitioner held the recovery of the liquor was made about 500 meters away from his home and he was absent during the time the police sized the liquor the petitioner was elsewhere with his wife at the primary Health Centre, as his wife was giving birth and therefore the petitioner has no connection with regard to the recovered liquor, further, the counsel held that the co-accused, in this case, one Mr. Suraj Kumar Ray has been granted the anticipatory bail by the courts in the order passes on 25.06.2021 in Criminal  Miscellaneous No. 17100 of 2021 The additional public prosecutor brought to light that this petition under Section 438 of the Code of Criminal Procedure, 1973 cannot be maintainable due to bar of Section 76(2) of the Bihar prohibition excise act, 2016, “Notwithstanding anything mentioned in Section-438 of Code of Criminal Procedure, 1973  shall apply in relation to any case involving the arrest of any person on an accusation of having committed an offense under this Act.” Since the recovery of the liquor was made in the premises of the petitioner which is his hut and therefore it is considered an offense under the Bihar prohibition excise act 2016, and regarding granting anticipatory bail for the co-accused Mr. Suraj Kumar Ray was because there was no liquor recovered from his premises and henceforth was granted bail however the scenario is different with the petitioner and must be held liable for the same.

IN THE HIGH COURT OF JUDICATURE AT PATNA CRIMINAL MISCELLANEOUS No.174521 Arising Out of PS. Case No. 136 Year 2020 Thana MANIGACHI District Darbhanga Shravan Roy @ Sharvan Rai @ Sharvan Kumar Rai aged about 35 years Son of Jungle Roy @ Khartar Ray Resident of Village Bhattpura P.S. Manigachi District Darbhanga The State of Bihar ... Petitioner s ... Opposite Party s For the Petitioner s For the State CORAM: HONOURABLE MR. JUSTICE AHSANUDDIN AMANULLAH ORAL JUDGMENT Ms. Aprajita Advocate Ms. Pronoti Singh APP Date : 21 08 2021 The matter has been heard via video conferencing 2. The case has been taken up out of turn on the basis of motion slip filed by learned counsel for the petitioner on 09.08.2021 which was allowed 3. Heard Ms. Aprajita learned counsel for the petitioner and Ms. Pronoti Singh learned Additional Public Prosecutor hereinafter referred to as the ‘APP’) for the State 4. The petitioner apprehends arrest in connection with Manigachi PS Case No. 1320 dated 24.06.2020 instituted under Section 30(a) of the Bihar Prohibition and Excise Act 2016 hereinafter referred to as the ‘Act’ 5. As per the allegation when the police on prior information that the petitioner and others were dealing in illicit Patna High Court CR. MISC. No.174521 dt.21 08 2021 liquor went to the spot some persons ran away leaving behind two motorcycles and one person was caught and there was recovery and upon his disclosure the police recovered liquor from various places including straw hut of the petitioner 6. Learned counsel for the petitioner submitted that the recovery is about 500 metres away from the house of the petitioner and that he was not present at the time of seizure as he was with his wife at Primary Health Centre during child birth. Learned counsel submitted that the petitioner has no connection with the recovered liquor and has no other criminal antecedent. Further it was submitted that similarly situated co accused Suraj Kumar Ray has been granted anticipatory bail by a coordinate bench by order dated 25.06.2021 passed in Cr. Misc. No. 171021 7. Learned APP submitted that there is recovery from the premises belonging to the petitioner and thus offence is made out under the Act and therefore the present petition under Section 438 of the Code of Criminal Procedure 1973 would not be maintainable due to bar of Section 76(2) of the Act. Further it was submitted that there has been no recovery from the premises of co accused Suraj Kumar Ray and only on the statement of the arrested co accused he has been implicated in the present case and Patna High Court CR. MISC. No.174521 dt.21 08 2021 thus the petitioner cannot seek parity with co accused Suraj 8. Having considered the facts and circumstances of the case and submissions of learned counsel for the parties the Court finds substance in the contention of learned APP. Once the recovery is from the premises owned by the petitioner prima facie an offence is made out under the Act and thus bar of Section 76(2) of the Act would apply 9. Accordingly the petition stands dismissed as not (Ahsanuddin Amanullah J

Labour Court has no jurisdiction to direct regularization when the workman has not been appointed in accordance with the constitutional scheme: Chhattisgarh High Court

Daily wagers have no fundamental right to be absorbed in service as they cannot be said to be holders of a post, since, a regular appointment could be made only by making appointments consistent with the requirements of Articles 14 and 16 of the Constitution of India. The High of Court Jharkhand in the case of State of Chhattisgarh vs Mohit Ram S/o Jagat Ram [Writ Petition (L) No. 7062 of 2011] by Single Bench consisting of Hon’ble Shri Justice P. Sam Koshy. The facts of the case, in brief, are that the respondent-worker has approached the Labour Court Rajnandgaon under Section 31(3) of the Chhattisgarh Industrial Relations Act, 1960 (in short, IR Act) against the alleged discontinuance of his service by the petitioner. The contention of the petitioner is that the Labour Court has failed to appreciate the evidence which have come on record and have also ignored the pleadings that have been brought by the authorities before the Labour Court and as such the finding was per se contrary to evidence and also is a perverse finding. He also submits that the worker involved in the present dispute has failed to establish the fact that he continuously worked for a period of 240 days prior to the date of discontinuance of his service by leading cogent evidence. Moreover, “the nature of engagement of the worker was purely temporary in nature and he did not have any substantial or indefeasible right created in his favour for claiming the benefit that he has sought for.” Learned Counsel for the respondent-worker on the other hand submits that from the plain reading of the impugned orders it clearly reflects that the award passed by the Labour Court and which has been affirmed by the Industrial Court is based on a finding of fact which does not warrant any interference. The contention also is that even otherwise pursuant to the order passed by the Labour Court at the first instance the worker stands reinstated in service way back in the year, 2005 and since then he has been continuously working with the petitioner and as such he has now put in about 16 years of service after reinstatement and therefore applying the doctrine of equity the impugned orders do not warrant any interference at this juncture. Relying on the case of State of Karnataka v. Umadevi, the court held that “There is no fundamental right in those who have been employed on daily wages or temporarily or on a contractual basis, to claim that they have a right to be absorbed in service. As has been held by this Court, they cannot be said to be holders of a post, since, a regular appointment could be made only by making appointments consistent with the requirements of Articles 14 and 16 of the Constitution. The right to be treated equally with the other employees employed on daily wages, cannot be extended to a claim for equal treatment with those who were regularly employed.”

1 HIGH COURT OF CHHATTISGARH AT BILASPUR Writ PetitionNo. 70611 State of Chhattisgarh through the Executive Engineer Public Works Department Khairagarh District Rajnandgaon Chhattisgarh. Represented through Shri HR Dhruw aged about 48 years S o Shri Dhruw presently posted as Executive Engineer Public Works Department Khairgarh District Rajnandgaon and OIC of the case for Petitioner(s Mohit Ram S o Jagat Ram R o Village Chindari Post Chhuikhadan Tehsil Chhuikhadan District RajnandgaonR o C o Through Shri Navjeet Kumar Raman Advocate 25 12 Nehru NagarBhilai District Durg Respondents For Respondent worker Shri Sudeep Verma Dy. Govt. Advocate. Shri Sanket Pandey on behalf of Shri Anup Majumdar Advocate. Hon ble Shri Justice P. Sam Koshy Order on Board 1. The challenge in the present writ petition is to the order Annexures P 1 P 2 dated 25.01.2011 and 10.03.2008 passed by the Industrial Court as also by the Labour Court Rajnandgaon respectively. 2. The facts of the case in brief is that the respondent worker has approached the Labour Court Rajnandgaon under Section 31(3) of the Chhattisgarh Industrial Relations Act 1960against the alleged discontinuance of his service by the petitioner herein. The contention of the worker before the Labour Court was that he was initially appointed at Chhuikhadan Section of the Public Works Department Khairagarh Sub Division in the year 1992 and he continued to work under the petitioner continuously up till the year 1996 when his services were abruptly discontinued. According to the worker he had put in more than four years of service and have worked continuously for a period of 240 2 days before his discontinuance. Before discontinuance in the year 1996 he was not issued with any show cause notice nor compensation of any nature even retrenchment compensation was not paid. The worker thereafter had approached the Labour Court. After a prolonged litigation the Labour Court finally vide order dated 10.03.2008 allowed the application which the petitioner has filed and granted the relief of reinstatement with 50 percent backwages. 3. The said order of the Labour Court was subjected to challenge in an appeal under Section 65 of the CGIR Act before the Industrial Court Raipur where the case was registered as Civil Appeal No. 33 CGIR Act A II 2008. The Industrial Court also after considering all the contentions raised by the petitioner herein rejected the appeal of the petitioner maintaining the order passed by the Labour Court which has led to the filing of the present writ petition. 4. The contention of the petitioner is that the Labour Court has failed to appreciate the evidence which have come on record and have also ignored the pleadings that have been brought by the authorities before the Labour Court and as such the finding was per se contrary to evidence and also is a perverse finding. He also submits that the worker involved in the present dispute has failed to establish the fact that he continuously worked for a period of 240 days prior to date of discontinuance of his service by leading cogent evidence. Moreover the nature of engagement of the worker was purely temporary in nature and he did not have any substantial or indefeasible right created in his favour for claiming the benefit that he has sought for. 5. Learned counsel for the respondent worker on the other hand submits that from the plain reading of the impugned orders it clearly reflects that the award passed by the Labour Court and which has been affirmed by the 3 Industrial Court are based on finding of fact which does not warrant any interference. The contention also is that even otherwise pursuant to the order passed by the Labour Court at the first instance the worker stands reinstated in service way back in the year 2005 and since then he has been continuously working with the petitioner and as such he has now put in about 16 years of service after reinstatement and therefore applying the doctrine of equity the impugned orders do not warrant any interference at this juncture. According to the worker at this stage if the impugned awards are interfered with the worker would not only lose his employment but also would not be able to get any employment elsewhere considering the age that he has reached by efflux of time. Thus prayed for rejection of the writ 6. Very recently the Supreme Court in the matter of Mohd. Ali v. State of H.P and others 2018and others 2006(4)SCC 1 and submit that the Labour Court has no jurisdiction to direct regularisation when the workman has not been appointed in accordance with the constitutional scheme. Therefore order directing regularisation deserves to be quashed 9. The Supreme Court in State of Karnatakahas clearly held that daily wagers have no fundamental right to be absorbed in service as they cannot be said to be holders of a post since a regular appointment could be made only by making appointments consistent with the requirements of Articles 14 and 16 of the Constitution of India. The decision in State of 5 Karnatakahas been followed recently by the Supreme Court in the matter of State of Tamil Nadu Through Secretary to Government Commercial Taxes and Registration Department Secretariat and another v. A. Singamuthu 2017(4)SCC 113 in which in paragraph 15 Their Lordships of the Supreme Court observed as under: “15. In a similar issue concerning part time sweepers the State of Tamil Nadu has filed an appeal before this Court and those appeals were allowed by this Court by judgment dated 21 2 2014 in School Education Deptt. State of T.N. v. R Govindaswamy. After referring to various judgments on this issue in paras 5 to 7 this Court held as under:(supra) this Court held as under:48. ... There is no fundamental right in those who have been employed on dailywages or temporarily or on contractual basis to claim that they have a right to be absorbed in service. As has been held by this Court they cannot be said to be holders of a post since a regular appointment could be made only by making appointments consistent with the requirements of Articles 14 and 16 of the Constitution. The right to be treated equally with the other employees employed on daily wages cannot be extended to a claim for equal treatment with those who were regularly employed. That would be treating unequals as equals. It cannot also be relied on to claim a right to be absorbed in service even though they have never been selected in terms of the relevant recruitment rules. 7. In Union of India v. A.S. Pillai9 this Court dealt with the issue of regularisation of part time employees and 6 the Court refused the relief on the ground that part timers are free to get themselves engaged elsewhere and they are not restrained from working elsewhere when they are not working for the authority employer Being the part time employees they are not subject to service rules or other regulations which govern and control the regularly appointed staff of the department Therefore the question of giving them equal pay for equal work or considering their case for regularisation would not arise.” 10.Admittedly the respondent s appointment is not in accordance with the constitutional scheme by regular advertisement and he is merely a daily wager who has been directed to be regularised by the Labour Court. The order of the Labour Court runs contrary to the decision of the Supreme Court in State of Karnataka followed in A. Singamuthu s case 11.Applying the aforesaid principles of law laid down by the Supreme Court in the aforesaid cases the present writ petition stands partly allowed to the extent that the impugned order does not warrant any interference to the order of reinstatement. However so far as grant of 50 percent backwages is concerned the writ petitions of the State so far as two other workers whose cases were also decided along with the order under challenge in the present writ petition i.e. WPL No.7069 of 2011 and 7347 of 2011 wherein this court had already decided the same upholding the order of reinstatement with 50 percent backwages however the order of regularization was set aside. Therefore in view of the identical matters already being disposed of this High Court in the aforesaid two writ petitions vide judgment dated 01.08.2018 the present writ petition also deserves to be and is accordingly partly allowed in similar terms i.e. the order of 7 reinstatement with 50 percent backwages is affirmed however the order of regularization stands set aside quashed. 12.The writ petition accordingly stands partly allowed and disposed of. P. Sam Koshy

No Fruitful Purpose will be Served by keeping the Petitioner Behind the Bars for an Unlimited Period: High Court of Shimla

The petitioner cannot be kept behind the bars for an unlimited period, especially investigation is complete and challan has been presented. This honorable judgement was passed by High Court of Shimla in the case of Inder Singh Versus State of Himachal Pradesh [Cr.MP(M) No. 519 of 2021] by The Hon’ble Mr. Justice Chander Bhusan Barowalia, Judge. The bail application filed by the petitioner under Section 439 of the Code of Criminal Procedure seeking his release, under Section 376 IPC, registered in Police Station Sadar Bilaspur, District Bilaspur, H.P. As per the averments made in the petition, the petitioner was innocent and had been falsely implicated in the present case. As per the prosecution story, mother-in-law of the prosecutrix got her statement recorded under Section 154 Cr.P.C. with the police, wherein she stated that 3-4 months back her daughter-in-law, divulged that petitioner tried to molest her, but the complainant did not believe the prosecutrix. When the prosecutrix went to bring grass, the complainant heard screams, so she went there and saw both the prosecutrix and the petitioner naked. The petitioner was committing rape on the prosecutrix, so the complainant clamored. The petitioner fled away from the spot. As per the medical opinion, the prosecutrix had mild mental impairment. The petitioner was arrested and was medically examined. The petitioner agreed for her medical examination, so she was medically examined and as per the medical examination, attempt of sexual assault was not ruled out. As per the medical report her mental age was assessed to be 11 years. It was prayed that the bail application of the petitioner be dismissed, as the petitioner had committed a serious crime. The Court opinioned that, “the fact that the petitioner is permanent resident of Himachal Pradesh, so neither in a position to tamper with the prosecution evidence nor in a position to flee from justice, the fact that investigation is complete, challan stands presented in the learned Trial Court, considering the fact that the petitioner is behind the bars for the last more than six months and cannot be kept behind the bars for an unlimited period, the petitioner is ready and willing to abide by the terms and conditions of bail.”

Hig h C o urt of H.P on 01 04 HCHP IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr.MP(M) No. 5121 Decided on: 01.04.2021 Inder Singh ….Petitioner Versus State of Himachal Pradesh …Respondent Coram The Hon’ble Mr. Justice Chander Bhusan Barowalia Judge. Whether approved for reporting 1 Yes. For the petitioner: Mr. Narender Singh Verma and Mr. Chetan Viraj Sharma Advocates. For the respondent State: Mr. S.C. Sharma and Mr. P.K. Bhatti Addl. AGs with ASI Vijay Kumar I.O. Police station Sadar Bilaspur H.P. ___________________________________________________________________________ Chander Bhusan Barowalia Judge.got her statement recorded under Section 154 Cr.P.C. with the police wherein she stated that 3 4 months back her daughter in law prosecutrix victimdivulged that one Inder Singhtried to molest her but the complainant did not believe the prosecutrix. On 02.10.2020 at about 01:30 when the prosecutrix went to bring grass the complainant heard screams so she went there and saw both the prosecutrix and the petitioner naked. The petitioner was committing rape on the prosecutrix so the complainant clamored. The petitioner fled away from the spot. Thereafter the matter was reported to the police and ultimately a case was registered. Police carried out investigation in the matter and relevant recoveries were effected. Initially the prosecutrix denied for her medical examination. Police recorded the statements of the witnesses under Section 161 Cr.P.C. As per the medical opinion the prosecutrix has mild mental impairment. The petitioner was arrested and was medically examined. Subsequently the petitioner agreed for her medical examination so she was medically examined and as per the medical examination attempt of sexual assault was not ruled out. On 26.11.2020 statement of the prosecutrix under Section 164 Cr.P.C. could not be recorded due to her mental illness and as per the medical report her mental age was assessed to be 11 years. After completion of investigation police presented the challan Hig h C o urt of H.P on 01 04 HCHP 3 in the learned Trial Court and now the case is listed on 17.04.2021. Lastly it is prayed that the bail application of the petitioner be dismissed as the petitioner has committed a serious crime. In case the petitioner is enlarged on bail at this stage he may tamper with the prosecution evidence and may also flee from justice as he is very clever person and one more case under Sections 341 323 and 506 IPC read with Section 34 IPC is registered against him so the bail application of the petitioner be dismissed. 4. I have heard the learned Counsel for the petitioner learned Additional Advocate General for the State and gone through the records including the police report carefully. 5. The learned Counsel for the petitioner has argued that the petitioner has been falsely implicated in the present case. He has further argued that the petitioner is neither in a position to tamper with the prosecution evidence nor in a position to flee from justice as he is permanent resident of Himachal Pradesh. He has further argued that no fruitful purpose will be served by keeping the petitioner behind the bars for an unlimited period especially when investigation is complete challan stands presented in the learned Trial Court the custody of the petitioner is not at all required by the police and considering the overall facts and circumstances of the case the petition may be allowed and the petitioner may be enlarged on bail. Conversely the learned Additional Advocate General has argued that the petitioner has committed a serious crime. He Hig h C o urt of H.P on 01 04 HCHP 4 has further argued that in case he is enlarged on bail he may tamper with the prosecution evidence and may also flee from justice so it is prayed that the bail application of the petitioner be dismissed. 6. In rebuttal the learned Counsel for the petitioner has argued that the petitioner cannot be kept behind the bars for an unlimited period especially investigation is complete challan stands presented in the learned Trial Court and the custody of the petitioner is not at all required by the police so the petition be allowed and the petitioner be enlarged on bail. 7. At this stage considering the manner in which the offence is alleged to have been committed by the petitioner the fact that the petitioner is permanent resident of Himachal Pradesh so neither in a position to tamper with the prosecution evidence nor in a position to flee from justice the fact that investigation is complete challan stands presented in the learned Trial Court considering the fact that the petitioner is behind the bars for the last more than six months and cannot be kept behind the bars for an unlimited period the petitioner is ready and willing to abide by the terms and conditions of bail in case bail is granted and also considering the overall facts of the case including the medical examination report of the prosecutrix and without discussing the same at this stage this Court finds that the present is a fit case where the judicial discretion to admit the petitioner on bail is required to be exercised in his favour. Accordingly the petition is allowed and it is ordered that the petitioner who has been Hig h C o urt of H.P on 01 04 HCHP 5 arrested by the police in case FIR No. 2320 dated 02.10.2020 under Section 376 IPC registered in Police Station Sadar Bilaspur District Bilaspur H.P. shall be released on bail forthwith in this case subject to his furnishing personal bond in the sum of `25 000 with one surety in the like amount to the satisfaction of the learned Trial Court. The bail is granted subject to the following conditions: That the petitioner will appear before the learned Trial Court Police authorities as and when required. That the petitioner will not leave India without prior permission of the Court. That the petitioner will not directly or indirectly make any inducement threat or promise to any person acquainted with the facts of the case so as to dissuade him her from disclosing such facts to the Investigating Officer or Court. 8. In view of the above the petition is disposed of. Copy dasti. 1st April 2021 Judge

So long as there is some evidence on the basis of which the Trial Court entered its findings, the High Court would not re-appraise the evidence: High Court of Delhi

In proceedings under Article 227 of the Constitution, the High Court is on duty to keep inferior courts and tribunals within the bounds of their authority in a legal manner. Exercise of this power and interfering with the orders of the courts or tribunals is restricted to cases of serious dereliction of duty and flagrant violation of fundamental principles of law or justice, where if the High Court does not interfere, a grave injustice would remain uncorrected. The High Court while acting under this article cannot exercise its power as an appellate court or substitute its own judgment in place of that of the subordinate court to correct an error, which is not apparent on the face of the record. These were stated by High Court of Delhi consisting, Justice Prateek Jalan in the case of Smt. Usha Rani vs. Shri Anil Singh Kushwah [CM(M) 76/2022] on 21.01.2022. The facts of the case are that the plaintiff claimed a decree for possession of the suit property. On the plaintiff’s application under Order XXXIX Rules 1 and 2 of the CPC, an interim order dated 08.07.2009 was passed. The plaintiff thereafter filed an application under Order XXXIX Rule 2A of the CPC stating therein that some part of the suit property had been demolished by the defendant from inside. Evidence was led by the plaintiff and her son, as well as by the defendant. On the maintainability of the application, it was decided in favour of the plaintiff. However, on the merits, it was decided against the plaintiff. It is in these circumstances, that this petition under Article 227 of the Constitution was filed by the petitioner. The learned Counsel for the petitioner submitted that the finding in the impugned order, to the effect that the order of status quo granted would not encompass an injunction against the renovation of the property is erroneous. It was further submitted that that changes were made to the suit property during the pendency of the suit and the subsistence of the interim order. The learned Counsel for defendant submitted that the contention that defendant had demolished some rooms is established upon comparison of the report of Local Commissioner with the contents of the plaint, wherein the plaintiff had specifically averred that there were 14 rooms each on the ground floor and first floor and 2 rooms on the second floor of the suit property. He contended that the said pleading of the plaintiff was not specifically traversed in the written statement. The High Court of Delhi held that the term “status quo” is one of ambiguity and can give rise to doubts and difficulty in interpretation. In such circumstances, it was open to the Trial Court, particularly in proceedings under Order XXXIX Rule 2A of the CPC, to interpret the order narrowly. While considering an application under Order 39 Rule 2-A, the court cannot construe the order in regard to which disobedience/breach is alleged, as creating an obligation to do something which is not mentioned in the “order”. In proceedings under Article 227 of the Constitution, so long as there is some evidence on the basis of which the Trial Court could have entered its findings, the High Court in its supervisory jurisdiction would not re-appraise the evidence. The exercise of power under this article involves a duty on the High Court to keep inferior courts and tribunals within the bounds of their authority in a legal manner. Exercise of this power and interfering with the orders of the courts or tribunals is restricted to cases of serious dereliction of duty and flagrant violation of fundamental principles of law or justice, where if the High Court does not interfere, a grave injustice remains uncorrected. It is also well settled that the High Court while acting under this article cannot exercise its power as an appellate court or substitute its own judgment in place of that of the subordinate court to correct an error, which is not apparent on the face of the record. For the aforesaid reasons, the Court held that the impugned order of the Trial Court does not warrant the exercise of the supervisory jurisdiction of this Court. Therefore, the petition was accordingly dismissed.

59IN THE HIGH COURT OF DELHI AT NEW DELHI Date of Decision: 21st January 2022 CM(M) 76 2022 SMT. USHA RANI Through: Mr. Shiv Pandey Advocate. Petitioner SHRI ANIL SINGH KUSHWAH Respondents Through: None. HON’BLE MR. JUSTICE PRATEEK JALAN JUDGMENT PRATEEK JALAN J.The proceedings in the matter have been conducted through video conferencing. CM APPL. 3857 2022Exemption allowed subject to all just exceptions. This application stands disposed of. CM76 2022 This petition under Article 227 of the Constitution is directed against an order dated 18.02.2020 passed by the court of learned Additional District Judge 03 East District Karkardooma Courts Delhi in M 10975 2016under Order XXXIX Rule 2A of the Code of Civil CM(M) 76 2022 Procedure 1908 alleging violation by the respondent defendantof an interim order dated 08.07.2009 was The suit before the Trial Court was filed in the year 2009 wherein the plaintiff claimed a decree for possession of the suit property[“the property”]. On the plaintiff’s application under Order XXXIX Rules 1 and 2 of the CPC an interim order dated 08.07.2009 was passed. The order as extracted in the impugned order dated 18.02.2020 reads as follows: “Present: Cl. for plt. Cl. for deft. has filed vakalatnama & requested for adj. Put up on 9 9 09 for w s. Meanwhile both parties are directed to maintain status quo in respect of the suit The plaintiff thereafter filed an application under Order XXXIX Rule 2A of the CPC stating therein that some part of the suit property had been demolished by the defendant from inside. Paragraph 4 of the said application reads as follows: “That the plaintiff was informed by someone that the defendant is demolishing the property in dispute and on that information the son of the plaintiff reached at the disputed site and found that some alteration was carried out by the defendant by demolishing the rooms on the ground floor and first floor portion of the disputed house CM(M) 76 2022 and the plaintiff s son immediately moved a complaint to the SHO of P.S. New Ashok Nagar Delhi on 06.01.2013 but the police has taken no action against the defendant till date for being the matter of civil nature and subjudice in the present court fixed for 04.02.2013. Copy of the complaint dated 06.01.2013 is annexed herewith.” The Trial Court heard the application on evidence after framing the following issues: “1. Whether the respondent is guilty of violating the order dated 08.07.2009 OPP 2. Whether the present application is not maintainable 3. Relief ” Evidence was led by the plaintiff and her son as well as by the defendant. Issue No.2 on the maintainability of the application was decided in favour of the plaintiff. However issue No.1 on the merits was decided against the plaintiff. It is in these circumstances that this petition under Article 227 of the Constitution has been filed. 7. Mr. Shiv Pandey learned counsel for the petitioner submits that the finding in the impugned order to the effect that the order of status quo granted on 08.07.2009 would not encompass an injunction against the renovation of the property is erroneous inasmuch as an unqualified order of status quo would cover both questions of title and possession as well as the nature and character of the suit property. He further refers me to the report of the Local Commissioner dated 08.07.2015 to demonstrate that changes had been made to the suit CM(M) 76 2022 interim order. property during the pendency of the suit and the subsistence of the I am informed that a Local Commissioner was appointed by an order dated 02.07.2015 in the course of the proceedings under Order XXXIX Rule 2A of the CPC. The report of the Local Commissioner states as follows: “There are 11 Room on ground floor alongwith kitchen and washroom all room are found open. There are 10 Roomon first floor. Two washroom and an empty room having two slabs embedded on walls. There are two rooms and one Big Hall alongwith attached store room at the second floor right side of the house. Washroom present on left side. Two room were plastered rest of the portion is non plastered bricks and other construction material also lying on the outside of hall red primer on gatter seen.” 9. Mr. Pandey submits that the contention that the defendant had demolished some rooms is established upon comparison of the report of Local Commissioner with the contents of paragraph 2 of the plaint wherein the plaintiff had specifically averred that there were 14 rooms each on the ground floor and first floor and 2 rooms on the second floor of the suit property. Mr. Pandey submits that the said pleading of the plaintiff was not specifically traversed in the written statement filed by the defendant. 10. The impugned order proceeds on two findings: the first finding CM(M) 76 2022 concerns an interpretation of the status quo order dated 08.07.2009 and the second finding is that the plaintiff on evidence was unable to establish any violation of the order. Having heard learned counsel for the petitioner I am not persuaded that either of these findings are liable to interference under Article 227 of the Constitution. 11. On the first question the learned Trial Court has come to the conclusion that the status quo order read in the context of the averments in the plaint and in the application filed by the plaintiff under Order XXXIX Rules 1 and 2 of the CPC would not cover an injunction against renovation of the suit property. The Trial Court has noted that the suit and the injunction application raise a claim regarding possession of the property and held that the status quo order would not encompass something that was not prayed for in the suit or in the application. 12. The order dated 08.07.2009 does not clearly spell out the aspects in respect of which the order of status quo was passed. The Supreme Court in Bharat Coking Coal Limited vs. State of Bihar and Others1 has noted that the term “status quo” is one of ambiguity and can give rise to doubts and difficulty in interpretation. In such circumstances it was open to the Trial Court particularly in proceedings under Order XXXIX Rule 2A of the CPC to interpret the order narrowly. The following observations of the Supreme Court in Food Corporation of India vs. Sukh Deo Prasad2 prescribe such an approach in applications under the said provision: 1 1987 Supp SCC 39425 SCC 665 CM(M) 76 2022 “38. The power exercised by a court under Order 39 Rule 2 A of the Code is punitive in nature akin to the power to punish for civil contempt under the Contempt of Courts Act 1971. The person who complains of disobedience or breach has to clearly make out beyond any doubt that there was an injunction or order directing the person against whom the application is made to do or desist from doing some specific thing or act and that there was disobedience or breach of such order. While considering an application under Order 39 Rule 2 A the court cannot disobedience breach is alleged as creating an obligation to do something which is not mentioned in the “order” on surmises suspicions and inferences. The power under Rule 2 A should be exercised with great caution and In view of these judgments no jurisdictional error can be discerned in the interpretation accorded to the status quo order by the Trial Court such as to warrant the interference of the Court under Article 227 of the Constitution. In any event the Trial Court has not rested its decision only on this basis. The evidence led by the parties has been analysed. The plaintiff’s evidence as extracted in paragraph 13 of the impugned order was that she had no personal knowledge about the alterations made in the suit property and had been so informed by her son who was examined as AW 2. The plaintiff’s son in his evidencestated that he had not entered into the suit property and had no personal knowledge regarding the internal condition of the suit property. His allegation CM(M) 76 2022 was based upon a conversation with the labourers present outside the property upon his making enquiries as he saw construction debris outside the property. The Trial Court has come to the conclusion that this evidence is insufficient to establish the plaintiff’s allegation to any demolition by the defendant as opposed to mere renovation of the property which may be necessary in the normal course during the pendency of the suit. In proceedings under Article 227 of the Constitution the High Court is not called upon to enter into a re appreciation of the evidence before the Trial Court. The judgment of the Supreme Court in Estralla Rubber vs. Dass EstateLtd.3 makes it clear that so long as there is some evidence on the basis of which the Trial Court could have entered its findings the High Court in its supervisory jurisdiction would not re appraise the evidence. The Court held as follows: “6. The scope and ambit of exercise of power and jurisdiction by a High Court under Article 227 of the Constitution of India is examined and explained in a number of decisions of this Court. The exercise of power under this article involves a duty on the High Court to keep inferior courts and tribunals within the bounds of their authority and to see that they do the duty expected or required of them in a legal manner. The High Court is not vested with any unlimited prerogative to correct all kinds of hardship or wrong decisions made within the limits of the jurisdiction of the subordinate courts or tribunals. Exercise of this power and interfering with the orders of the courts or tribunals is restricted to cases of serious dereliction of duty and flagrant violation of 38 SCC 97 CM(M) 76 2022 fundamental principles of law or justice where if the High Court does not interfere a grave injustice remains uncorrected. It is also well settled that the High Court while acting under this article cannot exercise its power as an appellate court or substitute its own judgment in place of that of the subordinate court to correct an error which is not apparent on the face of the record. The High Court can set aside or ignore the findings of facts of an inferior court or tribunal if there is no evidence at all to justify or the finding is so perverse that no reasonable person can possibly come to such a conclusion which the court or tribunal has come to.” The judgment has been followed in the recent judgment of the Court in Garment Craft vs. Prakash Chand Goel4. 16. The judgment of the Trial Court is therefore not vulnerable to challenge on this score. JANUARY 21 2022 17. For the aforesaid reasons I am of the view that the impugned order of the Trial Court does not warrant the exercise of the supervisory jurisdiction of this Court. This petition is accordingly PRATEEK JALAN J. 4 2022 SCC OnLine SC 2976 2022

For conviction, it is important that all the necessary ingredients constituting an offense under the said Section must be proved beyond a reasonable doubt: Bombay High Court

The evidence does not prove that the accused had deceived or dishonestly, fraudulently, or intentionally induced the prosecutrix to enter into a sexual relationship under a false promise of marriage. Thus, the accused cannot be held liable under Section 415 of IPC, 1872. Such an opinion was held by the Hon’ble Bombay High Court before Hon’ble Justice SMT. ANUJA PRABHUDESSAI in the matter of Santoshkumar Surajbhan Goyal vs The State of Maharashtra and Anr. [CRIMINAL APPEAL NO.1097 OF 2003]. The facts of the case were that the accused was convicted under section 417 of IPC, 1872. It was the contention of the prosecutrix that the accused had induced her into entering into a sexual relationship under the false promise of marriage.  The Hon’ble  Bombay High Court held that “the evidence does not prove that the accused had deceived or dishonestly, fraudulently or intentionally induced the prosecutrix to enter into a sexual relationship under a false promise of marriage. The prosecution has failed to establish the essential ingredients of ‘cheating’, conviction of the accused for an offense under Section 417 of the IPC cannot be sustained.” Finally, the Hon’ble  Bombay High Court allowed the appeal and quashed the impugned order. Click Here To Read The Judgment Judgment Reviewed by: Rohan Kumar Thakur The facts of the case were that the accused was convicted under section 417 of IPC, 1872. It was the contention of the prosecutrix that the accused had induced her into entering into a sexual relationship under the false promise of marriage.  The Hon’ble  Bombay High Court held that “the evidence does not prove that the accused had deceived or dishonestly, fraudulently or intentionally induced the prosecutrix to enter into a sexual relationship under a false promise of marriage. The prosecution has failed to establish the essential ingredients of ‘cheating’, conviction of the accused for an offense under Section 417 of the IPC cannot be sustained.” Finally, the Hon’ble  Bombay High Court allowed the appeal and quashed the impugned order. Click Here To Read The Judgment Judgment Reviewed by: Rohan Kumar Thakur The Hon’ble  Bombay High Court held that “the evidence does not prove that the accused had deceived or dishonestly, fraudulently or intentionally induced the prosecutrix to enter into a sexual relationship under a false promise of marriage. The prosecution has failed to establish the essential ingredients of ‘cheating’, conviction of the accused for an offense under Section 417 of the IPC cannot be sustained.” Finally, the Hon’ble  Bombay High Court allowed the appeal and quashed the impugned order.

Megha 27_apeal_1097_2003 new.doc IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.1097 OF 2003 Santoshkumar Surajbhan Goyal The State of Maharashtra and Anr Mr. Ganesh Gole with Mr. Viraj Shelatkar for the Appellant Mr. S.V. Gavand APP for Respondent No.1 State CORAM : SMT. ANUJA PRABHUDESSAI J. DATED: 15th NOVEMBER 2021 ORAL JUDGMENT: By this appeal fled under Section 374 of the Code of Criminal Procedure 1973 the Appellanthas challenged the judgment and order dated 18 07 2003 in Session Case No.4102 . By the impugned judgment the learned 5th Ad hoc Additional Sessions Judge Pune has held the accused guilty of ofence punishable under Section 417 of the IPC and sentenced him to pay Rs.60 000 i d. rigorous imprisonment for three months. Out of the said fne amount a sum of Rs.40 000 is ordered to be paid to the prosecutrix as compensation The brief facts necessary to decide this appeal are as under: The prosecutrix is a married woman with a child. Her Megha 27_apeal_1097_2003 new.doc husband met with an accident and was admitted in Ruby Hall clinic After his discharge from the hospital his parents took him to their village Mauje Bandi District Washim. The prosecutrix kept her daughter with her parents and started residing at Alandi with her brother. She was in search of job and one Ashok Lodha friend of her husband took her to the ofce of the accused who is a chartered accountant and requested him to employ the prosecutrix. It is the case of the prosecution that the accused had refused to ofer any job to the prosecutrix as she had studied only upto 7th standard. However on the next day he called her to the ofce and made enquiries about her family background. He also told her that his frst wife had expired and that the second wife had fled a petition for divorce. The accused told her that he was unhappy in his marital life and suggested that they could fulfll the needs of each other. It is further the case of the prosecution that the accused promised to marry the prosecutrix and ofered to give her a fat and maintain her and her daughter. The prosecutrix therefore agreed to solemnise the marriage. Accordingly the accused took the prosecutrix to a temple and solemnised the marriage and established physical relationship with her. The grievance of the prosecutrix is that from March 2002 the accused removed her from service failed to pay the Megha 27_apeal_1097_2003 new.doc rent of the premises declined to purchase a fat and discontinued the relationship with her. She therefore lodged a complaint on 07 05 2002 Pursuant to which Crime No.67 of 2002 was registered at Samarth Police Station for ofences punishable under Sections 376 and 420 of the IPC. Crime was investigated by PW13 PSI Sucheta Khokale. She recorded the statement of witnesses conducted panchanama seized incriminating material and after completion of the investigation fled a The case being sessions triable was committed to the Court of Sessions. Charge was framed against the accused for ofences punishable under Sections 376 and 420 of the IPC. The accused pleaded not guilty to the charge and claimed to be tried. The prosecution in support of its case examined 13 witnesses. The statement of the accused was recorded under Section 313 of the Cr.P.C. The defence of the accused was of total denial and of false implications. Upon appreciating and analysing the evidence on record the learned Judge acquitted the accused of ofence under Section 376 of the IPC and convicted him for ofence under Section 417 of the IPC and sentenced him as stated above mainly on the basis that the accused had sexual relationship with the prosecutrix on a false promise of marriage. Being aggrieved by the conviction and sentence the Appellant has fled this Megha 27_apeal_1097_2003 new.doc appeal under Section 374 of the Cr.P.C Mr. Gole learned counsel for the accused submits that the prosecutrix is a married woman with a child. She was also well aware that the accused was a married man with children. He therefore contends that there was no question of deceiving the prosecutrix and or having sexual intercourse with the prosecutrix under a false promise of marriage. He submits that essential ingredients of cheating are not made out and hence the learned Judge has grossly erred in convicting the accused under Section 417 of the Cr.P.C Mr. S.V. Gavand learned APP submits that the evidence of the prosecutrix proves that the accused had promised to marry her and further promised to take care of her child and provide shelter to them He submits that the accused had induced the prosecutrix to have sexual relationship on the basis of a false promise of marriage. I have perused the records and considered the submissions advanced by learned counsel for the respective parties. The only question for consideration is whether the prosecution has established that the accused has cheated the prosecutrix by inducing her to have sexual relationship with him on a false promise of marriage Megha 27_apeal_1097_2003 new.doc In the case of Tilak Raj vs State of Himachal Pradesh 2016) 4 SCC 140 the prosecutrix a lady of around 40 years had alleged that the Appellant had allured her on the pretext of marriage and he had not only ravished her but had physically assaulted her and later declined to marry her. On the basis of the frst information report lodged by the prosecutrix crime was registered for ofences under Section 376 417 and 506 of the IPC. The Sessions Court after examination of the evidence on record acquitted the Appellant of all the charges levelled against him. In an appeal fled by the State the High Court upheld the acquittal of the Appellant for ofence under Section 376 of the IPC but convicted the Appellant for ofences punishable under Sections 417 and 506 of the IPC. While setting aside the order of the High Court and acquitting the Appellant of ofence under Section 417 of the IPC the Apex Court has observed “ 18. As far as conviction of the appellant under Sections 417 and 506 part I of IPC is concerned a close scrutiny of evidence of the prosecutrix along with other prosecution witnesses is done by this Court. Section 417 of IPC prescribes punishment for the ofence of Cheating as defned under Section 415 of IPC. Section 415 of IPC reads thus “415. Cheating.—Whoever by deceiving any person fraudulently or dishonestly induces the person so deceived to deliver any Megha 27_apeal_1097_2003 new.doc 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 omission 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 19. The ingredients required to constitute the ofence of Cheating have been discussed by this Court in the case of Ram Jas v. State of U.P.2 SCC 740 as under “(i) there should be fraudulent or dishonest inducement of a person by deceiving him ii)(a) the person so deceived should be induced to deliver any property to any person or to consent that any person shall retain any property or b) the person so deceived should be intentionally induced to do or omit to do anything which he would not do or omit if he were not so deceived and iii) in cases covered bythe act or omission should be one which causes or is likely to cause damage or harm to the person induced in body mind reputation or property.” 20. A careful reading of evidence on record clearly shows that there is no evidence against the appellant from which it can be conclusively inferred by this Court that there was any fraudulent Megha 27_apeal_1097_2003 new.doc or dishonest inducement of the prosecutrix by the appellant to constitute an ofence under Section 415 of IPC. For conviction of the Appellant for above said ofence it is important that all the necessary ingredients constituting an ofence under the said Section must be proved beyond reasonable doubt. In the instant case the appellant cannot be convicted for the ofence of cheating punishable under Section 417 of IPC as the prosecution has failed to prove all ingredients of the said ofence beyond In the instant case the prosecutrix has alleged that the accused had promised to marry her to take care of her child and provide shelter to them. In this regard it is relevant to note that PW1 prosecutrix has herself deposed that she was married on 20 04 1998 to one Kailash and that they have a child from the said marriage. She has stated that about a year prior to lodging of the complaint her husband had met with an accident and was admitted in Ruby Hall Clinic for three months. After his discharge his parents took him to Mauje Bandi District Washim. She kept her daughter with her parents at Pangara Bandi Taluka Malegaon District Akola. PW1 has deposed that she was looking for a job hence one Ashok Lodha who was known to her husband took her to the ofce of the accused. Accused told her that she will not get the job since she was not well educated. She claims that the accused also told her that his frst wife has expired and that his Megha 27_apeal_1097_2003 new.doc children are not taking care of him. He promised to look after her daughter to maintain both and to provide a fat at Pune. About 3 to 4 months later she learnt that the accused was married. She has deposed that when she enquired with the accused he told her that his relationship with the second wife is strained and matter is pending before the Family Court. The accused promised to marry her after divorcing his second wife and after the marriage of his son PW1 claims that after joining the service she stayed in a rental room for about a month. The landlord demanded some deposit but the accused refused to pay the deposit and asked her to reside in his ofce at Quarter gate. PW1 claims that she had sexual intercourse with the accused during her stay in the ofce The evidence of the prosecutrix clearly indicates that she was a married woman with a child. She was also well aware that the accused was a married man. She had not entered into a relationship with the accused under deception or misconception of facts. She had also not succumbed to the canal desire of the accused believing his promise of marriage. On the contrary the evidence of PW1 indicates that she had voluntarily entered into a consensual sexual relationship with the accused despite knowing that both of them were married and Megha 27_apeal_1097_2003 new.doc that it was not possible for either of them to remarry while the previous marriage was in subsistence. Furthermore the tenor of her evidence indicates that she had lodged the frst information report not because the accused had refused to marry her but because he had removed her from service and stopped her from entering or residing in the ofce Thus the evidence does not prove that the accused had deceived or dishonestly fraudulently or intentionally induced the prosecutrix to enter into sexual relationship under a false promise of marriage. The prosecution having failed to establish the essential ingredients of ‘cheating’ conviction of the accused for ofence under Section 417 of the IPC cannot be sustained Under the circumstances and in view of discussion supra the appeal is allowed. The impugned judgment and order is quashed and set aside. The accused is acquitted of ofence punishable under section 417 of IPC. Fine amount if deposited be refunded to the accused

Alleged of killing, the petitioner was granted bail on furnishing the grounds for the victim being suicidal and allegations to be based only on suspicion: High Court Of Patna

The petitioner was alleged of killing the informant’s son. The grounds were formed by the petitioner and claimed that the allegations were not valid and that the informant’s son was suicidal and the allegations were only based on suspicion. The Court after considering the facts and circumstances granted the pre-arrest bail and the application was disposed of on the terms and conditions. The Hon’ble High Court of Patna before Justice Mr. Ahsanuddin Amanullah in the matter Hakimudin and ors v. The State of Bihar[Criminal Miscellaneous No. 34666 of 2020]. The facts of the case were that the petitioner was apprehended arrest in connection with Case, instituted under Sections 302, 201/34 of the Indian Penal Code. It was alleged that the accused have killed the informant’s son. The petitioners’ learned counsel argued that they have been charged solely on suspicion because they were allegedly spotted fleeing the scene of the crime. It was argued that there was no witness to the crime, and even less so to the petitioners’ involvement. It was said that the false insinuation stemmed from a previous land dispute between the parties, in which a skirmish occurred ten days previous to the incident and both sides filed a lawsuit against one other. Witnesses said throughout the investigation that the deceased had a sluggish intellect and had previously attempted suicide. The deceased’s body was also found to be free of any injuries, according to the post-mortem report. It was also claimed that independent witnesses had plainly said that the deceased was of a sluggish mind and that he had taken the extreme step because the informant had failed to accompany him when he went out of the village, resulting in the deceased’s suicide. Furthermore, it was claimed that even the informant has simply generated suspicions that the petitioners may have killed his son because of a previous quarrel between the parties, even though there is no evidence to back this claim. The Informant also did not controvert the witnesses and findings of the post mortem report. Also, the body of the deceased was found hanging. The Hon’ble High Court Of Patna allowed the pre-arrest bail on the terms and conditions of cooperation. The application was hence disposed of. 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 302, 201/34 of the Indian Penal Code. It was alleged that the accused have killed the informant’s son. The petitioners’ learned counsel argued that they have been charged solely on suspicion because they were allegedly spotted fleeing the scene of the crime. It was argued that there was no witness to the crime, and even less so to the petitioners’ involvement. It was said that the false insinuation stemmed from a previous land dispute between the parties, in which a skirmish occurred ten days previous to the incident and both sides filed a lawsuit against one other. Witnesses said throughout the investigation that the deceased had a sluggish intellect and had previously attempted suicide. The deceased’s body was also found to be free of any injuries, according to the post-mortem report. It was also claimed that independent witnesses had plainly said that the deceased was of a sluggish mind and that he had taken the extreme step because the informant had failed to accompany him when he went out of the village, resulting in the deceased’s suicide. Furthermore, it was claimed that even the informant has simply generated suspicions that the petitioners may have killed his son because of a previous quarrel between the parties, even though there is no evidence to back this claim. The Informant also did not controvert the witnesses and findings of the post mortem report. Also, the body of the deceased was found hanging. The Hon’ble High Court Of Patna allowed the pre-arrest bail on the terms and conditions of cooperation. The application was hence disposed of. Click Here To Read The Judgment Judgment Reviewed By Nimisha Dublish The petitioners’ learned counsel argued that they have been charged solely on suspicion because they were allegedly spotted fleeing the scene of the crime. It was argued that there was no witness to the crime, and even less so to the petitioners’ involvement. It was said that the false insinuation stemmed from a previous land dispute between the parties, in which a skirmish occurred ten days previous to the incident and both sides filed a lawsuit against one other. Witnesses said throughout the investigation that the deceased had a sluggish intellect and had previously attempted suicide. The deceased’s body was also found to be free of any injuries, according to the post-mortem report. It was also claimed that independent witnesses had plainly said that the deceased was of a sluggish mind and that he had taken the extreme step because the informant had failed to accompany him when he went out of the village, resulting in the deceased’s suicide. Furthermore, it was claimed that even the informant has simply generated suspicions that the petitioners may have killed his son because of a previous quarrel between the parties, even though there is no evidence to back this claim. The Informant also did not controvert the witnesses and findings of the post mortem report. Also, the body of the deceased was found hanging. The Hon’ble High Court Of Patna allowed the pre-arrest bail on the terms and conditions of cooperation. The application was hence disposed of. Click Here To Read The Judgment Judgment Reviewed By Nimisha Dublish The deceased’s body was also found to be free of any injuries, according to the post-mortem report. It was also claimed that independent witnesses had plainly said that the deceased was of a sluggish mind and that he had taken the extreme step because the informant had failed to accompany him when he went out of the village, resulting in the deceased’s suicide. Furthermore, it was claimed that even the informant has simply generated suspicions that the petitioners may have killed his son because of a previous quarrel between the parties, even though there is no evidence to back this claim. The Informant also did not controvert the witnesses and findings of the post mortem report. Also, the body of the deceased was found hanging. The Hon’ble High Court Of Patna allowed the pre-arrest bail on the terms and conditions of cooperation. The application was hence disposed of.

IN THE HIGH COURT OF JUDICATURE AT PATNA CRIMINAL MISCELLANEOUS No. 346620 Arising Out of PS Case No. 73 Year 2020 Thana Kochadhaman District Kishanganj 1. Hakimudin Male aged about 32 years Son of Aiyub. 2. Quaimuddin Male aged about 42 years Son of Aiyub. 3. Abbas Male aged about 45 years Son of Dil Mohammad. 4. Khalique Male aged about 40 years Son of Dil Mohammad. Chasmuddin @ Kasmuddin Male aged about 38 years Son of Late All resident of Village Bodi Baitta PS Thakurganj District Kishanganj The State of Bihar ... Petitioner s ... Opposite Party s For the Petitioner s Mr. Radha Mohan Singh Advocate For the State Mr. Jharkhandi Upadhyay APP For the Informant Mr. Ram Prawesh Kumar Advocate CORAM: HONOURABLE MR. JUSTICE AHSANUDDIN AMANULLAH ORAL JUDGMENT Date : 22 06 2021 The matter has been heard via video conferencing. 2. Heard Mr. Radha Mohan Singh learned counsel for the petitioners Mr. Jharkhandi Upadhyay learned Additional Public Prosecutor for the State and Mr. Ram Prawesh Kumar learned counsel for the Patna High Court CR. MISC. No.346620 dt.22 06 2021 3. The petitioners apprehend arrest in connection with Thakurganj PS Case No. 720 dated 15.06.2020 instituted under Sections 302 201 34 of the Indian Penal Code 4. On 03.05.2021 the application on behalf of petitioners no. 2 and 3 namely Quaimuddin and Abbas respectively was disposed off as withdrawn and stands restricted to petitioners no. 1 4 and 5 namely Hakimuddin Khalique and Chasmuddin @ Kasmuddin 5. The allegation against the petitioners no. 1 4 and 5 is of killing the son of the informant 6. Learned counsel for the petitioners submitted that only on suspicion they have been made accused as it is alleged that they were seen running away from the place of occurrence. It was submitted that there is no witness to the crime more so about the involvement of the petitioners. It was submitted that the false implication is due to past land dispute between the parties in connection with which ten days prior to the incident scuffle had taken place between them and both the sides had lodged case against each other. It was submitted that during investigation witnesses have stated that the deceased was of dull mind and had also earlier tried to commit suicide and thus it can well be a case of suicide. In support of such contention it was submitted that the Patna High Court CR. MISC. No.346620 dt.22 06 2021 postmortem report also does not disclose any injury on the body of the deceased. It was further contended that independent witnesses have clearly stated that the deceased was of dull mind and that he had taken the extreme step because of the informant not taking him along when he had gone out of the village due to which the deceased had committed suicide. Further it was contended that even the informant himself has only raised suspicion that because there was past dispute between the parties the petitioners may have killed his son without there being any material in support thereof 7. Learned APP from the case diary submitted that the informant has raised the suspicion about the involvement of the petitioners in the death of his son. However it was not controverted that independent witnesses have stated that the deceased was of dull mind and that he had taken the extreme step because of not being taken along by the informant. It was also not controverted that the postmortem report does not disclose any external injury on the body except for ligature mark on the neck which indicates hanging and death due to asphyxia 8. Learned counsel for the informant submitted that there was past dispute between the parties and the informant had seen the petitioners running away from the place where the son of Patna High Court CR. MISC. No.346620 dt.22 06 2021 the informant was found hanging. However he also could not controvert the statement of the independent witnesses and the finding in the postmortem report 9. 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 petitioner no. 1 namely Hakimudin petitioner no. 4 namely Khalique and petitioner no. 5 namely Chasmuddin Kasmuddin be released on bail upon furnishing bail bonds of Rs. 25 000 each with two sureties of the like amount each to the satisfaction of the learned Chief Judicial Magistrate Kishanganj in Thakurganj PS Case No. 720 subject to the conditions laid down in Section 438(2) of the Code of Criminal Procedure 1973 and further that one of the bailors shall be a close relative of the said petitioners andthat the said petitioners shall co operate with the police prosecution and the Court. Failure to co operate shall lead to cancellation of their bail 10. It shall also be open for the prosecution to bring any violation of the foregoing conditions of bail by the said petitioners to the notice of the Court concerned which shall take Patna High Court CR. MISC. No.346620 dt.22 06 2021 immediate action on the same after giving opportunity of hearing to the concerned petitioners 11. The application stands disposed off in the (Ahsanuddin Amanullah J

An order passed in the absence of any rebuttal from noticees on the allegations made – THE SECURITIES AND EXCHANGE BOARD OF INDIA

An order passed in the absence of any rebuttal from noticees on the allegations made – THE SECURITIES AND EXCHANGE BOARD OF INDIA  An ex-Parte ad-interim order issued against the noticee to respond to the various allegation of operating unregistered investment advisory activities and violating  Section 12(1) of SEBI read with regulation 3(1) of the SEBI regulations,2013 and the order contained various allegations of acting fraudulently and manipulative and violating f provisions of Section 12A (a), (b) &amp; (c) of the SEBI Act, 1992 and regulations 3 (b), (c) &amp; (d) and regulations 4(1) and 4(2)(k) of the SEBI regulations,2013. following this order proceedings were started against the noticees and the order was passed by S. K. MOHANTY (whole time member) in application no.WTM/SM/WRO/WRO/14717/2021-22. The interim order contained various observations and the complaint made by Mr. Vijay Nikam(complainant ) and it was observed that that Billionaire Solutions advertised itself as one of the best Stock Advisory of India who caters &amp; delivers the best stock recommendation in Equity Market and offering recommendations in various stock market solutions. Through this order, the noticees were given ample opportunity to make a rebuttal against the following allegations but no response came from the noticee. Hence it was clear that the principles of natural justice have been complied with adequately in the present matter, and as the Noticees have preferred to not participate in the present proceedings so the member decided to handle the proceedings on a merit-based. In the proceedings, it was found out that the noticee was engaged in advising in an unauthorized manner, and from the website of the firm it was found out that the notice was offering various service packages to investors at large for enabling them to invest in securities which were nothing but purely an act in rendering services of investment advisory. The member found the activities/ representations as were being made by the Noticees without holding the certificate of registration as IA are in violation of Section 12(1) of the SEBI Act, 1992 read with regulation 3(1) of the IA Regulations, 2013 and the above misleading representations made by the Noticees are deceptive and fraudulent and are well covered within the definition of “fraud” defined under regulation 2(1)(c) of the PFUTP Regulations, 2003. Hence the noticees were found to be in clear violations of rules and regulations mentioned above and also in violation of regulation 4(2)(k) of the PFUTP regulations,2003, and order with directions issued against the noticees . Click here to read the order

WTM SM WRO WRO 14717 2021 22 SECURITIES AND EXCHANGE BOARD OF INDIA UNDER SECTION 11(1) 11(4) AND 11B OF THE SECURITIES AND EXCHANGE BOARD OF INDIA ACT 1992 IN THE MATTER OF M S BILLIONAIRE SOLUTIONS SOLE PROPRIETOR MR. AKASH In respect of: Serial No. Name of the Entity M s Billionaire Solutions1. The present proceedings have originated from an ex parte ad interim order dated February 07 2020passed by the Securities and Exchange Board of Indiaagainst M s Billionaire Solutions and its sole proprietor Mr. Akash Jaiswal hereinafter collectively referred to as “the Noticees”) as the unregistered investment advisory activities of the Noticees were prime facia found to be in violation of the provisions of Section 12(1) of the Securities and Exchange Board of India Act 1992read with regulation 3(1) of the SEBI Regulations 2013 hereinafter referred to as “IA Regulations 2013”). Further in the interim order the activities of the Noticees were also prima facie found to be fraudulent Final Order in the matter of M s. Billionaire Solutions sole Proprietor Mr. Akash Jaiswal and manipulative and in violation of provisions of Section 12A(b) &of the SEBI Act 1992 and regulations 3(c) &and regulations 4(1) and 4(2)(k) of the SEBI Regulations 2003 inter alia alleging that he had paid around INR 1 58 800 to Billionaire Solutions and the said entity has cheated him by taking money in the name of Offline trading GST Server fees and profit commitment plans. With the aforesaid email Mr. Vijay Nikam also attached the copy of payment receipt made to Billionaire Solutions through Easebuzz Payment Gateway. ii. From the aforesaid payment receipt shared by the Complainant it was observed that Billionaire Solutions was using Easebuzz Payment Gateway hereinafter referred to as “Easebuzz”). Therefore account details were sought from Easebuzz and it was gathered that the Canara Bank Account Number 6058201000216 linked with Easebuzz belonged to the Noticees. The beneficiary details of the aforesaid Canara Bank Account are mentioned below: Business Name: Billionaire Solutions Email: info@billionairesolution.in Name of Owner: Mr. Akash Jaiswal Bank Name: Canara Bank Final Order in the matter of M s. Billionaire Solutions sole Proprietor Mr. Akash Jaiswal Account Number: 6058201000216 PAN No: BVPPJ3417H iii. From the aforementioned Canara Bank Account statement it was observed that around INR 36 48 813 had been credited during the period February 19 2019 to October 03 2019. The examination of the said bank statements also revealed that various credits have been received in the aforementioned account of the Noticees and it appeared that the payments had come from various individuals. Further the narrations in such transactions are also observed to have used terms such as ‘investment’ ‘trading’ etc. It was further gathered that the Noticees were hosting a website namely https: 5c6a4cd19aa53.site123.me . From the perusal of the said website it is noted that Billionaire Solutions advertised itself as one of the best Stock Advisory of India who caters & delivers best stock recommendation in Equity Market Commodity Market & Forex Market. It offers recommendations in Stock Cash Stock Future and Stock Options. Further it was also mentioned on the website that “We provide online trading NSE and BSE Trading Tips MCX NCDEX and intraday tips for investors traders and portfolio personnel”. 3. On the basis of the aforesaid observations evidence gathered during examination and considering the nature of the alleged activities undertaken by the Noticees it was thought proper to pass an order and issue directions as a preventive measure for protecting the interest of investors of securities market and consequently following directions were issued against the Noticees in the interim order: Final Order in the matter of M s. Billionaire Solutions sole Proprietor Mr. Akash Jaiswal i. The Noticees shall cease and desist from acting as an investment advisor including the activity of acting and representing through any media as an investment advisor directly or indirectly and cease to solicit or undertake such activity or any other activities in the securities market directly or indirectly in any manner whatsoever until further orders. ii. The Noticees shall not access the securities market and buy sell or otherwise deal in securities in any manner whatsoever directly or indirectly until further orders. iii. The Noticees shall not divert any funds raised from investors kept in bank account(s) and or in their custody until further orders. iv. The Noticees shall not dispose of or alienate any assets whether movable or immovable or any interest or investment or charge on any of assets held in their name including money lying in bank accounts except with the prior permission of SEBI. v. The Noticees shall immediately withdraw and remove all advertisements representations literatures brochures materials publications documents websites communications etc. in relation to their investment advisory activity or any other unregistered activity in the securities market until further orders. vi. The Noticees shall provide a full inventory of all assets held in the name of the proprietorship or the proprietor and firm or the partner whether movable or immovable or any interest or investment or charge on any of such assets including details of all bank accounts demat accounts and mutual fund investments immediately but not later than 5 working days from the date of receipt of this order. vii. Any person while working under the above mentioned Noticees as employee or otherwise shall cease and desist from undertaking the activity of investment advisory services including the activity of acting and representing through any mediaas an investment advisor directly or indirectly till further orders. Final Order in the matter of M s. Billionaire Solutions sole Proprietor Mr. Akash Jaiswal viii. The Banks are directed not to allow any debits withdrawals from or credits to the accounts of the Noticees held jointly or severally without the permission of SEBI. The Banks are directed to ensure that all the above directions are strictly enforced. ix. The Depositories are directed to ensure that till further directions no debits are made in the demat accounts of the Noticees held jointly or severally. x. The Registrar and Transfer Agents are also directed to ensure that till further directions the securities including Mutual Fund units held in the name of the Noticees jointly or severally are not transferred or redeemed. 4. The interim order provided the Noticees with an opportunity to file their objections reply if any within 21 days from the date of the interim order and also provided them with an opportunity of personal hearing before SEBI on a date and time to be fixed on a specific request to be made by the Noticees. In this regard it is noted from the records available before me that an attempt was made to serve a copy of the interim order upon the Noticees on their last known addresses i.e. “125 188 Suyash Vihar Vijay Nagar Indore” and “Shop B Plot no. 49 A Scheme No. 114 Part 1 Indore” through SPAD vide letters dated February 10 2020 however the same was returned undelivered. Thereafter the interim order was served upon the Noticees through newspaper publications which was published in newspapers namely The Times of India and Dainik Bhaskar on August 10 2020. I note that the Noticees have neither filed any reply objections to the allegations made through the interim order nor have sought any personal hearing. However in conformity with the principles of natural justice an opportunity of personal hearing was provided to the Noticees on October 07 2021 for which an attempt was made to serve the hearing notice upon the Noticees through SPAD vide letter dated June 24 2021 on the registered office address i.e. “Shop B Plot No. 49A Scheme No. 114 Part 1 Final Order in the matter of M s. Billionaire Solutions sole Proprietor Mr. Akash Jaiswal Indore Madhya Pradesh 452010” and permanent address i.e. “S o Jai Prakash Jaiswal 125 188 Suyash Bihar Vijay Nagar Indore Madhya Pradesh 452010” and also on an alternate address i.e. “AG 207 MP Nagar Zone 1 Bhopal Madhya Pradesh 462001” of the Noticees through SPAD vide letter dated September 27 2021. Further the scanned copy of the aforesaid letters was also sent to the Noticees vide emails dated June 24 2021 and September 27 2021 to the email address of the Noticees available with SEBI i.e. info@billionairesolution.in as obtained from Easebuzz and noticed from the bank statement of the aforesaid Canara Bank Account. However as the aforesaid letters were again returned undelivered and the aforesaid emails could not get delivered to the said email address of the Noticees the notice about the personal hearing was also served upon the Noticees through newspaper publication dated August 05 2021 in the newspapers namely Times of India and Patrika and through newspaper publication dated October 05 2021 in the newspapers namely Times of India and Dainik Jagran. 5. I note that no one appeared before me on the scheduled date of personal hearing i.e. October 07 2021 as indicated in the above stated newspaper publication. Under the circumstances I observe that the principles of natural justice have been complied with adequately in the present matter and as the Noticees have preferred to not participate in the present proceedings before me I am constrained to deal with the matter on merit based on the material available on record. 6. I have carefully perused the facts recorded in the interim order and other materials available on record. I note that the limited issue that requires adjudication in the extant proceedings in light of the charges so levelled against the Noticees in the interim order is as under: Final Order in the matter of M s. Billionaire Solutions sole Proprietor Mr. Akash Jaiswal  Whether the acts of the Noticees as imputed in the interim order have violated the provisions of SEBI Act 1992 read with the IA Regulations 2013 and the PFUTP Regulations 2003 while providing the services related to Investment Advisory without having proper registration. 7. Before adverting to the facts of the case to deal with the aforesaid issue it is apposite to refer to the relevant provisions of securities laws alleged against the Noticees in the interim order which are reproduced hereunder: “SEBI ACT 1992 Registration of stock brokers sub brokers share transfer agents etc. 12.“No stock broker sub broker share transfer agent banker to an issue trustee of trust deed registrar to an issue merchant banker underwriter portfolio manager investment adviser and such other intermediary who may be associated with securities market shall buy sell or deal in securities except under and in accordance with the conditions of a certificate of registration obtained from the Board in accordance with the regulations made under this Act: Prohibition of manipulative and deceptive devices insider trading and substantial acquisition of securities or control. 12A. No person shall directly or indirectly— a) use or employ in connection with the issue purchase or sale of any securities listed or proposed to be listed on a recognized stock exchange any manipulative or deceptive device or contrivance in contravention of the provisions of this Act or the rules or the regulations made thereunder b) employ any device scheme or artifice to defraud in connection with issue or dealing in securities which are listed or proposed to be listed on a recognised stock exchange c) engage in any act practice course of business which operates or would operate as fraud or deceit upon any person in connection with the issue dealing in securities which are listed or proposed to be listed on a recognised stock exchange in contravention of the provisions of this Act or the rules or the regulations made thereunder Final Order in the matter of M s. Billionaire Solutions sole Proprietor Mr. Akash Jaiswal SEBIREGULATIONS 2013 Application for grant of certificate. 3.On and from the commencement of these regulations no person shall act as an investment adviser or hold itself out as an investment adviser unless he has obtained a certificate of registration from the Board under these regulations: SEBI PFUTP REGULATIONS 2003 2.In these regulations unless the context otherwise requires — “fraud” includes any act expression omission or concealment committed whether in a deceitful manner or not by a person or by any other person with his connivance or by his agent while dealing in securities in order to induce another person or his agent to deal in securities whether or not there is any wrongful gain or avoidance of any loss and shall also include— 1) a knowing misrepresentation of the truth or concealment of material fact in order that another person may act to his detriment 2) a suggestion as to a fact which is not true by one who does not believe it to be true 3) an active concealment of a fact by a person having knowledge or belief of the fact 4) a promise made without any intention of performing it 5) a representation made in a reckless and careless manner whether it be true or false 6) any such act or omission as any other law specifically declares to be fraudulent 7) deceptive behaviour by a person depriving another of informed consent or full participation 8) a false statement made without reasonable ground for believing it to be true. 9) the act of an issuer of securities giving out misinformation that affects the market price of the security resulting in investors being effectively misled even though they did not rely on the statement itself or anything derived from it other than the market price. And “fraudulent” shall be construed accordingly 3. Prohibition of certain dealings in securities Final Order in the matter of M s. Billionaire Solutions sole Proprietor Mr. Akash Jaiswal No person shall directly or indirectly— b) use or employ in connection with issue purchase or sale of any security listed or proposed to be listed in a recognized stock exchange any manipulative or deceptive device or contrivance in contravention of the provisions of the Act or the rules or the regulations made there under c) employ any device scheme or artifice to defraud in connection with dealing in or issue of securities which are listed or proposed to be listed on a recognized stock exchange d) engage in any act practice course of business which operates or would operate as fraud or deceit upon any person in connection with any dealing in or issue of securities which are listed or proposed to be listed on a recognized stock exchange in contravention of the provisions of the Act or the rules and the regulations made there under. 4. Prohibition of manipulative fraudulent and unfair trade practices 1) Without prejudice to the provisions of regulation 3 no person shall indulge in a fraudulent or an unfair trade practice in securities. 2) Dealing in securities shall be deemed to be a fraudulent or an unfair trade practice if it involves fraud and may include all or any of the following namely: k) disseminating information or advice through any media whether physical or digital which the disseminator knows to be false or misleading and which is designed or likely to influence the decision of investors dealing in securities” 8. As stated earlier SEBI had received a complaint from the Complainant vide email dated July 28 2019 inter alia alleging that he has paid around INR 1 58 800 to Billionaire Solutions and the said entity has cheated him by taking money in the name of Offline trading GST Server fees and profit commitment plans. 9. From further scrutiny it emerged that the Noticees were hosting a website https: 5c6a4cd19aa53.site123.me . From the pages of the aforesaid website of the Noticees it was observed that the Noticees at the time of asking the clients Final Order in the matter of M s. Billionaire Solutions sole Proprietor Mr. Akash Jaiswal to invest as per the investment services rendered to them claimed the following through their website: It is one of the best Stock Advisories of India who caters & delivers best stock recommendation in Equity Market Commodity Market & Forex Market It offers recommendations in Stock Cash Stock Future and Stock Options 10. It has also been mentioned on the website that ““We provide online trading NSE and BSE Trading Tips MCX NCDEX and intraday tips for investors traders and portfolio personnel”. 11. I note that the following pricing details for availing various types of services from them were also announced on the aforesaid website of the Noticees: Stock Cash Stock Future Stock Options Basicas articulated in regulation 2(1)(m) of the IA Regulations 2013 which states that Investment Adviser means “any person who for consideration is engaged in Final Order in the matter of M s. Billionaire Solutions sole Proprietor Mr. Akash Jaiswal the business of providing investment advice to clients or other persons or group of persons and includes any person who holds out himself as an investment adviser by whatever name called”. Further I have also perused regulation 2(1)(l) of the IA Regulations 2013 which defines Investment Advice as “advice relating to investing in purchasing selling or otherwise dealing in securities or investment products and advice on investment portfolio containing securities or investment products whether written oral or through any other means of communication for the benefit of the client and shall include financial planning.” 13. In the light of the aforesaid definitions and looking at the content published on the aforesaid website of the Noticees as well as the allegations imputed in the interim order I am convinced that the Noticees through their website were indulged in the activities of investment advice as defined under regulation 2(1)(l) of the IA Regulations 2013 by offering to give advice related to investing in purchasing and selling of securities. In this respect the Noticees were also found to be offering various service packages to investors at large for enabling them to invest in securities which was nothing but purely an act in the nature of rendering services of investment advisory. 14. I also note that the interim order has recorded that the aforesaid investment advisory services were being offered by the Noticees in lieu of monetary considerations which were being paid by the investors concerned through Easebuzz payment gateway as per the instructions of the Noticees the details of which were also provided to them by the Complainant. As stated above Easebuzz vide its email dated July 29 2019 confirmed that Canara Bank Account number 6058201000216 pertained to M s Billionaire Solutions and the said fact has not been disputed by the Noticees. I also find that the perusal of bank account statements of the said Bank Account of the Noticees reveals that an aggregate amount of around INR 36 48 813 has been credited in the said bank account during the period February 19 2019 to October 3 2019. Final Order in the matter of M s. Billionaire Solutions sole Proprietor Mr. Akash Jaiswal 15. Considering the above factual analysis about the activities of the Noticees as proclaimed by them on their website the details of payment received by the Noticees in the said Bank Account and the payment receipts of the Complainant sufficiently indicating that the payment made to the Noticees was for receiving investment advice from them. There remains no doubt that the Noticees were engaged in unauthorised investment advisory activities. Perusal of the bank statements of the Noticeesand most importantly the fact that there has been no denial or objection by the Noticees to the charges allegations levelled against them made in the interim order it leaves me with no scope but to conclude that the alleged activities indulged into by the Noticees squarely fall under the category of investment advisory services as defined under regulation 2 of the IA Regulations 2013. 16. Further the credit entries in the said Canara Bank Account of the Noticees contained narrations such as investment trading etc. which further highlight the fact that the monies that were being received in the said Canara Bank Account were received as proceeds from the business operations of the Noticees as Investment Adviser. Moreover considering the fact that the website of the Noticees clearly showed that its services were in the nature of investment advisory services coupled with the fact that the aforesaid Bank Account was linked with Easebuzz payment gateway as confirmed by Easebuzz for receiving fees into it from the clients it leads to an unassailable conclusion that the said pay in amounts as reflected in the said Canara Bank Account were in fact the amounts received towards consideration in lieu of the advisory services rendered by the Noticees. Therefore it can be conclusively held that the amounts that have been credited to the Canara Bank Account of the Noticees were Final Order in the matter of M s. Billionaire Solutions sole Proprietor Mr. Akash Jaiswal received by the Noticees in lieu of providing investment related services as indicated on the aforesaid website of the Noticees. 17. In view of the above and as discussed earlier I have no doubt that in terms of regulation 2(1)(l) of the IA regulations 2013 such kind of advisory services rendered by the Noticees in fact constituted “investment advice” and the Noticees were providing investment advice in lieu of monetary consideration which was received and credited into their Canara Bank Account that belonged to the Noticees. Therefore there is no ambiguity left that M s Billionaire Solutions and its proprietor Mr. Akash Jaiswal were engaged in the business of providing investment advice to the public in lieu of monetary consideration and were thus acting as an ‘investment adviser’ as defined under regulation 2(1)(m) of the IA Regulations 2013. 18. It is relevant to note here that in order to protect the interest of investors and to preserve the integrity of the securities market the IA Regulations 2013 provide for various safeguards to ensure that the interest of the investors who receive investment advice are protected. One such safeguard provided under the said Regulations is that any person carrying out investment advisory activities has to obtain registration from SEBI as required under regulation 3(1) of the IA Regulations 2013 which inter alia provides that no person shall act as an investment adviser or hold itself out as an investment adviser unless he has obtained a certificate of registration from SEBI and has to conduct its activities in accordance with the provisions of the IA Regulations 2013. Further various crucial safeguards provided under the IA Regulations 2013 include continued minimum professional qualification and net worth requirement for IA disclosure of all conflicts of interest prohibition on IA to enter into transactions on its own account which is contrary to advice given by IA to its clients for a period of 15 days from the day of such advice given Final Order in the matter of M s. Billionaire Solutions sole Proprietor Mr. Akash Jaiswal monetary risk profiling of investors maintaining documented process for selecting investments for clients based on client’s investment objective and risk profile and understanding of the nature and risks of products or assets selected for such client etc. 19. The activities of the Noticees as brought out from various materials described above including their website seen in the backdrop of the aforesaid regulatory provisions show that the Noticees were holding themselves out and acting as an IA. However it is noted that the Noticees are not registered with SEBI in the capacity of IA and apparently were operating outside and in violation of the IA Regulations of SEBI. Hence I find that these activities representations as were being made by the Noticees without holding the certificate of registration as IA are in violation of Section 12(1) of the SEBI Act 1992 read with regulation 3(1) of the IA Regulations 2013. 20. In order to ensure protection of investors who receive investment advice it is imperative that any person carrying out investment advisory activities has to necessarily obtain registration from SEBI and has to conduct its activities in accordance with the provisions of the relevant SEBI Regulations. 21. In my view unregistered investment advisors like the Noticees in the present case can put the interest of the investors at great risk by misleading them or misutilising their funds to the detriment of the interest of the investors. In the present case the Noticees on their website have inter alia mentioned that M s Billionaire Solutions offers advices in Stock Cash Stock Future and Stock Options. 22. As stated above SEBI Act 1992 and IA Regulations 2013 mandate that an investment advisor has to hold a certificate of registration to act as such. However as already pointed out above I find that the Noticees were not holding Final Order in the matter of M s. Billionaire Solutions sole Proprietor Mr. Akash Jaiswal any certificate of registration from SEBI to act as investment advisor. The claims representations made by the Noticees on their website were blatantly misleading and were made only to allure the investors to avail investment advisory services being offered by the Noticees. The Noticees have knowingly misrepresented on the websites floated by them that they are experts in stock market analysis and are experienced in investment advisory and without even holding any registered Investment Advisor certificate the Noticees offered their investment advisory services through their website in an illegal manner to investors with the objective of raising money from the investors by way of subscriptions to their various plans. 23. The above discussed misleading representations made by the Noticees are therefore deceptive and fraudulent in nature and are well covered within the definition of “fraud” defined under regulation 2(1)(c) of the PFUTP Regulations 2003. It is therefore noted that fraudulent activities conduct act practice of the Noticees as discussed above are also in violation of provisions of Section 12A(b) of the SEBI Act 1992 and regulations 3 b) &and regulations 4(1) of the PFUTP Regulations 2003. Regulation 4(2)(k) of the PFUTP Regulations 2003 provides that dealing in securities shall be deemed to be a manipulative fraudulent or an unfair trade practice if it involves even disseminating information or advice through any media whether physical or digital which the disseminator knows to be false or misleading and which is designed or likely to influence the decision of investors dealing in securities. In the present case the Noticees without holding a certificate of registration as investment adviser have knowingly held themselves out as a registered investment adviser on their website. Thus I find that the Noticees have also violated regulation 4(2)(k) of the PFUTP Regulations 2003. Final Order in the matter of M s. Billionaire Solutions sole Proprietor Mr. Akash Jaiswal 24. I note that the materials available on record do not indicate the exact amount of fees collected by the Noticees as a result of providing investment advisory services to the investors in violation of the provisions of the IA Regulations 2013. However the interim order records that the Noticees have received credits worth INR 36 48 813 their Canara Bank Account Number 6058201000216 and this account number was also linked with Easebuzz payment gateway as noted from the payment receipt received from the Complainant to enable the investors to make payment to the Noticees. 25. In view of the foregoing discussions and findings about the activities engaged in by the Noticees in rendering investment advisory services in an unauthorised illegal manner as has been established in facts and circumstances of the case in order to achieve the avowed object of SEBI Act 1992 I in exercise of the powers conferred upon me in terms of Sections 11 11(4) 11Band 11D read with of Section 19 of the SEBI Act 1992 and regulation 11 of the PFUTP Regulations 2003 while disposing of the allegations levelled in the interim order against the Noticees hereby direct the following: i. The Noticees shall within a period of three months from the date of this Order refund the money received from the clients investors complainant as fees or consideration or in any other form in respect of their unregistered investment advisory activities ii. The Noticees shall issue public notice in all editions of two National Dailiesand in one local daily with wide circulation detailing the modalities for refund including the details of their contact person such as names addresses and contact details within 15 days of coming into force of this Order Final Order in the matter of M s. Billionaire Solutions sole Proprietor Mr. Akash Jaiswal iii. The repayments to the clients investors shall be effected only through Bank Demand Draft or Pay Order or electronic fund transfer or through any other appropriate banking channels which ensures audit trails to identify the beneficiaries of repayments iv. The Noticees are prevented from selling their assets properties and holding of mutual funds shares securities held by them in demat and physical form except for the sole purpose of making the refunds as directed above. Further the banks are directed to allow debit only for the purpose of making refunds to the clients investors who were availing the investment advisory services from the Noticees as directed in this Order from the bank account of the Noticees wherein debit has been frozen by virtue of interim order dated February 07 2020. v. The Noticees shall resolve all the complaints pending against them and file a report of such resolution with SEBI addressed to the Division Chief Investment Management Department SEBI Bhavan Plot No. C4 A G Block Bandra Kurla Complex Bandra Mumbai 400051 within a period of 30 days from date of this Order. vi. After completing the aforesaid repayments the Noticees shall file a report of such completion with SEBI addressed to the Division Chief Investment Management Department SEBI Bhavan Plot No. C4 A G Block Bandra Kurla Complex BandraMumbai 400051 within a period of 15 days after completion of three months from the coming into force of this Order duly certified by an independent Chartered Accountant. The restraint on sale of assets in sub paragraphshall cease to operate once the refund to the investors is complete and the report as contemplated herein is filed Final Order in the matter of M s. Billionaire Solutions sole Proprietor Mr. Akash Jaiswal vii. The Noticees are debarred from accessing the securities market directly or indirectly and are prohibited from buying selling or otherwise dealing in the securities market directly or indirectly in any manner whatsoever for a period of 02 years from the date of this Order or till the expiry of 02 years from the date of completion of refunds to investors as directed in sub paragraphabove whichever is later viii. The Noticees are also restrained from associating with any company whose securities are listed on a recognized stock exchange and any company which intends to raise money from the public or any intermediary registered with SEBI in any capacity for a period of 02 two) years from the date of this Order or till the expiry of 02years from the date of completion of refunds to investors as directed in sub paragraphabove whichever is later ix. The Noticees shall not undertake either during or after the expiry of the period of debarment restraint as mentioned in sub paragraphand viii) above either directly or indirectly investment advisory services or any other activity in the securities market without obtaining a certificate of registration from SEBI as required under the Securities Laws. x. The Noticees shall not to divert any funds collected from investors kept in bank account(s) and or in their custody except for the purpose of refund as directed in sub paragraph(i). xi. The Noticees shall not dispose of or alienate any assets whether movable or immovable or any interest or investment or charge on any of such assets held in their name including money lying in bank accounts except for the purpose of refund as directed in sub paragraph(i) and until the Final Order in the matter of M s. Billionaire Solutions sole Proprietor Mr. Akash Jaiswal refund is completed and a report as mandated under sub paragraphis filed with SEBI. 26. The direction for refund as given in paragraph 25(i) above does not preclude the clients investors from pursuing the other legal remedies available to them under any other law against the Noticees for refund of money or deficiency in service before any appropriate forum of competent jurisdiction. 27. This Order shall come into force with immediate effect. 28. It is further clarified that during the period of restraint the existing holding of securities including the holding of units of mutual funds of the Noticees shall remain frozen. 29. Obligation of the Noticees in respect of settlement of securities if any purchased or sold in the cash segment of the recognized stock exchangeas existing on the date of this Order can take place irrespective of the restraint prohibition imposed by this Order only in respect of pending unsettled transactions if any. Further all open positions if any of the Noticees in the F & O segment of the stock exchange are permitted to be squared off irrespective of the restraint prohibition imposed by this Order. 30. A copy of this Order shall be sent to the Noticees recognized Stock Exchanges the Banks Depositories and Registrar and Transfer Agents of Mutual Funds to ensure that the directions given above are strictly complied with. DATE: JANUARY 12 2022 S. K. MOHANTY PLACE: MUMBAI WHOLE TIME MEMBER SECURITIES AND EXCHANGE BOARD OF INDIA Sd Final Order in the matter of M s. Billionaire Solutions sole Proprietor Mr. Akash Jaiswal

Restraining anybody from interfering in any other’s peaceful possession and enjoyment in their private space: ANDHRA PRADESH HIGH COURT

Section 107, of the Transfer of Property Act i.e lease of immovable property, has a major role in this case, this was held in the judgment passed by a single bench judge comprising Hon’ble Sri justice M. Venkata Raman, in the matter SECOND APPEAL Nos. 312 and 334 of 2021, State of Andhra Pradesh, dealt with an issue where the respondent expelling the appellant from the property leased by them. Appellant was a tenant of the Respondent, where they were running  ‘ Divya cell point and gifts and fancy stores’ in that building. There was a false report created by the respondent and submitted to the police against the other party, stating that, they are responsible to Pay 10,00,000 RS for violating the terms and conditions mentioned in the lease agreement (01.04.21). The appellant denying the claim of the respondent while admitting the relationship B/W them and the rent for their shop rooms because the respondent gave a promise to the appellant to continue to stay as a tenant up to the year 2026, So the Appellant also mentions that he can’t vacate this place for next 15 years because he has invested all the money by believing the respondent words. So, as already mentioned above about the lease agreement  (under EX BI) “ effect of its non-registration and its effect on termination of tenancy in terms of section of the Transfer of Property Act”. Accordingly, the lease deed was inadmissible which was railed on by the appellant against the respondent stated by both the courts, and Section 107 of the Transfer of Property Act was observed for further notice. The lease document was allowed and exhibited at the trial after necessary stamp duty and penalty was paid thereon. There was no defence to hold on to the property in question, which is purely a question of fact itself. Therefore, in these circumstances, finding no reason or justification to interfere with the concurrent and consistent findings, the second appeals did not survive consideration, and they were dismissed.

HON’BLE SRI JUSTICE M. VENKATA RAMANA SECOND APPEAL Nos.312 and 3321 COMMON JUDGMENT: Second appeal No.312 of 2021 is filed against the decree and judgment in A.S.No.137 of 2018 on the file of the Court of the learned VI Additional District Judge East Godavari at Kakinada dated 26.03.2021. It was in turn preferred against the decree and judgment in O.S.No.710 of 2016 dated 18.07.2018 of the court of the learned I Additional Junior Civil Judge Kakinada. 2. Second Appeal No.3321 is presented against the decree and judgment referred to above which is a common judgment concerned to A.S.No.136 of 2018 also which in turn was preferred against the decree and judgment in O.S.No.5016 on the file of the Court of the learned I Additional Junior Civil Judge Kakinada. 3. The appellant was tenant of the respondent. The demised premises which is concerned to both these cases consisted of shop Nos. 2 and 4 in the premises bearing Door No.13 3 34 1 within Samalkot Municipal limits in Bhimavaram village within the boundaries specified in the plaint schedule. They shall be referred to hereafter as ‘the suit shops’ for convenience. 4. O.S.No.506 of 2016 was instituted by the appellant against the respondent for permanent injunction restraining her from interfering with his peaceful possession and enjoyment of these shop rooms. Whereas O.S.No.710 of 2016 was instituted by the respondent against the appellant for eviction. 5. The jural relationship in between these parties is not in dispute. It is also not in dispute that the suit shops were taken on monthly rent of MVR J S.A.Nos.312& 3321 Rs.3 000 by the appellant on 01.04.2012 with a condition to increase it at 15% once in three years. stores’ in these shops. 6. The appellant is running ‘Divya Cell point and gifts and fancy 7. On the premise that the appellant did not vacate the suit shops by the end of 31.03.2015 in terms of the lease agreement dated 01.04.2012 entered into and a false report was given to the police against her and her husband by him who demanded Rs.10 00 000 to vacate the premises a legal notice was issued on 29.07.2016 terminating the tenancy of the appellant w.e.f. 31.08.2016. The appellant got issued a reply dated 02.08.2016 in respect thereto referring to lease deed dated 28.01.2016 as if executed by the respondent and that the respondent had received an advance of Rs.5 00 000 from the appellant. In the above circumstances the respondent claimed that she was constrained to lay the suit against the appellant for eviction. 8. The respondent also considered institution of O.S.No.506 of 2016 against her and her husband in this process. 9. The appellant denying the claim of the respondent while admitting the nature of jural relationship between them as well as the rent for these shop rooms mainly contended that the respondent had promised to continue him as the tenant upto the year 2026 and that he had taken the suit shop rooms on lease w.e.f. 01.04.2012. He admitted the incremental increase in rent agreed to among them as well as exchange of notices. Further contention of the appellant is that he had invested huge amounts to run business and that the respondent had initially promised that she would not ask him to vacate for 15 years which made him to believe her. MVR J S.A.Nos.312& 3321 10. The appellant further stated that on 28.01.2016 another lease deed was executed by the respondent in his favour in respect of the suit shops as well as shop No.6 after expiry of the earlier lease on 31.03.2015 agreeing to continue his tenancy from 28.01.2016 to 28.01.2026 and that she went against the terms of this lease deed. He further claimed that the respondent also received advance of Rs.5 00 000 which she should return with interest at 24% p.a. He further claimed that the respondent is liable to pay damages of Rs.4 00 000 . 11. On the pleadings in both the suits the trial Court settled appropriate issues for determination: 12. Both the parties went to trial. Both the suits were tried together and common evidence was recorded for such purpose. The respondent examined herself as P.W.1 and her husband as P.W.2 while relying on Ex.A1 and Ex.A2. The appellant examined himself as D.W.1 and another witness as D.W.2 while relying on Ex.B1 to Ex.B4 to support his contention. 13. On the material considering the evidence the learned trial Judge directed eviction of the appellant from the suit shops granting threemonths time to vacate or otherwise the respondent to initiate legal action for getting possession of this property. However the other suit in O.S.No.5016 for bare injunction was dismissed. 14. The appeals preferred by the appellant against these decrees and common judgment were dismissed by the appellate court confirming the findings so recorded thereon. present both the second appeals. 15. These are the circumstances that made the appellant to MVR J S.A.Nos.312& 3321 16. Since both the learned counsel agreed to address arguments in these appeals at this stage of admission upon hearing them they are now being disposed of by this common judgment. 17. The substantial questions of law sought to be raised by the appellant in both these appeals revolves round the nature of the lease agreement under Ex.B1 effect of its non registration and its effect on termination of tenancy in terms of Section 106 of the Transfer of Property Act by the respondent against the appellant. 18. Both the courts below held that Ex.B1 dated 28.01.2016 which is the lease deed relied on by the appellant against the respondent is inadmissible in evidence for want of registration in terms of Section 17(1) of the Registration Act since barred under Section 49 of the Indian Registration Act. Further observation in the same context is upon application of Section 107 of the Transfer of Property Act. 19. The learned counsel for the appellant strenuously contended that these findings of both the Courts below are based on inappropriate application of law and when once the document was exhibited at the trial want of registration cannot be a reason to reject it from consideration. The learned counsel for the appellant also pointed out that this lease document was impounded at the stage of trial and that the appellant had paid necessary stamp duty and penalty thereon. Thus it is contended that this document stood validated. 20. The learned counsel for the respondent referring to nature of Ex.B1 being unregistered document relied on the same reasons set out by the Courts below as to its inadmissible nature and which cannot be looked into. MVR J S.A.Nos.312& 3321 21. Ex.B1 lease document apparently was allowed to be marked and exhibited at the trial after necessary stamp duty and penalty was paid thereon. However an instrument of lease relating to immovable property in terms of Section 17(1)(d) of the Indian Registration Act has to be compulsorily registered. It is w.e.f. 01.04.1999 as per A.P.Act 4 of 1999. Irrespective of term or tenure of the lease it is thus manifest that an instrument of this nature affecting immovable property is compulsorily registerable. 22. Section 107 of the Transfer of Property Act is another disabling factor for the appellant in this respect. 23. Mere payment of stamp duty and penalty on an instrument which is otherwise exigible cannot validate when the mandate of law is that registration of the same is compulsory. It cannot be diluted nor can be ignored by any means. 24. Similarly mere marking or exhibiting such document suffering from such vice cannot clothe it with any legal character nor makes this document admissible for the Court to consider. When the document is suffering from such vice want of registration can be a ground that can be raised at any stage without any let or hindrance. The reason is that this prohibition in relation to admissibility of such document affects its very nature and excludes or prevents being a part of the evidence to consider by the Court. Thus the prohibition is plenary and goes to the root of the matter. 25. Therefore the contention of the appellant on this score cannot stand and both the Courts below rightly considered this question. 26. Execution of Ex.B1 was disputed by the respondent at the trial as an outcome of forgery. The learned counsel for the appellant pointed MVR J S.A.Nos.312& 3321 out that there is evidence of D.W.1 and D.W.2 to prove this transaction and the document. However since Ex.B1 now is held being inadmissible the question relating to its authenticity true nature or otherwise has clearly become academic. Therefore it is not necessary now to go into this question. 27. Exchange of notices in between these parties as seen from Ex.B2 and Ex.B4 is not in dispute. Ex.B2 is the legal notice issued under Section 106 of the Transfer of Property Act by the respondent terminating the tenancy of the appellant. The effect and efficacy of this notice apparently were not given due attention either in the trial Court or in the appeal. Despite of issuance of Ex.B4 reply termination of tenancy of the appellant under Ex.B2 remained as such. The legality of Ex.B2 thus remained in tact and the termination of the tenancy was effected. 28. In these circumstances when the appellant did not have any defence to hold on to the property in question which is purely a question of fact in the presence of concurrent findings recorded by both the Courts below it cannot be stated that there are such substantial questions of law requiring consideration and determination in terms of Section 100 CPC by this Court now. In as much as right of the respondent to have eviction of the appellant in these circumstances is upheld the claim set forth by him for termination against her who is the owner of this property undisputedly in O.S.No.506 of 2016 on a contrived cause of action cannot stand. Such question is purely based on fact. 29. Therefore in these circumstances finding no reason or justification to interfere with the concurrent and consistent findings recorded by both the courts below as both these second appeals did not survive consideration they have to be dismissed. MVR J S.A.Nos.312& 3321 30. In the result both these second appeals are dismissed confirming the decrees and judgments of both the courts below. The appellant is granted three months time to vacate from now. If the appellant does not vacate within the time so granted the execution proceedings initiated by the respondent shall continue to their logical end. The appellant shall pay costs to the respondent in both these matters and shall bear his own costs throughout. As a sequel pending miscellaneous petitions stand closed. Interim Orders if any stand vacated. RR JUSTICE M.VENKATA RAMANA MVR J S.A.Nos.312& 3321 HON’BLE SRI JUSTICE M.VENKATA RAMANA SECOND APPEAL No.312 & 334 OF 2021 RR

Neither the recruiting guidelines nor the offer of employment has the authority to overrule the service rules, regulations, and legislative provisions: Tripura High Court

Neither the recruiting rules nor the advertising nor the offer of appointment will circumvent the service rules, legislation and regulatory requirements. Even if the advertising provided that an appointee shall be put under fixed salary for a term of 5 years, never explained that even if the laws and regulations so include, the past service of a career aspirant who has been a Government servant already for over 5 years will be wiped out, nor could it have been so recommended. The judgement was passed by the High Court of Tripura in the case of Aparna Chowdhury v. The State of Tripura [WP(C) No.290/2020] by Single Bench consisting of Hon’ble Justice MR. Akil Kuresh. The petitioner was selected and offered an appointment to the post of Postgraduate teacher in English in a Government school on a fixed monthly payment of Rs.22,785 under office memorandum. The petitioner accepted such appointment and after rendering her resignation which was accepted by the employer. Her grievance is that in her new assignment as a Government teacher her pay has been downgraded. She would point out that as a teacher in a grant-in-aid school. Therefore, this petition praying that her past service in grant-in-aid school is counted for her pay fixation as a Government teacher. Learned counsel for the petitioners strenuously urged that both the petitioners were placed in proper pay scales prescribed by the Government for teachers. They were teachers in grant-in-aid schools where the grant of salary to the teaching staff would come from the Government funds. Such teachers are paid at the same rate as Government teachers. Their service conditions are governed by the grant-in-aid code of the State of Tripura which envisages proper selection and appointment of teachers as well as their tenure protection. Their engagements were thus akin to Government service. They had applied for selection with prior objection from their employers and joined the duties after tendering technical resignations. Learned counsel for the respondent the petitions contending that the petitioners had applied in response to the advertisement which clearly specified that the appointee would be expected to discharge duties for 5 years on fixed salary basis before he/she would be brought over to regular scale. The petitioners accepted appointments with this clear stipulation in mind. Further they were working in private schools. Merely because the schools received grant-in-aid from the Government would not mean that the petitioners were Government servants. CCS Rules and the instructions relied upon by the petitioners would apply only in case a Government servant from one department tenders technical resignation and joins another Government department which is not the situation in the present case. “It can be seen that interdepartmental migration of the employees is not discouraged, be it the Government of India or the State. Specifically Rule 26(2) of CCS Rules protects the past service of an employee of the Government even after his technical resignation and joining a new post. Though this is limited for pensionary benefits of an employee, it is impossible.”

HIGH COURT OF TRIPURA WP(C) No.290 2020 Smt. Aparna Chowdhury Reang D O Sri. Satrunjoy Prasad Chowdhury Resident of Village + P.O Fulkumari No 2 P.S R.K Pur District Gomati Pin 799113. Petitioner(s) 1. The State of Tripura New Secretariat Building New Capital Complex Kunjaban PS New Capital Complex Agartala West Tripura PIN 799010. 2. The Director O O the Directorate of Secondary Education Govt. of Tripura Office Lane Agartala West Tripura Agartala Pin 799003. 3. The Director O O the Directorate of School Education Govt. of Tripura Office lane Agartala West Tripura Agartala Pin 799003. 4. The Secretary Department of Finance Government of Tripura New Secretariat Building New Capital Complex Kunjaban P.S New Capital Complex Agartala West Tripura PIN 799010. 5. Ishanchandranagar Pargana H S School To be represented by it’s Secretary cum School Managing Committee P.O Ishanchandranagar Dist West Tripura Dukli Block Sadar Sub Division West Tripura PIN 6. The Secretary School Managing Committee Ishanchandranagar Pargana H S School PO Ishanchandranagar Dist West Tripura Dukli Block Sadar Sub Division West Tripura PIN 799003. Respondent(s) Along with WP(C) No.333 2019 Smt. Suparna Deb Roy W O Sri. Partha Sarathi Ghosh R o Kadamtali Krishnanagar P.O. Agartala P.S. West Agartala District West Tripura. Petitioner(s) 1. The State of Tripura represented by its Principal Secretary School Education Department Government of Tripura P.O. Kunjaban P.S. New Capital Complex District West Tripura. 2. The Director Directorate of Secondary Education Govt. of Tripura P.O. Agartala P.S. West Agartala District West Tripura. 3. Udaipur Ramesh H.S. School Represented by the Secretary Managing Committee P.O. R.K. Pur P S R.K. Pur District West Tripura. 4. Teachers Recruitment Board Represented by its Member Secretary Govt. of Tripura P O Agartala P S West Tripura Dist.: West 5. The Secretary cum Commissioner Finance Department Govt. of Tripura P O Kunjaban P S New Capital Complex Dist. West Tripura. Respondent(s) For Petitioner(s) Mr. P. Roy Barman Sr. Advocate Mr. Arijit Bhowmik Advocate Mr. Samarjit Bhattacharjee Advocate Mr. Ankan Tilak Paul Advocate. For Respondent(s) Mr. Dipankar Sharma Addl. G.A. HON’BLE THE CHIEF JUSTICE MR. AKIL KURESHI Date of hearing and judgment 18th June 2021. Whether fit for reporting NO. JUDGMENT & ORDERAkil Kureshi C.J.) These petitions involve similar questions. Brief facts are as Smt. Aparna Chowdhury Reang petitioner of WP(C) No.290 of 2020 holds the qualification of graduation from Tripura University and Masters Degree from IGNOU. She was appointed as Assistant Teacher in a private aided school in the higher secondary section for a fixed monthly salary of Rs.2 730 . Her service conditions would be governed by grant in aid code. Her appointment was approved by the Director of School Education Government of Tripura on 10.09.2004 and petitioner joined the duty on 04.11.2004. Upon completion of 5 years w.e.f. 04.09.2009 she was also brought over to regular pay scales. After 10 years of service she was granted benefit of First Assured Career Advancementin terms of the Revision of Pay Rules 2009. The Government of Tripura invited applications for the post of Graduate and Postgraduate teachers in Government schools on 27.05.2017. The petitioner applied in response to the said advertisement after obtaining no objection from her employer. She was selected and offered appointment to the post of Postgraduate teacher in English in a Government school on a fixed monthly pay of Rs.22 785 under office memorandum dated 30.06.2018. The petitioner accepted such appointment and after rendering her resignation which was accepted by the employer the petitioner joined the duty on 05.02.2019. Her grievance is that in her new assignment as a Government teacher her pay has been downgraded. She would point out that as a teacher in grant in aid school she was placed in the regular pay scale prescribed for a postgraduate teacher whereas in her new assignment as a Government teacher she has been granted salary on fixed pay basis which is much lower than her previous pay. She has therefore filed this petition praying that her past service in grant in aid school be counted for the purpose of her pay fixation as a Government teacher. In other words she expects that instead of asking her to work on fixed pay structure for initial period of 5 years she may be placed in the time scale of pay from inception. Petitioner of WP(C) No.333 of 2019 Smt. Suparna Deb Roy was appointed as a Postgraduate teacher in private but Government aided school in September 2011. Her initial appointment was on fixed pay basis. Upon completion of 5 years w.e.f. 23.09.2016 she was granted regular scale of pay. She also applied in response to the Government advertisement dated 27.05.2017 for the post of Postgraduate teacher after obtaining no objection from her employer. She was selected an offer of appointment as a Postgraduate teacher under an order dated 20.10.2017. After tendering resignation which was accepted by the employer she joined duty on 27.12.2017. She has also been placed in fixed salary regime. She would have to wait for 5 years before she was brought over to regular scales. Learned advocates for the petitioners strenuously urged that both the petitioners were placed in proper pay scales prescribed by the Government for teachers. They were teachers in grant in aid schools where the grant of salary to the teaching staff would come from the Government funds. Such teachers are paid at the same rate as Government teachers. Their service conditions are governed by grant in aid code of the State of Tripura which envisages proper selection and appointment of teachers as well as their tenure protection. Their engagements were thus akin to Government service. They had applied for selection with prior no objection from their employers and joined the duties after tendering “technical” resignations. The counsel relied on F.R. 22 and Rule 26(2) of CCSRules in support of their contentions. They also placed heavy reliance on a decision in case of Tarendra Reang & others vrs. The State of Tripura & others in WP(C) No.234 of 2020 and connected petitions decided by the Single Judge by a judgment dated 06.01.2021. On the other hand learned Addl. Government Advocate Mr. Dipankar Sharma opposed the petitions contending that the petitioners had applied in response to the advertisement which clearly specified that the appointee would be expected to discharge duties for 5 years on fixed salary basis before he she would be brought over to regular scale. The petitioners accepted appointments with this clear stipulation in mind. Further they were working in private schools. Merely because the schools received grant in aid from the Government would not mean that the petitioners were Government servants. F.R. 22 Rule 26(2) of the CCS(Pension) Rules and the instructions relied upon by the petitioners would apply only in case a Government servant from one department tenders technical resignation and joins another Government department which is not the situation in the present case. He also argued that the facts in case of Tarendra Reang were vitally Under a notification dated 31.05.2005 Government of Tripura formulated the Tripura Grant in aid Rules 2005of the Grant in aid Rules as an officer duly appointed as an administrator by the Director of School Education. Chapter II contains Rule 3 which pertains to terms and conditions for having Grant in aid and its status. Existing schools would be covered by the grant in aid code as per the guidelines issued by the Government from time to time. Rule 4 contained in Chapter II pertains to eligibility for payment of grant in aid. Rule 5 pertains to functioning of Managing Committees. Sub clauseof Rule 5 provides that appointment to all categories of posts both by direct recruitment and promotion shall be made strictly following all provisions of the Recruitment Rules finalized by the Education Department for these categories of posts in Government schools. As per clauseof Rule 5 the age of retirement for all teaching and non teaching staff in such privately managed grant in aid schools will be same as applicable to Government schools. Rule 7 pertains to facilities to be provided to the Government aided schools. As per sub clause of clause of this Rule once a school is given status of grant in aid 100% pay and allowances to the approved teaching and non teaching staff will be borne by the Government. Chapter III contains only one Rule 9 which pertains to disciplinary matters and provides for detailed procedure for suspension of the teaching and non teaching staff of the grant in aid school the penalty that can be imposed on such staff and the manner of imposing such penalties. Chapter IV pertains to miscellaneous matters. Rule 10 contained in the said chapter pertains to withdrawal of grant if in the opinion of the Director of School Education the school is not fulfilling any other terms and conditions of the grant or is found to be violating valid instructions of the The basic philosophy behind formulation of the grant in aid scheme is that though the Government has a duty to provide education in primary and secondary level it may not be possible to cover the entire eligible population for admitting students in Government schools. Instead of setting up such Government schools the Government would aid private schools and undertake the responsibility of salary and other administrative expenditure for running such a school. In turn the school would have to adhere to certain Government policies and guidelines. The teaching and non teaching staff would have tenure protection against arbitrary terminations. Nevertheless an employee of a grant in aid school is not in Government employment. Such grant in aid can be withdrawn after following the procedure under several circumstances such as the school being mismanaged or not following the directives of the Government. Such situation can also be envisaged where a grant in aid school may be shut down if it is found that the management is unable to sustain the school for insufficient number of students studying in the school. The crux of the issue is that the staff of a grant in aid school is certainly not in Government employment. A teacher of a grant in aid school may have his pay protection as long as he continues in such employment and the school continues to receive grant in aid. The teacher may have tenure protection in terms of Rule 9 of Grant in aid Rules however he is not a Government servant. The request of the petitioners for protection of past service therefore must be viewed on this basis. Clauseof F.R. 22(I) would cover a case where a Government servant holding a post other than a tenure post in substantive temporary officiating capacity is promoted or appointed in a substantive temporary officiating capacity. In such a situation he would have certain pay protection. Clearly this clause applies to a Government servant when he is promoted or appointed on another Government post. Likewise Rule 26 of the CCS Rules pertains to forfeiture of service on resignation. Sub ruleof Rule 26 as is well known envisages forfeiture of past service upon a Government servant resigning. Sub ruleof Rule 26 which is in the nature of an exception to sub rule provides that a resignation shall not entail forfeiture of past service if it has been submitted to take up with proper permission another appointment whether temporary or permanent under the Government where such service qualifies. Rule 26 itself is applicable to a Government servant and sub ruleof Rule 26 would therefore cover a case of a Government servant who resigns from one Government post for taking up another Government position with a proper permission of the employer. The Government of India instructions in this respect clarifying this position also therefore would not carry the case of the petitioners any further. In case of Tarendra Reang all the petitioners were working on different posts under the State Government. They had applied for appointment to the post of graduate postgraduate teachers in Government schools. Upon selection they had tendered technical resignations and taken up new assignments. When they were once again asked to serve on fixed salary basis for 5 years this Court held that the same would not be permissible. It was in this context that the Court had relied on F.R. 22 and Rule 26(2) of the CCSRules and allowed the petitions by making following observations: “[14] Under this memorandum even upon a Government joining a new post the Government or autonomous organization set up by the Government his past service for the purpose of being governed by the old pension scheme will be granted provided his join in the new service after tendering technical resignation. Thus even the Government of Tripura recognises this concept of the past service being protected when an employee tenders technical resignation and joins new post under Government. Even otherwise this is an implication of sub rule of Rule 26 of CCS(Pension) Rules which have been adopted by the State Government. 15] From the above discussion it can be seen that interdepartmental migration of the employees is not discouraged be it the Government of India or the State Government. Specifically Rule 26(2) of CCS(Pension) Rules protects the past service of an employee of the Government even after his technical resignation and joining new post. Though this is limited for the purpose of pensionary benefits of an employee it is impossible to protect the pension without protecting his pay. 16] The incongruity of the situation that may be brought about if the Government’s stand is accepted would be that full time Government servants who have after rendering service for 5 years on fixed salary basis are brought over to regular scale once again would be placed at the bottom of salary structure and would be asked to render service for 5 years on fixed salary which is a meagre 65 or 75% of entry scale of the equivalent post without benefit of any other allowances. By protecting their past service for the purpose of pay and allowances even the Government purpose of cost cutting would not be frustrated because employees would be vacating their regular posts which when filled up the Government will be offered on fixed salary basis. Thus this interdepartmental migration would only bring about change of the head from which the petitioners would be drawing their salaries and there would be no additional outflow from the Government exchequer. 17] The objection of the Government that the petitioners accepted their appointments with full knowledge and therefore they are estopped from raising their grievances is possible of the summery disposal. Neither the recruitment rules nor the advertisement nor the offer of appointment can override the service rules regulations and statutory provisions. Even if the advertisement provided that an appointee shall be placed under fixed pay for a period of 5 years never clarified that even if the rules and regulations so provide the past service of a job aspirant who has been a Government servant already for over 5 years would be wiped out nor could it have been so prescribed. 18] Under the circumstances all the petitions are allowed. In cases where the petitioners were already enjoying pay fixations in regular scales their entire past service shall be protected for the purpose of pay and allowances including leave encashment and post retiral benefits as per their appointments in new posts. Where the petitioners have not been granted regular pay scales even after completion of 5 years of service they would be first brought over to regular pay scale from due dates. Upon their fresh engagements as Teachers their past service similarly shall be protected. It is however clarified that none of the petitioners would have any claim of seniority in their new engagements because in the new organization they cannot carry the seniority of the past service so as to jump over the other existing employees in the cadre. Entire exercises of pay fixation and payment of arrears shall be completed within 6(six) moths from today. Petition disposed of accordingly. Pending application(s) if any also stands disposed of.” Facts in case of Tarendra Reang thus are vitally different. All the petitioners in the said case as noted were holding different Government posts on substantive basis. It was therefore that when they joined service as Government school teachers therefore protected their past service for the purpose of pay fixation and other benefits except seniority in the new cadre. In the result petitions are dismissed. In case of WP(C) No.333 of 2019 the petitioner fleetingly challenged the very scheme of the Government placing a new incumbent in Group C and D post in fixed salary basis for 5 years before bringing over to regular scales. However this is a much wider issue and no serious arguments were advanced on behalf of the petitioner and I have kept this question open if it arises at a future date. Pending application(s) if any stands disposed of. AKIL KURESHI) CJ

Every company shall prepare and keep books of accounts and financial statement for every financial year accounts: Supreme Court of India

Any expenditure incurred by anyone in purchasing the bonds through banking channels will have to be accounted as an expenditure in his books of  If the purchase of the bonds, as well as their encashment, could happen only through banking channels and if the purchase of bonds is allowed only to customers who fulfil KYC norms, the information about the purchaser will certainly be available with the   SBI   which alone is authorised to issue and encash the bonds as per the Scheme. Moreover, any expenditure incurred by anyone in purchasing the bonds through banking channels will have to be accounted as an expenditure in his books of accounts. This auspicious judgment was passed by the Supreme Court of India in the matter of ASSOCIATION FOR DEMOCRATIC REFORMS &amp; ANR. V. UNION OF INDIA &amp; ORS. [WRIT PETITION (C) NO.880 OF 2017] by Chief Justice of India S. A. Bobde, Justice A. S. Bopanna, and Justice V. Ramasubramanian. The petition was for  (i)  a declaration that all national and regional 2political   parties are public authorities under the Right to Information Act, 2005; (ii) a direction to the Election Commission of India to collect all information concerning the finances of political parties; (iii) a direction to all national and regional political parties to mandatorily disclose complete details about their income, expenditure, donations, and funding as well as full details of the donors. Later, the Association for Democratic Reforms filed the above application I.A. No.183625 of 2019 seeking a stay of the Electoral Bond Scheme, 2018 notified by the Central Government vide notification. The court stated that “Under Section 129(1), such financial statements should give a true and fair view of the state of affairs of the company and comply with the accounting standards notified under Section 133.  These financial statements are to be placed at every   Annual   General Meeting of the company. Under Section 137, a copy of the financial statement, along with all the documents duly adopted at the Annual General Meeting shall be filed with the Registrar of Companies.” Also, the court stated that “All that is required is a little more effort to cull out such information from both sides (purchaser of bond and political party) and do some “match the following”. Therefore, it is not as though the operations under   the   Scheme   are   behind   iron   curtains   incapable   of   being pierced.”

have joined together and come up with the above Public Interest “(a) Issue a writ of declaration or any other appropriate writ Act 1934 Section 137 of the Finance Act 2017 and the corresponding iii) Section 11 of the Finance Act 2017 and the corresponding amendment carried out in Section 13A the Income Tax Act 1961 iv) Section 154 of the Finance Act 2017 and the corresponding Section 236 of Finance Act 2016 and the corresponding amendment carried out in Section 2(1)(j)(vi) of the Foreign b ) Issue a writ of mandamus or any other appropriate writ directing that no political parties would accept any donation in for Democratic Reforms and another person the reliefs sought therein were little different. The prayers made in the said writ petition were for a declaration that all national and regional political parties are public authorities under the Right to Information Act 2005 a direction to the Election Commission of to mandatorily disclose complete details about their income expenditure donations and funding as well as full details of the petitions. Paragraphs 11 to 15 of the said interim order read as 2017. We have closely examined the stand taken by the the rival contentions give rise to weighty issues which have a limited time that is available before the process of funding through the electoral Bonds comes to a closure as per the 12. The court therefore has to ensure that any interim arrangement that may be made would not tilt the balance in In the above perspective according to us the just and proper interim direction would be to require all the political submit to the Election Commission of India in sealed cover received against each bond namely the particulars of the bank 14. The above details will be furnished forthwith in respect of of such other bonds that may be received by such a political submitted on or before 30th May 2019. The sealed covers will 15. As per Clause 8 of the Electoral Bond Scheme 2018 months of January April July and October and additional 30 contained in the Note of the finance Ministry dated 28.2.2019 extracted above a total period of 45 days has been fixed for issuing the bonds in the month of March April and May. This for issuing the bonds in the month of March and May will an election year. The total period therefore allowable for the election year would be 50 whereas the Schedule contemplates 10 days of January. A period of 5 days therefore have to be Finance dated 28.2.2019. such deletion will be made by the Ministry of Finance who will be free to decide the days of As can be seen from the last line of paragraph 11 of the aforesaid order this Court thought fit to make an interim the limited time available before the process of funding through Bonds for the months of March April and May 2019 had been announced to be 1.3.2019 to 15.3.2019 1.4.2019 to Thereafter the Association for Democratic Reforms filed the above application I.A. No.183625 of 2019 seeking a stay of the Therefore the writ petitioners have come up with a fresh respondents from any further sale of Electoral Bonds. This in a gap of two years are one and the same they were taken up At the outset learned Attorney General submitted that the counter if no fresh material other than those found in I.A 9. We have heard Shri Prashant Bhushan learned counsel for the applicants writ petitioners Shri K.K. Venugopal learned 10. We should point out at the threshold that there cannot be interim reliefs sought relates to something that is to happen at periodical intervals of time. Under Clause 8(1) of the Electoral Bonds Scheme 2018 the bonds under the Scheme are made January April July and October. Therefore once this Court has every time the window for the purchase under the Scheme is 11. Despite the aforesaid normal rule of procedure and practice we heard the learned counsel on both sides on the present which is not healthy for a democracy. Though technically the Government may be in a position to find out the names of the not in power will not be able to find out. Moreover the amount of funds received by a party in power will normally be more as it will 12. Opposing the prayer for stay it is contended by the learned Attorney General that this Scheme was intended to prevent channels. This according to the learned Attorney General curbed the menace of black money playing a huge part in the elections Shri Rakesh Dwivedi learned Senior Counsel for the Election It is true as seen from the correspondence that RBI has had Government by a notification dated 2.1.2018 in exercise of the in which RBI participated. In their letter dated 4.8.2017 RBI We recommend the following safeguards may be incorporated to b) The EBBs can be purchased for any value in multiples of Rs.1 000 Rs.10 000 or Rs.100 000 The purchase of EBBs would be allowed from a fully KYC stated that the major objective of the Scheme is to provide anonymity and that the same can be achieved if the bonds are a physical scrip. On 27.9.2017 the matter was placed before the serious reservations. These reservations incorporated in the next letter of the RBI dated 27.9.2017 were read out to us by Shri Prashant Bhushan in support of his contention that the Scheme 15. However paragraph 5 of the same letter dated 27.9.2017 of scrip form we can discuss the modalities of issuance of EB in proceeds are eventually credited to a political party’s designated of the information of the initial subscriber and the subsequent the same time ensuring that consideration for transfers between persons and entities before the value of bond is credited to the political party is through bank transfers and not cash or other means. This will be an enduring reform consistent with the 16. Therefore it is not correct to say that the RBI was opposed to in scrip form rather than in demat form. What RBI wanted to achieve was in their own words the twin advantage ofproviding anonymity to the contributor and ensuring that consideration for transfers is through banking channels and not cash or other the concerns expressed by RBI to the form and not to the 17. As a matter of fact most of the recommendations of the RBI have been accepted and incorporated in the Scheme. The following features of the Scheme demonstrate this: only political parties registered under Section 29A of the Representation of the People Act 1951 and secured not less than the bond the bond can be encashed by an eligible political party only through a bank account with the authorized bank and the authorized bank may also call for any additional KYC all payments for the issue of the bonds shall be accepted in Indian rupees through demand draft or cheque or through designated bank account of the eligible political party the face value of the bonds shall be counted as income by way of 18. Despite the fact that the Scheme provides anonymity the cannot purchase the bonds and give it to the political parties Under clause 7 of the Scheme buyers have to apply in the prescribed form either physically or online disclosing the shall not be disclosed to any authority for any purposes it is agency. A non­KYC compliant application or an application not 19. As far as the information to the Election Commission is concerned the interim order passed by this Court on 12.4.2019 takes care of the same. In the reply filed by the Election sealed covers from various political parties of the Companies Act 2013 every a profit and loss account or in the case of a company carrying on any activity not for profit an income and a statement of changes in equity if applicable and any explanatory note annexed to or forming part of any Provided that the financial statement with respect to One Person Company small company and dormant company 24. Under Section 129(1) such financial statements should give a financial statements are to be placed at every Annual General Meeting of the company. Under Section 137 a copy of the financial 25. The financial statements of companies registered under the Companies Act 2013 which are filed with the Registrar of fee. Since the Scheme mandates political parties to file audited financial statements of registered companies to be filed with the bonds happening only through banking channels is always under the Scheme are behind iron curtains incapable of being 26. One of the contentions of the petitioners is that though the first buyer by using black money and hand it over to a political Under Clause 14 of the Scheme the bonds are not tradable be purchased only by a person who is a citizen of India or 28. Therefore in the light of the fact that the Scheme was intervals in January April July and October of every year that they had been so released in the years 2018 2019 and 2020

The future prospects as awarded by the Motor Accident Claim Tribunal shall be taken at 50% instead of 40%: Delhi High Court

The award under the head of ‘Loss of Love and Affection’ shall be deleted, however, a sum of money shall be awarded under the head ‘Loss of Consortium’ as held by the High Court of Delhi through the learned bench lead by Justice Sanjeev Sachdeva in the case of Suman Devi and Anr. v. Mahesh Arora and Anr. (MAC.APP. 46/2021) The brief facts of the case are that the claim petition has been filed by the parents of the deceased. The deceased along with certain other persons was coming from Chandigarh to Delhi in a car. The car was being driven at a very high speed in a rash and negligent manner. Due to high speed, the driver of the offending vehicle lost control because of which the car hit against an electric pole and overturned. Deceased was grievously injured and died on the way to the hospital. By the impugned award, claim petition has been allowed and compensation awarded. There is no appeal filed by the insurance company impugning the award on merits. Claimants have filed the subject appeal seeking enhancement of compensation. Learned counsel for the appellant submitted that the tribunal has erred in the application of the judgment of the Supreme Court in National Insurance Company Ltd. Vs. Pranay Sethi, (2017) 16 SCC 680. He submits that deceased was in a permanent employment and accordingly, the compensation could have been awarded by taking into account future prospects at 50% and not at 40% as done by the tribunal. Learned counsel appearing for the insurance company submitted that tribunal has erred in awarding a sum of Rs. One lakh  under the head of compensation for ‘Loss of Love and Affection’. He submitted that compensation was awardable only under the head of ‘Loss of Consortium’ and that also at the rate of Rs. 40,000/- per claimant in terms of judgment of Supreme Court in United India Insurance Company Ltd. Vs. Satinder Kaur @ Satwinder Kaur 2020 SCC Online SC 410. After hearing the learned counsel for respective parties at length, Hon’ble High Court of Delhi held, “The impugned award to the said extent requires a modification. It is directed that the future prospects as awarded by the tribunal shall be taken at 50% instead of 40%. However, a sum of Rs. 80,000/- shall be awarded under the head ‘Loss of Consortium’. The appeal is accordingly allowed and the award modified in the above terms. The matter is remitted to the tribunal to re-compute the amount in terms of the directions contained herein.”

IN THE HIGH COURT OF DELHI AT NEW DELHI Judgment delivered on: 11th October 2021 MAC.APP. 46 2021 SUMAN DEVI & ANR. Appellants MAHESH ARORA & ANR. Respondents Advocates who appeared in this case: For the Petitioners : Mr. Devendra Kr. Sharma Advocate For the Respondents : Mr. A.K. Soni Advocate for Ins. Co.CORAM: HON’BLE MR. JUSTICE SANJEEV SACHDEVA SANJEEV SACHDEVA J. Appellant impugns award dated 25.02.2020 whereby the claim petition under Section 166 and 140 of the Motor Vehicle Act 1988 has been allowed and compensation awarded. The claim petition has been filed by the parents of the deceased. The deceased along with certain other persons was coming from Chandigarh to Delhi in a car. The car was being driven at a very high speed in a rash and negligent manner. Due to high speed the driver of the offending vehicle lost control because of which the car hit against MAC. APP. 46 2021 Digitally SignedBy:JUSTICE SANJEEVSACHDEVASigning Date:11.10.202120:49Digitally Signed By:KUNALMAGGUSigning Date:12.10.2021 08:10:34This file is digitally signed by PSto HMJ Sanjeev Sachdeva.Signature Not Verified an electric pole and overturned. Deceased was grievously injured and died on the way to the hospital. By the impugned award claim petition has been allowed and compensation awarded. There is no appeal filed by the insurance company impugning the award on merits. Claimants have filed the subject appeal seeking enhancement of compensation. Learned counsel for the appellant submits that the tribunal has erred in the application of the judgment of the Supreme Court in National Insurance Company Ltd. Vs. Pranay Sethi 16 SCC 680. He submits that deceased was in a permanent employment and accordingly the compensation could have been awarded by taking into account future prospects at 50% and not at 40% as done by the tribunal. Learned counsel submits that the witness Mr. Biplab Sen General Manager had appeared from the employer Scaleneworks People Solutions LLP Bangalore. He had duly proved on record the terms of employment as Exb PW 1 1. Learned counsel points out that in the very employment terms it is mentioned that the retirement age is 60 years and employee would retire at the end of the month in which the employee attains 60 years of age. He further submits that even the witness had specifically stated MAC. APP. 46 2021 Digitally SignedBy:JUSTICE SANJEEVSACHDEVASigning Date:11.10.202120:49Digitally Signed By:KUNALMAGGUSigning Date:12.10.2021 08:10:34This file is digitally signed by PSto HMJ Sanjeev Sachdeva.Signature Not Verified said witness. that the employment was to continue till the age of 60. He further points out that there is no cross examination on the said aspect of the Learned counsel appearing for the insurance company submits that tribunal has erred in awarding a sum of Rs. One lakh under the head of compensation for ‘Loss of Love and Affection’. He submits that compensation was awardable only under the head of ‘Loss of Consortium’ and that also at the rate of Rs. 40 000 per claimant in terms of judgment of Supreme Court in ‘United India Insurance Company Ltd. Vs. Satinder Kaur @ Satwinder Kaur 2020 SCC Online SC 410’. Perusal of Exb. PW1 1 shows that deceased was employed on 12.03.2014 and the employment was a fulltime employment and was not probationary. The retirement age specifically stated in the terms of employment was 60 years. Further there is no cross examination on the said aspect as well. In view of the same tribunal has clearly erred in taking future prospects at 40% and not 50% as the deceased was in permanent employment. Further it may be noticed that the tribunal has awarded a sum of Rs. One lakh under the head ‘Loss of Love and Affection’ whereas a sum of Rs. 80 000 was liable to be awarded under the head of ‘Loss MAC. APP. 46 2021 Digitally SignedBy:JUSTICE SANJEEVSACHDEVASigning Date:11.10.202120:49Digitally Signed By:KUNALMAGGUSigning Date:12.10.2021 08:10:34This file is digitally signed by PSto HMJ Sanjeev Sachdeva.Signature Not Verified of Consortium’. In view of the above impugned award to the said extent requires a modification. 11. Accordingly it is directed that the future prospects as awarded by the tribunal shall be taken at 50% instead of 40%. The award under the head of ‘Loss of Love and Affection’ shall be deleted. However a sum of Rs. 80 000 shall be awarded under the head ‘Loss of Consortium’ (i.e. Rs. 40 000 to each of the claimants). 12. The appeal is accordingly allowed and the award modified in the above terms. The matter is remitted to the tribunal to re compute the amount in terms of the directions contained herein. 13. Additional amount along with interest at the same rate as awarded by the original award shall be deposited by the respondent no. 2 Insurance Company with the tribunal within a period of four weeks of the computation by the tribunal. 14. The matter shall be listed before the tribunal on 11.11.2021 for the purpose of re computation and compliance of the directions issued herein. OCTOBER 11 2021 ‘rs’ MAC. APP. 46 2021 SANJEEV SACHDEVA J Digitally SignedBy:JUSTICE SANJEEVSACHDEVASigning Date:11.10.202120:49Digitally Signed By:KUNALMAGGUSigning Date:12.10.2021 08:10:34This file is digitally signed by PSto HMJ Sanjeev Sachdeva.Signature Not Verified

The spirit and intention of the die-in-harness scheme provides doe immediate employment and settlement: High Court of Manipur

The die-in-harness scheme was framed by the State Government to bring solace and benefit to the family of the deceased Government employee who suddenly became without a source of income on the death of the Government employee as upheld by the High Court of Manipur through the learned bench led by Justice M.V. Muralidaran in the case of N.Thangkhankhual v. The State of Manipur and ors. (WP(C) No.393 of 2021) The brief facts of the case are that the Petitioner’s father John Chithang Naulak, while working as an Inspector in the Sericulture Department, died on 4.10.2002 and the petitioner being the eldest son submitted an application for compassionate appointment under the die-in-harness scheme. However, at the relevant point of time, the Government had withdrawn the dis-in-harness scheme for some time only to restore it after a few years. After the restoration of the scheme, it was notified that the family members of the deceased employees who had died during the period of withdrawal and restoration will be eligible for compassionate appointment as per the death of the deceased employee, subject to the family member applying for compassionate appointment. The petitioner, who has earlier applied at the time of the death of his father, again applied to the authorities for giving him compassionate appointment to a suitable post, preferably Class-III 3 post like Lower Division Clerk as he was a graduate having passed his B.A (Hons) in political Science. In the meantime, it came to the notice of the petitioner that, some tampering had been made in the list of the claimants for compassionate appointment, whereby a person lower to him was placed have him. Not only that, the date of the petitioner’s father expiry was tampered with by pushing it back by a year later. Aggrieved by such tampering, the petitioner has filed to quash such tampering and sought for compassionate appointment. By an order dated 11.2.2015, this Court allowed the writ petition. However, the petitioner’s claim was rejected on the ground that there were two more claimants to the post of LDC, Grade-III above the petitioner will the available post of LDC was only one and the petitioner was advised that his claim will be considered when there are vacancies available in the Department. The Hon’ble Court held, “In the present case, as stated supra, the petitioner has been making for almost 20 years waited and in fact, the petitioner and his family members, including his widowed mother continued to live in a penuries condition without any employment. Considering the facts and circumstances of the case, particularly the penury condition of the family of the petitioner, this Court is of the view that there is merit in the grievance of the petitioner and accordingly, the writ petition filed by the petitioner is liable to be allowed.” Click here to read the Judgment

IN THE HIGH COURT OF MANIPUR AT IMPHAL WP(C) No.3921 N.Thangkhankhual aged about 34 years s oJohn Chinthang Naulak Ex Inspector Sericulture Dept. Government of Manipur and a resident of Thangsho Street New LamkaPO & PS Churachandpur in Churachanpur District Manipur.. Versus 1. The State of Manipur represented by the Commissioner Sericulture to the Govt. of Manipur 795001. 2. The Director Sericulture Govt. of Manipur at Imphal 795005. HON’BLE MR. JUSTICE M.V. MURALIDARAN Mr N. Umakanta Advocate Mr. Sukumar GA. For the Petitioner For the Respondents Date of hearing Date of Judgment & Order 2 JUDGMENT & ORDER This writ petition has been filed by the petitioner seeking a writ of mandamus directing the respondents to give compassionate appointment to the petitioner to a class III post in the Sericulture Department preferably as a Lower Division Clerk or Inspector which is commensurate with his educational The case of the petitioner is that his father John Chithang Naulak while working as an Inspector in the Sericulture Department died on 4.10.2002 the petitioner being the eldest son submitted an application compassionate appointment under the die in harness scheme. However at the relevant point of time the Government had withdrawn the dis in harness scheme for some time only to restore it after a few years. After the restoration of the scheme it was notified that the family members of the deceased employees who had died during the period of withdrawal and restoration will be eligible for compassionate appointment as per the death of the deceased employee subject to the family member applying for compassionate appointment. Further case of the petitioner is that the petitioner who has earlier applied at the time of the death of his father again applied to the authorities for giving him compassionate appointment to a suitable post preferably Class III 3 post like Lower Division Clerk as he was a graduate having passed his B.A Hons) in political Science. In the meantime it came to the notice of the petitioner that some tampering had been made in the list of the claimants for compassionate appointment whereby a person lower to him was placed have him. Not only that the date of the petitioner’s father expiry was tampered with by pushing it back by a year later. Aggrieved by such tampering the petitioner has filed W.P.(C) No. 473 of 2014 to quash such tampering and sought for compassionate appointment. By an order dated 11.2.2015 this Court allowed the writ petition after recording the submission of the learned Government Advocate that it has already corrected the tampering giving the petitioner his rightful position. However the petitioner’s claim was rejected on the ground that there were two more claimants to the post of LDC Grade III above the petitioner will the available post of LDC was only one and the petitioner was advised that his claim will be considered when there are vacancies available in the It is the further case of the petitioner that having waited for more than five years since his earlier claim was rejected the petitioner again approached the Department and submitted an application requesting him for giving compassionate appointment on 19.11.2020. Along with the application the petitioner filed application under RTI Act seeking complete details of the claimant list number of Grade III post available as well as available vacancies and also appointment made to Grade III post at the last instant. Thereafter in 4 view of the Vagueness of the information furnished the petitioner once again filed another application under RTI Act seeking further clarification as well as information and the same has not been responded till date by the authorities. According to the petitioner in the meantime it has came to be knowledge of the petitioner that there are available vacancies of Lower Division Clerks as well as Inspectors which are Grade III post in the Department. Since the authorities have failed to response to the latest claim of the petitioner till today he has filed the present petition seeking direction on the respondent authorities to give compassionate appointment to him to a Grade III post preferably LDC or Inspector. Heard the learned counsel appearing for the petitioner as well as the learned Additional Government Advocate appearing for the State. The learned counsel for the petitioner vehemently argued that though the respondent authorities maintained the seniority list for compassionate appointment under die in harness scheme but contrary to the seniority they have appointed Grade IV employees and not under Grade III which is illegal. The learned counsel further submitted that several persons who are below the name of the petitioner in the seniority list were appointed under Grade III but the petitioner is left out. Since the petitioner’s family is suffering lot learned counsel for the petitioner prayed that suitable direction may be issued to the respondent authorities to give compassionate appointment to the petitioner. 5 On the other hand the learned Additional Government Advocate submitted that Group IV posts alone were available and hence the persons who were seeking appointment as Group IV employees were given appointment under the scheme. In the case of the petitioner learned Additional Government Advocate submits that the petitioner seeks only Group III post and since no Group III post is available the petitioner was not given appointment. He would submit that whenever vacancies arose in Group III post the petitioner will be given appointment. This Court considered the submissions raised by the learned counsel appearing on either side and also perused the materials available on The grievance of the petitioner is that though his father died on 4.10.2002 and immediately after the death of his father he made an application on 12.11.2002 for compassionate appointment till date the respondent authorities have not given him appointment under die in harness scheme. On the other hand persons lower to him in the seniority were given appointment. It is the say of the respondents that the petitioner is seeking Group III post and since no Group III post is available at present the petitioner was not given compassionate appointment. 6 It appears that since there was tampering in the seniority list qua date of death of his father maintained by the respondents earlier the petitioner filed W.P.(C) NO.4714 seeking to quash the seniority list of claimants and for issuing appropriate direction on the respondents to appointment the petitioner as LD. During the course of arguments in the said writ petition the learned Government Advocate has produced a revised seniority list in respect of the compassionate appointment under die in harness scheme and recording the submission of the learned Government Advocate this Court observed that there is no need of passing an order quashing he seniority list of claimants and thus disposed of the writ petition. The operative portion of the order reads thus: “In view of the aforesaid facts and circumstances this writ petition can be disposed of with the direction that respondent Nos. 1 3 shall consider the case of the petitioner. According I direct that respondent Nos.1 3 shall consider the case of the petitioner as per the existing norms of Die in harness scheme and issue appropriate order thereafter within a period of 3months from the date of receipt of a copy of this order.” The aforesaid order came to be passed by this Court on 11.02.2015. Pursuant to the order dated 11.2.2015 the respondent issued a Memorandum dated 2.9.2015 stating that there are two applicants who are senior to the petitioner and are to be appointed as LDC under die in harness scheme and hence there is no post of LDC available for appointment of the petitioner at present. 7 It appears that after passing the order dated 11.2.2015 the petitioner submitted RTI applications and sought information qua appointment given under dis in harness scheme to a Class III post either LDC or Inspector. The petitioner annexed along with the writ petition the RTI applications and the information furnished to him by the authorities. The updated seniority list of all the applicants who have applied for appointment under die in harness scheme in respect of Sericulture Department under die in harness scheme in respect of Sericulture Department was also furnished by the respondent authorities to the petitioner and the same was also annexed with the writ petition. On a perusal of the same it is seen that the last appointment as LDC under die in harness scheme was given to one Kh. Anand Singh. In the said updated seniority list it has been noted that the father of the petitioner died on 02.10.2002 and the petitioner has submitted an application on 2.8.2007. Admittedly the petitioner’s initial application for appointment was dated 12.11.2002. Nothing on record to show that the application for appointment under die in harness in respect of S. Anand Singh was prior to the application of the petitioner. It is apposite to note that from the updated seniority list prepared on 04.07.2017 which was furnished to the petitioner as part of the reply dated 2.12.2020 it is evident that the petitioner who appears at Serial No.9 of the combined seniority list under the die in harness scheme of the Sericulture 8 Department is the only person who has got a B.A. degree while the rest above him do not possess any academic qualification except Serial No.8 whose qualification is H.S.L.C. From the seniority list it can be seen that the petitioner is the only person who can be considered for appointment to any Class III post either LDC or Inspector as the only academically qualified one as to do so. Moreover It is also surprise to note that the last compassionate appointment to a Class III post in the Sericulture Department was made as far back on 02.7.2012 and for the last nearly nine and half years no compassionate appointment to any Class III post has been made in the Sericulture Department though by the seniority list fixed on 4.7.2017 the petitioner is the only qualified person for appointment to a Class III post in the Sericulture Department. It has been almost 20 years since the petitioner’s father died after which the petitioner had claimed for compassionate appointment with no positive result till date. Generally in case of a Government servant dies in harness and the spouse of the deceased Government servant was not in employment under the Central Government or a State Government or a Corporation owned or controlled by the Central Government or a State Government one member of his family who is not already employed under the Central Government or a State Government or a Corporation owned or controlled by the Central Government or a State Government shall on making an application for the purposes be given which is within the purview of the public Service Commission in relaxation of the normal recruitment rules if such personfulfils the educational qualifications 9 prescribed for the post:is otherwise qualified for Government service andmakes an application for employment within five years from the date of the death of the Government servant. In the case on hand it is not the case of the respondent authorities that the petitioner is not eligible and has not qualified for seeking compassionate appointment. It is also not the case of the respondent authorities that the petitioner has not fulfilled the eligibility criteria. On the other hand during the course of arguments the learned Additional Government Advocate submitted that since no post of LDC is available the petitioner was not given appointment. The said argument of the learned Additional Government Advocate cannot be countenanced. The die in harness scheme was framed by the State Government to bring solace and benefit to the family of the deceased Government employee who suddenly became without a source of income on the death of the Government employee. The spirit and intention of the scheme provides doe immediate employment and settlement. However in the present case as stated supra the petitioner has been making for almost 20 years waited and in fact the petitioner and his family members including his widowed mother continued to live in a penuries condition without any employment. Considering the facts and circumstances of the case particularly the penury condition of the family of the petitioner this Court is of the view that there is merit in the grievance of the petitioner and accordingly the writ petition filed by the petitioner is liable to be allowed. In the result The writ petition is allowed. b) The respondent authorities are directed to follow the seniority list maintained by them under the die in harness scheme and appoint the petitioner immediately in Class III post in the Sericulture Department preferably as a lower Division Clerk or Inspector which is commensurate with the educational qualification of the petitioner. c) The said exercise is directed to be done by the respondent authorities within a period of three months from the date of receipt of a copy of this order. No costs. John Kom JUDGE

Mere application filed under Rule 131 of NCLT is sufficient to direct an order to conduct forensic audit: NCLAT

There is nothing in the order to justify the directions for conducting a forensic audit of accounts of the Company due to its cryptic and non-speaking nature. The judgment passed by the NCLAT New Delhi (principle bench), in its decision in   Vijaya Sai Poultries Pvt. Ltd. Vs. Vemulapalli Sai Pramella &amp; Ors (Company Appeal (AT) No. 296 of 2019) by Hon’ble Shri Justice Jarat Kumar Jain The facts of the case were such that- Petitioners (Respondents thus) have documented Petition against the ‘Vijaya Sai Poultries Pvt. Ltd., Mr. Naveen Kishore, Naveen Kishore HUF, and Mrs. V. Roja Kishore under Sections 59, 241, and 242 of the Companies Act, 2013 (in a nutshell the Act) asserting abuse and botch by Mr. Naveen Kishore. In the appeal, the Petitioners have recorded an application under Rule 131 of the NCLT Rules, 2016 charging that Mr. Naveen Kishore, Overseeing Director of the Company illicitly moved the portions of Respondents in his name by manufacturing marks in the Financial Year 2013-2014 with no thought. It is additionally affirmed that Mr. Naveen Kishore began selling the immovable and moveable properties of the Appellant company unlawfully and abused the deal continues. Mr. Naveen Kishore bought 50 immovable properties in his name and his significant other’s name by using the functioning capital and assets of the Appellant Company. Mr. Naveen Kishore has been working the funds of the Appellant Company in a discretionary and unconventional way and has redirected Crores of Rupees to having a place with the Appellant Company without representing something similar. Therefore, it was requested that an advocateCommissioner be appointed to conduct a forensic audit of the Appellant Company by taking assistance of an Auditor for the check period 31.03.2004 till date Ld. Sr. Counsel for the Appellant presents that there is no at first sight finding of persecution or blunder as needed under Section 242 (4) and 241/242 of the Companies Act. The Impugned Order is without thinking or finding of truth and indeed, contains a one-line request coordinating that legal review is directed. It is settled law that there should be a chronicle of reasons in the request on the side of the end showed up at. The giving of reasons on the side of their decisions by the legal or semi-legal authority is fundamental to forestall injustice or discretion in arriving at the resolutions. It was further submitted that the application has been filed under Rule 131 of NCLT Rules 2016 which relates to the production of documents and form of summons. An order of directing that a forensic audit to be conducted could not have been passed in such an application. There is an ambiguous claim of manufacturing, share move deeds, and the abdication letter. In the application, it isn’t referenced that in what way Mr. Naveen Kishore redirected the cash from the Appellant Company and when has he bought 50 properties for the sake of his relatives out of the assets of the Company. Indeed, even in the application, it isn’t referenced with regards to how and when the Respondents got the information that Mr. Naveen Kishore has enjoyed fake deal exchanges. Further, on the side of said charges, the Respondents have not to put any archive on record. Considering the principles laid down by the Hon’ble Supreme Court in the case of Kranti Associates (Supra). It was held that there is nothing in the order to justify the directions for conducting a forensic audit of accounts of the Company that too for more than 15 years. The Adjudicating Authority must record reasons in support of conclusions. However, in the Impugned Order, no reasons are mentioned for the said directions. The order is cryptic and non-speaking; therefore, it cannot be sustained.

Brindavan Garden Guntur Andhra Pradesh Appellant NATIONAL COMPANY LAW APPELLATE TRIBUNAL PRINCIPAL BENCH NEW DELHI Company AppealNo. 2919 IN THE MATTER OF: 1. VIJAY SAI POULTRIES PVT. LTD. H. No. 38 1st Floor NTR Municipal Kreeds Pranganam 1. VEMULAPALLI SAI PRAMEELA Flat No. 403 White Rose Apartment 9th Lane Vijayapuri Colony Guntur 2. VEMULAPALLI HARI KISHORE Flat No. 403 White Rose Apartment 9th Lane Vijayapuri Colony Guntur 3. V. VASUNDRA Flat No. 403 White Rose Apartment 9th Lane Vijayapuri Colony Guntur 4. CH DHANALAXMI House No. 4684 18 SS Layout B Block 4th Main 7th Cross Davangere 5. CH ANNAPURNAMMA House No. 4684 18 SS Layout B Block Company AppealNo. 2919 Andhra Pradesh State 522 007 Respondent No. 1 Andhra Pradesh State 522 007 Respondent No. 2 Andhra Pradesh State 522 007 Respondent No. 3 Karnataka State 577004 Respondent No. 4 2 Karnataka State 577004 Respondent No. 5 4th Main 7th Cross Davangere Present: For Appellant: Dr. UK Chaudhary Sr. Advocate with Mr. Mansumyer For Respondents: Mr. Chava Badri Nath Babu Advocate. Singh Advocate. JUDGMENT Jarat Kumar Jain. J: The Appellant ‘Vijaya Sai Poultries Pvt. Ltd.’ has filed this Appeal against the order dated 16.09.2019 passed by National Company Law Tribunal Amaravati Bench in I.A. No. 20 of 2018 in TCP No. 123 241 AMR TP 2019 whereby the Adjudicating Authority allowed the application filed by Petitioners and directed that forensic audit be conducted of the Appellant company since 31.03.2004. Brief facts of this case are that Petitionershave filed Petition against the ‘Vijaya Sai Poultries Pvt. Ltd. Mr. Naveen Kishore Naveen Kishore HUF and Mrs. V. Roja Kishore under Sections 59 241 and 242 of the Companies Act 2013alleging oppression and mismanagement by Mr. Naveen Kishore. In the petition the Petitioners have filed an application under Rule 131 of the NCLT Rules 2016 alleging that Mr. Naveen Kishore Managing Director of the Company illegally transferred the shares of Respondents in his name by forging signatures in the Financial Year 2013 2014 without any Company AppealNo. 2919 3 consideration. It is also alleged that Mr. Naveen Kishore started selling the immovable and moveable properties of the Appellant company illegally and misappropriated the sale proceeds. Mr. Naveen Kishore purchased 50 immovable properties in his name and his wife’s name by utilizing the working capital and funds of the Appellant Company. Mr. Naveen Kishore has been operating the finances of the Appellant Company in an arbitrary and whimsical manner and has siphoned off Crores of Rupees belonging to the Appellant Company without accounting for the same. The same was done with the active aid and connivance of the auditors of the Company. Therefore it was requested that an advocate Commissioner be appointed to conduct a forensic audit of the Appellant Company by taking assistance of an Auditor for the check period 31.03.2004 till date. The Application was resisted by Mr. Naveen Kishore on the ground that there is no illegal transfer of shares as alleged and the same are false allegations created for the purpose of denying the actual transactions done by Respondents. The Respondent No. 1 being the signatory of the Balance Sheet cannot plead ignorance of the share transfer shareholding shown in the records. The Respondents for the first time alleged the forgery and fabrication of documents which was never raised earlier. There is a vague allegation that Mr. Naveen Kishore started selling moveable and immovable properties of the company illegally however in support of the said allegation they have not filed any piece of evidence. The Respondent No. 1 being a signatory to the Balance Sheet and accounts of the company cannot seek appointment of another auditor to conduct a forensic audit. Company AppealNo. 2919 4 In the application it is not mentioned as to what were the sale proceeds which were not deposited in the account of the Company and were misappropriated or siphoned off by Mr. Naveen Kishore. Further the Company Petition is filed with the mala fide intention to cause irreparable loss and injury to the Appellant and to also make unnecessary litigation against the Appellant Company as well as personal properties of Mr. Naveen Kishore and his family. The Respondents ceased to be the shareholders of the Appellant Company. The Application is devoid of merits abuse of process of law and with a mala fide intention. Therefore liable to be dismissed. Ld. Tribunal allowed the application by passing the following Impugned Order dated 16.09.2019 which reads as under: “The interim application be and the same is allowed on contest. The parties are directed to suggest the name of an auditor a firm of auditor within two weeks for conducting forensic audit of the company. There is however no need for appointment of an advocate commissioner.” Being aggrieved by the said order the Appellant Company has filed this Appeal. Ld. Sr. Counsel for the Appellant submits that there is no prima facie finding of oppression or mismanagement as required under Section 242and 241 242 of the Companies Act. The Impugned Order is without reasoning or finding of fact and in fact contains a one line order directing that forensic audit be conducted. Company AppealNo. 2919 5 It is settled law that there must be a recording of reasons in the order in support of conclusion arrived at. The giving of reasons in support of their conclusions by the judicial or quasi judicial authority is essential to prevent unfairness or arbitrariness in reaching the conclusions. For this proposition he relied on the judgments rendered by the Hon’ble Supreme Court in the matters of Karanti Associates Pvt. Ltd. & Ors. Vs. Masood Ahmad Khan & Ors.9 SCC 496 and Woolcombers of India Ltd. Vs. Woolcombers Workers Union & Ors.3 SCC 318. It is also submitted that the faith of the people in Tribunals can be sustained only if the Tribunals act fairly and dispose of the matters before them by passing well considered orders as held by Hon’ble Supreme Court in the case of M s Bombay Oil Industries Pvt. Ltd. Vs. UOI & Ors.1 SCC 141. Ld. Sr. Counsel for the Appellant further submits that the affidavit filed in support of the application is not sufficiently stamped hence cannot be relied upon. For this purpose he placed reliance on the Judgment of Hon’ble Supreme Court in the case of Jupudi Kesava Rao Vs. Pulavarthi Venkata Subbarao & Ors. 1971) 1 SCC 545. It was further submitted that the application has been filed under Rule 131 of NCLT Rules 2016 which relates to production of documents and form of summons. An order of directing that a forensic audit to be conducted could not have been passed in such an application. The Respondents have also filed an Application with the prayer to examine the signature of Respondent Nos. 2 to 5 and the letter of resignation for verification of signature. The said application has Company AppealNo. 2919 6 been rejected by the Tribunal and the order has been affirmed by this Appellate Tribunal. Therefore there is no evidence that the Mr. Naveen Kishore has forged the signature on share transfer deed and resignation letter. Learned Senior Counsel for the Appellant also submits that the Respondent No. 2 filed an FIR against Naveen Kishore alleging forgery cheating and criminal breach of trust. However after investigation the investigating agency found the said allegations to be false. Therefore a closer report was filed. The Respondent No. 2 has also filed a pre litigation case before the District Legal Services Authority Guntur for the aforesaid allegations against Mr. Naveen Kishore however Respondent No. 2 himself prayed before the Authority to close the case. In such circumstances there is no ground to allow the application for forensic audit. The impugned order is cryptic and non speaking therefore liable to be set aside. 10. Per Contra Ld. Counsel for the Respondents supports the impugned order and submits that Mr. Naveen Kishore is a Managing Director of the Appellant Company and has taken advantage of his position by indulging in oppression and suppression and has illegally transferred the shares of Respondents No. 2 to 5 on the basis of fabricated share transfer deeds and the resignation letter dated 31.03.2014 of Respondent No. 2. Mr. Naveen Kishore has illegally alienated sold out the immovable properties of the Appellant Company and siphoned diverted the funds for purchasing about 50 immovable properties in his individual name and in the name of his family members. Further Mr. Naveen Kishore manipulated Company AppealNo. 2919 7 the financial statements with ulterior motives and failed to conduct board meeting from time to time. Ld. Tribunal having considered the matter from all angles is justified in passing the Impugned Order directing that forensic audit be conducted of the accounts of the Appellant Company. There is no merit in this Appeal and is hence liable to be dismissed. 11. After hearing the Ld. Counsel for the parties we have considered their rival submissions and examined the record. In the application there is a vague allegation of fabricating share transfer deeds and the resignation letter. In the application it is not mentioned that in what manner Mr. Naveen Kishore siphoned off the money from the Appellant Company and when has he purchased 50 properties in the name of his family members out of the funds of the Company. Even in the application it is not mentioned as to how and when the Respondents got the knowledge that Mr. Naveen Kishore has indulged in fraudulent sale transactions. Further in support of said allegations the Respondents have not place any document on record. 13. The Hon’ble Supreme Court in the Case of Kranti Associatesafter considering many earlier judgments summarized the principles on the recording of reasons which are reproduced below: “a. In India the judicial trend has always been to record reasons even in administrative decisions if such decisions affect anyone prejudicially. b. A quasi judicial authority must record reasons in support of its conclusions. c. Insistence on recording of reasons is meant to serve the wider principle of justice that justice must not only be done it must also appear to be done as well. d. Recording of reasons also operates as a valid restraint on any possible arbitrary exercise of judicial and quasi judicial or even administrative power. Company AppealNo. 2919 8 e. Reasons reassure that discretion has been exercised by the decision maker on relevant grounds and by disregarding extraneous considerations. f. Reasons have virtually become as indispensable a component of a decision making process as observing principles of natural justice by judicial quasi judicial and even by administrative bodies. g. Reasons facilitate the process of judicial review by superior Courts. h. The ongoing judicial trend in all countries committed to rule of law and constitutional governance is in favour of reasoned decisions based on relevant facts. This is virtually the life blood of judicial decision making justifying the principle that reason is the soul of justice. i. Judicial or even quasi judicial opinions these days can be as different as the judges and authorities who deliver them. All these decisions serve one common purpose which is to demonstrate by reason that the relevant factors have been objectively considered. This is important for sustaining the litigants faith in the justice delivery system. j. Insistence on reason is a requirement for both judicial accountability and k. If a Judge or a quasi judicial authority is not candid enough about his her decision making process then it is impossible to know whether the person deciding is faithful to the doctrine of precedent or to principles of incrementalism. l. Reasons in support of decisions must be cogent clear and succinct. A pretence of reasons or `rubber stamp reasons is not to be equated with a valid decision making m. It cannot be doubted that transparency is the sine qua non of restraint on abuse of judicial powers. Transparency in decision making not only makes the judges and decision makers less prone to errors but also makes them subject to broader scrutiny.100 Harward Law Review 731 737). n. Since the requirement to record reasons emanates from the broad doctrine of fairness in decision making the said requirement is now virtually a component of human rights and was considered part of Strasbourg Jurisprudence. See Ruiz Torija Vs. Spain19 EHRR 553 at 562 para 29 and Anya vs. University of Oxford 2001 EWCA Civ 405 wherein the Court referred to Article 6 of European Convention of Human Rights which requires "adequate and intelligent reasons must be given for judicial decisions". o. In all common law jurisdictions judgments play a vital role in setting up precedents for the future. Therefore for development of law requirement of giving reasons for the decision is of the essence and is virtually a part of "Due Process". In light of the principles laid down by the Hon’ble Supreme Court we have examined the Impugned Order which is reproduced in Para 4 of this order. 15. There is nothing in the order to justify the directions for conducting forensic audit of accounts of the Company that too for more than 15 years. The Adjudicating Authority must record reasons in support of conclusions. However Company AppealNo. 2919 9 in the Impugned Order no reasons are mentioned for the said directions. The order is cryptic and non speaking therefore it cannot be sustained. 16. With the aforesaid discussions we have no option but to set aside the Impugned Order. The Appeal is allowed however no order as to costs. New Delhi 27th May 2021 Company AppealNo. 2919 Justice Jarat Kumar Jain] MemberKanthi Narahari] Member

Sending request on facebook not to be presumed as consent for sexual act: Himachal Pradesh High Court

Just because a girl sends a request on Facebook, doesn’t mean that she has given her consent for a sexual act and it can’t be presumed that she must be an adult and not a minor. The judgment in the case of Rajeev vs. State of Himachal Pradesh [Cr.MP(M) No. 113 of 2021] was given while dismissing the bail petition of the petitioner (accused) by the single bench of Hon’ble Justice Anoop Chitkara. In the above-cited case, the petitioner had filed a petition for bail u/s 439 of CrPC. The petitioner (accused) was convicted for offences u/s 366 A &amp; 376 of the Indian Penal Code for doing sexual acts with a 13-year-old minor girl. An FIR was lodged by the victim’s father on 14-11-19, stating that his daughter went missing on 13-11-19. On 15-11-19, police recovered the victim from a hotel in Theog, Himachal Pradesh with the accused who was 19-year-old. The victim and the accused were then being taken to the hospital for medical examination where the reports were evident for sexual acts between both of them. Thus, police filed a report under Section 173(2) CrPC. The petitioner’s counsel had argued that the victim had sent a request to the accused on Facebook and that’s when they became friends. Accused wasn’t aware of the fact that the girl was a minor; he presumed that she must be above 18 years of age because it’s the minimum age required for making an account on Facebook. It was argued that the victim herself disclosed her age to be of above 18 years to the accused and he was a first offender; thus, incarceration before the proof of guilt would cause grave injustice to the petitioner and family. The High Court stated that under IPC and POCSO Act, a child under 18 years of age cannot consent for sex. As such, consent is out of the question in such cases. It was contended that the minimum age required for making an account on Facebook is 13 and not 18, so the grounds of the petitioner does not hold any sense. Hence, the petitioner’s contention that since the victim had a Facebook account, she must be of at least 18 years of age was invalid. High Court further stated that “It no way implies that children who create social media accounts do so to search for sexual partners, or they intend to receive such invitations. Just because the victim sent a friend request to the accused does not give him the right and liberty to establish sexual relations with her”.

Hig h C o urt of H.P on 07 02 HCHP 1IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLACr.MP(M) No. 1121Reserved on: 22nd January 2021.Date of Decision: 04th February 2021.Rajeev ...Petitioner.VersusState of H.P. ...Respondent.Coram:The Hon’ble Mr. Justice Anoop Chitkara Vacation Judge.Whether approved for reporting 1 YES.For the petitioner:Mr. Manoj Pathak Advocate. For the respondent:Mr. Narender Guleria & Mr. Vikas Rathore Addl.A.Gs. with Mr. Bhupender Thakur Gaurav Sharma& Ms. Divya Sood Dy. A.Gs.THROUGH VIDEO CONFERENCEFIR No.DatedPolice StationSections195 201914.11.2019Theog District Shimla376 363 IPC & 4 of POCSOActAnoop Chitkara Vacation Judge.A boy aged 19 years who is in custody for taking a girl aged around13 years to a hotel where he committed coitus with her has come up before thisCourt seeking regular bail on the ground that because since she had created aFacebook account in her name would make anyone believe her to be aged 18 yearsand more and this is what he also thought about her age.2.Earlier the petitioner had filed a petition under Section 439 CrPC before thisCourt. However vide order dated 27.10.2020 the same was dismissed as withdrawn1Whether reporters of Local Papers may be allowed to see the judgment Hig h C o urt of H.P on 07 02 HCHP 2with liberty to file afresh. Now he has filed this petition before this Court underSection 439 of the Code of Criminal Procedure 1973to create an account. The same is available on the followinghyperlink: https: www.facebook.com help 570785306433644. Hence thepetitioner s contention that since the victim has a Facebook account she must be of atleast 18 years of age is invalid because any person aged 13 years and above cancreate a Facebook account.8.Even otherwise people join social networking platforms like Facebook Twitter etc. intending to connect with friends and family and to expand the alreadyexisting social network from the comfort of one’s four walls. According to a reporttitled ‘Social Media for Youth and Civil Engagement in India’ published by UNDP India has 290 million registered users of Facebook in all age groups. Out of this 190million users are youth in the age group 15 29 years. Interestingly the millennials inthe age group 15 29 years constitute 66% of total Facebook users although theyconstitute only 27% of the total population. Therefore most of the youth are presentand active on such social media platforms. Hence it is not unusual for youngsters tomake new social connections by sending friend requests. It no way implies thatchildren who create social media accounts do so to search for sexual partners or theyintend to receive such invitations. The use of social media in present times is a norm.People use social media for networking knowledge and entertainment and indeednot to get stalked or be exploited sexually and mentally. Just because the victim senta friend request to the accused does not give him the right and liberty to establishsexual relations with her.9.In the present case the victim is a child in the first year of her teens. The factthat she sent the friend request on Facebook to the accused cannot lead to thepresumption that she did it with intent to allure the accused to establish coitus. Hig h C o urt of H.P on 07 02 HCHP 410.Another argument made by the petitioner s Counsel that the prosecutrix hadmentioned her age as 18 years on her Facebook profile is also immaterial. Noscreenshot or evidence of any kind has been annexed with the petition. Further it isnot uncommon for people to not reveal everything about their age and identity onsocial media as it is a public platform. If a child mentions the wrong age onFacebook it does not become a gospel truth and it certainly does not lead to a primafacie presumption that such person is not a child but a major of 18 years of age orabove. Even if hypothetically for bail the Court believes it to be correct thisargument does not hold much weight because when the petitioner saw the victim inperson he must have gathered that the victim is a child. A girl of 13 years and 3months of age cannot be presumed and believed to have an adult s physicalappearance. Hence the said argument is not acceptable and is subject to theappreciation of evidence led in the trial.11.Thus the petitioner s argument is that the accused believed the victim to be of18 years of age and committed the sexual act with her consent. However since thevictim was under 18 years of age and her consent is immaterial prima facie amountsto statutory rape. The legislature has been clear regarding the said clause and statesthat a person will be held liable if he commits sexual intercourse with a girl less than18 years of age with or without her consent.12.In Ragunath Ramnath Zolekar v State of Maharashtrathe Division Bench of Bombay High Courtvidejudgment dated 04.02.2013 dealt with many issues and mistake of age as a defencewas one of them. In the said case the defence while relying upon Bv.Director of Public Prosecutionsargued that mensrea is a partof Section 375 and 376 IPC and unless and until the knowledge of the accused thatthe prosecutrix being below the age of 16 years is proved the penal liability for thesaid act will not be attracted. However the Hon’ble Bench rejected the said argumentand went onto observe We therefore hold relying on the judgment in case of Bv. Director of Public Prosecutionsthat the phrase “with knowledge that prosecutrix is below 16years of age” cannot be read as if present in clause sixth ofSection 376 of the Indian Penal Code. If any such attempt ismade it shall amount to tinkering with the scheme of statute. Hig h C o urt of H.P on 07 02 HCHP 513.Learned Counsel for the petitioner referred to certain statements and memosfrom the police report prepared under Section 173(2) CrPC. As per the status report on 24th June 2020 the SHO had filed a Police report under Section 173CrPC.Despite that the petitioner did not place the relevant documents of the same on therecord to make out a case for bail. While considering the bail application when thepolice report is yet to be filed the Court may call for the Police file to look into thenature of allegations and evidence collected by the police however once the Policefile report seeking prosecution of the accused and its copy handed over to accused itis not for the Court to call for the record. Thus it is not for the Court to direct theState to produce the police report because the State represents society and the victimnor can base its findings on a document in the Counsel s brief and not on Court s file.It may be unfair to ask the State to hand over the documents that the opposite partywants to show to corroborate its arguments. Such a burden would be on the petitioneronce the accused under Section 207 CrPC receives the copy of the documents filedin the police report under Section 173CrPC.14.Given above in the facts and circumstances peculiar to this case at this stage the petitioner fails to make out a case for bail. The petition is dismissed with libertyto file new if so advised.15.Any observation made hereinabove is neither an expression of opinion on themerits of the case nor shall the trial Court advert to these comments.16.I express my gratitude to my interns Adv Sakshi Attri and Adv ApoorvaMaheshwari for their excellent perspective.The petition is dismissed.(Anoop Chitkara) Vacation Judge.February 04 2021 (mamta).

The Court must look into all the facts and circumstances of each case before considering any bail applications: Meghalaya High Court

As submitted at the bar the charges have been framed against the accused, for which he was at liberty to argue before charge and to present his case accordingly. Such an opinion was held by The Hon’ble High Court of Meghalaya before The Hon’ble Mr. Justice W. Diengdoh in the matter of Pankaj Kumar Bhardwaj Vs. State of Meghalaya [BA No.13/2021].  The facts of the case were associated with a prayer to release the petitioner on bail on any condition that may deem fit and proper by the court. The counsel representing the petitioner stated that in connection Special (POCSO) Case No.65/2021 under Section 363 IPC R/W Section 5(1)/6 POCSO Act, 2012 the petitioner was arrested. The FIR for the case was lodged by Shri. Bikash Goshwami who, on finding that his 14 years old daughter was found missing and the petitioner was named to be the main suspect. The counsel stated that the case was beyond the stage of the investigation and the chargesheet in the ‘Final Form’ as required u/s 173 Cr.P.C.  The senior Counsel stated that the said case involved a relationship between the alleged victim and the accused/petitioner and no question of kidnapping was in the case. Alleged Victim before the doctor stated that she came to Jorhat with her boyfriend who was the accused and lived in a hotel for 2 days. She admitted that they were in a relationship for two months and wanted to marry. The Counsel stated that charges were filed against the accused and since at that stage nothing could be done and as the accused was a young man of 23 years prayer for grant of bail is made before this Court with any condition to be imposed for which the petitioner will abide with the same. The Hon’ble Court, considering all the facts and submissions stated that “… this Court is of the considered opinion that the case of the petitioner for grant of bail cannot be considered at this juncture. Resultantly, this petition is devoid of merit, the same is hereby rejected. Matter is disposed of.” 

Serial No.01 Regular List BA No.13 2021 HIGH COURT OF MEGHALAYA AT SHILLONG Date of Decision: 17.11.2021 State of Meghalaya Pankaj Kumar Bhardwaj Vs. 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.: ii) Whether approved for publication Mr. S. C. Chakraborty Sr. Adv. with Mr. R. Nath Adv. Mr. B. Bhattacharjee AAG with Mr. A. H. Kharwanlang GA in press: 1. This is an application under Section 439 Cr.P.C with a prayer for release of the petitioner herein on bail on any conditions as may deem fit and proper by this Court. Corresponding reference is Madanrting P.S. Case No.23(03)2021 which was subsequently registered as SpecialCase No.65 2021 under Section 363 IPC R W Section 5(1) 6 POCSO Act 2012. 2. Heard Mr. S. C. Chakraborty learned Sr. counsel along with Mr. R. Nath learned counsel appearing for the petitioner who has submitted that the petitioner herein was arrested in connection with the above mentioned case on the basis of an FIR dated 04.03.2021 lodged by one Shri. Bikash Goshwami who on finding that his daughter aged about 14 years of age was found missing had lodged the said FIR and the petitioner herein was named as the main suspect. Accordingly the petitioner was arrested. 3. Mr. S. C. Chakraborty has further submitted that the case has travelled beyond the stage of investigation and the I.O. has eventually filed the charge sheet in the ‘Final Form’ as required u s 173 Cr.P.C. 4. Copy of the charge sheet including all relevant documents due and entitled to by the petitioner was received by him the same is being annexed with this instant 5. Learned Sr. counsel has led this Court to the statement of the victim under Section 164 Cr.P.C and has submitted that the case involves a relationship between the alleged victim and the accused petitioner and as such there is no question of kidnapping in this case. The statement of the alleged victim before the Doctor was also pointed out wherein the alleged victim has stated before the Doctor who has examined her on 10.03.2021 that she came to Jorhat with her boyfriend who is the accused and stayed in a hotel for 2(two) days. She also confessed that she wanted to marry him and that their relationship has been going on for almost 2(two) months. 6. However the thrust of the submission of the learned Sr. counsel is on the fact that the matter has been charge sheeted and according to his knowledge charges have also been framed against the accused and therefore at this stage there is no question of tampering with the evidence or witnesses and under the circumstances taking into account the fact that the petitioner is a young man of 23 years therefore prayer for grant of bail is made before this Court with any condition to be imposed for which the petitioner will abide with the same. 7. Also heard Mr. B. Bhattacharjee learned AAG along with Mr. A. H. Kharwanlang learned GA who has submitted that the reports reveals that the offences alleged against the petitioner herein are very serious in nature and the same involves a minor girl of about 14 years old. 8. Perusal of the statement made by the alleged victim under Section 164 Cr.P.C would also show that the accused has used force and deceit to compel the victim girl to run away with him on the said day. 9. Another submission of the learned AAG is that the list of witnesses cited by the prosecution includes a number of persons who are known to the petitioner and as such if enlarged on bail at this stage the possibility of influencing the said witness cannot be ruled out bail at this stage may not be granted. 10. Having heard the submission of the rival parties and on perusal of the application in hand including the contents of the annexures which contain copies of the charge sheet and statement of the witnessess including the statement of the alleged victim this Court is of the considered opinion that prima facie a case under the relevant sections and Law cited in the charge sheet have been made out against 11. Be that as it may be as submitted at the bar the charges have been framed against the accused for which he is at liberty to argue before charge and to present the petitioner herein. his case accordingly. 12. As far as the issue of discretion is concerned the Hon’ble Supreme Court in the case of Dataram Singh Vs. State of Uttar Pradesh and Anr.3 SCC 22 has reiterated the principle of bail as a general rule and keeping the person in jail is an exception. However at paragraph 6 of the same the Court has observed that bail should not be granted in every case and that the grant or refusal of bail is entirely within the discretion of the Judge hearing the matter and that discretion should be exercised judiciously. 13. It is also well settled that on consideration of a bail application the court must look to the facts and circumstances of each case and normally certain well entrenched guidelines and principles have been laid down for the court to consider viz. Prima facie satisfaction of the court that the accused has committed the offence. Possibility of the accused absconding and iii. Reasonable apprehension of witnesses and evidence being tampered with among others. 14. On the touch stone of the above cited principles this Court is of the considered opinion that the case of the petitioner for grant of bail cannot be considered at this 15. Resultantly this petition is devoid of merit the same is hereby rejected. 16. Matter is disposed of. No cost. Meghalaya “TiprilyntiPS”

Petitioner no. 1 has performed inter-caste marriage therefore the parties were well aware of the status of each other at the time of marriage: High Court of Patna

The petitioner no.1 was arrested under Section 406 of the Indian Penal Code, “Punishment for criminal breach of trust”, Section 420, “Cheating and dishonestly inducing delivery of property”, Section 380, “Theft in dwelling house, whoever commits theft in any building, tent or vessel, which building, tent or vessel is used as a human dwelling, or used for the custody of property, shall be punished with imprisonment and fine,” Section 120B, “ Punishment of criminal conspiracy”, Section 34 IPC, “Acts done by several persons in furtherance of common intention.” The petition is in connection with Bettiah Muffasil (Banuchhapar) [PS Case No. 561 of 2019] dated 05.10.2019. In the High Court of Judicature at Patna, this judgement was given by Honorable Mr Justice Ahsanuddin Amanullah on the 20th  of September  2021 in the case of Nikita Kumari and others Versus the State of Bihar, [Criminal Miscellaneous No. 34225 of 2020] Mr Bimlesh Kumar Pandey represented as the advocate for the petitioner, Mr Jagdhar Prasad represented the State of Bihar as the additional Public Prosecutor, and Mr Yogesh Chandra Verma,  represented as the advocate for the informant, the proceedings of the court were held via video conference. The case relates to the facts wherein the petitioner who is the wife of the informant was accused of concealing the fact of her already being married and she took a huge sum of money from the informant and failed to return the same. Further her brothers abused and assaulted the informant and the petitioner along with her relatives had taken away jewellery worth Rs. 50 lakhs, Rs. 1 lakh cash. The counsel representing the petitioner stated that the entire FIR is based on false accusations, the informant played a vital role in separating the petitioner no.1 from her first husband and the informant was helping her with her divorce therefore the petitioner’s first marriage was no secret. The petitioner legally has been separated from her first husband and the informant assured her of marriage. The petitioner had got by way of alimony, about Rs. 7 lakhs from her previous husband and after her second marriage she took the money to her matrimonial home and the informant was fully aware of the same. Further, the counsel held that there was a constant demand for dowry from the informant and his relatives. Petitioner no.1 has not been declared as a proclaimed offender therefore bail cannot be rejected. The petitioner has also lodged a complaint against the informant. The counsel further relies upon the following cases for the purpose of consideration of the prayer for anticipatory bail, Hon’ble Supreme Court in State of MP v. Pradeep Sharma, [(2014) 2 SCC 171]; Jharkhand High Court in Mahendra Kumar Ruiya vs. The State of Jharkhand etc. the counsel held that as the petitioner is a lady and also has an infant son to look after, the informant is caused such chaos to humiliate the petitioner no.1 and her family members because the marriage was an inter-caste love marriage. The additional public prosecutor held that the petitioner has been accused of cheating and the counsel for the informant held that it is not controverted that there is no order to prove that the petitioner is a proclaimed offender, however, the petitioner does not deserve anticipatory bail as she concealed the fact that she was already married. The Honourable Court concluded that “the petitioner no. 1 cannot be said to have evaded the process of law or concealed herself. Petitioner no. 1 was available for any interrogation or otherwise which may have been required. Petitioner no. 1 has not been declared a proclaimed offender. Thus, the Court does not find that there is any legal bar for consideration of the present case on merits. Petitioner no. 1 has performed inter-caste Court marriage and there is an infant son born, the same is sufficient to indicate that the parties were well aware of the status of each other at the time of marriage. Thus, the Court is inclined to allow the prayer for pre-arrest bail. Petitioner no. 1, will be released on bail upon furnishing bail bonds of Rs. 25,000/- (twenty-five thousand) to the Judicial Magistrate. The petition stands disposed of in the aforementioned terms.”

IN THE HIGH COURT OF JUDICATURE AT PATNA CRIMINAL MISCELLANEOUS No. 342220 Arising Out of PS. Case No. 561 Year 2019 Thana MUFFASIL District West Champaran 1. Nikita Kumari aged about 34 years Female Wife of Ranjan Kumar Ranjan Jha Daughter of Nirmal Prasad Jaiswal @ Nirmal Jaiswal @ Nirmal Prasad Resident of Sant Kabir Road Banuchhapar PS Banuchhpara OP District West Champaran. At Present resident of Village Dharahara PS Banmankhi District Purnia Sudha Rani Jaiswal aged about 65 years Female Wife of Nirmal Prasad Jaiswal @ Nirmal Jaiswal @ Nirmal Prasad. 3. Nirmal Prasad Jaiswal @ Nirmal Jaiswal @ Nirmal Prasad aged about 70 years Male Son of Late Harihar Prasad Jaiswal. 4. Niraj Jaiswal @ Niraj Nayan aged about 45 years Male Son of Nirmal Prasad Jaiswal @ Nirmal Jaiswal Petitioner No. 2 to 4 are residnt of Village Dharahara PS Banmankhi District Purnia The State of Bihar ... Petitioner s ... Opposite Party s For the Petitioner s For the State For the Informant Mr. Bimlesh Kumar Pandey Advocate Mr. Jagdhar Prasad APP Mr. Yogesh Chandra Verma Senior Advocate with Mr. Anand Kumar Mishra Advocate CORAM: HONOURABLE MR. JUSTICE AHSANUDDIN AMANULLAH ORAL JUDGMENT Date : 20 09 2021 The matter has been heard via video conferencing 2. Heard Mr. Bimlesh Kumar Pandey learned counsel for the petitioner no. 1 the sole petitioner after withdrawal of the petition on behalf of the petitioners no. 2 to 4 Mr. Jagdhar Prasad learned Additional Public Prosecutorfor the State and Mr. Yogesh Chandra Verma learned Patna High Court CR. MISC. No.342220 dt.20 09 2021 senior counsel along with Mr. Anand Kumar Mishra learned counsel for the informant 3. The petitioner no. 1 apprehends arrest in connection with Bettiah MuffasilPS Case No. 5619 dated 05.10.2019 instituted under Sections 406 420 380 and 120B 34 of the Indian Penal Code 4. The allegation against the petitioner who is the wife of the informant is of concealing the fact of being already married and also taking huge amount of the informant which was not returned and thereafter that her brothers had abused and assaulted the informant and finally that the petitioner no. 1 and her other relatives had taken away jewellery worth Rs. 50 lakhs Rs. 1 lakh cash and the son of the informant who is born to the petitioner no 1 with them 5. Learned counsel for the petitioner no. 1 submitted that the entire FIR is based on falsehood. It was submitted that it was the informant who was instrumental in the separation of the petitioner no. 1 from her first husband and in fact it was he who was pursuing the matter relating to her divorce. It was submitted that when the petitioner no. 1 had filed a case against her previous husband which was finally compromised on 17.01.2012. He submitted that thereafter the parties had separated and in fact it Patna High Court CR. MISC. No.342220 dt.20 09 2021 was the informant who had assured the petitioner no. 1 that they could marry and to his full knowledge the marriage was performed between the petitioner no. 1 and the informant on 26.07.2012. Learned counsel submitted that the petitioner no. 1 had got by way of alimony about Rs. 7 lakhs from her previous husband and upon marriage she had taken the money to the matrimonial home and the same was fully appropriated by the informant. Learned counsel submitted that continuously the demand for dowry money kept on pouring from the informant and his relatives. It was submitted that later on formal decree of divorce was also obtained between the petitioner no. 1 and her previous husband. Learned counsel submitted that on the previous occasion an objection was raised by learned counsel for the informant with regard to maintainability of the present petition in view of processes under Sections 82 and 83 of the Code of Criminal Procedure 1973(2012) 8 SCC 730 especially paragraph no. 10 which has clearly laid down that when the accused is ‘absconding’ and declared as ‘proclaimed offender’ there was no question of granting anticipatory bail. It Patna High Court CR. MISC. No.342220 dt.20 09 2021 was submitted that in the same stroke the Hon’ble Supreme Court has stated that when a person against whom a warrant had been issued and is ‘absconding or concealing himself in order to avoid execution of warrant’ and is declared as a ‘proclaimed offender’ in terms of Section 82 of the Code is not entitled the relief of 6. Learned counsel submitted that in the present case the informant has filed a counter affidavit bringing on record the orders passed by the Court below which do not show that it has been held against the petitioner no. 1 that she is ‘concealing herself and absconding’ and further that she has not been declared a ‘proclaimed offender’. Learned counsel submitted that in the case which the petitioner no. 1 has filed against the informant and his family members being Bettiah Muffasil PS Case No. 6919 dated 13.12.2019 the Investigating Officer of the present case and the said case is the same person. It was submitted that the petitioner no. 1 is the informant of the other case and on 13.12.2019 the same Investigating Officer had taken the restatement of the petitioner no. 1 which clearly indicates that she was not trying to evade the process of law or absconding for the reason that the order of the Court below in the present case had already issued non bailable warrant of arrest and the same was Patna High Court CR. MISC. No.342220 dt.20 09 2021 handed over to the Investigating Officer on 05.12.2019 itself Thus learned counsel submitted that for the purposes of consideration of the prayer for anticipatory bail as far as the instant case is concerned there is no legal impediment to the same. For the same proposition learned counsel relied upon the decisions of the Hon’ble Supreme Court in State of MP v Pradeep Sharma 2 SCC 171 Jharkhand High Court in Mahendra Kumar Ruiya vs. The State of Jharkhand and Another dated 27.06.2013 a co ordinate Bench of this Court dated 07.02.2019 in Cr. Misc. No 622017as also order dated 20.08.2020 of the High Court of Chhattisgarh Bilaspur in MCRCA No. 19 of 2020 with two sureties of the like amount each to the satisfaction of the learned Chief Judicial Magistrate Bettiah West Champaran in Bettiah Muffasil Patna High Court CR. MISC. No.342220 dt.20 09 2021 Banuchhapar) PS Case No. 5619 subject to the conditions laid down in Section 438(2) of the Code of Criminal Procedure 1973 and further that the petitioner no. 1 shall co operate with the Court and police prosecution. Failure to co operate shall lead to cancellation of her bail bonds 14. It shall also be open for the prosecution to bring any violation of the foregoing conditions by the petitioner no. 1 to the notice of the Court concerned which shall take immediate action on the same after giving opportunity of hearing to the petitioner 15. The petition stands disposed of in the (Ahsanuddin Amanullah J

Court granted bail to the Petitioner charged under NDPS Act (Narcotic Drugs and Psychotropic Substances) : High Court of Delhi

Petitioner was granted bail, who was charged under Section 67 of NDPS Act under certain condition held by High Court of  Delhi through the learned HON’BLE MS. JUSTICE MUKTA GUPTA in the case of NAMAN SHARMA vs STATE THROUGH NARCOTICS CONTROL BUREAU in case no. (BAIL APPLN. 3673/2021) on March 04, 2022. Facts of the case are that  counsel for the petitioner contends that as per the statement recorded under Section 67 of the NDPS Act which is inadmissible in evidence, the best case of the respondent is that the petitioner used to consume Ganja in the year 2017 and the payments thereof were made in the year 2021. According to  the investigation, the group was created by Mohd. Aslam and Parichay Arora and merely because the petitioner was also made an admin of the group, the liability of the entire group cannot be fastened on the petitioner. Even from the transactions of payments made to Mohd. Aslam and Neil Singhvi by the petitioner at best four or five transactions have been shown wherein amounts transferred are ₹11,000, ₹5700, ₹1000, ₹2000 etc. The petitioner is not a drug trafficker. Though not admitting, even if at some stage the petitioner consumed the drugs, the same would not amount to dealing in a drug trafficking racket. He further states that the similarly placed co-accused namely Devesh Vasa and Aashray Pandey has been granted bail by the learned Special Court and hence, on parity  the petitioner should also be granted bail. The complaint has been filed and the petitioner is no more required for investigation as he was working after completing his studies at Kolkata when he was picked up by the officers of the respondent and implicated in this case. Learned counsel for the respondent states that in view of the embargo under Section 37 of the NDPS Act, no case for grant of bail to the petitioner is made out as there is every possibility that on being released on bail, the petitioner will again indulge in same kind of activities and the petitioner being a part of the larger drug network, his role cannot be segregated from the other accused. On this the learned counsel for petitioner states that on the basis of an information, Guhan Sarvothaman was intercepted at the IGI Airport on 4th August 2021. On his search, 30 gms. of ganja and 0.45 gms. of Ecstasy were recovered. In the interrogation, he disclosed about Rahul Mishra and Aashray Pandey thenafter they were intercepted and found with drugs and cash, and they linked to a Telegram App named Orient  Express Group in which the petitioner was one of the admin of said social media group. As per the prosecution, no recovery of contraband was made from the petitioner and the only evidence against him is that he was one of the admin of Orient express group which was created by Mohd. Aslam and Parichay Arora and that the petitioner had transferred certain sums of money. As complaint has already been filed by the respondent; the petitioner is in judicial custody since 4th September 2021 and is no more required for investigation. Consequently, the Court deems it fit to grant bail to the petitioner. It is therefore directed that the petitioner be released on bail on his furnishing a personal bond in the sum of ₹1 lakh with two surety bonds of the like amount each, and petitioner will not leave country without prior permission and will appear before the NCB office in Kolkata on the first Monday of every month at 6:00 PM.

IN THE HIGH COURT OF DELHI AT NEW DELHI NAMAN SHARMA Reserved on: February 24 2022 Decided on: March 04 2022 BAIL APPLN. 3673 2021 ….. Petitioner Represented by: Mr. Anurag Bindal Mr. Ankur Gupta and Mr. B. Khan Advocates. STATE THROUGH NARCOTICS CONTROL ..... Respondent Represented by: Mr. Rajesh Manchanda Special P.P. for the NCB. HON BLE MS. JUSTICE MUKTA GUPTA MUKTA GUPTA J. By this petition the petitioner seeks regular bail in case No. VIII 46 DZU 2021 under Sections 8(c) 20 22 29 of the NDPS Act on a complaint filed by the respondent NCB. Learned counsel for the petitioner contends that even as per the statement recorded under Section 67 of the NDPS Act which is inadmissible in evidence the best case of the respondent is that the petitioner used to consume Ganja in the year 2017 and the payments thereof were made in the year 2021. Even as per the investigation the group was created by Mohd. Aslam and Parichay Arora and merely because the petitioner was also made an Admin of the group the liability of the entire group cannot be fastened on BAIL APPLN. 3673 2021 the petitioner. Even from the transactions of payments made to Mohd. Aslam and Neil Singhvi by the petitioner at best four or five transactions have been shown wherein amounts transferred are ₹11 000 ₹5700 ₹1000 ₹2000 etc. The petitioner is not a drug trafficker. Though not admitting even if at some stage the petitioner consumed the drugs the same would not amount to dealing in a drug trafficking racket. He further states that the similarly placed co accused namely Devesh Vasa has been granted bail by this Court and Aashray Pandey has been granted bail by the learned Special Court and hence on parity the petitioner be also granted bail. The petitioner was working after completing his studies at Kolkata when he was picked up by the officers of the respondent and implicated in this case. The complaint has been filed and the petitioner is no more required for investigation. Learned counsel for the respondent states that in view of the embargo under Section 37 of the NDPS Act no case for grant of bail to the petitioner is made out as there is every possibility that on being released on bail the petitioner will again indulge in same kind of activities and the petitioner being a part of the larger drug network his role cannot be segregated from the other accused. Case of the prosecution in nutshell is that on the basis of an information Guhan Sarvothaman was intercepted at the IGI Airport on 4th August 2021. On his search 30 gms. of ganja and 0.45 gms. of Ecstasy were recovered. In the interrogation he revealed about his friend Rahul Mishra his address and the possibility of recovery of contraband from his house. Search was made at the house of Guhan Sarvothaman at Greater Noida resulting in recovery of 1 kg of ganja and ₹15.5 lakhs in cash. Search was also made at the house of Rahul Mishra at Faridabad from where 1.05 kg of ganja was recovered. Guhan Sarvothaman further BAIL APPLN. 3673 2021 disclosed about one accused Aashray Pandey who was intercepted at Ambience Mall with a parcel containing 410 gms. of ganja. Guhan Sarvothaman also informed about one Tareena Bhatnagar who had promised to get him high quality ganja and for which she had paid a sum of ₹6 lakhs to Jasbir Singh. Thus the links of Jasbir Singh were sought to be traced and it was found that Jasbir Singh operated under the pseudo name Optims Prime and Sharadha Surana operated under the pseudo name Beanskey on Telegram App in Orient Express Group. The Orient Express Group wherein number of people were indulging in sale and purchase of narcotics was created by Parichay Arora and Mohd. Aslam and the petitioner was one of the Admins of the said social media group. On the disclosure of Jasbir Singh and Sharadha Surana search was conducted at the house of Suvashish Roy at Greater Noida from where 1.250 kgs. of Ganja 16 gms. Ecstasy pills 6 gms. Heroine 40 gms. of Charas and 130 gms. of suspected psychotropic substance in different coloured little pills were found and 39.700 gms. concentrate of cannabis and 2.530 gms. liquid cannabis from a parcel at Foreign Post Office Kolkata. One more accused Raghunath Kumar was identified who was recognized as Shopper stop on Wicket App who used to arrange narcotics drugs. According to the investigation the contraband was marketed on social media platforms and then delivered to the customers consumers through parcels. Admittedly even as per the prosecution no recovery of contraband was made from the petitioner and the only evidence against him is that he was one of the Admins of Orient express group which was created by Mohd. Aslam and Parichay Arora and that the petitioner had transferred certain sums of money. As per the statement of accounts placed on record a sum of ₹11 000 was transferred by the petitioner to Mohd. Aslam on 21st June BAIL APPLN. 3673 2021 2020 ₹5700 to Neil Singhvi on 9th October 2020. Further two transactions of ₹1000 each and a transaction of ₹2300 have been made to Parichay Arora. Even in the statement of the petitioner recorded under Section 67 of the NDPS Act which is not admissible in evidence in view of the decision of the Hon’ble Supreme Court reported as 4 SCC 1 Tofan Singh Vs. State of Tamil Nadu it is stated that in August 2020 during the lockdown the petitioner was looking to buy weed for his consumption through telegram thus used the keywords like ‘weeds marijuana’ when he entered into two groups where he got scammed of ₹3500 . In the same group there was a user named Chico who asked the petitioner to join another group where there was a seller with the user name Pptheplugwho sent him some weed for the first time in advance without paying him which made him believe that he was a real seller. Later Aslam and Parichay Arora started adding more people in the group and made it a group of 200 members. In the group there were 5 7 sellers who used to send weed parcels via courier services and the petitioner was one of them who used to buy for his consumption. From the facts of the complaint as noted above and even based on the statement under Section 67 of the NDPS Act and the money transactions it is evident that the petitioner was at best consuming narcotics drugs which he used to buy from the sellers in the group. Complaint has already been filed by the respondent the petitioner is in judicial custody since 4th September 2021 and is no more required for investigation. Consequently this Court deems it fit to grant bail to the petitioner. It is therefore directed that the petitioner be released on bail on his furnishing a personal bond in the sum of ₹1 lakh with two surety bonds of the like amount each subject to the satisfaction of the learned Trial BAIL APPLN. 3673 2021 Court CMM Duty Magistrate out of which one surety would be a family member of the petitioner further subject to the conditions that the petitioner will not leave the country without the prior permission of the Court concerned and in case of change of residential address and or mobile number the same will be intimated to the Court concerned by way of an affidavit. Further the petitioner will appear before the NCB office at Kolkata on the first Monday of every calendar month at 6.00 P.M. Petition is disposed of. Order be uploaded on the website of this Court. MUKTA GUPTA) MARCH 04 2022 BAIL APPLN. 3673 2021

When a person hunts any of the wild animals which are included under Schedule I to IV, it becomes an offence u/s 51 of the Wild Life (Protection) Act, 1972: Supreme Court

“Both Indian Soft-shelled Turtle and Indian Flap Shell Turtle are two different species or part of single species or a subspecies of the latter are matters of expert evidence and ought to have been decided only under trial”, this remarkable stand was forwarded by the Honorable SC in the miscellaneous appeal case of Titty Alias George Kurian V. The Deputy Range Forest Officer, [R.P(Cri.) No. 593 Of 2018)] in [C.A. No. 758 Of 2018], chaired by Hon’ble Justice Mr. Ashok Bhushan and Hon’ble Justice Ms. Indu Malhotra. This appeal has been filed against the judgment dated 16.11.2017 of the Kerala HC by which the HC has allowed Criminal M.C. No.2720 of 2017 filed by the respondent by quashing proceedings in C.C. No.706 of 2016. The Deputy Range Forest Officer aggrieved by judgment of the High Court has come up in this appeal. The facts of the case briefly are: On 25.07.2016 from the respondent, Titty alias George Kurian a Turtle was seized by Rani Forest Flying Squared by a Range Staff at Karumbanakulam. The offence under Section 2, 9, 39A, 49A and 51 of the Wild Life (Protection) Act, 1972 was registered. A charge-sheet was submitted by the Forest Officer. After seizure of the Turtle, the same was sent for identification to Veterinary Surgeon who by its letter dated 26.07.2016 identified the Turtle on inspection as “Indian Flap Shell”, the scientific name is “Lissemys Punctata”. The Court on 27.07.2016 directed the Turtle to be freed. The respondent/accused filed an application before the High Court for quashing the criminal proceedings. It was submitted before the High Court that Indian Flap Shell Turtle which was seized was not found included in Schedule I of Part II of the Wild Life (Protection) Act, 1972, hence, such possession of the Turtle of that species will not invite the offences alleged against the accused. The High Court being satisfied that Turtle seized was not that species of Turtle which is included in Part II of Schedule I of the Act, 1972, allowed the application and quashed the criminal proceedings. Aggrieved by the judgment of the High Court this appeal has been filed by the Deputy Range Forest Officer. Learned counsel for the appellant contends that whether Indian Soft-shelled Turtle and Indian Flap Shell Turtle are two different species or part of single species or a subspecies of the latter are matters of expert evidence and ought to have been decided only under trial and the High Court committed error in allowing the application under Section 482 Cr.P.C. After examining all the submissions, arguments and evidences forwarded by the councils, the Hon’ble SC in this present appeal overruled the decision made by the HC, with the direction that, “A perusal of the letter given by the Veterinary Surgeon as extracted above indicates that Veterinary Surgeon has identified the Turtle as ‘Indian Flap Shell (Lissemy’s Punctata)’ whereas the Turtle which is included in Part II of Schedule I of the Act, 1972 is “Indian Soft-shelled Turtle (Lissemys punctata punctata).” Lissemys punctata is a species of which Lissemys punctata is infraspecies. Although Lissemys punctata is included in Part II of Schedule I of the Act, however, the Turtle which has been seized is not that which is included in Part II of Schedule I. In the facts of the present case, on the face of it, the Turtle seized is not included in Schedule I Part II and the Turtle having already been freed on the second day of its seizure, the High Court did not commit any error in quashing the criminal proceedings registered for Wild Life offences.”

IN THE CRIMINAL APPELLATE JURISDICTION REVIEW PETITIONNO. 593 OF 2018 CRIMINAL APPEAL NO.758 OF 2018 TITTY ALIAS GEORGE KURIAN …PETITIONER(S THE DEPUTY RANGE FOREST OFFICER …RESPONDENT(S JUDGMENT ASHOK BHUSHAN J We have heard Shri Abhilash M.R. learned counsel appearing for the petitioner and Shri Nishe Rajen Shonker learned counsel for the respondent We find sufficient ground to review the judgment dated 16.05.2018. The order of this Court dated 16.05.2018 is recalled. The review petition is allowed This appeal has been filed against the judgment dated 16.11.2017 of the Kerala High Court by which the High Court has allowed Criminal M.C. No.2720 of 2017 filed by the respondent by quashing proceedings in C.C No.706 of 2016. The Deputy Range Forest Officer aggrieved by judgment of the High Court has come up in The facts of the case briefly are On 25.07.2016 from the respondent Titty alias George Kurian a Turtle was seized by Rani Forest Flying Range Staff at Karumbanakulam. The offence under Section 2 9 39A 49A and 51 of the Wild Life Protection) Act 1972 was registered. A charge sheet was submitted by the Forest Officer. After seizure of the Turtle the same was sent for identification to Veterinary Surgeon who by its letter dated 26.07.2016 identified the Turtle on inspection as “Indian Flap Shell” the scientific name is “Lissemys Punctata”. The Court on 27.07.2016 directed the Turtle to be freed. The respondent accused filed an application before the High Court for quashing the criminal proceedings It was submitted before the High Court that Indian Flap Shell Turtle which was seized was not found included in Schedule I of Part II of the Wild Life and Indian Flap Shell Turtle are two different species or part of single species or a subspecies of the latter are matters of expert evidence and ought to have been decided only under trial and the High Court committed error in allowing the application under Section 482 Cr.P.C Learned counsel for the respondent supporting the order of the High Court contends that when the Turtle seized does not find mention in the Schedule of the Wild LifeAct 1972 there is no occasion for registering any offence and the registration of offences has rightly been quashed by the High Court with which no interference is called for. He further submits that Turtle was seized on 25.07.2016 and was freed on 27.07.2016 and being not available for further examination the report of the Veterinary Surgeon is only material to look into and scientific name which was given by the Veterinary Surgeon does not find place in the Schedule of the Act 1972 We have considered the submissions of the learned counsel for the parties and have perused the records The following reasons have been given by the High Court for allowing the Criminal M.C. of the respondent “4. On a perusal of Part II of Schedule I of the Act it seems that Item No.8 is Indian Soft Shell Turtle (Lissemys Punctata Punctata). The certificate issued by the Senior Veterinary Surgeon to the Range Officer Erumely in this case shows that the Turtle seized in this case is Indian Flap Shell Turtle (Lissemys Punctata). The above said Schedule does not contain the species named Indian Flap Shell Turtle. When the Turtle in question is not one belongs to Indian Soft Shell Turtle the capture or its possession cannot be treated as an offence within the meaning of the Wild Life Protection Act. Matters being so all further proceedings in C.C.No.706 2016 of the Judicial Court II Kanjirappally based on OR No.5 2016 of the Erumely Forest Range as against the petitioner are liable to be quashed.” 10. After seizure of the Turtle on 25.07.2016 on next day the reference was made by the Deputy Range Officer to Veterinary Surgeon for identification of the Turtle The Veterinary Surgeon after inspection wrote a letter on 26.07.2016 to the Range Officer to the following Dr. Anil Kumar T Senior Veterinary Surgeon B.V. Sc & A.H. Veterinary Hospital Reg. No.1329 Erumely Range Officer Erumely Subject: Species identification Reference: Deputy Range Officer on 26.07.2016 As per the above reference on 26.07.2016 a turtle belonging to a turtle family was brought for identification and on inspection it is found that the turtle is Indian Flap Shel and the scientific name is “Lissemy’s Punctata” and therefore it is certified 26 07 2016 11. The Veterinary Surgeon identified the Turtle as ‘Indian Flap Shell’ and the scientific name “Lissemy’s Punctata”. Item No.8 Schedule I Part II is to the “8. Indian Soft shelled Turtle (Lissemys 12. Section 9 of the Act 1972 prohibits hunting of any wild animal under Schedule I II III and IV except as provided under Sections 11 and 12. Sections 11 and 12 are the provisions where hunting is permitted by the permission of Chief Wild Life Warden. In case a person hunts any of the wild animals which are included in Schedule I to IV it becomes an offence inviting the penalty under Section 51 of the Act 1972 13. A perusal of the letter given by the Veterinary Surgeon as extracted above indicates that Veterinary Surgeon has identified the Turtle as ‘Indian Flap Shell Lissemy’s Punctata)’ whereas the Turtle which is included in Part II of Schedule I of the Act 1972 is “Indian Soft shelled Turtle (Lissemys punctata punctata).” Lissemys punctata is a species of which Lissemys punctata is infraspecies. Although Lissemys punctata is included in Part II of Schedule I of the Act however the Turtle which has been seized is not that which is included in Part II of Schedule I. In the facts of the present case on the face of it the Turtle seized is not included in Schedule I Part II and the Turtle having already been freed on the second day of its seizure the High Court did not commit any error in quashing the criminal proceedings registered for Wild Life offences. 14. We do not find good ground to interfere with the order of the High Court by which the High Court has exercised its jurisdiction under Section 482 Cr.P.C. On the facts of the present case the appeal is dismissed ( ASHOK BHUSHAN ( INDU MALHOTRA NEW DELHI DECEMBER 09 2020

Banks and financial institutions have an obligation to maximize the value of borrowers’ securities while attempting to minimize their losses: Delhi High Court

The Delhi High Court has stated that banks and financial institutions have an obligation to increase the value of the securities provided to them by borrowers while attempting to minimize their losses in order to balance the interests of stakeholders. While banks seek collateral and securities to minimize losses, it is acceptable to expect them to respect the rights of borrowers in order to maximize their profits from the sale of such securities by banks, according to Justice Asha Menon. The observations were made in a petition Pushpa Builders LTD v The Vaish Cooperative Adarsh Bank LTD filed by a construction company seeking to have a District Judge’s order quashed. The Petitioner was the Judgement Debtor, and the respondent bank, Vaish Cooperative Adarsh Bank, was the Decree-Holder, seeking the execution of a Final Decree dated August 20, 1996. According to the Petitioner, the negotiated rate of interest was 18 per cent simple interest per year. Furthermore, it was asserted that the Petitioner was inadvertently impeding the sale of the property by filing several applications, but the courts have never accepted the Petitioner’s request to suspend the auction proceedings. The Court said the bank’s objections had validity, it said, “Though the petitioner has been repeatedly making efforts to get the terms relating to interest modified by the Court, it has repeatedly failed to obtain a favourable interpretation from this Court. The plea sought to be raised now to again seek a modification is only to be rejected and is so rejected.” The question before the Court was whether borrowers would have no protection against banks and financial organizations selling their mortgaged houses at cheap prices arbitrarily. The Court was of the view that “The attempt of the banks and financial institutions such as the respondent to minimize their losses makes good business sense, there cannot be a free run for them at the cost of the borrowers who have mortgaged to them or furnished valuable property as security to assure repayment, which are worth multiple times the value of the loan.” “When major borrowers of banks and financial institutions have been given this kind of protection where the banks also take a ‘hair cut’ and the value of the assets of the borrowers are maximized, can smaller borrowers be denied the bare minimum of maximization of the value of their assets which have been provided as security to the banks, such as the respondent? This Court is of the view that similar balancing of interests of the stake holders would be imperative and there is an obligation on the banks and financial institutions to maximize the value of the assets which have been furnished to them as security by the borrowers while they attempt to minimize their own losses.”

IN THE HIGH COURT OF DELHI AT NEW DELHI Pronounced on: 2nd September 2021 CM(M) 281 2020 & CM APPL. 8357 2020PUSHPA BUILDERS LTD Petitioner Through Mr. Anant Aggarwal Advocate THE VAISH COOPERATIVE ADARSH BANK LTD Respondent Through Mr. Surender Chauhan Adv. with Mr. Sunil Jain DGM and Sh. Sunil Dogra ManagerHON BLE MS. JUSTICE ASHA MENON JUDGMENT This petition has been filed under Article 227 of the Constitution of India for quashing setting aside of the order dated 13th January 2020 passed by the learned Additional District Judge Executing Court Saket Courts in Ex. No. 337 2017. The petitioner is the Judgement Debtor and the respondent as the Decree Holder has sought the execution of the Final Decree dated 20th August 1996. Some of the relevant facts may be noted at this juncture. The petitioner had on 4th November 1987 secured a loan of Rs 20 lakhs from the respondent against the mortgage of Plot No M 5 G.K.II New Delhi. CM(M) 281 2020 A Mortgage Deed was executed on 15th January 1988. The agreed rate of interest according to the petitioner was 18% simple interest per annum. Since the petitioner defaulted in the repayment of the loan a suit was filed in the High CourtNo. 1174 1991] by the respondent for the recovery of Rs.20 19 158.65 along with interest @ 18% p.a. from the date of filing of the suit till recovery with a further prayer for the sale of the mortgaged property in case of non payment. A preliminary decree was passed on 21st February 1992 upon an application filed under Order XXIII Rules 1 & 3 CPC. In terms of the said preliminary decree based on a compromise arrived at between the parties the petitioner had agreed to pay by 30th June 1995 a sum of Rs.23 37 177 along with costs of proceedings amounting Rs.22 688.75 The petitioner claims that the interest upon the decretal amount was simple and subject to RBI Guidelines. In 1994 the petitioner went into liquidation and defaulted in making payments. This resulted in a final decree being passed on 20th August 1996 directing the sale of the mortgaged property. Execution was filed on 26th May 1997 being Ex. P. No. 180 1997 for the recovery of Rs.57 04 365.90 as on 31st March 1997. The petitioner was directed vide orders dated 28th July 2010 to deposit the decretal amount along with simple interest. This order of the Single Bench of this court was upheld by the Division Bench vide order dated 2nd April 2013. A Special Leave Petition was filed by the petitioner which was dismissed by the Supreme Court on 21st April 2014 when the CM(M) 281 2020 petitioner failed to comply with the earlier order dated 30th September 2013 whereby the petitioner was directed to deposit a sum of Rs. One crore as it could deposit only Rs.50 lakhs. Due to the enhancement in the pecuniary jurisdiction of this court the Execution Petition was transferred to the District Court. An order of attachment of the property was issued on 12th March 2018 and the possession taken on 13th April 2018. The valuers at the behest of the respondent submitted a valuation report dated 18th May 2018 valuing the property at Rs. 24 16 78 125 . 7. Mr. Anant Aggarwal the learned counsel for the petitioner has submitted that the grievance of the petitioner is two fold. One is that the respondent has wrongly calculated the interest liability of the petitioner by taking a compound rate and thus exceeding 18% which is the upper limit fixed by the RBI under its Guidelines. Attention has also been drawn to the Circular of the RBI dated 26th August 2002that provided that the effective rate of interest should not be exceeded whereas here it was 18%. Secondly the learned counsel has argued that despite the respondent’s valuer fixing the valuation of the property at more than Rs 24 crores when the property was to be put for auction it reduced the reserve price to Rs.16 00 00 000 from Rs. 18 13 00 000 and thereafter during Covid 19 pandemic times when real estate prices were depressed chose to seek court directions to reduce the price further to Rs.13 75 00 000 . Learned counsel for the petitioner submitted that the rights of the CM(M) 281 2020 petitioner had been severely affected on account of the reduction in value of the property by about 40 45 percent from the valuation made by the respondent itself. It was also submitted that since already Rs. 4 crores had been paid against the loan of Rs.20 lakhs the respondent had no reason to reduce the reserve price even below the distress valuation of Rs 16 crores. 9. Mr. Surender Chauhan learned counsel for the respondent on the other hand submitted that the petitioner was repeatedly raising the issue of interest rates even after this court had held that the respondent was entitled to compound interest. It was submitted that the respondent’s Manager had on 16th October 2018 made a statement before the Executing Court that in case the petitioner was willing to abide by its undertaking given before the court on that day then the respondent would not charge any interest from that day onwards on the outstanding amount of Rs.10 62 96 813.15 which was the amount payable calculated up to 30th September 2018. Learned counsel submitted that since the petitioner failed to abide by that undertaking the respondent became entitled to claim the interest i.e. at the rate of 18% which was in terms of the RBI Circular. Thus now a sum of Rs.15 12 36 049.45 was due as on 30th September 2020.281 2020 due and rejecting the calculation of the petitioner that the amount due was Rs.7 51 15 440 This order was not challenged by the petitioner. Thus the learned counsel for the respondent submitted that the issue of interest cannot be re agitated at this juncture. 11. Learned counsel for the respondent also submitted that the petitioner has been malafidely blocking the sale of the property by continuously moving applications but the courts have never accepted the plea of the petitioner to stay the auction proceedings. As a result the sale has already been effected of the property for a sum of Rs.13 75 00 000 except that the Sale Certificate had to be issued. Learned counsel for the respondent prayed that the petition be therefore dismissed. 12. There is weight in the contention of the learned counsel for the respondent that the issue of calculation and the interest rate cannot be agitated now. This court had in its order dated 02nd April 2013 reiterated that the compromise was clear and specific in its stipulation of the charging of interest with quarterly rests and that interest was therefore to be charged on compound interest basis. As regards the RBI Circular which has been placed on record the learned counsel for the petitioner has not been able to explain how the interest being charged by the respondent was violative of this Circular. It is just another attempt to get over the terms of the compromise by raising a vague plea that the Circular of the RBI was being violated particularly in view of the observations of this court on this plea in the order dated 02nd April 2013. The petitioner remains bound by the terms of the compromise on the basis of which the preliminary decree dated 21st February 1992 was CM(M) 281 2020 passed. Though the petitioner has been repeatedly making efforts to get the terms relating to interest modified by the court it has repeatedly failed to obtain a favourable interpretation from this court. The plea sought to be raised now to again seek a modification is only to be rejected and is so rejected. 13. However with regard to the grievance of the petitioner that the value of the property has been arbitrarily depressed causing immense loss to the petitioner requires some consideration. Though it cannot be overlooked that the petitioner is singularly responsible for the amount repayable to the respondent increasing exponentially over decades by not adhering to its undertakings for making payments on time even when the respondent has been open to some accommodation the petitioner cannot be so penalized that it should be made to suffer grave prejudice on account of any arbitrary action taken by the respondent. While it does make business sense for the respondent to minimize its losses this objective cannot authorize the respondent or any other similarly placed institutional decree holders to force penury on its erstwhile customer. 14. On query by this Court the learned counsel for the respondent submitted that by 30th September 2020 the loan which was originally for a sum of Rs.20 lakhs taken on 4th November 1987 had become Rs.15 12 36 049.45p and further submitted that Rs.13 75 00 000 which was the consideration for the mortgaged property would still leave a balance of about Rs.2 crores as due and payable on the loan which the respondent would be recovering from the petitioner against other assets. It is in this context that it has become necessary to consider the question CM(M) 281 2020 whether borrowers would have no protection against arbitrary disposal of the properties mortgaged to banks and financial institutions at low prices. 15. This Court is of the view that while the attempt of the banks and financial institutions such as the respondent to minimize their losses makes good business sense there cannot be a free run for them at the cost of the borrowers who have mortgaged to them or furnished valuable property as security to assure repayment which are worth multiple times the value of the loan. 16. Business entities take loans no doubt at commercial rates of interest in order to conduct their business activities. The Banks such as the respondent thrive on the business of lending. If the Banks have to survive then borrowers must exist and not mere borrowers but productive borrowers. The Banks seek collaterals and security to prevent losses to themselves. It is but reasonable to expect the Banks such as the respondent to also respect the right of the borrowers to maximize their profits from the sale of collaterals securities by the banks. 17. The non payment of loans is of course not to be countenanced but where the Banks such as the respondent seek to sell the immovable properties that are provided as security including through mortgage it is incumbent on them to be earnest in their efforts so that the valuable security is not disposed of to the prejudice of the borrower. 18. These days the attempt is to ensure that a business entity is not pushed into liquidation or insolvency when they are unable to repay the loans. To this end the Insolvency and Bankruptcy Code 2016as CM(M) 281 2020 amended from time to time was passed by the Parliament. The objects and reasons for passing of the IBC included maximization of the value of the assets of the borrowers. It was also intended to ensure availability of credit while balancing the interest of all the stake holders. When major borrowers of banks and financial institutions have been given this kind of protection where the banks also take a ‘hair cut’ and the value of the assets of the borrowers are maximized can smaller borrowers be denied the bare minimum of maximization of the value of their assets which have been provided as security to the banks such as the respondent This Court is of the view that similar balancing of interests of the stake holders would be imperative and there is an obligation on the banks and financial institutions to maximize the value of the assets which have been furnished to them as security by the borrowers while they attempt to minimize their own losses. 19. To reiterate when collaterals and securities are provided by borrowers which would be available to the creditors for sale and transfer to recover outstanding dues the creditors have the responsibility to get a fair and market value for the said collateral security immovable property. It is quite a common practice to claim that the value of the property has been depressed because the Bank’s attachment lien exists over the property. However this kind of argument does not appeal as the consideration is to be paid by the purchaser as per market rates to whosoever is entitled to receive it i.e. either the original owner or the creditor. It is also incumbent on all Receivers of property security to maintain them in good condition and not to allow the CM(M) 281 2020 property to waste. The creditor cannot later on claim that the property under its custody had become dilapidated and therefore cannot command the market value. The creditor would be responsible for the loss of such value and such practices that lead to distress sales below par have to be completed rooted out not just discouraged. In the present case it is noteworthy that in the year 2018 when the property had been attached and the possession taken by the respondent it had got the property valued. On 18th May 2018 the bank valuer had placed the value of the property at Rs.24 16 78 125 . The record shows that as on 16th October 2018 the Manager of the respondent had stated in court that the outstanding loan amount was Rs.10 62 96 813.15 as on 30th September 2018. Again as on 26th November 2018 the Executing Court had accepted the contention of the respondent that what was due and payable by the petitioner to the respondent was a sum of Rs.9 73 16 217.15 as on 31st March 2018. Thus the value of the property in the year 2018 as assessed by the respondent’s valuer far exceeded the outstanding amount. 21. On 11th January 2019 the respondent moved an application under Order XXI Rule 54(1A) read with Rule 64 read with Section 151 CPC for initiation of the auction proceedings. The order was issued for proclamation and sale with the reserve price of the property at Rs.18 13 00 000 . But on 8th May 2019 the respondent moved an application for re scheduling the proclamation of sale with a revised reserve price of the property. The respondent sought the reduction of reserve price from Rs.18 13 00 000 to Rs.16 00 00 000 . The learned CM(M) 281 2020 Executing Court allowed this reduction rejecting the objections of the petitioner vide order dated 10th July 2019. On 24th October 2019 the respondent again moved the Executing Court for further revising downwards the reserve price to Rs.13 75 00 000 . This was also allowed by the Executing Court vide the impugned order. 22. What this means is that though when the respondent had come into the possession of the mortgaged property on 13th April 2018 and as on 18th May 2018 the property was worth more than Rs.24 crores while it remained in the hands of the respondent the value of the same property had plummeted by about half. It may be that in the Covid 19 pandemic period the Real Estate sector has seen some diminished activities but it cannot be overlooked that it was in the year 2019 itself that the respondent had sought to revise downwards the value of the mortgaged property from Rs.24 16 78 125 to Rs.18 13 00 000 to Rs.16 crores and thereafter to Rs.13 75 00 000 . 23. The property in question is a commercial buildingconsisting of a basement ground Mezzanine 1st 2nd and 3rd floors located in Greater Kailash II. It is also to be noticed that when the impugned order was passed on 13th January 2020 the pandemic was not so virulent. The plea taken by the respondent that the Covid situation had caused the depression in valuation cannot be accepted. This Court is of the view that the Executing Court ought not to have so readily agreed to the repeated downward revision of the reserved price between 2019 and 13th January 2020 281 2020 always exercise caution and be circumspect while dealing with such applications bearing in mind the consequences of the action taken on the interests of the borrowers and to see that these are not prejudiced. In the present case prime commercial property originally worth more than Rs.24 crores has been purportedly sold for almost half the price with no one responsible. This kind of situation has to be avoided for which the Executing Court will have to maintain a vigilant eye on the auction proceedings. 24. Turning to the case at hand as on 30th September 2020 the outstanding was more than Rs.15 crores. Had the property been sold even for a sum of Rs.16 crores clearly the Bank would have recovered all its outstanding dues while the petitioner would have also had around Rs.75 lakhs in its kitty. Now the outstanding would have crossed another crore. But the Bank claims to have received only Rs.13 75 00 000 from the sale of the mortgaged property. Thus an outstanding amount of almost Rs.2.5 crores remains. This the respondent will now seek to recover from the petitioner. The unjustness is writ large. 25. As this Court had allowed the auction to continue at the reserve price of Rs.13 75 00 000 subject to final orders in this petition there are only two options now available. One is to direct the purchaser to pay a sum of Rs.16 crores towards the sale purchase subject to which the Sale Certificate be issued. The other option is to direct the Executing Court to record a satisfaction of the Preliminary Decree dated 21st February 1992 and the Final Decree dated 20th August 1996 for a sum of Rs.13 75 00 000 at which the mortgaged property has been auctioned. CM(M) 281 2020 26. This Court is inclined to adopt the second course of action. The petition is accordingly disposed of along with pending application learned Executing Court to record satisfaction of Preliminary Decree dated 21st February 1992 and the Final Decree dated 20th August 1996 while issuing the Sale Certificate to the auction purchaser recording that no further dues against this loan remains outstanding and payable by the petitioner to the respondent. 27. The parties are directed to appear before the learned Executing Court on 6th September 2021 for this purpose. 28. Copy of this order be sent electronically to the learned Executing Court. 29. The judgment be uploaded on the website forthwith. ASHA MENON) SEPTEMBER 02 2021 CM(M) 281 2020

An able-bodied husband must be presumed to be capable of earning sufficiently to maintain his family: High Court of Delhi

An able-bodied husband must be presumed to be capable of earning sufficient money to maintain his wife and children, and cannot contend that he is not in a position to earn sufficiently to maintain his family and the same was upheld by High Court of Delhi through the learned bench led by Justice Subramonium Prasad in the case of VISHAL KUMAR vs. SMT. SONAM KHALOTRA [CRL.M.C. 3500/2021] on 25.01.2022. The facts of the case are that the marriage of the petitioner and the respondent was solemnized at Jammu. The petitioner was working in Hyderabad and, thereafter, the parties were staying in Hyderabad. The material on record discloses that some differences arose between the parties. Thereafter, the petitioner and the respondent resided separately since the year 2018. The respondent herein filed an application praying for protection orders. In the said application, the respondent also prayed for interim maintenance. The petitioner seeks to challenge the order passed by the learned Mahila Court for fixing the interim maintenance in favour of the respondent u/s 23 of Protection of Women from Domestic Violence Act, 2005 for a sum of Rs.25,000 per month which includes monthly expenditure, rent allowance, medical expenses, travel expenses etc. The petitioner’s counsel submitted that the petitioner lost his job and that the petitioner is unemployed and living with his parents at Jammu whereas the respondent is a practising Doctor at a clinic in New Delhi. He further stated that there is nothing on record on the basis of which the learned MM could come to the conclusion that the petitioner is earning a sum of Rs.80,000 per month. In view of the facts and circumstances of the cases, Court was of the opinion that there is no perversity in approach of Appellate Court as it has given valid and cogent reasons. An interim maintenance for a sum of Rs.25,000 was fixed and accordingly, the petition was dismissed. The Court observed that contention of the petitioner that he was not appointed to the post of Panchayat Accounts Assistant only because of the complaint of the respondent has not been substantiated in fact there is nothing on record which would indicate that factor and it is only ipse dixit of the petitioner. The Court held that “an able-bodied husband must be presumed to be capable of earning sufficient money to maintain his wife and children, and cannot contend that he is not in a position to earn sufficiently to maintain his family”.

IN THE HIGH COURT OF DELHI AT NEW DELHI Date of decision: 25th January 2022 IN THE MATTER OF: CRL.M.C. 3500 2021 VISHAL KUMAR ..... Petitioner Through Mr. G L Verma Mr. J K Nayyar and Mr. Ajay Sharma Advocates Through None SMT. SONAM KHALOTRA ..... Respondent HON BLE MR. JUSTICE SUBRAMONIUM PRASAD SUBRAMONIUM PRASAD J. The petitioner seeks to challenge the order dated 01.02.2021 passed by the learned MM Patiala House Court New Delhi fixing the interim maintenance in favour of the respondent herein under Section 23 of Protection of Women from Domestic Violence Act 2005 for a sum of Rs.25 000 per month which includes monthly expenditure rent allowance medical expenses travel expenses etc. from the date of the complaint and the order dated 1.12.2021 passed by the learned ASJ 04 Patiala House Court rejecting an application for preponment of the appeal stay of the order dated 01.02.2021 fixing the above mentioned The facts in brief leading to the filing of the instant petition are as maintenance. CRL.M.C. 3500 2021 a) The marriage of the petitioner and the respondent was solemnized on 05.03.2018 at Jammu. The petitioner was working in Hyderabad and thereafter the parties were staying in Hyderabad. The material on record discloses that some differences arose between the parties. Thereafter the petitioner and the respondent have been residing separately since December 2018. b) The respondent herein filed an application under Section 12 18 and 19 of the Protection of Women from Domestic Violence Act 2005 praying for protection orders. In the said application the respondent herein also prayed under Section 23 of the Protection of Women from Domestic Violence Act 2005 for interim maintenance. c) It is pertinent to mention here that the petitioner filed a petition under Section 9 of the Hindu Marriage Act 1955 for restitution of conjugal rights in Jammu and the respondent filed a complaint under Section 498 406 34 IPC at Delhi. d) The learned MM while considering the application under Section 23 of the Protection of Women from Domestic Violence Act 2005 came to the conclusion that the respondent is staying in Delhi and therefore this Court has the jurisdiction to entertain the application. On the basis of material on record the learned MM also held that there was sharing of domestic relationship in a shared household which would entitle the respondent herein for relief under the Protection of Women from Domestic Violence Act 2005. e) Income affidavits were filed by the parties. The learned MM on the basis of income tax returns found that the petitioner has earned approximately Rs.18 lacs in the year 2018 19 a sum of Rs. 12 lacs in CRL.M.C. 3500 2021 the year 2019 20 and a sum of Rs. 21 000 in the year of 2020 21. After considering the income tax returns and other documents the income of the petitioner was assessed Rs.80 000 per month. This was done after taking into consideration that the petitioner has earned only Rs.21 000 in the year 2020 21. The learned MM held that no doubt that the petitioner must be facing certain financial crisis due to COVID 19 but the respondent must also be facing the same financial crisis. On the basis of the above discussion the learned MM fixed the interim maintenance for a sum of Rs.25 000 per month to the respondent herein vide order dated 01.02.2021. f) The said order dated 01.02.2021 has been challenged in an appeal by the petitioner herein. The said appeal is under consideration. Material on record indicates that an execution petition was filed and notice has been issued in the said petition. The petitioner filed an application for stay of the order dated 01.02.2021 and 17.11.2021 passed by the learned MM 02 Patiala House Courts New Delhi and for the preponement of hearing of appeal on the ground that the execution petition has been filed by the respondent wife. The learned ASJ 04 Patiala House Court New Delhi was not inclined to grant stay of the order dated 01.02.2021 and 17.11.2021 and to prepone the hearing of the appeal and therefore dismissed the said application vide order dated 01.12.2021. Learned counsel for the petitioner states that the petitioner has lost his job. It is further stated by the learned counsel for the petitioner that the petitioner had qualified for the post of Panchayat Accounts Assistant conducted by J & K Service Selection Board. He states that the respondent CRL.M.C. 3500 2021 had written letters to J & K Service Selection Board informing them about the cases pending against the petitioner to ensure that the petitioner does not get the job. He states that the petitioner is unemployed and living with his parents at Jammu whereas the respondent is a practising Doctor at a clinic in New Delhi. He states that there is nothing on record on the basis of which the learned MM could come to the conclusion that the petitioner is earning a sum of Rs.80 000 per month. He states that the past income tax returns cannot be a guide for the learned MM to make a guess work and come to the conclusion that the petitioner is roughly earning a sum of Rs.80 000 per Heard learned counsel for the petitioner and perused the material on The contention of counsel for the petitioner that the petitioner was not appointed to the post of Panchayat Accounts Assistant only because of the complaint of the respondent has not been substantiated and there is nothing on record which would indicate that factor. It is the only ipse dixit of the petitioner. The income tax returns are a safe guide to assess the income of the petitioner. The Apex Court in Rajnish vs. Neha 2 SCC 342 has held that an able bodied husband must be presumed to be capable of earning sufficient money to maintain his wife and children and cannot contend that he is not in a position to earn sufficiently to maintain his family. The interim maintenance for a sum of Rs.25 000 has been fixed by the learned MMPatiala House Courts New Delhi vide order dated 01.02.2021. The petitioner has filed an appeal against the order dated 01.02.2021 passed by the learned MM Patiala CRL.M.C. 3500 2021 House Courts New Delhi which is under consideration. The learned Appellate Court has given valid and cogent reasons in the order dated 01.12.2021 as to why it is unable to prepone the hearing of the appeal. The learned Appellate Court is justified to state that merely because an execution petition has been filed by the respondent wife the hearing of the appeal need not be preponed. This Court is of the opinion that there is no perversity in such an approach of the learned ASJ 04 New Delhi District Patiala House Courts New Delhi. The next date of hearing of the case is 09.02.2022. After having filed the appeal against the order dated 01.02.2021 it is not open for the petitioner to challenge the very same order in the instant petition. The challenge to the said order therefore cannot be entertained. As far as the order dated 01.12.2021 is concerned the learned ASJ has given valid and cogent reasons as to why the hearing has not been preponed. This Court therefore does not find any reasons to interfere with the order dated 01.02.2021 and 01.12.2021. 10. Accordingly the petition is dismissed along with all the pending application(s) if any. JANUARY 25 2022 S. Zakir SUBRAMONIUM PRASAD J CRL.M.C. 3500 2021

Alleged of Assault and Shooting at the informant to exert undue pressure to withdraw the FIR lodged and case filed, the Petitioner was denied bail: High Court Of Patna

The Petitioner was Alleged of Assault and Shooting at the informant to exert undue pressure to withdraw the FIR lodged and case filed, the Petitioner was denied bail: High Court Of Patna The Petitioner was alleged of assaulting and firing on the informant and had threatened him to withdraw the FIR lodged by the Informant’s nephew. The matter was heard and under the light of all facts and circumstances and taking reference from the previous case the Court denied the pre-arrest bail. . The Hon’ble High Court of Patna before Justice Mr. Ahsanuddin Amanullah in the Md Irshad v. The State of Bihar[Criminal Miscellaneous No. 12365 of 2021].  The facts were that the petitioner was apprehended arrest in connection with the Case, instituted under Sections 341, 323, 307, 504, and 506/34 of the Indian Penal Code and 27 of the Arms Act, 1959. It was alleged that the petitioner along with others had visited the house of the informant and had abused and threatened him to withdraw the case made by the nephew of the informant against the accused and have thereafter assaulted by iron rod and the petitioner had specifically fired at him and which eventually hit the inside wall leading to broken glass. The Petitioner submitted and contended that they had already filed a complaint FIR earlier than them and also it has been found that no one suffered any injury and that their FIR was lodged after the three hours of the incident. The Learned Additional Public Prosecutor submitted that the petitioners had the real motive and intentions to hurt the informant and this can be easily derived from the FIR launched in the previous matter by the informant’s nephew. Undue pressure has been exerted by the petitioner’s side to make them withdraw the FIR. Also, many discrepancies were found with the time of lodging the FIRs by both parties and were on different time slots. However, the previous case was ought to be considered on its own merits. 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 is not inclined to grant pre-arrest bail to the petitioner.” The Petition was hence denied and was dismissed.

IN THE HIGH COURT OF JUDICATURE AT PATNA CRIMINAL MISCELLANEOUS No. 123621 Arising Out of PS. Case No. 116 Year 2020 Thana MUNGER MUFFASIL District Munger Md Irshad Male aged about 25 years Son of Mohd Jameel Resident of Village Banaudha PS Muffasil District Munger The State of Bihar ... Petitioner s ... Opposite Party s For the Petitioner s For the State Mr. Shivendra Kumar Sinha Advocate Mr. Niranjan Parihar APP CORAM: HONOURABLE MR. JUSTICE AHSANUDDIN AMANULLAH ORAL JUDGMENT Date : 24 08 2021 The matter has been heard via video conferencing 2. The case has been taken up out of turn on the basis of motion slip filed by learned counsel for the petitioner which was 3. Heard Mr. Shivendra Kumar Sinha learned counsel for the petitioner and Mr. Niranjan Parihar learned Additional Public Prosecutor for the 4. The petitioner apprehends arrest in connection with Muffasil PS Case No. 1120 dated 14.05.2020 instituted under Sections 341 323 307 504 and 506 34 of the Indian Penal Code and 27 of the Arms Act 1959. Patna High Court CR. MISC. No.123621 dt.24 08 2021 5. The allegation against the petitioner and others is that they had come to the house of the informant and had abused and threatened to withdraw the case filed by the nephew of the informant against the accused persons and thereafter of having assaulted by iron rod and specifically against the petitioner is that he had fired which hit the inside wall after breaking the window 6. Learned counsel for the petitioner submitted that they had earlier filed Muffisil PS Case No. 1120 against the informant and others. It was submitted that no injury has been caused to anybody. It was submitted that the FIR has been lodged after almost three hours of the incident 7. Learned APP submitted that from the FIR itself it is clear that the accused including the petitioner had real motive to commit the crime as they were accused in the earlier case filed by the nephew of the informant and for getting the same withdrawn they had tried to exert undue pressure. It was further submitted that the allegation in the FIR is corroborated by recovery of empty cartridge. As far as the other case is concerned it was submitted that the same has to be seen on its own merits. Moreover it was submitted that the present FIR has been lodged at 9:45 AM on 14.05.2020 and the time of the incident is said to be 8:30 AM Patna High Court CR. MISC. No.123621 dt.24 08 2021 whereas the petitioner’s side had filed the case on 14.05.2020 at 9:30 AM for an incident which is said to have taken place between 4:00 PM on 12.05.2020 and 10:00 AM on 13.05.2020 and thus the delay in lodging of the said case is almost 24 hours 8. Having considered the facts and circumstances of the case and submissions of learned counsel for the parties the Court is not inclined to grant pre arrest bail to the petitioner. 9. Accordingly the petition stands dismissed (Ahsanuddin Amanullah J

Consent given under false promise of marriage is similar to consent u/s 90 of IPC: High Court of Orissa

If an accused from the very beginning of the relationship has made a promise of marriage without any intention to fulfil that promise and in place of such assurance that the accused would marry her, she gave her permission for sexual intercourse with the accused, then that consent does not amount to true consent. It shall fall within the ambit of the misunderstanding of reality. This auspicious judgment was passed by the High Court of Orissa in the matter of Rinku Pradhan vs State of Odisha and another. [BLAPL/6629/2020] by Honourable Justice S.K. PANIGRAHI. The petitioner has filed the “instant application under Section 439 of Cr. P.C. seeking bail in connection with alleged commission of offences punishable under Sections 376(1)/313/294/506 of the Indian Penal Code and Sections 66(E) and 67(A) of the Information Technology (Amendment) Act, 2008”. The petitioner met with the claimant at the relative’s house and later reached her by telephone and tricked her into love with him. They formed an intimate friendship and the petitioner maintained a physical tie to her promising marriage. The plaintiff was pregnant twice due to an intimate arrangement, which was aborted by the petitioner after he gave her medication. The claimant requested the petitioner to marry her on 22.01.2020, but then he refused to let the families of the plaintiff meet the family members of the petitioner to get their permission for such a wedding. But they still rejected the invitation for marriage. The family of the claimant fixed her marriage elsewhere with no solution. The petitioner, however, posted the complainant’s images alongside his subtitle claiming that the complainant’s character was not decent. The petitioner further mentioned that the complainant had a relationship with him but was marrying someone else.  This led to a breakdown in the marriage of the claimant and its defamation of society. The petitioner has even threatened to viral lewd Facebook images and to abduct and execute her.  Relying on the Anurag Soni vs. the State of Chhattisgarh, the court stated that “if an accused from the very beginning has given a promise of marriage without any intention to fulfil that promise and in lieu of such promise that the accused will marry her, she gave her consent for sexual intercourse with the accused, then such consent would not amount to valid consent. It shall come within the ambit of the misconception of fact under Section 90 of IPC. Thus, such consent shall not excuse the accused from the charges for the offence of rape under Section 375 of IPC.”

HIGH COURT OF ORISSA: CUTTACK BLAPL No.6629 OF 2020 Rinku Pradhan … Petitioner State of Odisha and another … Opposite Parties For Petitioner : M s. Nishikanta Mishra and S. K. Pal Advocates For Opposite Parties :Mr. Sibani Sankar Pradhan Additional Standing Counsel For the State) M s. T. K. Mohanty D.K. Mohanty and S. Das Advocates For the informant) THE HONOURABLE SHRI JUSTICE S.K. PANIGRAHI Date of Hearing: 05.03.2021 Date of judgment: 31.03.2021 1. The petitioner has filed the instant application under Section 439 of Cr. P.C. seeking bail in connection with Chandaka P.S. Case No.76 of 2020 corresponding to G.R. Case No.306 of 2020 pending in the Court of the learned Judicial Magistrate First Class O) Bhubaneswar. The petitioner herein is the accused in connection with alleged offences punishable under Sections 376(1) 313 294 506 of the Indian Penal Code and Sections 66(E) and 67(A) of the Information Technology Act 2008. The case of the prosecution is that the petitioner met the complainant in the house of the latter’s relative and thereafter contacted her over phone and lured her to fall in love with him. Thereby they developed a romantic relationship and the petitioner kept physical relationship with her promising her to marry. Due to physical relationship the complainant became pregnant twice which the petitioner aborted by giving medicine to her. On 22.01.2020 the complainant asked the petitioner to marry her but he denied and thereafter the family members of the complainant contacted petitioner’s family members to get their consent for such marriage. However they denied the marriage proposal as well. Having no alternative the complainant’s family fixed her marriage elsewhere. However on 26.04.2020 the petitioner posted personal photographs of the complainant along with him using fake Facebook IDs created in her name and used a caption stating that the character of the complainant is not good. The petitioner further mentioned that the complainant had relationship with him but was marrying someone else. As a result of this the complainant’s marriage was broken and she was defamed in the society. Additionally the petitioner has threatened to viral the obscene photographs in the Facebook and also threatened to kidnap her and kill her. Thereafter the complainant lodged an FIR and the accused was forwarded on 27.06.2020. Heard Mr. N. Mishra learned counsel appearing for the petitioner Mr. S.S. Pradhan learned Additional Standing Counsel for the State and Mr. T.K. Mohanty learned counsel appearing for the informant and perused the case records. Mr. N. Mishra learned counsel for the petitioner has submitted that the medical report does not reveal that the rape has been committed although the matter was reported for such purposes on 02.05.2020. Additionally no prima facie case is established against the petitioner. Further he has submitted that the petitioner is in no way connected with the case rather he has fallen prey to a conspiracy. The complainant being in rival terms has tried to victimise the petitioner. The present case has been foisted in a fabricated manner to harass the present petitioner. Hence the petitioner should be granted bail. The facts of the case and the conduct of the petitioner require a brief analysis especially this being a sensitive issue concerning the plight of the victim. The Hon’ble Apex Court has dealt with such issues in so many In the case of Kaini Rajan v. State of Kerala1 this Court has explained the essentials and parameters of the offence of rape. In the said decision the Court observed and held as under: “12. Section 375 IPC defines the expression “rape” which indicates that the first clause operates where the woman is in possession of her senses and therefore capable of consenting but the act is done against her will and second where it is done without her consent the third fourth and fifth when there is consent but it is not such a consent as excuses the offender because it is obtained by putting her on any person in whom she is interested in fear of death or of hurt. The expression “against her will” means that the act must have been done in spite of the opposition of the woman. An inference as to consent can be drawn if only based on evidence or probabilities of the case. “Consent” is also stated to be an act of reason coupled with deliberation. It denotes an active will in the mind of a person to permit the doing of an act complained of. Section 90 IPC refers to the expression though does not define “consent”. Section 90 “consent” but describes what not consent “Consent” for the purpose of Section 375 requires voluntary participation not only after the exercise of intelligence based on significance and moral quality of the act but after having fully exercised the choice between resistance and assent. Whether there was consent or not is to be ascertained only on a careful study of all relevant the knowledge of 1(2013) 9 SCC 113. 6. A strict interpretation of the provisions of Section 375 IPC states that sexual intercourse with a woman without her consent is punishable as rape. Additionally judiciary has dealt with this clamour with the use of concepts such as “misconception of facts under Section 90 of IPC” and “intention of accused from the beginning” to provide justice to the parties. However a certain viewpoint has not been reached and still under the shroud of confusion. There is a need for the amendment in the legislation defining what constitutes “sexual intercourse” with the prosecutrix on the “pretext of a false promise of marriage”. As in the present scenario the law on this matter lacks clarity for the conviction of the accused. Similarly in the case of Yedla Srinivasa Rao vs. State of A.P.2 the Supreme Court iterated “9. The question in the present case is whether this conduct of the accused apparently falls under any of the six descriptions of Section 375 IPC as mentioned above. It is clear that the prosecutrix had sexual intercourse with the accused on the representation made by the accused that he would marry her. This was a false promise held out by the accused. Had this promise not been given perhaps she would not to have sexual the accused have permitted intercourse. Therefore whether this amounts to a consent or the accused obtained a consent by playing fraud on her. Section 90 of the IPC says that if the consent has been given under fear of injury or a misconception of fact such consent obtained cannot be construed to be valid consent. Section 90 reads as Section 90. Consent known to be given under fear or misconception. A consent is not such a consent as is intended by any section of this Code if the consent is given by a person under fear of injury or under a misconception of fact and if the person doing the act knows or has reason to believe that the consent was given in consequence of such fear or misconception … 10. It appears that the intention of the accused as per the testimony of PW1 was right from the beginning not honest and he kept on promising that he will marry her till she became pregnant. This kind of consent obtained by the accused cannot be said to be any consent because she was under a misconception of fact that the accused intends to marry her therefore she had submitted to sexual intercourse with him. This fact is also admitted by the accused that he had committed sexual intercourse which is apparent from the testimony of PWs 1 2 and 3 and before the Panchayat of elders of the village. It is more than clear that the accused made a false promise that he would marry her. Therefore the intention of the accused right from the beginning was not bona fide and the poor girl submitted to the lust of the accused completely being misled by the accused who held out the promise for marriage. This kind of consent taken by the accused with clear intention not to fulfill the promise and persuading the girl to believe that he is going to marry her and obtained her misconception cannot be treated to be a consent.” intercourse under the sexual 7. The Supreme Court in the case of Anurag Soni vs. State of Chhattisgarh3 iterated that if an accused from the very beginning has given a promise of marriage without any intention to fulfill that promise and in lieu of such promise 3AIR 2019 SC 1857. that the accused will marry her she gave her consent for sexual intercourse with the accused then such consent would not amount to valid consent. It shall come within the ambit of the misconception of fact under Section 90 of IPC. Thus such consent shall not excuse the accused from the charges for the offence of rape under Section 375 of IPC. The Court iterated “14. Considering circumstances of the case and the evidence on record the prosecution has been successful in proving the case that from the very beginning the accused never intended to marry the prosecutrix he gave false promises promise to the prosecutrix to marry her and on such false promise he had a physical relation with the prosecutrix the prosecutrix initially resisted however gave the consent relying upon the false promise of the accused that he will marry her and therefore her consent can be said to be a consent on misconception of fact as per Section 90 of the IPC and such a consent shall not excuse the accused from the charge of rape and offence under Section 375 of the IPC. Though in Section 313 statement the accused came up with a case that the prosecutrix and his family members were in knowledge that his marriage was already fixed with Priyanka Soni even then the prosecutrix and her family members continued to pressurise the Accused to marry the prosecutrix it is required to be noted that first of all the same is not proved by the accused. Even otherwise considering the circumstances and evidence on record referred to hereinabove such a story is not believable …. As observed hereinabove from the very inception the promise given by the accused to marry the prosecutrix was a false promise and from the very beginning there was no intention of the accused to marry the prosecutrix as his marriage with Priyanka Soni was already fixed long back and despite the same he continued to give promise false promise and alluded the prosecutrix to give her consent for the physical relationship. Therefore considering the aforesaid facts and circumstances of the case and considering the law laid down by this Court in the aforesaid decisions we are of the opinion that both the Courts below have rightly held that the consent given by the prosecutrix was on misconception of fact and therefore the same cannot be said to be a consent so as to excuse the accused for the charge of rape as defined under Section 375 of the IPC. Both the Courts below have rightly convicted the accused for the offence under Section 376 of the IPC. 15. .The prosecution has been successful by leading cogent evidence that from the very inspection the accused had no intention to marry the victim and that he had mala fide motives and had made false promise only to satisfy the lust. But for the false promise by the accused to marry the prosecutrix the prosecutrix would not have given the consent to have the physical relationship. It was a clear case of cheating and deception. As observed hereinabove the consent given by the prosecutrix was on misconception of fact. Such incidents are on increase now a days. Such offences are against the society. Rape is the most morally and in a society an physically reprehensible crime assault on the body mind and privacy of the victim. As observed by this Court in a catena of decisions while a murderer destroys the physical frame of the victim a rapist degrades and defiles the soul of a helpless female. Rape reduces a woman to an animal as it shakes the very core of her life. By no means can a rape victim be called an accomplice. Rape leaves a permanent scar on the life of the victim. Rape is a crime against the entire society and violates the human rights of the victim. Being the most hated crime the rape tantamounts to a serious blow to the supreme honour of a woman and offends both her esteem and dignity. Therefore merely because the Accused had married with another lady and or even the prosecutrix has subsequently married is no ground not to convict the appellant accused for the offence punishable under Section 376 of the IPC. The Appellant accused must face the consequences of the crime committed by him.” The rape laws should not be used to regulate intimate relationships especially in cases where women have agency and are entering a relationship by choice. However it needs to be brought forward that many of the complaints come from socially disadvantaged and poor segments of the society and rural areas women from these sections are often lured into sex by men on false promises of marriage and then dumped as soon as they get pregnant. The rape law often fails to capture their plight. The law is well settled that consent obtained on a false promise to marry is not a valid consent. Since the framers of the law have specifically provided the circumstances when ‘consent’ amounts to ‘no consent’ in terms of Section 375 of IPC consent for the sexual act on the pretext of marriage is not one of the circumstances mentioned under Section 375 of IPC. Hence the automatic extension of provisions of Section 90 of IPC to determine the effect of consent under Section 375 of IPC deserves a serious relook. The law holding that false promise to marriage amounts to rape appears to be erroneous however the plight of the victim and the probability of the accused tarnishing the dignity of the victim and her family need to be looked at while deliberating on the question of bail. 9. In Shreya Singhal v. Union of India4 the Supreme Court was concerned with the question as to whether Section 79 and other provisions i.e. Sections 66A and 69A were constitutionally valid. The Court while balancing the rights of citizens under Article 19(1)(a) with the provisions of the IT Act deals with the chilling effect which could result if the provisions of the same are interpreted broadly. On the question of chilling effect the court observes as under: “83. Information that may be grossly offensive or which causes annoyance or inconvenience are undefined terms which take into the net a very large amount of protected and innocent speech. A person may discuss or even advocate by means of writing disseminated over the internet information that may be a view or point of view pertaining to governmental literary scientific or other matters which may be unpalatable to certain sections of society. It is obvious that an expression of a view on any matter may cause annoyance inconvenience or may be grossly offensive to some. A few examples will suffice. A certain section of a particular community may be grossly offended or annoyed by communications over internet by “liberal views” such as emancipation of women or the abolition of the caste system or whether certain members of a non proselytizing religion should be allowed to bring persons within their fold who are otherwise outside the fold. Each one of these things may be grossly insulting or offensive annoying inconvenient 4AIR 2015 SC 1523 injurious to large sections of particular communities and would fall within the net cast by Section 66A. In point of fact Section 66A is cast so widely that virtually any opinion on any subject would be covered by it as any serious opinion dissenting with the mores of the day would be caught within its net. Such is the reach of the section and if it is to withstand the test of constitutionality the chilling effect on free speech would be total.” 10. In the instant case the investigation is still going on. From perusal of the FIR it appears that the offences under the Indian Penal Code are definitely made out though it cries for a thorough trial. A perusal of the FIR and other documents available in the present case prima facie shows that there are very specific allegations against the petitioner who is arrayed as accused. It is not as if the allegations are casual and sweeping against the accused generally. The possibility of coercion of victim’s family repetition of similar type of offence and flee from justice cannot be ruled out in the present case. Therefore the petitioner does not deserve to be granted bail. 11. 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. They make out a prima facie case. 12. In view of the above I am not inclined to enlarge the petitioner on bail. The Bail Application is accordingly However the petitioner will be at liberty to raise all the points already raised in this petition at the time of framing of the charge which will be considered by the trial court in seisin over the matter 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 observations. S.K. PANIGRAHI J.] Orissa High Court Cuttack. The 31st day of March 2021 AKK LNB

Law declared by Hon’ble Supreme Court is binding on all Indian Courts. : Jharkhand High Court

As provided in Article 141 of the constitution of India, all courts within the territory of India have a law declared binding under the Hon’ble Supreme Court and all pending proceedings have a law established by the Hon’ble Supreme Court. When the above-mentioned decision of the Hon’ble Supreme Court has been examined, there is no sign that it will apply in the future, and no prospective operation of the law established by the Hon’ble Supreme Court is the same. The case of Mayor Genl. A.S. Gauraya and Another – versus- S.N. Thakur, was referred to in this respect by Justice Anubha Rawat of the Jharkhand High Court in the matter of August Kumar Mehta versus State of Jharkhand [Cr. Rev. No. 1081 of 2013]. This order was passed for the facts that the learned counsel appearing at the beginning submitted that the petitioner was found to be unconstitutional in the case Joseph Shine – versus- Union of India on 27 September 2013, (2019) 3 SCC 39 and therefore once the Section itself was ultra vires, it was convicted of a conviction in accordance with the terms of Section 497 of the Indian Penal Code. The petitioner was found unconstitutional in that case. Learned counsel for the petitioner also referred to the judgement passed by the Hon’ble Bombay High Court in the case of Rupesh -versus- Shri Charandas , 2018 SCC OnLine Bombay 6292 wherein the Judgment of the Hon’ble Supreme Court passed in the case of Joseph Shine (Supra) has been followed and the conviction and sentence under Section 497 of the Indian Penal Code has been set aside under revisional jurisdiction.  Learned counsel appearing on behalf of the State, on the other hand, objected to the prayer and argued that both the following learned courts had recorded concurrent findings of facts, which is why in this case no interference is required under review. However, in the event of Joseph Shine versus the Union of India the Hon’ble Supreme Court has made Section 497 of the Indian Penal Code unconstitutional. After hearing the learned counsel for the parties and going through the impugned judgments and the lower court records of the case the Court has concluded that this proceeding has been based on a written report of 06/01/2001 lodged with the Information Man, namely that Arun Kumar Mehta (PW-8) has alleged inter alia that the Informant’s wife Nirmala Devi, who had been absent from the house since 25 December 2000 at around 6:00 p.m. Nirmala Devi and the petitioner allegedly had illegal relations. The Court considered the oral and documentary evidence submitted on behalf of the prosecution as well as documentary evidences submitted on behalf of the petitioner, and condemned the petitioner for a two-year offence pursuant to Article 497 of the Indian Penal Code, and sentenced him to Rigorous Imprisonment. However, Nirmala Devi was acquitted of charges laid down in Articles 497 and 380 of the Indian Penal Code by the learned court and also acquitted the petitioner of the charge under the Indian Penal Code of Section 380. After going through the judgements passed by the Hon’ble Supreme Court in the case of Joseph Shine (supra), this Court finds that the Hon’ble Supreme Court has struck down Section 497 IPC as unconstitutional being violative of Articles 14,15 and 21 of the Constitution of India; Section 198(2) Cr.P.C., which contains the procedure for prosecution under Chapter XX IPC was also held to be unconstitutional only to the extent that it is applicable to the offence of adultery under section 497 IPC AND decision passed in the case of Sowmithri Vishnu versus Union of India 1985 Supp SCC 137, V. Revathi versus Union of India (1988)2 SCC 72 and W. Kalyani versus State (2012) 1 SCC 358 were overruled.

August Kumar Mehta vs The State Of Jharkhand on 23 June 2021 Jharkhand High Court August Kumar Mehta vs The State Of Jharkhand on 23 June 2021 IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr. Rev. No. 10813 August Kumar Mehta son of Lalan Mehta resident of Village Lohra P.O. & P.S. Lesliganj District Palamau ... ... Petitioner Versus The State of Jharkhand ... ... Opp. Party CORAM: HON BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY For the Petitioner : Mr. Amit Kumar Das Advocate For the State Opp. Party : Mrs. Vandana Bharti Through Video Conferencing 1. Heard Mr. Amit Kumar Das the learned counsel appearing for the petitioner 2. Heard Mrs. Vandana Bharti the learned A.P.P. appearing on behalf of the State Opposite Party 3. The present criminal revision petition is directed against the Judgement dated 01.10.2013 passed by the learned Additional Sessions Judge VII Palamau at Daltonganj in Criminal Appeal No 90 2008 whereby the learned appellate court affirmed the Judgment of conviction and the order of sentence of the petitioner under Section 497 of the Indian Penal Code passed by the learned trial court and dismissed the criminal appeal 4. The learned trial court vide Judgment of conviction and the order of sentence dated 17.07.2008 passed by the learned Judicial Magistrate 1st Class Daltonganj Palamau in G.R. Case No. 301 Trial No. 1608had convicted the petitioner for the offence under Section 497 of the Indian Penal Code and had sentenced him to undergo Rigorous Imprisonment for two years under Section 497 of the Indian Penal Code Arguments on behalf of the petitioner Indian Kanoon August Kumar Mehta vs The State Of Jharkhand on 23 June 2021 5. Learned counsel appearing for the petitioner at the outset submitted that the petitioner has been convicted under Section 497 of the Indian Penal Code which has been declared unconstitutional by the Hon ble Supreme Court in the case of Joseph Shine versus Union of India decided on 27.09.2018 reported in3 SCC 39 and therefore once the Section itself has been declared ultra vires to the Constitution no conviction under Section 497 of the Indian Penal Code can be 6. Learned counsel for the petitioner also referred to the judgement passed by the Hon ble Bombay High Court in the case of Rupesh versus Shri Charandas reported in 2018 SCC OnLine Bombay 6292 wherein the Judgment of the Hon ble Supreme Court passed in the case of Joseph Shine Supra) has been followed and the conviction and sentence under Section 497 of the Indian Penal Code has been set aside under revisional jurisdiction 7. He further submitted that for securing the ends of justice the conviction and sentence of the petitioner under Section 497 of Indian Penal Code is fit to be set aside 8. The learned counsel for the petitioner further submitted that otherwise also the petitioner has a good case on merit as evidences on record show that the petitioner has been convicted on the basis of hearsay evidence and on presumption and accordingly the prosecution has not been able to prove the case beyond all reasonable doubt Arguments on behalf of the Opposite Party State 9. Learned counsel appearing on behalf of the State on the other hand opposed the prayer and submitted that both the learned courts below have recorded concurrent findings of facts and accordingly no interference is called for in the present case under revisional jurisdiction. However it is not in dispute that Section 497 of the Indian Penal Code has been declared unconstitutional by the Hon ble Supreme Court in the case of Joseph Shine versus Union of India Findings of this Court 10. After hearing the learned counsel for the parties and going through the impugned judgments and the lower court records of the case this Court finds that the prosecution case is based on the written report dated 06.01.2001 lodged by the Informant namely Arun Kumar Mehtaalleging inter alia that the Informant s wife namely Nirmala Devi was absent in his house since 25.12.2000 at about 06:00 P.M. and he was informed by his sister s sonthat on the same day the Informant s wife has fled away from the house towards south with the petitioner and when he saw her and asked her as to where she is going then they scolded him and told him not to disclose to anyone and after showing an arm the petitioner threatened to kill him. It was further alleged that there was illicit relationship between Nirmala Devi and the petitioner 11. On the basis of the written report the case was registered as Lesliganj P.S. Case No. 01 2001 dated 06.01.2001 under Sections 497 380 of the Indian Penal Code against the petitioner and Indian Kanoon August Kumar Mehta vs The State Of Jharkhand on 23 June 2021 12. After completion of investigation the Investigating Officer submitted charge sheet under the same sections against the petitioner and Nirmala Devi. Accordingly the learned I C C.J.M. Palamau at Daltonganj took cognizance of the offence under the same sections against them on 13. On 21.09.2001 the charges under Sections 497 380 of the Indian Penal Code were framed against the petitioner and Nirmala Devi which were read over and explained to them in Hindi to which they pleaded not guilty and claimed to be tried 14. In course of trial the prosecution examined altogether 08 witnesses to prove its case. P.W. 1 is Girja Devi P.W. 2 is Anirudh Mehta P.W. 3 is Nathuni Mahto P.W. 4 is Anup Mahto P.W. 5 is Rupwant Kumar P.W. 6 is Ram Kumar Mehta P.W. 7 is Basisth Kumar Mehta and P.W. 8 is Arun Kumar Mehta who is the Informant himself. The prosecution exhibited the written report of the Informant as Exhibit 1 15. On 07.04.2008 and 26.04.2008 the statements of the petitioner and Nirmala Devi were recorded under Section 313 of Cr.P.C. wherein the petitioner denied the incriminating evidences put to him and claimed to be innocent. The petitioner did not adduce any oral evidence in his defence but exhibited certified copy of order dated 06.05.2003 passed by the District Judge Palamau in Matrimonial Case No. 5 2001 as Exhibit A 16. The learned trial court considered the oral and documentary evidences adduced on behalf of the prosecution and the documentary evidence adduced on behalf of the petitioner as well as the arguments advanced on behalf of the parties and convicted the petitioner for the offence under Section 497 of the Indian Penal Code and sentenced him to undergo Rigorous Imprisonment for two years. However the learned trial court acquitted Nirmala Devi from the charges under Sections 497 and 380 of the Indian Penal Code and also acquitted the petitioner from the charge under Section 380 of the Indian Penal Code 17. This Court further finds that the learned appellate court also considered the evidences adduced on behalf of the parties and the arguments advanced on their behalf and affirmed the conviction and sentence of the petitioner under Section 497 of the Indian Penal Code passed by the learned trial 18. After going through the judgment passed by the Hon ble Supreme Court in the case of Joseph Shinedecided on 27.09.2018 this Court finds that the Hon ble Supreme Court has struck down Section 497 of the Indian Penal Code as unconstitutional being violative of Articles 14 15 and 21 of the Constitution of India Section 198(2) Cr.P.C. which contains the procedure for prosecution under Chapter XX IPC was also held to be unconstitutional only to the extent that it is applicable to the offence of adultery under section 497 IPC AND decision passed in the case of Sowmithri Vishnu versus Union of IndiaV. Revathi versus Union of Indiaand W. Kalyani versus State1 SCC 358] were overruled Indian Kanoon August Kumar Mehta vs The State Of Jharkhand on 23 June 2021 19. As per Article 141 of the Constitution of India the law declared by the Hon ble Supreme Court is binding on all the courts within the territory of India and the law laid down by the Hon ble Supreme Court applies to all pending proceedings. Upon perusal of the aforesaid decision of the Hon ble Supreme Court there is no indication that the same would apply prospectively and there is nothing like any prospective operation of law laid down by the Hon ble Supreme Court. In this regard reference may be made to the case of Maj. Genl. A.S. Gauraya and Another versus S.N. Thakur reported in2 SCC 709 20. This Court finds that the present revision petition was admitted on 06.12.2013 and the petitioner was directed to be released on bail. During the pendency of the revision petition the section in which the petitioner was ultimately convicted i.e Section 497 IPC has been declared to be unconstitutional in the case of Joseph Shine versus Union of India decided on 27.09.2018 reported in3 SCC 39. The said judgement is a binding precedent under Article 141 of the Constitution 21. In view of the aforesaid Judgment passed by the Hon ble Supreme Court the conviction and sentence of the petitioner under Section 497 of the Indian Penal Code passed by the learned trial court and affirmed by the learned appellate court is legally not sustainable and accordingly both the impugned judgments call for interference under revisional jurisdiction to prevent miscarriage of justice to the petitioner 22. Accordingly the impugned Judgment dated 01.10.2013 passed by the learned Additional Sessions Judge VII Palamau at Daltonganj in Criminal Appeal No. 90 2008 as well as the conviction and sentence of the petitioner under Section 497 of the Indian Penal Code passed by the learned Judicial Magistrate 1st Class Daltonganj Palamau vide Judgment of conviction and the order of sentence dated 17.07.2008 in G.R. Case No. 301 Trial No. 1608is hereby set aside. Consequently the petitioner is discharged from the liability of his bail bond 23. Accordingly this criminal revision petition is hereby allowed 24. The office is directed to send back the Lower Court Records to the court concerned 25. Let a copy of this Judgment be communicated to the court concerned through FAX email Anubha Rawat Choudhary J.) Pankaj Indian Kanoon

An offender must be convicted under Section 326 of the IPC if found guilty of causing grievous injuries: Jharkhand High Court

Considering his age, character and proprietary was of the view that minimum punishment should be given to the petitioner and sentenced him for rigorous imprisonment of two years. Such an opinion was held by The Hon’ble High Court of Jharkhand before The Hon’ble Mrs. Justice Anubha Rawat Choudhary in the matter of Feku Sao Vs. The State of Jharkhand [Criminal Revision No. 347 of 2003].  The facts of the case were associated with an appeal that was directed against the judgment passed by the learned Additional District and Sessions Judge on 25.02.2003, wherein the petitioner’s appeal was dismissed and 2 years of rigorous imprisonment was sentenced to him for the offence punishable under Section 326 of the IPC. The counsel representing the petitioner condemned the said impugned judgments. He stated that the judgments were irrational and was called for interference. The counsel also submitted that the nature of the injury was not considered by the courts below properly. It was submitted that the nature of the injury was a direct blow on the head and as stated under section 323 of the IPC, the injury cannot be defined as ‘grievous injury’. The opposition party’s counsel vehemently opposed the prayer and stated that all the evidence found were recorded concurrently by the courts below no scope for re-appreciation of evidence and come to different findings in revisional jurisdiction. The counsel also stated that the submissions of the petitioner’s counsel in connection to the nature of the injury were well-considered and the doctor held that the injury was indeed serious and grievous in nature.  It was reported that on 31.05.1990, the said injured was cleaning his shop situated near the main road and the petitioner caused inconveniences to his customers by parking his cycle there. The servant shifted the cycle and at that time the petitioner brought a Balua and attacked the servant on his head and caused him injury. According to the doctor, the injury was a sharp cutting injury 5 cm wide and 1.5 cm deep on the head and the second injury is one cut injury 3cm long on the scalp.  Considering all the facts and submissions, The Hon’ble Court held “… Considering the fact that the petitioner is more than 69 years of age and has faced the criminal case for about 32 years now, this court finds that ends of justice would be served if the sentence is modified to some extent. Accordingly, sentence of  the petitioner is hereby reduced to a period of one year with fine of Rs. 15,000/- . This revision is disposed of with the aforesaid modification of sentence. Bail bond furnished by the petitioner is hereby cancelled… ”

IN THE HIGH COURT OF JHARKHAND AT RANCHI Criminal Revision No. 3403 Feku Sao son of Late Bhagat Sao resident of village Gotra Thakurtoli P.O. & P.S. Simdega District GumlaThe State of Jharkhand … … … Petitioner … … Opp. Party CORAM: HON BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY Mr. Vikash Pandey Advocate Ms. Rakhi Sharma Advocate Mr. Ashok Kumar A.P.P. For the Petitioner For the Opp. Party 1. Heard Mr. Vikash Pandey learned counsel appearing on behalf of the petitioner along with Ms. Rakhi Sharma Advocate. 2. Heard Mr. Ashok Kumar learned counsel appearing on behalf of the opposite party State. 3. Present criminal revision is directed against the judgment dated 25.02.2003 passed by learned Additional District and Sessions Judge Simdega in Criminal Appeal No. 46 of 1992 whereby the appeal filed by the petitioner has been dismissed and the learned appellate court has confirmed the judgment of conviction and sentence of 2 years rigorous imprisonment dated 26.11.1992 passed by the learned Assistant Sessions Judge Simdega in S.T. No. 209 90 for the offence punishable under Section 326 of the Indian Penal Code. 4. Learned counsel appearing on behalf of the petitioner while assailing the impugned judgments has submitted that though there are concurrent findings recorded by the learned courts below but the impugned judgments are perverse and call for interference. Learned counsel submits that the learned courts below have not properly considered the nature of injury which was a result of single blow on the head of the informant which could not be said to be a grievous injury as defined under Section 323 of the Indian Penal Code. Learned counsel further submits that it has come on record that there was previous enmity between the petitioner and the informant and there was altercation and it appears that at the stage of scuffling the injury was caused. There was no intention to commit the crime and it was merely accidental in nature. Learned counsel further submits that without prejudice to the aforesaid submissions present age of the petitioner is more than 69 years and he has faced the criminal case for more than 30 years now as the F.I.R. was lodged on 31.05.1990 and much time has elapsed from the date of incident. He submits that considering this aspect of the matter the sentence of the petitioner may be modified and some fine may be imposed. He also submits that the present offence is the first offence of the petitioner. 5. Learned counsel appearing on behalf of the opposite party State has opposed the prayer and has submitted that there are concurrent findings recorded by the learned courts below after considering the evidences on record and there is no scope for re appreciation of evidences and coming to a different finding in revisional jurisdiction. He also submits that argument of the petitioner in connection with nature of injury has been duly considered by the learned courts below and the doctor has also opined that injury was grievous in nature. Learned counsel submits that as the injury was grievous in nature even though it was a result of single blow the same was sufficient to convict the petitioner for the offence under Section 326 of the Indian Penal Code. However he does not dispute the fact that it has come on record that there was some enmity between the petitioner and the informant and there was also fight between the parties. It is further not in dispute that the present offence is the first offence of the petitioner. 6. During the course of argument learned counsel for the opposite party State does not dispute the fact that there is no minimum sentence as such prescribed under Section 326 of the Indian Penal Code and at present the petitioner is more than 69 years of age. Learned counsel has also submitted that so far as sentence is concerned it is for the court to take appropriate call in the matter however sentence of two years is sufficient considering the nature of offence. 7. As per the prosecution case F.I.R. Number 42 90 in police station Simdega was instituted for the offence under Section IPC which was based on the statement of informant injured person. It was alleged that on 31.05.1990 at about 7.30 A.M. he was cleaning his shop situated at Simdega Ranchi main road and the petitioner parked his cycle in front of his shop causing inconvenience to his customers to reach his shop. His servant was keeping aside the cycle of the petitioner and told him that his owner would remove the cycle. When the servant was shifting the cycle the petitioner brought Balua from his shop and assaulted the informant on his head causing injury to him. It was also alleged that his servant and two other persons and owner of nearby hotel had seen the occurrence but due to fear none of them came to save him. 8. On the basis of the statement of the informant F.I.R. was instituted. The informant victim was medically examined at Sub Divisional hospital Simdega on 31.05.1990 at about 10.00 A.M. Upon investigation charge sheet under Section 326 324 IPC was submitted and the charge was framed under Section 307 & 326 IPC on 18.02.91. The petitioner pleaded innocence and claimed to be tried. 9. At the stage of trial altogether seven witnesses have been examined including P.W. 5 Doctor who has proved the injury report and P.W. 6 the informant of the case. The Investigating Officer of the case has been examined as P.W. 7. P.W. 2 is the servant of the informant and P.W. 1 is the eye witness whose name has been mentioned in the F.I.R. also. After the prosecution evidence the statement of petitioner was recorded under Section 313 of Cr. P.C. wherein he has denied the evidences against him. In his statement under Section 313 Cr. P.C. he has also stated that there was no scuffling in connection with balua and has further stated that he would give defence evidence. The petitioner produced two defence evidences D.W. 1 and D.W. 2. Learned trial court considered the evidences on record and convicted the petitioner for the offence under Section 326 of the Indian Penal Code. The learned trial court specifically considered the point as to whether the injury inflicted upon the informant was grievous or not and such discussion has been made in para 14 of the trial court’s judgment. The learned trial court recorded that it is not in dispute that prosecution witnesses have clearly deposed that the informant sustained an injury caused by sharp cutting weapon on his head which was caused by Balua and that the doctor observed that the injury was sharp cutting injury 5 centimetre wide and 1.5 centimetre deep on the head and the second injury is one cut injury 3 centimetre long on the scalp. The opinion of the doctor was that the injury was grievous and during the course of cross examination the doctor has stated that the second injury is the result of the first one. The learned trial court was of the view that injury being 1.5 centimetre deep on the head and sharp cut deep to the scalp would cause fracture to the bone therefore the injury was grievous and convicted the petitioner for offence under Section 326 of the Indian Penal Code. The learned trial court while convicting the petitioner has recorded that the present offence is the first offence of the petitioner and considering his age character and proprietary was of the view that minimum punishment should be given to the petitioner and sentenced him for rigorous imprisonment of two years. 10. The learned appellate court also considered the evidences on record and also considered the argument advanced on behalf of the petitioner regarding the nature of injury. The learned Appellate Court considered the same in detail and recorded its finding in para 13 as follows: “While I perused injury reportInjury No. 1 & 2 both were caused by sharp edged weapon. Injury No. 2 is deep to skull bone and doctor in deposition also deposed that second injury was internal injury and was the effect of first injury. First injury sharp cut on head length 5 cm. antero positerio direction. Therefore submission of learned counsel that Doctor did not gave reason for opinion on grievous injury does not seem justified. Lower court in its judgment in Para 14 has rightly discussed regarding grievous injury.” The learned appellate court upheld the conviction and sentence of the petitioner. 11. This court finds that the learned courts below have given concurrent findings based on materials on record. The argument of the petitioner that the nature of injury was not grievous in nature is also devoid of any merit considering the fact that both the learned courts below have considered the nature of injury and even the doctor has deposed that the nature of injury was grievous in nature and considering the depth of the injury the learned trial court was of the view that the same would have caused fracture in the scalp. This court is of the view that the judgment of conviction of the petitioner for offence under Section 326 IPC passed by the learned courts below are well reasoned judgment based on materials including the evidence of the doctor as well as victim and other witnesses who have fully supported the prosecution case. There is no scope for re appreciation of the evidences on record and coming to a different finding in revisional jurisdiction. 12. Considering the fact that the petitioner is more than 69 years of age and has faced the criminal case for about 32 years now this court finds that ends of justice would be served if the sentence is modified to some extent. Accordingly sentence of the petitioner is hereby reduced to a period of one year with fine of Rs. 15 000 to be deposited by the petitioner within a period of three months from the date of communication of the judgment to the learned court below. In case of non deposit of the fine amount within the stipulated time frame the petitioner would serve the sentence already imposed by the learned court below. The 50% of the aforesaid fine amount is directed to be remitted to the victim of the crime i.e. the informantupon due identification. 13. This revision is disposed of with the aforesaid modification of 14. Bail bond furnished by the petitioner is hereby cancelled. 15. Pending I.A. if any dismissed as not pressed. 16. The lower court records be immediately sent to the learned sentence. court below. 17. Let this order be communicated to the court concerned through FAX e mail. Binit Anubha Rawat Choudhary J.)

It depends on Vice Chancellor of the University to take decision in view of the facts of the case in a sympathetic manner : High Court of Kerala

Petitioners have already preferred a representation before the Vice Chancellor seeking leniency citing the peculiar facts of their case to take decision in a sympathetic manner to held their previous exams and was upheld by High Court of Kerala through the learned bench led by HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V in the case of AKSHAYA SHANTHAKUMAR, ADITHYA &amp; NAMITHA SURESH vs. KERALA UNIVERSITY OF HEALTH SCIENCES (WP(C) NO. 7997 OF 2022) on 14th March, 2022. Brief facts of the case are that the petitioners are final year students (2017 batch) pursuing their Bachelor of Physiotherapy course in various Colleges affiliated to the Kerala University of Health Sciences (KUHS). Petitioners 1 and 2 are yet to pass the first year Anatomy exam and the 2nd petitioner is yet to pass the 2nd year Pathology exam. As per the Regulations issued by the KUHS, supplementary examinations are conducted by the University for the benefit of the unsuccessful candidates within a period of six months from the date of announcement of the results. However, due to COVID restrictions, the University did not conduct the supplementary examinations. The regulations issued by the KUHS says that candidates would be eligible for registering for the final year examination only after they pass all the subjects of the previous year. In the said circumstances, the petitioners are stated to have filed Ext.P2 representation before the Vice-Chancellor on 26.2.2022. However, their valid and legitimate request was not considered in time. Learned counsel for the petitioners contends that they cannot be faulted for the failure of the University in promptly holding the supplementary examinations. According to the learned counsel, the provisions of the 2016 regulations cannot be applied to the petitioners. Learned counsel for the respondent submitted that the 1st and 3rd petitioners have secured as many as six chances to pass their First Year Examination and the 2nd petitioner has secured as many as four chances to clear the Second Year. In view of the above, the contention of the petitioners that the University is at fault cannot be sustained. The learned counsel would also invite the attention of this Court to Regulations and it is submitted that the request made by the petitioners cannot be accepted. The petitioners have already preferred a representation before the Vice Chancellor seeking leniency citing the peculiar facts of their case. The learned Standing Counsel fairly submits that Exhibit-P2 can be considered in an expeditious manner taking note of the ensuing examination. In that view of the matter, there will be a direction to the 1st respondent to consider Ext.P2 and take a decision in a sympathetic manner expeditiously taking note of the fact that the examinations are scheduled to be held from 17.3.2022 onwards. 

WP(C) NO. 7997 OF 2022 IN THE HIGH COURT OF KERALA AT ERNAKULAM THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V MONDAY THE 14TH DAY OF MARCH 2022 23RD PHALGUNA 1943 WP(C) NO. 7997 OF 2022 AKSHAYA SHANTHAKUMAR AGED 26 YEARS DAUGHTER OF O.K. SHANTHAKUMAR RESIDING AT SHANTHI HOUSE P.O. KOTTALI KANNUR PIN 670005 ADITHYA P AGED 26 YEARS DAUGHTER OF ASHOKAN P. RESIDING AT AKKOOLKANDIYIL HOUSE VENDUTTAYI P.O. PINARAYI THALASSERY PIN NAMITHA SURESH AGED 26 YEARS D O. C.K. SURESH RESIDING AT CHOWKKAPARAMBIL HOUSE UDAYAMPEROOR P.O. ERNAKULAM PIN 682307 BY ADV C.K.SREEJITH KERALA UNIVERSITY OF HEALTH SCIENCES REP. BY ITS VICE CHANCELLOR MEDICAL COLLEGE P.O. THRISSUR PIN 680596 CONTROLLER OF EXAMINATION KERALA UNIVERSITY OF HEALTH SCIENCE MEDICAL COLLEGE P.O. THRISSUR PIN 680596 BY ADV SHRI.P.SREEKUMAR SC KERALA UNIVERSITY OF WP(C) NO. 7997 OF 2022 DELIVERED THE FOLLOWING WP(C) NO. 7997 OF 2022 JUDGMENT The petitioners are final year studentspursuing their Bachelor of Physiotherapy course in various Colleges affiliated to the Kerala University of Health SciencesNO. 7997 OF 2022 declaring that the clause 1.18 and 1.19 to regulation number 2016 for the courses affiliated to the Kerala University of Health Sciences for the course bachelor of Physiotherapyis not applicable to the petitioners I have heard Sri. Sreejith the learned counsel appearing for the petitioners and Sri. P. Sreekumar the learned Standing Counsel appearing for It is submitted by the learned counsel that the petitioners cannot be faulted for the failure of the University in promptly holding the supplementary examinations. According to the learned counsel the provisions of the 2016 regulations cannot be applied to the petitioners Sri. P. Sreekumar the learned counsel submitted that the 1st and 3rd petitioners have secured as many as six chances to pass their First Year Examination and the 2nd petitioner has secured as many as four chances to clear the Second Year. In view of the above the contention of the petitioners that the University is at fault cannot be sustained. The learned counsel would also invite the attention of this Court to Regulations and it is submitted that the request made by the petitioners cannot be accepted As rightly submitted by the learned standing counsel clause 1.18 of the regulation stipulates that the candidate would be eligible for registering for the final year examination only after passing all subjects of the previous year. Regulation 1.19 says that though the candidate can be promoted from 1st year to 2nd year and from the 2nd year to the 3rd year if she he fails in any WP(C) NO. 7997 OF 2022 subjects the candidates will have to pass in all subjects of the First year and Second year for appearing in the University exam for the 3rd year examinations having been scheduled on 17.03.2022 this Court will not be justified in tinkering with the regulations which have been put in place by the University after much deliberations I am therefore not inclined to grant the reliefs prayed for by the petitioners However I find that the petitioners have already preferred a representation before the Vice Chancellor seeking leniency citing the peculiar facts of their case. The learned Standing Counsel fairly submits that Exhibit P2 can be considered in an expeditious manner taking note of In that view of the matter there will be a direction to the 1st respondent to consider Ext.P2 and take a decision in a sympathetic manner expeditiously taking note of the fact that the examinations are scheduled to be held from This writ petition is disposed of as above RAJA VIJAYARAGHAVAN V WP(C) NO. 7997 OF 2022 APPENDIX OF WP(C) 7997 2022 PETITIONEREXHIBITS THE TRUE COPY OF THE RELEVANT PAGES OF THE SYLLABUS RULES 2016 THE TRUE COPY OF THE REPRESENTATION ADDRESSED TO VICE CHANCELLOR DT. 26 2 2022 RESPONDENTEXHIBITS: NIL

Bombay High Court categorizes inmates that can be granted with emergency parole

While hearing a petition by an inmate who was seeking parole on the basis of spread of the covid 19 in jails observed that the High Courts must use their discretion while granting parole to individuals charged under offences of special acts. In the present matter of Pintu S/o. Uttam Sonale (C-10855) versus The State of Maharashtra, [CRIMINAL WRIT PETITION (STAMP) No.3206 of 2020], the appellant was charged under sections 3,4 and 5 of the POCSO Act prayed for parole contending that the recent amendment brought about to Rule 19 (1) of the Maharashtra Prisons (Bombay Furlough and Parole) Rules, 1959, allowed for release of convicted prisoners on emergency parole under sub rule ( C) of Rule 19 (1), which was in pursuance of the notification issued by the State Government under the Epidemic Diseases Act, 1897. The Court set up a high power committee while using its discretionary powers made two categories of people/ inmates who could be released on emergency parole- “ The convicted prisoners whose maximum sentence is above 7 years shall on their application be appropriately considered for release on emergency parole, if the convict has returned to prison on time on last 2 releases (whether on parole or furlough), for a period of 45 days or till such time that the State Government withdraws the Notification under The Epidemics Act, 1897, whichever is earlier. The aforesaid directions shall not apply to under trial prisoners or convicted prisoners booked for serious economic offences / bank scams and offences under Special Acts (other than IPC) like MCOC, PMLA, MPID, NDPS, UAPA, etc., (which provide for additional restrictions on grant of bail in addition to those under Crpc) AND also presently to foreign nationals and prisoners having their place of residence out of the State of Maharashtra.” The Committee referred that “an exception be made to grant interim bail to the under trial who fell in the following categories of offences: (1) Indian Penal Code a) IPC – Chapter VI –Offenses against State– IPC 121 to 130 b) IPC – 303 c) IPC – 364(A), 366, 366(A), 366(B), 367 to 374 d) IPC – 376(t) to (e) e) IPC – 396 f) IPC 489(a) to (e) g) Bank Frauds and Major Financial Scams (2) SPECIAL ACTS a) MCOC, TADA, POTA, UAPA, PMLA, Explosives Substances Act, Anti Hijacking Act b) NDPS (Other than personal consumption) c) MPID d) POCSO e) Foreigners in Prison”. The Court stated that “We cannot be unmindful that the Special Acts so mentioned in the proviso if read applying the principles of ejusdem generis, the common thread running through all these enactments is of the offences committed under these enactments being serious offences, affecting the society at large. This is the primary and principal focus to provide for the illustrative names of the special acts and to keep open inclusion of several other enactments which may be alike and dealing with serious offences. In our opinion, no other meaning can be attributed when the intention of the proviso itself is to keep open inclusion of other special acts without they being specifically referred in the proviso.” Also that “In our clear opinion the Special Acts like POCSO and/or TADA are certainly required to be read in the proviso so as to make sub-rule (C) (ii) inapplicable to the category of convicts falling therein”.

Criwpst 3206 20 full bench.odt IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITIONNo.32020 Pintu S o. Uttam SonaleAge: 31 years Occ.: convict R o.Mantha Tal. Hathgaon Dist.Nanded at present confined at Central Prison Nasik The State of Maharashtra through Superintendent Nasik Central Prison Nasik) Mr.Rupesh Jaiswal for Petitioner Mr.Deepak Thakare PP with Mr.J.P. Yagnik APP for State G.S. KULKARNI N. R. BORKAR JJ DATED : NOVEMBER 6 2020 Judgment :parole. The petitioner is convicted for an offence punishable under Section 376 of the Indian Penal Code and Sections 3 4 and 5 of the Protection of Children against Sexual Offences Act 2012 of the Maharashtra Prisons Prashant Rane PS Criwpst 3206 20 full bench.odt Bombay Furlough and Parole) Rules 1959 effected vide Government Notification dated 8 May 2020. By this amendment sub ruleof Rule 19(1) came to be incorporated so as to make a provision for release of convicted prisoners on emergency parole which was in pursuance of the notification issued by the State Government under the Epidemic Diseases Act 1897 The petition was heard by the Division Bench of this Court which noted different orders passed by the co ordinate Benches on similar pleas and more particularly in the following cases: i) Vijendra Malaram Ranwa vs. State of ii) Sardar s o. Shawali Khan Vs. The State of Maharashtra & Anr.1 Maharashtra & Anr2 of Maharashtra3 iii) Shubham s o. Devidas Gajbhare Vs. The State iv) Kalyan s o. Bansidharrao Renge Vs. The State of Maharashtra & anr.4 The Division Bench considering the above decisions as also the observations of the Division Bench of this Court in National Alliance for People’s Movements vs. The State of Maharashtra & Ors.5 was of the opinion that there is an apparent conflict in the decision rendered by the Division Bench in Vijendra Malaram Ranwacase and the one decided by the co ordinate Bench in the case of Sardar s o. Shawali 1 Cri.LD VC WP no.112 2020 Nagpur Bench dt.14.07.2020 2 Cri.WP no.520 2020dt.09.09.2020 3 Cri.WP.no.1135 2020(Aurangabad Bench) dt.13.10.2020 4 Cri.WP no.ASDB LD VC 265 2020 order dt.28.8.2020 2020 SCC OnLine Bom 843 Prashant Rane PS Criwpst 3206 20 full bench.odt KhanAct as incorporated by a Notification dated 8 May 2020. However in these cases the concerned Division Benches resorted to different interpretations of the proviso incorporated under sub rule 19(1)(C)(ii). In Vijendra Malaram Ranwa’scase the Division Bench observed that considering the language of the proviso an emergency parole can be granted to the petitioner convicted under the POCSO Act whereas in Sardar s o. Shawali Khancase the Division Bench also interpreting the said proviso did not accept that the case of the petitioner would be covered for grant of emergency parole On the above backdrop the Division Bench hearing the present writ petition opined that there is a conflict in these two decisions of the Division Bench and a reference of the petition to a full bench was necessitated. The observations of the Division Bench in paragraphs 19 to 21 are required to be noted which read thus: “19. We are of the opinion that the decision rendered in the case of National Alliance for People s Movementsof the paragraph 22 it is mentioned that the POCSO Act was enacted to protect children from offences of sexual assault sexual harassment and pornography and provide for establishment of Special Courts for trial of such offences and for matters connected therewith or incidental thereto. The purpose for which TADA was enacted as the Special Act is also discussed No doubt Vijendra Malaram Ranwa s case dealt with the offences punishable under POCSO Act whereas Sardar s o. Shawali Khan dealt with offences punishable under TADA. Both being special Acts we find conflicting decisions in Vijendra Malaram Ranwa & Sardar s o. Shawali Khan . In view of this conflict a reference of the present Petition to a Full Bench is necessitated. The issue whether a prisoner convicted under the Special Act viz. POCSO Act is eligible to be released on emergency parole in terms of Rule 19(c) of the said Rules in our opinion needs to be authoritatively settled in view of the difference of opinion. The office to place the matter before the Hon ble Chief Justice on the administrative side.” In pursuance of the above order of the Division Bench Hon’ble Chief Justice was pleased to constitute the present Full Bench By our order dated 3 November 2020 we have framed the following questions which would arise for determination of this Larger Bench: “(i) Which of the interpretation of Rule 19(1) sub ruleas brought about by the Maharashtra PrisonsRules 2020 either as made in decision of the Division Bench in Vijendra Malaram Ranwa vs. State of Maharashtra & Anr or the decision of the Division Bench in Sardar s o Shawali Khan vs. The State of Maharashtra & Anr is the correct interpretation ii) Whether the provisions of ‘emergency parole’ as brought about by the amendment to Rule 19by insertion of sub ruleby the Maharashtra PrisonsRules 2020 would cover prisoners convicted under the provisions of the Protection of Children against Sexual Offences Act 2012 No.20) in the light of the health crises arising due to Corona Virus COVID 19) raised a concern interaila with the state of the inmates of ‘prisons’ and ‘remand homes’ so that care can be taken for protection and welfare of the prisoners to restrict transmission of COVID 19. The Court considered the issue of overcrowding of prisons as a matter of serious concern in the context of the present pandemic. Having regard to the provisions of Article 21 of the Constitution of India it was observed that it had become imperative to ensure that spread of corona virus within the prison is controlled. The Supreme Court accordingly directed the State Union Territories to constitute a High Powered Committee comprising of Chairman of the State Legal Services Prashant Rane PS Criwpst 3206 20 full bench.odt Committee the Principal Secretary (iii) Director General of Prison to determine which class of prisoners can be released on parole or an interim bail for such period as may be thought appropriate. The Court left it open to the High Power Committee to determine the category of prisoners who should be released on parole or on interim bail depending upon the nature of the offences the number of years to which he or she has been sentenced or the severity of the offence with which he she is charged with and is facing trial or any other relevant factor which the Committee may consider In pursuance of the above directions of the Supreme Court the State Government on 25 March 2020 constituted a High Power Committee. The High Power Committee held its meeting on 25 March 2020 interalia determining “which class of prisoners can be released on parole or on interim bail” for such period as may be thought appropriate and “the category of prisoners who should be released” After considering all the relevant factors as also the circumstances prevailing in the State of Maharashtra the Committee interalia laid down the following norms the relevant being in paragraph 8(iii) and iv) which read thus: Prashant Rane PS Criwpst 3206 20 full bench.odt “iii) The convicted prisoners whose maximum sentence is above 7 years shall on their application be appropriately considered for release on emergency parole if the convict has returned to prison on time on last 2 releases for a period of 45 days or till such time that the State Government withdraws the Notification under The Epidemics Act 1897 whichever is earlier. The initial period of 45 days shall stand extended periodically in blocks of 30 days each till such that the said Notification is issued in the event the said Notification is not issued within the first 45 days). The convicted prisoners shall report to the concerned police station within whose jurisdiction they are residing once every 30 days iv) The aforesaid directions shall not apply to undertrial prisoners or convicted prisoners booked for serious economic offences bank scams and offences under Special Actslike MCOC PMLA MPID NDPS UAPA etc. AND also presently to foreign nationals and prisoners having their place of residence out of the State On 8 May 2020 the State Government in exercise of the powers conferred by Clauseand Clauseof Section 59 of the Prisons Act notified the Maharashtra Prisons Bombay Furlough and Parole) Rules 2020 so as to incorporate an amendment to sub ruleof Rule 19 by insertion of clauseso as to make a provision for ‘emergency parole’ in view of the declaration by the State Government of a pandemic under the Epidemic Diseases Act 1897. The amendment so made by incorporating rule along with a proviso and its interpretation is the principal controversy. Rule 19(A)as inserted by the amendment is required to be noted which reads thus: Prashant Rane PS Criwpst 3206 20 full bench.odt “[19. When a prisoner may be released on emergency 1) Emergency Parole C) On declaration of epidemic under the Epidemic Diseases Act 1897 by State Government i) For convicted Prisoners whose maximum punishment is 7 years or less on their application shall be favourably considered for release on emergency parole by the Superintendent of Prison for a period of 45 days or till such time that the State Government withdraws the Notification issued under the Epidemics Diseases Act 1897 whichever is earlier. The initial period of 45 days shall stand extended periodically in blocks of 30 days each till such time that the said Notification is in forceFor convicted prisoners whose maximum sentence is above 7 years shall on their application be appropriately considered for release on emergency parole by Superintendent of Prison if the convict has returned to prison on time on last 2 release for the period of 45 days or till such time that the State Government withdraws the Notification issued under the Epidemics Diseases Act 1897 whichever is earlier. The initial period of 45 days shall stand extended periodically in blocks of 30 days each till such time that the said Notification is in forcelike MCOC PMLA MPID NDPS UAPA etc.and also presently to foreign nationals and prisoners having their place of residence out of the State of Maharashtra.” of the minutes of the said meeting the Committee referred that an exception be made to grant interim bail to the under trial who fell in the following categories of offences 1) Indian Penal Code a) IPC Chapter VI Offenses against State IPC 121 to IPC 303 IPC 364(A) 366 366(A) 366(B) 367 to 374 IPC 376(t) totoSPECIAL ACTS MCOC TADA POTA UAPA PMLA Explosives Substances Act Anti Hijacking Act NDPSc) d) e) f) g) On the above conspectus the issue which arises before us is in regard to the interpretation of the proviso to sub ruleof Rule Prashant Rane PS Criwpst 3206 20 full bench.odt 19(1) namely as to whether the provisions of sub rulewould be applicable to the prisoners convicted for serious offences under Special Acts other than those specified in the proviso namely the POSCO in the present case. This more particularly when the proviso uses the words “like” and “etc.” As noted above the Division Bench in Vijendra Malaram Ranwadealing was with the case of the petitioner who was convicted of offences under Section 6 10 12 of POCSO Act and Section 77(1) and 77(2) of the Indian Navy Act. The Division Bench noting the language of the proviso held that there should not be any impediment for releasing the petitioner on parole. In paragraphof its order the Court observed as under: Considering the language of proviso of Notification dated 8th May 2020 and particularly in view of the fact that the offence under the POCSO Act is not mentioned in the proviso which bars for grant of parole there should not be any impediment in releasing the petitioner on parole.” In Sardar s o. Shawali Khan’ case another Division Bench in which the petitioner was convicted under the Terrorist and Disruptive ActivitiesActhowever opined that the petitioner would not be entitled to the benefit of amended sub rule C) in Rule 19(1) of 1959 Rules. It was observed that although TADA Prashant Rane PS Criwpst 3206 20 full bench.odt was not mentioned in the proviso nonetheless considering the nature of the Special Acts as set out in the proviso a list of which was not exhaustive other special enactments which are similar in nature can be considered and authority would have power to observe that the TADA convicted would not get benefit of the Government Notification dated 8 May 2020. The following observations as made by their Lordships are required to be noted which reads thus: “5. In the present matter the petitioners are claiming the benefits of the Government Notification dated 8th May 2020. In the said notification there is a proviso and the said proviso is that the prisoners convicted for serious economic offences or bank scams or offences under Special Actslike MCOC PMLA MPID NDPS UAPA etc.and also presently to foreign nationals and prisoners having their place of residence out of the State of Maharashtra will not be entitled to get the benefit of this notification Admittedly the petitioners are the convicts under the provisions of TADA and they are sentenced to life imprisonment. Though specifically TADA is not mentioned in the notification the Special Acts are mentioned in minutes of meeting of High Power Committee dated 10th May 2020. In the amendment to the Rule 4 of the Rules in clause No.12 it is mentioned that prisoners who are considered dangerous or have been involved in serious prison violence and who are convicted under Special Acts like Narcotic Drugs and Psychotropic Substances Act 1985 NDPS) rape etc. are not entitled to get the benefit of Rule 4 Rule 4 initially there was no category like pandemic situation created by COVID 19 virus. Only due to Government Notification dated 8th May 2020 the prisoners can be considered for giving them emergency parole and such parole is subject to the condition mentioned in the notification itself. In view of this circumstance and aforesaid provisions it cannot be said that vested right is given to the prisoners to get parole and some definite exceptions are created by the State. The words used in proviso are “like and etc.”. Thus the list of Special Acts given in the notification is not exhaustive and other special enactments which are similar in nature need to be considered and the authority has the power to say that TADA convict is also not entitled to get the benefit of Government Notification dated Prashant Rane PS Criwpst 3206 20 full bench.odt 8th May 2020. For all these reasons this Court hold that there is no need to interfere in the order made by the respondent. In the result both the petitioners stand dismissed.” There are two other orders which are required to be referred. In Shubham s o. Devidas Gajbhare’s case the petitioner was convicted for the offence punishable under Section 363 366A and 376A of the Indian Penal Code. The Division Bench in its order dated 13 October 2020 considering Rule 19 as also provisions of Rule 4(21) of the 1959 Rules observed that as there was a conviction for sexual offences against minor then benefit of furlough cannot be given to such prisoners. On this interpretation the Division Bench upheld the orders passed by the Superintendent of Prisons rejecting the application of the petitioner for emergency parole In yet another case in Kalyan s o. Bansidharrao Renge supra) the Division Bench was considering the case of the petitioner who was convicted for the offence punishable under Section 376(2)(g of the Indian Penal Code and who was awarded rigorous imprisonment for 10 years. The Court considering sub ruleinserted in Rule 19(1 of the 1959 Rules by a notification dated 8 May 2020 however without rendering any specific interpretation of the said rule observed that the petitioner deserved to be released on emergency parole Prashant Rane PS Criwpst 3206 20 full bench.odt 16. These are the different interpretations as made on applicability of sub ruleand its proviso as inserted in Rule 19(1) of the 1959 Rules. We may at the outset note that the parole and furlough Rules are part of the penal and prison system. It is well settled that parole cannot be claimed as a matter of rightof the 1959 rules which provides for emergency parole it needs to be noted that sub ruleprovides for emergency parole for the reason of death and for the reason of marriage of the persons so specified and the ‘Authority’ approving emergency Parole in the relevant case shall decide whether to grant parole under police escort or with Prashant Rane PS Criwpst 3206 20 full bench.odt other conditions. Sub rule as inserted by the amendment vide notification dated 8 May 2020 now provides for emergency parole in view of declaration of epidemic by the State Government under the Epidemic Diseases Act 1897. It categorises in Rule C(i) convicted prisoners whose maximum punishment is 7 years or less who can apply to be released on emergency parole which can be granted for 45 days and for further period as specified. Rule C(ii) speaks of emergency parole to be granted for convicted prisoners whose maximum sentence is above 7 years who can be released on emergency parole by the Superintendent of Prison if the convict had returned to prison on time on last two releasesprovides that the directions in Rule C(ii) “shall not apply to convicted prisoners convicted for serious economic offences or bank scams or offences under Special Actslike MCOC PMLA MPID NDPS UAPA etc.” and also presently to foreign nationals and prisoners having their place of residence out of the State In our opinion the language of the proviso clearly sets out that the provisions sub ruleof Rule 19(1)of the 1959 Rules would Prashant Rane PS Criwpst 3206 20 full bench.odt not apply to the prisoners convicted for various economic offences or bank scams or offences under some Special Actsand some of which are illustratively mentioned by using the word “like” when the proviso refers to the Special Acts namely MCOC PMLA MPID NDPS UAPA etc. This illustrative reference is further qualified by use of the word “etc” which indicates that the reference to these Special Acts is not exhaustive. The proviso using the words “like” and “etc” is a significant indication of the legislative intent. The intention and object to insert the proviso appears to be quite clear that the provisions of the emergency parole as introduced by sub rulewould not apply to the prisoners convicted of serious offences under the different Special Acts and who fall within the category as specified in sub rule C(ii 20. The reference as made in the proviso to certain Special Acts is certainly not exhaustive and it would include within its ambit other similar Acts where the offences are serious. The reference to Special Acts like MCOC PMLA MPID NDPS UAPA is required to read ejusdem generis. We have no doubt in our mind that the prisoners who are convicted under the Special Acts although not specifically referred in the proviso and those falling under sub rule(ii) by virtue of the proviso would not be covered within the ambit of sub ruleare held not eligible for furlough. Rule 4(12) and 4(21) read as under: Prisoners who are considered dangerous or have been involved in serious prison violence like assault outbreak riot mutiny or escape or who have been found to be instigating the serious violation of prison discipline smuggling of narcotic and psychotropic substances including convicted under Narcotic Drugs and Psychotropic Substances Act 1985rape or rape with murder attempt to rape with murder and foreigner prisonersThose involved in sexual offences against minor and We are not inclined to accept the contentions as urged on behalf of the petitioner that merely because the POCSO Act is not found in the special Acts as referred in the proviso the prisoners convicted under the POCSO Act can avail benefit of emergency parole. The next contention as urged on behalf of the petitioner is that the notification itself is contrary to Rule 19. We are afraid that this contention cannot be Prashant Rane PS Criwpst 3206 20 full bench.odt accepted. The purpose of incorporating Rule 19(1) sub rule is completely different from what is provided for in sub ruleand sub rule which is a special provision incorporated in view of the declaration of epidemic by the State Government under the Epidemic Diseases Act 1897. The purpose being to grant benefit of this rule to a limited category of prisoners so as to avoid ill effects of pandemic and consequent health hazards however with clear exception that sub rule C(ii) would not be applicable when the category of prisoners is of prisoners convicted for serious economic offences or bank scams or offences under the Special Acts. Thus there is no substance in the contention as urged on behalf of the petitioner that the notification is in any manner contrary to the basic provision of Rule 19(A) (ii). These are prisoners convicted for serious economic offencesor prisoners convicted in bank scams enactment not specified) and thereafter offences under Special Acts other than IPC) like MCOC PMLA MPID NDPS UAPA etc. are referred. It needs to be noted that under MPID there is no additional restriction on the grant of bail in addition to those under the Cr.P.C. We cannot be unmindful that the Special Acts so mentioned in the proviso if read applying the principles of ejusdem generis the common thread running through all these enactments is of the offences committed under these enactments being serious offences affecting the society at large. This is the primary and principal focus to provide for the illustrative names of the special acts and to keep open inclusion of several other enactments which may be alike and dealing with serious offences. In our opinion no other meaning can be attributed when the intention of the proviso itself is to keep open inclusion of other special acts without they being specifically referred in the proviso. We would hence read the proviso in its entirety so to gather the correct meaning of all the words. Thus in our opinion the words as appearing in the bracketed portion would not restrict the meaning and intention the proviso intends to achieve to make an exception from application of Prashant Rane PS sub ruleto those convicted for serious offences for a term of more than seven years. Criwpst 3206 20 full bench.odt We thus find that the intention is certainly not to classify the Special Acts only on the applicability of the words as used in the bracketed portion in the proviso but the primary focus of the proviso is to carve out an exception to applicability of sub rule for the prisoners who are convicted for serious offences as not only in the specified Special Acts but also under those Special Acts which are intended to be included within the proviso and not specially mentioned In our clear opinion the Special Acts like POCSO and or TADA are certainly required to be read in the proviso so as to make sub ruleinapplicable to the category of convicts falling therein Mr.Yagnik learned APP for the State would be justified in referring to the orders of the Supreme Court in the case of National Alliance for People s Movements & Ors. Vs. The State of Maharashtra Ors.6 rejecting the challenge to the decision of the Division Bench in the case in National Alliance for People s Movements & Ors. No.41120 Prashant Rane PS on the seriousness of the offences having adverse impact on the society at large. The following observations of the Supreme Court are required Criwpst 3206 20 full bench.odt to be noted “12. …. In that circumstance what has been curtailed by the HPC by excluding certain categories is only with a view to deny the benefit of certain category of jail inmates who are charged with serious offences which has an adverse effect on the society at large though the length of the punishment that can be imposed may be lesser. Such of those persons charged under the special enactments or convicted for a period more than 7 years in any event if they are not otherwise disentitled to bail in a normal circumstance could still seek for bail in accordance with law and cannot treat the pandemic as fortuitous circumstance to secure bail to which they were otherwise not entitled to in law by claiming equal treatment. ….” The avowed intention to have such proviso can also be gathered from what the Supreme Court has enunciated in commenting on such prisoners convicted for serious offences. The Supreme Court in Asfaq v. State of Rajasthan and others7 has expressed a concern that when penal reforms are introduced the State which runs the administration on behalf of the society and for the benefit of the society cannot be unmindful of safeguarding the legitimate rights of the citizens in regard to their security in the matters of life and liberty. The authorities cannot be oblivious of the obligation to the society to render it immune from those who are prone to criminal tendencies and have proved their susceptibility to indulge in criminal activities by being found guilty of having perpetrated a criminal act. It was observed that 7 AIR 2017 Supreme Court 4986 Prashant Rane PS Criwpst 3206 20 full bench.odt one of the discernible purposes of imposing the penalty of imprisonment is to render the society immune from the criminal for a specified period. It was thus observed that while meting out humane treatment to the convicts care has to be taken to ensure that kindness to the convicts does not result in cruelty to the society. Their Lordships in paragraphs 17 and 18 made the following observations: “17. Thus not all people in prison are appropriate for grant of furlough or parole. Obviously society must isolate those who show patterns of preying upon victims. Yet administrators ought to encourage those offenders who demonstrate a commitment to reconcile with society and whose behaviour shows that aspire to live as law abiding citizens. Thus parole program should be used as a tool to shape such adjustments. To sum up in introducing penal reforms the State that runs the administration on behalf of the society and for the benefit of the society at large cannot be unmindful of safeguarding the legitimate rights of the citizens in regard to their security in the matters of life and liberty. It is for this reason that in introducing such reforms the authorities cannot be oblivious of the obligation to the society to render it immune from those who are prone to criminal tendencies and have proved their susceptibility to indulge in criminal activities by being found guiltyof having perpetrated a criminal act. One of the discernible purposes of imposing the penalty of imprisonment is to render the society immune from the criminal for a specified period. It is therefore understandable that while meting out humane treatment to the convicts care has to be taken to ensure that kindness to the convicts does not result in cruelty to the society. Naturally enough the authorities would be anxious to ensure that the convict who is released on furlough does not seize the opportunity to commit another crime when he is at large for the time being under the furlough leave granted to him by way of a measure of penal reform.” Prashant Rane PS Criwpst 3206 20 full bench.odt 27. In view of the above discussion we find ourselves in agreement with the view taken by the Division Bench in Sardar s o Shawali Khan’ caseas also with the view taken by the Division Bench in Shubham s o. Devidas Gajbharecase . We accordingly answer the two question as framed by us as under : Q i) The decision of the Division Bench in Sardar s o. Shawali Khan makes the correct interpretation of Rule 19(1) sub ruleof the 1959 Rules whereas the decision of the Division Bench in Vijendra Malaram RanwaThe provisions of emergency parole as brought about by amendment to Rule 19(1) by incorporation of sub rule(N.R. BORKAR J Prashant Rane PS Page 2

Declaration of unfit is valid if proper procedure has been followed and no mala fide is attributed against the respondents: Delhi High Court

All enforcement forces have high standards of requirements that are required to be met to become a part of the service, and the if tests conducted to check the eligibility are done properly, then there is no requirement for the court’s interference.  This was held in the judgment passed by a two- judge bench Hon’ble Mr. Justice Manmohan Hon’ble Mr. Justice Navin Chawla, in the matter of Devendra Singh V. Union Of India And Ors. [W.P.(C) 9559/2021 &amp; CM APPL. 29584-85/2021], dealt with an issue where the petitioner filed a petition challenging the communication by which the petitioner was informed that the Senior Divisional Medical Officer (G&amp;O), Eastern Railway, Asansol has declared the petitioner as unfit for recruitment as a Constable (Executive) in the Railway Protection Force. The petitioner further challenged the communication by which the request of the petitioner for medical re- examination was not considered for the reason that the photograph of the candidate had not been attested by the doctor concerned on the medical certificate. Counsel for the petitioner submitted that the petitioner had applied for the post of Constable (Group C Post) in the RPF. He was issued a letter mentioning his provisional selection and was called to present himself for the medical examination to be held on at the Office of the Inspector, RPF, Asansol. The petitioner duly presented himself for the medical examination, however, was declared unfit under BEE ONE (B-1) medical category due to ‘EGL 13mm defective’. The impugned communication itself advised the petitioner of the procedure to file an appeal for medical re-examination. The petitioner duly applied for the same, however, on a technical ground of the photograph of the petitioner not being attested by the concerned doctor, the request was rejected by the respondent vide impugned communication. The petitioner has thereafter undergone a medical test at IRMM at the Jaipur Calgary Eye Hospital and Research Centre Trust as well as the Raj Bahadur Memorial Rajkiye Chikitsalaya, who had declared him to be medically fit. The petitioner again applied for an Appeal Medical Board with the respondent, however, the said request has been rejected by the respondents vide impugned order without giving any reasons for the same. After hearing both the parties The Hon’ble Delhi High Court dismissed the petition and held that Clause VI of the Instructions further states that a request for appeal must be submitted within one month from the date of receipt of the decision from the Personnel Department of being declared unfit. The petitioner was informed of him being declared medically unfit vide the impugned communication. The impugned communication further advised the petitioner that he may submit an appeal challenging this finding within one month of the date of the issue of the letter along with a medical certificate in the prescribed performa from a specialist doctor. It also held that the petitioner has been found unfit by a committee consisting of three Railway Doctors, therefore they find no merit in this case. Click here to view judgement Judgement reviewed by – Vaishnavi Raman

IN THE HIGH COURT OF DELHI AT NEW DELHI Date of Decision: 03.09.2021 Petitioner Through: Mr.Shailinder Saini Adv. DEVENDRA SINGH W.P.(C) 9559 2021 & CM APPL. 29584 85 2021 UNION OF INDIA AND ORS Respondents Through: Mr.Jagjit Singh Sr. Standing for Railways with Mr.Preet Singh & Mr.Vipin Chaudhary Advs. HON BLE MR. JUSTICE MANMOHAN HON BLE MR. JUSTICE NAVIN CHAWLA NAVIN CHAWLA J.This petition has been filed by the petitioner challenging the communication dated 04.11.2019 by which the petitioner was informed that the Senior Divisional Medical Officer Eastern Railway Asansol vide Medical Certificate No. 777600 dated 19.09.2019 has declared the petitioner as unfit for recruitment as a Constable in the Railway Protection Force in BEE ONE(B 1) medical category due to ‘EGL 13mm defective’. The petitioner further challenges the communication dated 10.01.2020 by which the request of the petitioner for medical re W.P.(C) 9559 2021 examination was not considered for the reason that the photograph of the candidate had not been attested by the doctor concerned on the medical certificate. The petitioner also challenges the communication dated 08.05.2020 by which the Principal Medical Chief Director Eastern Railway Kolkata had rejected the appeal for medical re examination. The learned counsel for the petitioner submits that the petitioner had applied for the post of Constablein the RPF. He was issued a letter dated 27.08.2019 mentioning his provisional selection and was called to present himself for the medical examination to be held on 05.09.2019 at the Office of the Inspector RPF Asansol. The petitioner duly presented himself for the medical examination however was declared unfit under BEE ONE medical category due to ‘EGL 13mm defective’. The impugned communication dated 04.11.2019 itself advised the petitioner of the procedure to file an appeal for medical re examination. The petitioner duly applied for the same however on a technical ground of the photograph of the petitioner not being attested by the concerned doctor the request was rejected by the respondent vide impugned communication dated 10.01.2020. The petitioner has thereafter undergone a medical test at IRMM at the Jaipur Calgary Eye Hospital and Research Centre Trust as well as the Raj Bahadur Memorial Rajkiye Chikitsalaya who had declared him to be medically fit. The petitioner again applied for an Appeal Medical Board with the respondent however the said request has been rejected by the W.P.(C) 9559 2021 respondents vide impugned order dated 08.05.2020 without giving any reasons for the same. The learned counsel for the petitioner submits that as the petitioner has been denied an opportunity of an examination by the Appeal Medical Board without giving any reasons the present petition deserves to be allowed. 5. We have considered the submissions made by the learned counsel for the petitioner however find no merit in the same. The impugned communication dated 04.11.2019 informed the petitioner that he has been found unfit by a committee consisting of three Railway Doctors. The impugned communication further advised the petitioner that he may submit an appeal challenging this finding within one month of the date of the issue of the letter alongwith a medical certificate in the prescribed performa from a specialist doctor. The impugned communication further informed the petitioner that the itself shall have to be produced before Government private specialist doctor as the same bears the photograph and identification marks of the candidate for verification by the specialist doctor at the time of medical examination. The impugned communication is reproduced herein below: “Office of the Principal Chief Security Commissioner RPF Eastern Railways 14 Stan RoadKolkata 700 001 Kolkata the 4th November 2019 S. No. SC.30 65 5 E Const.Rectt 2019 To W.P.(C) 9559 2021 Name: Devendra Singh Father’s Name: Vijay Singh Roll No: C UR 13120195578 Address: Vill Dayopura PO Kumha Teh Bharatpur Distt. Bharatpur Rajasthan Mobile No.: 8739962594 Devendra Singh Email: devvijay321303@gmail.com PIC) 29.03.2018 Sub: Medical Examination of empaneled constable candidate at Asansol Railway Hospital Asansol This is to intimate that Sr. Divisional Medical Officer Eastern Railway Asansol vide Medical Certificate no. 777600 dated 19.09.2019 has declared you unfit as Constablein RPF in BEE ONE B 1) medical category by a committee consisting of three Railway Doctor “due to EGL 13mm defective”. Director Chief Medical In terms of para 522 of India Railway Manual you may prefer appeal to higher medical authority i.e. Railway Kolkata within one month from the date of issue of the letter. You are advised to enclose a medical certificate in prescribed Proforma obtained from a specialist doctor for consideration of appeal in the case of the candidates declared unfit. A demand draft for Rs. 1000 drawn in favour of Principal Financial Advisor Eastern Railway Kolkata should be enclosed along with the application for appeal. Your application for appeal should be sent to Principal Chief Security Commissioner RPF Eastern W.P.(C) 9559 2021 Railway NKG Building 3rd Floor 14 Stand Road Kolkata Pin 700001 A copy of Railway Board’s letter No. 2014 H 5 8 dated 07.07.2017 regarding instructions for consideration of appeals in the cases of the candidates declared unfit upon medical examination is enclosed here with for your information. DA: As above Note: This letter be produced before Government private specialist doctor who will examine the candidate. The photograph and identification marks are printed on this letter for verification of the candidate by the specialist doctor at the time of Medical Examination. Identification Marks: A cut mark on left Thumb A mole on right Chest sd Dt. 24 11 2019 Staff Officer to PCSC For Principal Chief Security Commissioner RPF Railway Protection Force Eastern Railway Kolkata Copy to PCMD E. Rly Kolkata for kind information please. Staff Officer to PCSC For Principal Chief Security Commissioner RPF Railway Protection Force Eastern Railway Kolkata” The petitioner has also annexed with the petition a copy of instructions dated 07.07.2017 regarding consideration of an appeal by W.P.(C) 9559 2021 a candidate selected for railway employment declared unfit upon medical examination. Clause VI of the same is relevant and is reproduced hereinbelow: “VI. If the candidate wants to appeal against the decision of the Committee he should submit the same to CMD of the zone within a period of one month with due justification routed through concerned Personnel Department of the zone. Such an appeal shall be entertained only if the from a candidate products a certificate Government Private doctor of the specialty specialties in which the candidate has been found unfit. Such a certificate should contain a note that the Government Private specialist is fully aware of the physical & visual standards set by the Railways for the particular medical category and that he is aware of the fact that the candidate has already been declared unfit according to these standards during medical examination conducted by an appropriate Medical Board comprising of three senior railway doctors appointed by the Government in this regard. The certificates should bear the photograph and mark of identification of the Government Private Issuing Authority. Such an issuing authority shall also clearly mention its MCI State registration number. The candidate should clearly should be advised of this para.” Emphasis supplied) A reading of the above clause and the impugned communication would clearly show that the respondents have placed emphasis on the W.P.(C) 9559 2021 identity of the candidate undergoing examination to be attested by the doctor examining the candidate and for this purpose it has been mandated that the certificate issued by the doctor must have the photograph and identification marks of the candidate duly attested by the Government private issuing authority. In the present case the petitioner does not deny that in the original appeal filed by him his photograph was not duly attested by the doctor concerned. Therefore no fault can be found in the rejection of his request for an appeal communicated to him by the impugned letter dated 10.01.2020. Clause VI of the Instructions further states that a request for appeal must be submitted within one month from the date of receipt of the decision from the Personnel Department of being declared unfit. The petitioner was informed of him being declared medically unfit vide the impugned communication dated 04.11.2019. The petitioner admittedly filed the appeal with the respondents after his first rejection of appeal only on 02.03.2020 which is beyond the prescribed period. The recruitment period being time sensitive therefore no fault can be found in the rejection of such request by the respondents. It is also relevant to note here that though the rejection of appeal of the petitioner was communicated to him vide letter dated 08.05.2020 the present petition has been filed belatedly and is first time listed only today i.e. after a period of more than one year of such rejection. Though the petitioner in the present petition claims of an another order dated 01.09.2020 being passed by the Principal Chief W.P.(C) 9559 2021 Security Commissioner RPF Eastern Railway rejecting his request for medical re examination even a copy thereof has not been annexed with the petition. 11. As far as the reliance of the petitioner on the certificate issued by the other Medical Institute(s) is concerned once a proper procedure has been followed by the respondents and no mala fide is attributed against the respondents no credence can be placed on such certificate(s) for challenging the report of the Medical Committee appointed by the respondent which found the petitioner to be medically unfit for appointment. It is relevant here to emphasis that the Medical Committee that declared the petitioner Unfit consisted to three doctors from the Railways. In view of the above we find no merit in the present petition. The same is dismissed. SEPTEMBER 3 2021 rv NAVIN CHAWLA J MANMOHAN J W.P.(C) 9559 2021

Petitions challenging elections to the Municipal Council to be maintainable only through an election petition: Punjab and Haryana High Court

Any petitions challenging the election of certain candidates shall be maintainable only through an election petition. The Punjab High Court quorum of Jaswant Singh J. and Sant Parkash J. on a pristine reading of the Punjab State Election Commission Act, 1994 held that on account of any ongoing proceedings under an election petition, an extended writ petition challenging the said election is not maintainable. It was observed in the matter of Basant Kumar Goyal v State of Punjab [CWP No.9156 of 2021]. The facts of the case are that petitioners contested the election from Ward Nos.3 and 5 of Municipal Council, Lehra Gaga, District Sangrur, respectively and respondents were their rival candidates. The petitioners filed objections before the Returning Officer-respondent No.6 against the nomination papers of respondents on the ground that they were in unauthorized possession of the government land. However, respondent No.6 failed to act upon the complaints/objections made by the petitioners against respondents and subsequently, they were able to contest the election and ultimately elected from their respective wards. It is alleged in the petition that respondent No.6 blatantly misused her powers as Returning Officer in the elections. It was contested on behalf of the petitioners that while allowing respondents No.7 to 8 to contest the election, respondent No.6 out-rightly ignored the fact that encroaching upon Municipal land is a criminal offence also. It was further submitted that a person who has encroached upon Municipal land can never be allowed to represent the residents of that area in the capacity of councilor. The bench to give effect to the mandate of the provisions of the Constitution regarding bar to interference by Courts in electoral matters, observed that the Punjab State had promulgated the Punjab State Election Commission Act, 1994, which governed not only Municipality elections but also Panchayati elections in the State of Punjab. In this Act, there is a bar under Section 74 on challenging the elections by any other mode than filing an election petition. In view of the above-said provisions contained in the Constitution as well as statutory provisions that there is a complete bar on the jurisdiction of any court to entertain any challenge to an election process, which includes improper rejection of nomination. The Hon’ble Supreme Court in Election Commission of India through Secretary Vs Ashok Kumar and others, 2000 (8) SCC 216 was referred to wherein it was held that the Court must be very circumspect and act with caution while entertaining any election dispute though not hit by the bar of Article 329(b) but brought to it during the pendency of election proceedings. The Court was of the considered view that the controversy involved in the present case can only be gone into after evidence is led and not while adjudicating a writ petition. Thus, only an election petition would be maintainable and not a writ petition. On the other paradigm, an election petition challenging the election of respondent, taking all the identical and similar pleas as taken in the present writ petition, had already been filed and was pending before the Competent Authority. In such a scenario, the said writ petition can be said to be not maintainable as the specific remedy available under law has already been availed.

IN THE HIGH COURT OF PUNJAB AND HARYANA AT CWP No.91521 Date of Decision:28.04.2021 Basant Kumar Goyal and another State of Punjab and others HON’BLE MR. JUSTICE SANT PARKASH CORAM: HON’BLE MR. JUSTICE JASWANT SINGH Present: Mr. Rajesh Gupta Advocate for the petitioners. The aforesaid presence is being recorded through video conferencing since the proceedings are being conducted in virtual court.] SANT PARKASH J. By way of filing the present writ petition petitioner inter alia prays for issuance of a writ in the nature of mandamus directing respondent No.3 Secretary State Election Commission Chandigarh to declare the result of respondents No.7 and 8 for election of Municipal Council Lehra Gaga District Sangrur as null and void as they have encroached upon the government land. Further prayer has been made not to hold election for electing President of Municipal Council Lehra Gaga District Sangrur. The facts of the case are that petitioner No.1 and petitioner No.2 contested the election from Ward Nos.3 and 5 of Municipal Council Lehra Gaga District Sangrur respectively and respondents No.7 and 8 were their rival candidates. The petitioners filed objections before the Returning Officer respondent No.6 against the nomination papers of respondents No.7 and 8 on the ground that they were in unauthorized possession of the government land. However respondent No.6 failed to act upon the CWP No.91521 complaints objections made by the petitioners against respondents No.7 and 8 and subsequently they were able to contest the election and ultimately elected from their respective wards. It is alleged in the petition that respondent No.6 blatantly misused her powers as Returning Officer in the Learned counsel for the petitioners submits that while allowing respondents No.7 to 8 to contest the election respondent No.6 out rightly ignored the fact that encroaching upon Municipal land is a criminal offence also. He further submits that a person who has encroached upon Municipal land can never be allowed to represent the residents of that area in the capacity of councilor. To support his claim he refers to an interim order dated 12.03.2021 passed by this Court in CWP No.58721. This Court has heard the learned counsel for the petitioners and perused the case file. Admittedly to give effect to the mandate of the provisions of the Constitution regarding bar to interference by Courts in electoral matters the Punjab State also promulgated the Punjab State Election Commission Act 1994 which governs not only Municipality elections but also Panchayati elections in the State of Punjab. In this Act there is a bar under Section 74 on challenging the elections by any other mode than filing an election petition. For ready reference Section 74 is reproduced as under: “74. Election petitions. No election shall be called in question except by an election petition presented in accordance with the provisions of this Chapter.” Further under Section 89(1)(c) of the Act 1994 enumerates the grounds for declaring an election to be void. In this section one of the CWP No.91521 grounds for declaring election to be void is improper rejection of nomination paper. The said provision is reproduced as under: 89. Grounds for declaring election to be void:Subject to the provisions of sub sectionif the Election Tribunal is of the opinion: c) that any nomination has been improperly rejected In view of the above said provisions contained Constitutional as well as statutory provisions that there is a complete bar on the jurisdiction of any court to entertain any challenge to an election process which includes improper rejection of nomination. However the Hon ble Supreme Court in Election Commission of India through Secretary Vs Ashok Kumar and others 2000SCC 216 summed up following terms in para 32 of the judgment: “32. For convenience sake we would now generally sum up our conclusions by partly restating what the two Constitution Benches have already said and then adding by clarifying what follows therefrom in view of the analysis made by us hereinabove: 1) If an election is to be called in question and which questioning may have the effect of interrupting obstructing or protracting the election proceedings in any manner the invoking of judicial remedy has to be postponed till after the completing of proceedings in election. 2) Any decision sought and rendered will not amount to “calling in question an election” if it subserves the CWP No.91521 progress of the election and facilitates the completion of the election. Anything done towards completing or in furtherance of the election proceedings cannot be described as questioning the election. Subject to the above the action taken or ordered issued by Election Commission are open to judicial review on the well settled parameters which enable judicial review of decisions of statutory bodies such as on a case of malafide or arbitrary exercise of power being made out or the statutory body being shown to have acted in breach of law. Without interrupting obstructing or delaying progress of the election proceedings judicial intervention is available if assistance of the Court has been sought for merely to correct or smoothen the progress of the election proceedings to remove the obstacles therein or to preserve a vital piece of evidence if the same would be lost or destroyed or rendered irretrievably by the time the results are declared and stage is set for invoking the jurisdiction of the Court. 5) The Court must be very circumspect and act with caution while entertaining any election dispute though not hit by the bar of Article 329(b) but brought to it during the pendency of election proceedings. The Court must guard against any attempt at retarding interrupting protracting or stalling of the election proceedings. Care has to be taken to see it as there is no attempt to utilise the Court s indulgence by filing a petition outwardly innocuous but essentially a subterfuge or pretext or achieving an ulterior or hidden end. Needless to say that in the very nature of the things the Court would act with reluctance and shall not act except on a clear and strong case for its intervention having been made out by raising the pleas with particulars and precision and supporting CWP No.91521 the same by necessary material.” Keeping in view the facts of the case considering the above said provisions as well as the observations of the Hon ble Supreme Court in Ashok Kumar s casethis Court is of the considered view that the controversy involved in the present case can only be gone into after evidence is led and not while adjudicating a writ petition. Thus only an election petition would be maintainable and not a writ petition. When a specific query was put to learned counsel for the petitioners he fairly conceded that an election petition challenging the election of respondent Nos.7 and 8 taking all the identical and similar pleas as taken in the present writ petition has already been filed and is pending befor the Competent Authority. In such a scenario the said writ petition can be said to be not maintainable as the specific remedy available under law has already been availed. However learned counsel for the petitioners is trying to justify the claimed relief on the basis of order dated 12.03.2021 passed by this Court in CWP No.5876 of 2021. This submission of learned counsel for the petitioners is totally misplaced because in the said case there was an inquiry report of General Election Observer regarding the malpractices and as such the petitioners cannot be allowed to take the advantage of that order. In this view of the matter the present writ petition is not maintainable and is dismissed as such. JASWANT SINGH) JUDGE SANT PARKASH) Whether Speaking Reasoned: YES NO YES NO Whether Reportable:

VEHICLE/PROPERTY- TO BE CONFISCATED ONLY IF LIQOUR OR ANY INTOXICANT SUBSTANCE IS PRESENT IN THE PREMISES : PATNA HIGH COURT

The Court has continued to direct the State to provisionally release vehicle/property in cases of drunken driving; no recovery from the vehicle; recovery of less than commercial quantity; ex-facie, the vehicle is not liable to be confiscated; ex-facie, the vehicle is not liable to be confiscated; ex-facie, the vehicle is not liable to be confiscated; ex-facie, the vehicle is not liable to be confiscated, said Justice S.Kumar of Patna High Court. In the matter of “Pankaj Yadav vs. State of UP  [ Civil Writ Jurisdiction Case No.6873 of 2021]” The order was issued in response to the petition filed for the release of a truck in favour of the petitioner which was seized in connection to Section 13, Section 30 (a), Section 56 of Bihar Prohibition and Excise Act 2016.” Learned counsel for the petitioner prays that the petition is disposed of in terms of order dated 9th January 2020 passed titled as “Md. Shaukat Ali Vs. The State of Bihar” The Learned Counsel had no objection to section 13 but to Section 56 which reads :  “56. Things are liable for confiscation.- Whenever an offence has been committed, which is punishable under this Act, the following things shall be liable to confiscation, namely-  (a) Any intoxicant, liquor, material, still, utensil, implement, apparatus in respect of or by means of which such offence has been committed;  (b) any intoxicant or liquor unlawfully imported, transported, manufactured, sold or brought along with or in addition to, any intoxicant, liable to confiscation under clause (a);  (c) any receptacle, package, or covering in which anything liable to confiscation under clause (a) or clause (b), is found, and the other contents, if any, of such receptacle, package or covering;  (d) any animal, vehicle, vessel or other conveyance used for carrying the same.  (e) Any premises or part thereof that may have been used for storing or manufacturing any liquor or intoxicant or for committing any other offence under this Act.”  As the vehicle that has been confiscated did not have any traces of intoxicant, liquor or such material inside it. Therefore, as a result, the petitioner is granted the right to file an appropriate petition before the learned Special Judge, Excise, for the prosecution of the concerned police official.  In terms of compensation, obviously, going through the material on record, there was no recovery of liquor from the vehicle and it was a case in which the occupants of the vehicle were alleged to be in a drunken state and Patna High Court was creating a nuisance, though they were liable to be arrested. In any case, the vehicle was not required to be seized because it was not subject to confiscation. It was held by the court that to also direct the appropriate authority to conclude the confiscation proceeding positively within thirty days of the petitioner’s appearance. If for whatever reason, such proceeding cannot be completed, the authority shall be free to take any legal measures necessary to release the vehicle.

IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.68721 Pankaj Yadav Son of Sarnam Singh Resident of village Nagla Mache Post Onha P.s. Mainpuri District Etawahof Bihar Prohibition and Excise Act 2016.” Learned counsel for the petitioner prays that the petition be disposed of in terms of order dated 9th January 2020 passed in CWJC No. 205919 titled as Md. Shaukat Ali Vs. The State of Bihar and subsequent order dated 14th January 2020 passed in CWJC No.171619 titled as Umesh Sah Versus the State of Bihar & Ors. and order dated 29.01.2020 passed in CWJC No.2050 of 2020 titled as Bunilal Sah objection to the same. Learned counsel for the respondents has no The Bihar Prohibition and Excise Act 2016 hereinafter referred to as the Act) prohibits the manufacture storage distribution transportation possession sale purchase and consumption of any intoxicant or liquor unless so allowed in terms of the Act.Any intoxicant liquor material still utensil implement apparatus in respect of or by means of which such offence has been committed b) any intoxicant or liquor unlawfully imported transported manufactured sold or brought along with or in addition to any intoxicant liable to confiscation under clausec) any receptacle package or covering in which anything liable to confiscation under clauseis found and the other contents if any of such receptacle package or covering d) any animal vehicle vessel or other conveyance used for carrying the same e) Any premises or part thereof that may have been used for storing or manufacturing any liquor or intoxicant or for committing any other offence under this Act Explanation. The word “premises” include the immovable structure all moveable items within the structure and the land on which the premises is Patna High Court CWJC No.68721 dt.07 06 2021 Under section 58 power to issue an order of confiscation vests with the District Collector Authorized officer who upon receipt of the report of the seizing officer detaining such propertyis required to pass an order. This Court has been flooded with several petitions solely on account of non initiation of such proceedings of confiscation or passing of illegal orders with respect thereto Also on account of lack of parties pursing the remedies so provided under the Act. Consequently the court was faced with the following fact situations: where despite seizure no proceedings for confiscation under Section 58 were initiated the parties after obtaining interim relief for release of “things” under orders passed in different set of writ petitions did not participate in the confiscatory proceedings where the order of confiscation was neither communicated nor the parties made aware of such fact thus precluding them from filing appeal under Section 92 and Revision under Section 93 of the Act proceedings initiated under Section 92 93 were not concluded within a reasonable Patna High Court CWJC No.68721 dt.07 06 2021 time either on account of inaction on the part of the authority(s or on account of non cooperation of the private parties be it for passing several orders. Resultantly this Court from time to time has been In CWJC No.3245 of 2017 titled as Manish Kumar Chaudhary versus the State of Bihar & Ors. this Court vide order dated 18.01.20202 issued following directions: “As such as mutually prayed for the present writ petition is being disposed of on the following mutually agreed terms: Interim order dated 07.03.2017 passed in the instant writ petition directing release of the propertyshall continue to remain in operation till such time proceedings up to the stage of initiation of confiscatory proceedings and its culmination as also filing and culmination of the proceedings in the appeal as the case may be. This however would be subject to the petitioner(s) fully cooperating and not transferring alienating the property to any person or creating third party rights. It goes without saying that the property shall be maintained and retained in its original condition and not destroyed in any manner or its character changed. b) Wherever proceedings for confiscation have not started the Appropriate Authority constituted under the Act shall positively initiate the same within a period of four weeks from today. In any event petitioner undertakes to appear in the office of the concerned concerned District Magistrate on the 10th of Patna High Court CWJC No.68721 dt.07 06 2021 February 2020 and apprise him of the passing of the order. The said Officer shall forthwith and not later than four weeks from today initiate the proceedings and after compliance of principles of natural justice take a decision thereupon within a period of In the event of the authority arriving at the conclusion directing confiscation of the property the petitioner shall positively file the appeal within the statutory period as envisaged under Section 92 of the Bihar Prohibition and Excise Act 2016 and the appellate authority shall positively decide the same within a period of two months Wherever confiscatory proceedings already stand concluded and if the petitioner so desires within four weeks from today or within the statutory period of limitation as the case may be positively file an appeal which shall be adjudicated on its own merit The issue of limitation shall not be raised by the State or come in the petitioner’s way of decision on merits. The said proceedings shall positively be concluded within a period of two months from the date of filing Petitioner undertakes to fully cooperate in all such proceedingsWhere appeal already stands filed petitioner shall appear before the said Authority on the 20th February 2020 and apprise him of the passing of the order. The Appellate Authority shall positively decide the same within a period of two months thereafter. g) With the decision in the appeal it shall be open for either of the parties to take recourse to such remedies as are available in accordance with law including approaching this Court on the same and subsequent cause of action. h) If the petitioner fails to cooperate does not Patna High Court CWJC No.68721 dt.07 06 2021 or makes an endeavour of in any one of the proceedings referred to supra it shall be open for the authority to take a decision with regard to the property including taking back possession and putting it on sale in terms of the Act with the interim order deemed to have been vacated If the appellant chooses not to prefer an appeal within the said statutory period or as directed herein it shall be open for the authority to take a decision with regard to the property including taking back possession and putting it on sale in terms of the Act and the interim order passed in the instant petition shall be deemed to have been j) With the outcome of the Special Leave PetitionNo.297416 titled as State of Bihar & Ors. etc. Vs. Confederation of Indian Alcoholic Beverage Companies Anr. parties including the petitioner would be at liberty to take recourse to such remedies as are permissible in law.” In CWJC No.20598 of 2019 titled as Md Shaukat Ali Vs. The State of Bihar & Ors. this Court vide order dated 09.01.2020 issued the following directions: “Without adjudicating the petitioner’s petition on merits we are of the considered view that interest of justice would be best met if the petition is disposed of in the following terms: a) Since the vehicle in question stands seized in relation to the FIR which stood registered long ago in case confiscation proceeding has not been initiated it must be initiated within a period of 15 days from today and that confiscation proceeding stands initiated we direct the appropriate authority under the Act to forthwith ensure that such proceedings be concluded not later than 30 days. b) The petitioner undertakes to make Patna High Court CWJC No.68721 dt.07 06 2021 himself available in the office of the concerned appropriate authority empowered under Section 58 of the Act i.e. District Collector in his her office on 24.01.2020 at 10:30 A.M c) We further direct the appropriate authority to positively conclude the confiscation proceeding within next thirty days on appearance of the petitioner. If for whatever reason such proceeding cannot be concluded in that event it shall be open for the authority to take such measures as are permissible in law for release of the vehicle in question by way of interim measure on such terms as may be deemed appropriate considering the attending facts and circumstances of the case d) If eventually the appropriate authority arrives at a conclusion that the property is not liable to be confiscated it shall be open for the petitioner to seek damages in accordance with law and have appropriate the erring initiated against Learned counsel for the petitioner states that the certified copy of the order shall be made available to the concerned District Collector on the date so fixed. For future guidance where parties have not approached this Court we issue the following direction: The expression “reasonable delay” used in Section 58 of Chapter VI of the Act in our considered view necessarily has to be within a reasonable time and with dispatch which period in our considered view three months time is sufficient enough for any authority to adjudicate any issue more so when we are dealing with confiscatory proceedings.” These directions were reiterated in CWJC No.171619 titled as Umesh Sah Versus The State of Bihar & Ors. by this Court vide order dated 14.01.2020. Since the respondents had failed to comply with the several orders passed by this court in CWJC No.20520 titled as Bunilal Sah @ Munilal Sah versus the State of Patna High Court CWJC No.68721 dt.07 06 2021 Bihar & Ors. vide order dated 29.01.2020 by recording the entire history directed the State to file an affidavit as to why proceedings for contempt be not initiated. Such order dated 29.01.2020 in toto reads as under: “It is seen that despite our order dated 9thof January 2020 passed in C.W.J.C. No. 20598 of 2019 titled as Md. Shaukat Ali Vs. The State of Bihar& Ors. and the order dated 14thof January 2020 passed in C.W.J.C. No. 171619 titled as Umesh Sah Vs. The State of Bihar& Ors. the State has not initiated proceedings under the provisions of the Bihar Prohibition and Excise Act 2016. It is a matter of record that this legislation has generated huge litigation. The docket of the Court be it the trial court or the High Court is now choked solely on account of such legislation. In the High Court itself on an average 400 bail applications are being filed every day some of which are pertaining to the said Statute. Position in the lower courts is worse. Before the trial courts i.e. the Sessions Courts more than 1 75 000 challans stand filed in relation to the said Statute. Before this Court on an average more than 5000 writ petitions are being filed annually for release of vehicles properties seized under the said Act. It has been the continued practice of this Court since the year 2017 that in the writ petitions the vehicles unless the situation so warrants are normally being released subject to fulfilment of certain conditions. This perhaps is done only to protect the property from being destroyed for there is no mechanism under the Statute or with the administration for protecting the property seized in relation to the crime registered under the said Statute. Property is left to the vagaries of weather resulting into national loss. This we say for the reason that proceedings for confiscation as envisaged under Section 58 were never initiated by the authority which under the Act is the District Magistrate Collector. It is only as a result of inaction on the part of such authorities that the owners of the vehicles properties are constrained to approach this Court for its release. When the matter in C.W.J.C. No. 205919and in 17165 of 2019(Umesh Sah Vs. The State of Bihar& Ors.)of the Bihar Prohibition and Excise Act 2016 It is continued practice of this Court that in cases of drunken driving no recovery from the vehicle recovery of less than commercial quantity where ex facie vehicle is not liable to be confiscated where there is inordinate delay in initiating proceedings for confiscation of the vehicle etc. this Court has been directing the State to provisionally release vehicle property subject to initiation conclusion finalisation of the confiscatory proceedings as the case may be. Reference can be made to the judgments orders passed by different co ordinate Benches of this Court viz: i) Judgement dated 22.03.2018 passed in CWJC No.50418 titled as Diwakar Kumar Singh versus The State of Bihar & Ors. ii) order dated 31.07.2018 passed in CWJC No.13162 of 2018 titled as Rajesh Kumar Pandit @ Rajesh Pandit Vs. The State of Bihar iii) order dated 31.07.2018 passed in CWJC No.142418 titled as Amar Kumar Vs The State of Bihar & Ors. iv) order dated 12.02.2018 passed in CWJC No.24318 titled as Mahendra Manjhi Vs. The State of Bihar & Ors. v) judgement dated 12.02.2018 passed in CWJC No.24718 titled as Laxman Das Lakshman Ravidas Vs. The State of Bihar & Ors. vi) order dated 11.09.2017 passed in CWJC No.13158 of 2017 titled as Sanjay Kumar Versus The State of Bihar & Ors. vii) order dated 27.03.2018 passed in Patna High Court CWJC No.68721 dt.07 06 2021 CWJC No.55218 titled as Bikash Kumar Vs The State of Bihar & Ors. viii) order dated 27.03.2018 passed in CWJC No.5528 of 2018 titled as Bikash Kumar Versus The State of Bihar & Ors. ix) order dated 01.05.2018 passed in CWJC No.7755 of 2018 titled as Anandi Prasad Versus The State of Bihar & Ors. x) order dated 01.05.2018 passed in CWJC No.76418 titled as Suraj Ram Versus The State of Bihar & Ors. xi) order dated 07.08.2018 passed in CWJC No.154318 titled as Kalesar Chaudhari Versus the State of Bihar & Ors. xii) judgement dated 18.01.2019 passed in CWJC No.12119 titled as Raushan Kumar @ Raushan Kumar Singh Versus The State of Bihar & Ors. xiii) judgement dated 29.01.2019 passed in CWJC No.16219 titled as Asharfi Kumar @ Rakesh Kumar Versus the State of Bihar Ors. xiv) judgement dated 08.02.2019 passed in CWJC No.23819 titled as Avinash Kumar Versus the State of Bihar & Ors. xv) judgement dated 29.01.2019 passed in CWJC No.16419 titled as Roshan Kumar Versus The State of Bihar & Ors. and xvi) judgement dated 22.01.2019 passed in CWJC No.1314 of 2019 titled as Shanti Devi Versus The State of Bihar & Ors In fact in CWJC No. 5049 of 2018 titled as Diwakar Kumar Singh Versus the State of Bihar & Ors the Court issued the following directions: “That apart in the confiscation proceedings the confiscating authority shall take note of the provisions of Section 56 of the Bihar Prohibition and Excise Act 2016 and record a positive finding after hearing the petitioner as to whether when the petitioner is found or the vehicle is found to be used by a person in drunken condition and no liquor is seized from the vehicle or when the vehicle is not used for transportation of liquor whether the provision of Section 56 of the Act will apply. It shall be mandatory for the confiscating authority to decide this issue before passing any order on the confiscation proceedings. The confiscating authority shall consider the provision of Patna High Court CWJC No.68721 dt.07 06 2021 Section 56 of the Act apply his mind and pass a speaking order with regard to confiscation initiated Without deciding the aforesaid issue as a preliminary issue further proceedings in the confiscation proceedings shall be prohibited. We further request the office of the Advocate General to communicate this order to all the District Magistrates in the State of Bihar who would be mandated to pass an appropriate order in such cases where the vehicle has been confiscated under Section 56 of the Act only on the allegation that the vehicle was being driven in a drunken condition and no liquor was seized from the vehicle nor the vehicle used for transportation or carriage of liquor. The issue shall be decided by each and every District Magistrate before proceeding in the confiscation proceedings where the allegation is about the vehicle being driven in a drunken condition and no liquor was found from the possession of the vehicle. It shall be the duty of the Advocate General to communicate this order to each and every District Magistrate and inform the Registrar General of this Court. In spite thereof if we find that the District Magistrates are passing confiscation order without addressing this issue first we may consider initiating contempt proceedings against the concerned District It is further seen that in CWJC No.150019 titled as Shobha Devi Versus The State of Bihar & Ors. the Court observed as under: “6. On examination of aforesaid fact particularly allegation of the petitioner that in a court proceeding before the learned Special Judge Excise a false information was given we are of the opinion that the court of learned Special Judge Excise would be competent court to pass an appropriate order in view of provisions contained in Section 340 of the Code of Criminal Procedure 1973 7. Accordingly the petitioner is granted liberty to file appropriate petition before the learned Special Judge Excise for prosecuting the concerned 8. So far as claim of compensation is concerned obviously on going through the material on record since there was no recovery of liquor from the vehicle and it was a case in which the occupants of the vehicle were alleged to be in drunken condition and Patna High Court CWJC No.68721 dt.07 06 2021 were creating nuisance though were liable to be arrested. In any event the vehicle was not required to be seized since it was not liable to be confiscated 9. In such situation we are of the opinion that it is a fit case in which we may direct to pay adequate compensation to the petitioner being owner of the vehicle to the tune of Rs.75 000 however Sri Kumar Manish learned Standing Counsel 5 requests for granting an opportunity for obtaining detailed instruction and filing counter affidavit in the matter. The request of Sri Kumar Manish S.C. 5 is allowed for filing counter affidavit so that final order may be passed 10. It goes without saying that before filing counter affidavit the respondent no. 4 Superintendent of Police Darbhanga may conduct a preliminary inquiry regarding the conduct of the police officer who had seized the vehicle of the petitioner and state all those facts in its counter affidavit which must be filed by 29th of November 2019. The affidavit must be sworn by the Superintendent of Police himself 11. It further goes without saying that if after considering all the facts including counter affidavit which is proposed to be filed the Court comes to the conclusion that the petitioner is entitled for claim of amount of compensation which has been referred hereinabove the said compensation amount must be recovered from the pocket of the police officer who was responsible for such illegal seizure.” Despite the same only before this Court when matters of similar nature came up for hearing on 16thof December 2019 the learned Advocate General assisted by Shri Vikash Kumar learned Standing Counsel 11 and Shri Vivek Prasad learned Government Pleader 7 vehemently opposed the petitions for release of the vehicles. Consequently the writ petitions were disposed of with the directions to the appropriate authorities to positively initiate conclude confiscatory proceedings within a period of 30 45 days Without adjudicating the petitioner’s petition on merits we are of the considered view that interest of justice would be best met if the petition is disposed of in the following terms: a) Since the vehicle in question stands seized in relation to the FIR which stood registered long ago in case confiscation proceeding has not been initiated it must be initiated within a period of 15 days Patna High Court CWJC No.68721 dt.07 06 2021 from today and that confiscation proceeding stands initiated we direct the appropriate authority under the Act to forthwith ensure that such proceedings be concluded not later than 30 days. b) The petitioner undertakes to make himself available in the office of the concerned appropriate authority empowered under Section 58 of the Act i.e. District Collector in his her office on 24.01.2020 at 10:30 A.M c) We further direct the appropriate authority to positively conclude the confiscation proceeding within next thirty days on appearance of the petitioner. If for whatever reason such proceeding cannot be concluded in that event it shall be open for the authority to take such measures as are permissible in law for release of the vehicle in question by way of interim measure on such terms as may be deemed appropriate considering the attending facts and circumstances of the case d) If eventually the appropriate authority arrives at a conclusion that the property is not liable to be confiscated it shall be open for the petitioner to seek damages in accordance with law and have appropriate the erring initiated against Learned counsel for the petitioner states that the certified copy of the order shall be made available to the concerned District Collector on the date so fixed. For future guidance where parties have not approached this Court we issue the following direction: The expression “reasonable delay” used in Section 58 of Chapter VI of the Act in our considered view necessarily has to be within a reasonable time and with dispatch which period in our considered view three months time is sufficient enough for any authority to adjudicate any issue more so when we are dealing with confiscatory proceedings. We clarify that we have not adjudicated the writ petition on merits and it shall be open for the parties to take all stand in the adjudicatory proceedings and wherever parties are aggrieved it shall be open to them to initiate appropriate proceeding before the appellate Learned counsel for the State also undertakes to communicate the order to the concerned appropriate authority i.e. District Magistrate empowered under Section 58 of the Act.” Patna High Court CWJC No.68721 dt.07 06 2021 C.W.J.C. No 171619 order dated 14.1.2020 bearing Registration No. BR 06G 4211 which has been seized in connection with Taukauliya P.S.Case No. 7018 for the offences punishable under Sections 272 273 34 of the Indian Penal Code and Sections 30(a) 38(1) 41(1)of the Bihar Prohibition and Excise Act 2016. It is continued practice of this Court that in cases of drunken driving no recovery from the vehicle recovery of less than commercial quantity where ex facie vehicle is not liable to be confiscated where there is inordinate delay in initiating proceedings for confiscation of the vehicle etc. this Court has been directing the State to provisionally release vehicle property subject to initiation conclusion finalisation of the confiscatory proceedings as the case may be. Reference can be made to the judgments orders passed by different co ordinate Benches of this Court viz: i) Judgement dated 22.03.2018 passed in CWJC No.50418 titled as Diwakar Kumar Singh versus The State of Bihar & Ors. ii) order dated 31.07.2018 passed in CWJC No.13162 of 2018 titled as Rajesh Kumar Pandit @ Rajesh Pandit Vs. The State of Bihar iii) order dated 31.07.2018 passed in CWJC No.142418 titled as Amar Kumar Vs The State of Bihar & Ors. iv) order dated 12.02.2018 passed in CWJC No.24318 titled as Mahendra Manjhi Vs. The State of Bihar & Ors. v) judgement dated 12.02.2018 passed in CWJC No.24718 titled as Laxman Das Lakshman Ravidas Vs. The State of Bihar & Ors. vi) order dated 11.09.2017 passed in CWJC No.13158 of 2017 titled as Sanjay Kumar Patna High Court CWJC No.68721 dt.07 06 2021 Versus The State of Bihar & Ors. vii) order dated 27.03.2018 passed in CWJC No.55218 titled as Bikash Kumar Vs The State of Bihar & Ors. viii) order dated 27.03.2018 passed in CWJC No.5528 of 2018 titled as Bikash Kumar Versus The State of Bihar & Ors. ix) order dated 01.05.2018 passed in CWJC No.7755 of 2018 titled as Anandi Prasad Versus The State of Bihar & Ors. x) order dated 01.05.2018 passed in CWJC No.76418 titled as Suraj Ram Versus The State of Bihar & Ors. xi) order dated 07.08.2018 passed in CWJC No.154318 titled as Kalesar Chaudhari Versus the State of Bihar & Ors. xii) judgement dated 18.01.2019 passed in CWJC No.12119 titled as Raushan Kumar @ Raushan Kumar Singh Versus The State of Bihar & Ors. xiii) judgement dated 29.01.2019 passed in CWJC No.16219 titled as Asharfi Kumar @ Rakesh Kumar Versus the State of Bihar xiv) judgement dated 08.02.2019 passed in CWJC No.23819 titled as Avinash Kumar Versus the State of Bihar & Ors. xv) judgement dated 29.01.2019 passed in CWJC No.16419 titled as Roshan Kumar Versus The State of Bihar & Ors. and xvi) judgement dated 22.01.2019 passed in CWJC No.1314 of 2019 titled as Shanti Devi Versus The State of Bihar & Ors In fact in CWJC No. 5049 of 2018 titled as Diwakar Kumar Singh Versus the State of Bihar & Ors the Court issued the following directions: “That apart in the confiscation proceedings the confiscating authority shall take note of the provisions of Section 56 of the Bihar Prohibition and Excise Act 2016 and record a positive finding after hearing the petitioner as to whether when the petitioner is found or the vehicle is found to be used by a person in drunken condition and no liquor is seized from the vehicle or when the vehicle is not used for transportation of liquor whether the provision of Section 56 of the Act will apply. It shall be mandatory for the confiscating authority to decide this issue before Patna High Court CWJC No.68721 dt.07 06 2021 passing any order on the confiscation proceedings. The confiscating authority shall consider the provision of Section 56 of the Act apply his mind and pass a speaking order with regard to confiscation initiated Without deciding the aforesaid issue as a preliminary issue further proceedings in the confiscation proceedings shall be prohibited. We further request the office of the Advocate General to communicate this order to all the District Magistrates in the State of Bihar who would be mandated to pass an appropriate order in such cases where the vehicle has been confiscated under Section 56 of the Act only on the allegation that the vehicle was being driven in a drunken condition and no liquor was seized from the vehicle nor the vehicle used for transportation or carriage of liquor. The issue shall be decided by each and every District Magistrate before proceeding in the confiscation proceedings where the allegation is about the vehicle being driven in a drunken condition and no liquor was found from the possession of the vehicle. It shall be the duty of the Advocate General to communicate this order to each and every District Magistrate and inform the Registrar General of this Court. In spite thereof if we find that the District Magistrates are passing confiscation order without addressing this issue first we may consider initiating contempt proceedings against the concerned District It is further seen that in CWJC No.150019 titled as Shobha Devi Versus The State of Bihar & Ors.the Court observed as under: “6. On examination of aforesaid fact particularly allegation of the petitioner that in a court proceeding before the learned Special Judge Excise a false information was given we are of the opinion that the court of learned Special Judge Excise would be competent court to pass an appropriate order in view of provisions contained in Section 340 of the Code of Criminal Procedure 1973 7. Accordingly the petitioner is granted liberty to file appropriate petition before the learned Special Judge Excise for prosecuting the concerned 8. So far as claim of compensation is concerned obviously on going through the material on record since there was no recovery of liquor from the Patna High Court CWJC No.68721 dt.07 06 2021 vehicle and it was a case in which the occupants of the vehicle were alleged to be in drunken condition and were creating nuisance though were liable to be arrested. In any event the vehicle was not required to be seized since it was not liable to be confiscated 9. In such situation we are of the opinion that it is a fit case in which we may direct to pay adequate compensation to the petitioner being owner of the vehicle to the tune of Rs.75 000 however Sri Kumar Manish learned Standing Counsel 5 requests for granting an opportunity for obtaining detailed instruction and filing counter affidavit in the matter. The request of Sri Kumar Manish S.C. 5 is allowed for filing counter affidavit so that final order may be passed 10. It goes without saying that before filing counter affidavit the respondent no. 4 Superintendent of Police Darbhanga may conduct a preliminary inquiry regarding the conduct of the police officer who had seized the vehicle of the petitioner and state all those facts in its counter affidavit which must be filed by 29th of November 2019. The affidavit must be sworn by the Superintendent of Police himself 11. It further goes without saying that if after considering all the facts including counter affidavit which is proposed to be filed the Court comes to the conclusion that the petitioner is entitled for claim of amount of compensation which has been referred hereinabove the said compensation amount must be recovered from the pocket of the police officer who was responsible for such illegal seizure.” and Shri Vivek Prasad Despite the same only before this Court when matters of similar nature came up for hearing on 16thof December 2019 the learned Advocate General assisted by Shri Vikash Kumar learned Standing learned Counsel 11 Government Pleader 7 vehemently opposed the petitions for release of the vehicles. Consequently the writ petitions were disposed of with the directions to to positively the appropriate authorities initiate conclude confiscatory proceedings within a period of 30 45 days Without adjudicating the petitioner’s petition on merits we are of the considered view that interest of justice would be best met if the petition is disposed of in the following terms: a) Since the vehicle in question stands Patna High Court CWJC No.68721 dt.07 06 2021 seized in relation to the FIR which stood registered long ago in case confiscation proceeding has not been initiated it must be initiated within a period of 15 days from today and that confiscation proceeding stands initiated we direct the appropriate authority under the Act to forthwith ensure that such proceedings be concluded not later than 30 days. b) The petitioner undertakes to make himself available in the office of the concerned appropriate authority empowered under Section 58 of the Act i.e. District Collector in his her office on 04.02.2020 at 10:30 A.M c) We further direct the appropriate authority to positively conclude the confiscation proceeding within next thirty days on appearance of the petitioner. If for whatever reason such proceeding cannot be concluded in that event it shall be open for the authority to take such measures as are permissible in law for release of the vehicle in question by way of interim measure on such terms as may be deemed appropriate considering the attending facts and circumstances of the case d) If eventually the appropriate authority arrives at a conclusion that the property is not liable to be confiscated it shall be open for the petitioner to seek damages in accordance with law and have appropriate the erring initiated against Learned counsel for the petitioner states that the certified copy of the order shall be made available to the concerned District Collector on the date so fixed. For future guidance where parties have not approached this Court we issue the following direction: The expression “reasonable delay” used in Section 58 of Chapter VI of the Act in our considered view necessarily has to be within a reasonable time and with dispatch which period in our considered view three months time is sufficient enough for any authority to adjudicate any issue more so when we are dealing with confiscatory proceedings. We clarify that we have not adjudicated the writ petition on merits and it shall be open for the parties to take all stand in the adjudicatory proceedings and wherever parties are aggrieved it shall be open to them to initiate appropriate proceeding before the appellate Learned counsel for the State also undertakes Patna High Court CWJC No.68721 dt.07 06 2021 to communicate the order to the concerned appropriate authority i.e. District Magistrate empowered under Section 58 of the Act.” In Umesh Sahthis Court had clarified that the expression “reasonable delay” under Section 58 of Chapter 6 of the Act has to be construed to be ‘not more than three months’. It is seen that despite our observations the appropriate authorities have not taken any action in initiating the proceedings for confiscation of the property under the Act. The litigants are thus forced to approach this Court by way of filing separate petitions Thus today we are left with two options either to initiate proceedings for contempt under the provisions of Contempt of Courts Act or under Article 215 of the Constitution of India or ask the Chief Secretary Government of Bihar to evolve a mechanism self serving in nature so as to ensure that the provisions of the Act are implemented in letter and spirit expeditiously without any delay and with reasonable dispatch Why is it that the owners of the property are forced to approach this Court for release of the vehicles or property Is it that there is no mechanism under the Act for initiating confiscatory proceedings at the earliest Is it that there is insufficient infrastructure with the State Government for ensuring implementation of the provisions of the Act Illustratively in the weekly list dated 27.1.2020 we notice that more than 75 cases stand filed and listed despite our order dated 9thof January 2020. In the instant case seizure is of the year 2019 and no proceedings of confiscation have commenced We are of the considered view that non implementation of the Act is generally having a very serious adverse consequence on the dispensation of administration of justice. And peculiarly it is only when the matter was taken up by the Bench hearing the petition bearing C.W.J.C. No. 252619on 17.12.2019that the State vehemently opposed release of the vehicle contrary to the practice adopted hitherto before. Be that as it may at this point in time we refrain from passing any order under the contempt jurisdiction but direct the Chief Secretary Government of Bihar to file his personal affidavit dealing with each one of the issues highlighted as also elaborately indicating the mechanism which the State has or desires to Patna High Court CWJC No.68721 dt.07 06 2021 evolve so as to prevent the litigants from directly approaching the Court for release of the vehicle and also ensuring early completion of the proceedings be it confiscatory in nature or in an appellate jurisdiction under the provisions of the Bihar Prohibition and Excise Act Let an affidavit in that regard be positively filed within one week. List this case on 6.2.2020.” Further this very Bench in CWJC No.61420 titled as Vishal Kumar Versus the State of Bihar & Anr on 04.06.2020 issued the following directions: “In the aforesaid decisions we have already laid down the time schedule within which all proceedings are necessarily required to be concluded and the outer limit is three months from the date on which this Court has directed the party to make himself available before the appropriate We clarify that petitioner undertakes to fully cooperate in the proceedings and we further clarify that in case the authorities are not able to conclude the proceedings within the time bound period the vehicle property shall be allowed to be released on such conditions as the appropriate authority may deem fit and proper. As such petition is disposed of making the directions contained in the orders referred to supra applicable mutatis mutandis insofar as applicable and possible to the petitioner’s case.” Learned counsel states that petition be disposed of in terms of the various orders passed by this Court more so the orders referred to supra. It is seen that till date in large number of cases position about conclusion of the proceedings be it under Patna High Court CWJC No.68721 dt.07 06 2021 Section 58 92 or 93 remains the same. We further direct that all proceedings under Section 58 must positively be initiated concluded within a period of ninety days from the date of appearance of the parties Further Appeal Revision if any be also decided within a period of thirty days from the date of initiation failing which the “things”shall be deemed to have been released in terms of several orders passed by this Court reference whereof stands mentioned in Bunilal Sah @ Munilal Wherever confiscatory proceedings stand concluded and parties could not file the appeal revision within the statutory period of limitation as already stands directed in several matters if they were to initiate such proceedings within next thirty days the plea of limitation would not come in their way of adjudication of such proceedings on merit. Petitioner through learned counsel undertakes to make himself available on 22.06.2021 at 10:30 A.M. before the appropriate authority which may be in the attending facts the Collector of the Gopalganj District Appellate or the Revisional Authority. If the Collector is not himself dealing with the matter on account of delegation of power or assignment of work to Patna High Court CWJC No.68721 dt.07 06 2021 another officer of his District he shall fix a date directing the parties to appear before the said officer which date shall be not exceeding one week. Also he shall inform the said authority of fixing of such date. We clarify that convenience of parties specially during the time of Pandemic Covid 19 is of prime importance and it shall be open for the authority to hear the parties with the use of technology i.e. Video Conferencing facility etc. Learned counsel for the State undertakes to communicate the order to all concerned including the District Magistrate and no certified copy of the order shall be required to be placed on the file of proceedings pending or initiated under the Act for such order is available on the official website of the High Court & can be downloaded and or verified from there in the times of current Pandemic Covid 19. We only hope and expect that the Authorities under the Act shall take appropriate action at the earliest and in accordance with law within the time schedule fixed failing which the vehicle property things liable for confiscation shall be deemed to have been released without any further reference to this Court. Liberty reserved to the petitioner to take recourse to Patna High Court CWJC No.68721 dt.07 06 2021 such remedies as are otherwise available in accordance with law if the need so arises subsequently. Petition stands disposed of with the aforesaid observations directions. Sanjay Karol CJ) ( S. Kumar J

If  a married couple is living separately for 9 months and one party is mentally unsound and unable to procreate of children then such marriage can be annulled – Delhi High Court.

If  a married couple is living separately for 9 months and one party is mentally unsound and unable to procreate of children then such marriage can be annulled -Delhi High Court. Under Section 12(1)(d) of Hindu Marriage Act it is stated that any marriage solemnized, shall be voidable and may be annulled by a decree of nullity if any of the party is pregnant by some person other than the spouse, which comes into conflict in several instances one of such case was decided by single judge bench HON’BLE MR. JUSTICE VIPIN SANGHI &amp; HON’BLE MR. JUSTICE JASMEET SINGH in the case of SANDEEP AGGARWAL VS PRIYANKA AGARWAL (MAT.APP(F.C.) 142/2020).The marriage between the appellant and the respondent was solemnized on 10.12.2005.As per the appellant, the marriage between the appellant and the respondent was the outcome of a calculated fraud .According to the appellant; the respondent was, before the marriage, and during the days that she stayed with the appellant, suffering from Acute Schizophrenia. The respondent behaved in a very unusual manner after her marriage in the matrimonial home, as well as during their honeymoon. Consequently, the appellant took the respondent to the doctor, who after examining her referred her prescribed certain medicines.  The counsel for the petitioner contended that Clause 2(b) of Section 5 provides for one of the conditions for a valid Hindu marriage that neither party must be suffering from unsoundness of mind, mental disorder or insanity. In terms of Section 12(1) (b) of the Act a marriage may be held to be voidable if the other party was suffering from mental disorder or insanity. Section 13(1) (iii) of the Act provides that a party to the marriage may present a petition for dissolution of marriage by a decree of divorce inter alia on the ground that the other party has been incurably of unsound mind. The counsel for the respondent contended that clause 2(b) of Section 5 provides for one of the conditions for a valid Hindu marriage that neither party must be suffering from unsoundness of mind, mental disorder or insanity. In terms of Section 12(1) (b) of the Act a marriage may be held to be voidable if the other party was suffering from mental disorder .Section 13(1) (iii)  provides that a party to the marriage may present a petition for dissolution of marriage by a decree of divorce inter alia on the ground that the other party has been incurably of unsound mind and petitioner cannot reasonably be expected to live with the respondent. The High Court of Delhi “the matter has been overshadowed by his love for his daughter, i.e. the respondent, which is only natural and to be expected. However, in the process, unfortunately, the life of the appellant has been ruined and he has remained stuck in this relationship for 16 years without any resolution. In the most important years of his life, when the appellant would have, otherwise, enjoyed marital and conjugal bliss and satisfaction, who appears to have been calling the shots in relation to the matrimonial dispute raised by the appellant. In these circumstances the appeal is allowed.”

CRR 767 2018 In the High Court of Punjab and Haryana at Chandigarh CRR 767 2018 Date of Decision: February 20 2019 State of Haryana CORAM: HON BLE MR. JUSTICE RAJBIR SEHRAWAT Mr. Ankur Lal Advocate for the petitioner Mr. M.D. Sharma AAG Haryana Mr. Rituraj Singh Advocate for Mr. Gutam Dutt Advocate for the complainant Rajbir Sehrawat J.Rules 2007Rule 12 prescribed the procedure to be followed for determination of age where an accused claims to be juvenile. It is submitted that as per the provisions of the Rule 12 the primacy has to be given to the matriculation certificate if available. The other material i.e. the date of birth certificate from the school can also be relied upon but only if matriculation certificate is not available. If school certificate is not available only then the birth certificate issued by the Municipal Corporation or an authority is to be taken into consideration. Hence it is submitted by the counsel that since the first certificate i.e. matriculation certificate itself is available therefore the other certificates are excluded per se from the consideration for the purpose of determination of age of the petitioner and as per the date mentioned in the matriculation certificate the petitioner is a juvenile. Hence both the Courts below have committed a CRR 767 2018 grave illegality by not following the provisions of the above mentioned Rule while determining the age of the petitioner. It is further submitted by the counsel for the petitioner that in another case relying upon the same matriculation certificate petitioner is being tried as a juvenile. This fact was duly brought to the notice of the Courts below. However that has been brushed aside by the Courts below on the ground that the other relevant material was not available in those proceedings. In support of his argument the learned counsel for the petitioner has relied upon judgments of Supreme Court rendered in Siba Bisoyi vs. State of Odisha 2017(4) R.C.R Criminal) 409 Lok Nath Pandey vs. The State of Uttar Pradesh Another 2017 AIR3866 Ashwai Kumar Saxena vs. State of M.P. 2012(4) R.C.R. 391 Parag Bhati through Legal Guardian Mother Smt. Rajni Bhati vs. State of Uttar Pradesh and another 2016(2) R.C.R.1031 and Division Bench judgment of this Court rendered in Vikram Singh vs. State of Haryana 2017(3) R.C.R On the other hand learned counsel for the complainant submitted that the Juvenile JusticeAct 2015has superseded the earlier provisions laid down in the Rules. A new provision has been enacted in the Act itself. According to that provision the matriculation certificate no more enjoys the place of primacy while determining the age of the accused. The date of birth certificate from the school and the matriculation certificate have been put at par so far as their evidentiary value is concerned. It has been left to the Court to assess the age of the person brought before it. It is further submitted that sub sectionof Section 94 of the Act makes the age as CRR 767 2018 determined by the Committee Court Board as the true age of the person for the purpose of trial. It is further submitted that the date of birth of the petitioner is mentioned differently in all the schools. Even the matriculation certificate bears a date of birth of the petitioner which is based further upon a date of birth certificate which was given by the third previous school. However admission record in the said third previous school does not testify the date of birth as mentioned in the matriculation certificate Hence both the Courts below have rightly declined the application moved by the petitioner Learned State counsel has submitted that the investigating agency has produced all the relevant records before the Magistrate Board at the time of determination of the age of the petitioner. The undisputed and initial date of birth mentioned in the Govt. School record is 07.08.1996 Hence the same has rightly been taken by the Courts as the date of birth of the petitioner. The application of the petitioner has rightly been declined by the Courts below Having heard learned counsel for the parties and perusing the paper book this Court finds no substance in the arguments raised by the learned counsel for the petitioner. Although the Juvenile JusticeRules 2007 had given a place of primacy to the matriculation certificate over the other proofs of date of birth of the accused however that provision stands replaced by the Act 2015. A new provision governs the procedure for determination of the age of the accused now. The relevant provisions of the Act as contained in Section 94 is reproduced herein below: “94. Presumption and determination of age that the said person is a child the Committee or the Board shall record such observation stating the age of the child as nearly as may be and proceed with the inquiry under section 14 or section 36 as the case may be without waiting for further confirmation of the age In case the Committee or the Board has reasonable grounds for doubt regarding whether the person brought before it is a child or not the Committee or the Board as the case may be shall undertake the process of age determination by seeking evidence by obtaining the date of birth certificate from the school or the matriculation or equivalent certificate from the concerned examination Board if available and in the absence thereof the birth certificate given by a corporation or a municipal authority or a panchayat and only in the absence ofandabove age shall be determined by an ossification test or any other latest medical age determination test conducted on the orders of the Committee or the Provided such age determination test conducted on the order of the Committee or the Board shall be completed within fifteen days from the date of such The age recorded by the Committee or the Board to be the age of person so brought before it shall for the purpose or this Act be deemed to be the true age of that CRR 767 2018 A perusal of the provisions of the Act would show that under new provisions of law the primacy has been given to the assessment of the Board Court as to the age of the accused. This assessment can be done on physical appearance or even on the basis of the examination by other method like putting basic question to adjudge the age and understanding of the accused. In any case if there is any doubt in the mind of the Court Board then the provision prescribes that it is the birth certificate given by the school or the date of birth as mentioned in the matriculation certificate which shall be taken into consideration in the first instance. If these two certificates are not available then the further certificates as mentioned in the Section are to be taken into consideration. Hence the school certificate and the matriculation certificate have been put at par for the first consideration of the Court for adjudging the actual age of the accused. It is for the Court Board to take a final call on the date of birth of the accused in view of either of these documents or coupled with other attending circumstances which might have come on the record of the case By any means the place of primacy conceded to the matriculation certificate in the old Rules is no more available to it. The matriculation certificate no more enjoys that exclusive privilege. Although learned counsel for the petitioner has relied upon certain judgments of Supreme Court and one Division Bench judgment of this Court to emphasize the primacy of Matriculation Certificate in determination of age of the accused however this Court finds that all those judgments are distinguishable on the peculiar facts of those cases. In all those cases the offences committed before enforcement of the Act of 2015 were involved. So the scope of Section 94 of the new Act of 2015 was not even under consideration in either of those CRR 767 2018 cases. Hence those judgments cannot be taken as precedent for the cases involving offences committed after the enforcement of Act of 2015 As it has come on record of this case the petitioner was first admitted in Government Primary School in first standard on 02.08.2002. At that time the date of birth of the petitioner was mentioned as 07.08.1996 However name of the petitioner was struck off from that school because of his continuous absence. Thereafter the evidence brought on record shows that the petitioner had taken admission in Sai Senior Secondary School on 24.08.2008 again in the first class. There the date of birth mentioned in this school at the time of admission is 26.08.2003. This fact has even been deposed by CW4 the clerk of the school. The petitioner is stated to have studied in the school upto 8th class. Thereafter the petitioner claims to have taken admission at Gangotri Modern Senior Secondary School in 9th class on 10.07.2014 on the basis of school leaving certificate issued by Sai Senior Secondary School and at the time of admission in this school the date of birth mentioned is again changed to 23.07.1999. Counsel for the petitioner has tried to explain the disparity in date of birth recorded in Sai Senior Secondary School and Gangotri Modern Senior Secondary School by submitting that in the 8th pass certificate issued by Sai Senior Secondary School the date of birth mentioned is 23.07.1999 therefore the Gangotri Modern Senior Secondary School had recorded this date as the date of birth of the petitioner. However this itself creates a doubt. The petitioner is stated to have taken admission in Sai Senior Secondary School on 24.08.2008 in the first class. Therefore he would have passed 8th class only in the year 2016 whereas he has taken admission in 9th class in the year 2014. This itself shows the entire manipulation in the school record of Sai CRR 767 2018 Senior Secondary School done for the purpose of getting admission in 9th class in Gangotri Modern Senior Secondary School. It is clear that the date of birth was deliberately changed by Sai Senior Secondary School and the petitioner was given 8th pass certificate with a different date of birth against the record of that school itself by changing the date of birth from 26.8.2003 to 27.3.1999. Needless to say that next year again the petitioner had changed the school and took admission in Jai Bharat School from where he has stated to have passed the matriculation. Accordingly the date of birth mentioned in the matriculation certification of the petitioner is 23.07.1999 as was provided by Gangotri Modern Senior Secondary School. However since the date of birth which was provided by Sai Senior Secondary School and Gangotri Modern Senior Secondary School itself is shown to be manipulated therefore the matriculation certificate of the petitioner cannot be taken as a reliable proof of the date of birth of the petitioner for the purpose of the present trial. As is clear from the above the Courts below have taken the record of the Government Primary School as the base record to determine the date of birth of the petitioner to be 07.08.1996. It has also come on record that after leaving Govt. School the petitioner has given different dates of birth for getting admission in different schools in different classes which are found to not even commensurate with his age. Hence the Courts below have committed no illegality by giving more value to the date of birth recorded in the Government Primary School. This determination of age of the petitioner by the Courts below is perfectly in latter spirit of Section 94 of the Act of 2015. Needless to say that once the age is so determined by the Juvenile Court Board Committee as prescribed under the Act then the CRR 767 2018 same has been prescribed to be the deemed age of the accused for the purpose of trial. In the present case the age determined by Magistrate has even been upheld by the lower appellate court. Hence although there is no ground to differ with the Courts below however even if this court had any second opinion qua date of birth of the petitioner from the one determined by the Court below it would not substitute its own opinion in place of the satisfaction of the Court of the first instance which under the statute has been made the final adjudicator of the age of the accused Although learned counsel for the petitioner has also submitted that in the other trial the petitioner is being tried as a juvenile however nothing has come on record of this case to show that in that case his age was determined by the Board Court by following the procedure of inquiry as prescribed under the Act. In fact in that case the prosecution itself had taken the petitioner as a juvenile. It is even admitted that no inquiry was held. No evidence was led in that case to find out the actual age of the petitioner. Hence the fact that the petitioner is being tried as a juvenile in another case cannot be taken as a relevant factor for the determination of the age of the petitioner in the present case. In view of above no ground for interference is made out Accordingly present petition is dismissed February 20 2019 Whether speaking reasoned

To ascertain the DOB, first priority has to be given to the Matriculation or equivalent certificate and in the absence thereof, DOB certificate from the school first attended shall be considered: High Court of Delhi

Rule 12(3) of the J.J. Rules itself reveals that the first priority has to be given to the Matriculation or equivalent certificate and in the absence thereof, date of birth certificate as per the school first attended other than a play school to be considered in order to ascertain if prosecutrix is a child in terms of Section 2(1)(d) of the POCSO Act. These were stated by High Court of Delhi, consisting Justice Mukta Gupta in the case of Mohd. Afsar vs. State [CRL.A. 274/2020] on 07.01.2022. The facts of the case are that on 13th May 2013, the prosecutrix went missing and was recovered on 8th June 2013, the prosecutrix was less than 13 years of age at the time of alleged offence and thus, a ‘child’ within the meaning of POCSO Act and therefore, her consent, if any, was of no consequence. As per the MLC, the prosecutrix was found pregnant when she was recovered and her MTP was subsequently done on 1st July 2013. There were sufficient evidence to convict the appellant for the offence for which he has been convicted. By this appeal, the appellant challenged the impugned judgment dated 9th January 2020 whereby he was convicted for offences punishable under Section 376 IPC read with Section 4 of the POCSO Act and the order on sentence dated 15th January 2020 whereby the appellant has been directed to undergo rigorous imprisonment for a period of 10 years and pay a fine of ₹10,000, in default whereof to undergo simple imprisonment for a period of six months. The learned Counsel for the appellant contended that the findings of the learned trial Court that the prosecutrix was a minor is incorrect and not born out from the record and thus, the consent of the prosecutrix was not immaterial. As per the father of the prosecutrix, he was married in the year 1987 and had nine children. He deposed that his first child was born after about two years of marriage and there was a gap of 2 to 2½ years between each child. Thus, considering the age gap between first child and thereafter, the prosecutrix was born in the year 1993 and as on the date of alleged incident i.e. 13th May 2013, she was approximately 20 years old and hence, major. The learned Trial Court also failed to note that no birth certificate or hospital record or any municipal record was furnished at the time of the admission of the victim in the school and thus, date of birth recorded in the school record cannot be treated as the correct date of birth. It was further contended that the prosecutrix in her statement under Section 164 CrPC admitted that the appellant married her and a Nikaah was performed. Once Nikaah has been performed and Nikaahnama has been prepared, the prosecutrix became the wife of the appellant, therefore, the appellant can’t be convicted for offence punishable under Section 376 IPC in view of the exception to Section 375 IPC. It is submitted that since the prosecutrix was a major and had married the appellant willingly, the conviction under Section 376 IPC and Section 4 of the POCSO Act should be set aside. The learned Counsel for respondent stated that PW-5 who appeared as the Principal of the school clearly deposed that the prosecutrix was admitted in class 1st on 14th July 2005 and as per the record, the date of birth of the prosecutrix in the school first attended was 10th January 2001. The said proof of age having been proved by the prosecution in accordance with law will hold primacy in terms of Rule 12(3) of the J.J.Rules. Since prosecution proved the date of birth of the prosecutrix as 10th January 2001 and the alleged incident took place on 13th May 2013 when the prosecutrix went missing and was recovered on 8th June 2013, the prosecutrix was less than 13 years of age at the time of alleged offence and thus, a ‘child’ within the meaning of POCSO Act and therefore, her consent, if any, was of no consequence. It is submitted that despite minor contradictions in the testimonies of the prosecutrix and her father, it is not evident that the prosecutrix was more than 18 years of age at the time of alleged incident, hence, there is no error in the impugned judgment of conviction.

IN THE HIGH COURT OF DELHI AT NEW DELHI MOHD. AFSAR Reserved on: December 20 2021 Decided on: January 07 2022 CRL.A. 274 2020 Represented by: Ms.Sunita Arora Advocate. .....Appellant Represented by: Mr.Ravi Nayak APP for the State ..... Respondent with SI Pradeep Sharma P.S. Jamia HON BLE MS. JUSTICE MUKTA GUPTA CRL.A. 274 2020 By this appeal the appellant challenges the impugned judgment dated 9th January 2020 whereby he has been convicted for offences punishable under Section 376 IPC read with Section 4 of the POCSO Act and the order on sentence dated 15th January 2020 whereby the appellant has been directed to undergo rigorous imprisonment for a period of 10 years and pay a fine of ₹10 000 in default whereof to undergo simple imprisonment for a period of six months. 2. Learned counsel for the appellant contends that the findings of the learned trial Court that the prosecutrix was a minor is incorrect and not born out from the record and thus the consent of the prosecutrix was not immaterial. As per the father of the prosecutrix PW 10 he was married in Crl.A.274 2020 the year 1987 and had nine children in all out of which the youngest child had expired. He deposed that his first child was born after about two years of marriage and there was a gap of 2 to 2½ years between each child. As per the prosecutrix who appeared in the witness box as PW 6 she had six sisters and one brother and two sisters were elder to PW 6 and that she was the third child in the family. Thus considering the age gap between first child and thereafter the prosecutrix was born in the year 1993 and as on the date of alleged incident i.e. 13th May 2013 she was approximately 20 years old and hence major. Even given the margin of 2½ years gap between two children she was still above 18 years of age at the time of alleged incident. Further even the father of the prosecutrix stated that his second daughter was born somewhere around 1991 to 1992 and thus in the year 2013 she was 21 to 22 years old. According to the father after the second daughter one more child was born who subsequently expired and thereafter the victim was born. Even taking this gap into consideration the prosecutrix was a major at the time of incident. Further this version of PW 10 is contrary to the version of the prosecutrix who stated that the child who expired was the youngest boy born in Delhi. The learned Trial Court also failed to note that no birth certificate or hospital record or any municipal record was furnished at the time of the admission of the victim in the school and thus date of birth recorded in the school record cannot be treated as the correct date of birth. Further the school certificate exhibited by PW 5 was not from the school first attended as PW 10 himself stated that his four children were born in the village and had gone to school in the village itself the name of the school being Tajvidul Quraan situated in village Seda District Bijnaur Uttar Pradesh. Thus the school certificate not being from the school first Crl.A.274 2020 attended cannot be relied upon as per Rule 12(3) of the Juvenile Justice Care and Protection of Children) Rules 2007and the Investigating Officer SI Rishi Sharma in comparison to what is stated by the father of the prosecutrix of the J.J.Rules. Since prosecution has proved the date of birth of the prosecutrix as 10th January 2001 and the alleged incident took place on 13th May 2013 when the prosecutrix went missing and was recovered on 8th June 2013 the prosecutrix was less than 13 years of age at the time of alleged offence and thus a ‘child’ within the meaning of POCSO Act and therefore her consent if any is of no consequence. As per the MLC the prosecutrix was found pregnant when she was recovered and her MTP was subsequently done on 1st July 2013. In view of the statement of the prosecutrix even if the DNA profiling could not be generated from the product of conception as per the FSL report there is sufficient evidence to convict the appellant for the offence for which he has been convicted. It is submitted that despite minor contradictions in the testimonies of the prosecutrix and her father it is not evident that the prosecutrix was more than 18 years of age at the time of alleged incident hence there is no error in the impugned judgment of conviction. In his statement under Section 313 Crl.A.274 2020 CrPC the appellant admitted that he was married to cousin sister of the prosecutrix and that he also got married to the prosecutrix and established relationship with her as husband and wife. Thus the entire case against the appellant hinges on whether the prosecutrix was minor at the time of alleged incident which has been proved beyond reasonable doubt by the prosecution and thus the appeal be dismissed. FIR No. 232 2013 was registered at P.S. Jamia Nagar under Section 363 IPC when the father of the prosecutrix complained about the kidnapping of his minor daughter aged 16 years on 13th May 2013 at 6 pm from Abul Fazal Enclave Jamia Nagar. He stated that his daughter had gone to the school and used to come back at around 2 pm from the school however on that date she did not come back and when he enquired from the school it was informed that his daughter had not come to the school. He expressed his suspicion on Shahzad @ Afsar son of Abdul Khalik who was residing in his house on rent and that Shahzad @ Afsar was also not at home since morning and their mobile phones were switched off. On recovery of the prosecutrix her statement was recorded wherein she stated that on 13th May 2013 while she was going to School at 7 am Afsar came in his Maruti Van forcibly put her in the same and took her to Maujpur. He also threatened her that in case she does not accompany him he would kill her father. He took her to a Masjid in Seelampur where he forcibly performed Nikaah and thereafter locked her in a house. In view of the statement of the prosecutrix which was also recorded under Section 164 CrPC and her MLC conducted which showed that she had conceived Sections 366 343 506 and 376 IPC as also Section 4 of the POCSO Act were also added. Crl.A.274 2020 In her deposition before the Court the prosecutrix reiterated that on 13th May 2013 while she was walking to her school a Van passed through her. The same was being driven by one Shahzad @ Afsar and two other persons were sitting in the Van who both were muffled however Shahzad Afsar was unmuffled. They pulled her inside the Van and took her to Maujpur. Shahzad @ Afsar confined her in a room which had only a door and no window. Afsar used to remain in the room and committed rape upon her. Whenever he used to leave the room he would lock the same. Shahzad Afsar also threatened her to perform marriage with him otherwise he would kill her family members and forcibly took her to a Masjid and performed the marriage. He threatened her that in case she does not put her signatures on the Nikaahnama he would kill her parents and thus under the said threat she signed the Nikaahnama. Shahzad kept her with him for around 25 26 days during which period he committed forcible rape with her due to which she became pregnant. After 25 26 days the police reached at the room and rescued her. Her father was accompanying the police. Thereafter the police recorded her statement and lodged her in children home. Her MLC was also prepared in the hospital and she identified her signatures and thumb impression on the same. She stated that her statement was also recorded before the Magistrate under Section 164 CrPC. The prosecutrix has been extensively cross examined and the main thrust of the cross examination was to prove that she was not a minor at the time of the alleged incident. She admitted her signatures on the Nikaahnama however stated that though she was asked about her consent for marriage however her consent was taken forcibly. At the time of marriage the Maulvi Sahab had come along with the two witnesses. She Crl.A.274 2020 stated that there were three persons present at that time i.e. the appellant his acquaintance Bhura and the third one she did not know besides Maulvi ji and the witnesses. She clarified that the room in which she was kept was a single room and the appellant seldom went outside the room. She denied the suggestion that she was having any affair with the appellant or that she had voluntarily accompanied the appellant on 13th May 2013 and performed the Nikaah with him. She also denied the suggestion that on 5th June 2013 she was brought by the appellant to her house for meeting her parents when the police arrested him. Thus the categorical statement of the prosecutrix which was tested on extensive cross examination falsifies the claim of the appellant in his statement made under Section 313 CrPC that the proseuctrix had gone with him of her own free will and performed the Nikaah hence proving the commission of offence punishable under Section 376 IPC. As regards the contention of the appellant in respect to Section 4 of the POCSO Act is concerned the appellant took the plea based on the cross examination of the prosecutrix and her father that prosecutrix was a major at the time of alleged incident. Rule 12(3) of the J.J.Rules which is required to be followed to determine the age of a minor reads as under: “12. Procedure to be followed in determination of Age. — 3) In every case concerning a child or juvenile in conflict with law the age determination inquiry shall be conducted by the court or the Board or as the case may be the Committee by seeking evidence by obtaining — a)the matriculation or equivalent certificates if available and in the absence whereof ii) the date of birth certificate from the school first attended and in the absence whereof Crl.A.274 2020 iii) the birth certificate given by a corporation or a municipal authority or a panchayat b) and only in the absence of either(ii) orof clause a) above the medical opinion will be sought from a duly constituted Medical Board which will declare the age of the juvenile or child….” 10. A perusal of Rule 12(3) of the J.J.Rules itself reveals that the first priority has to be given to the Matriculation or equivalent certificate and in the absence thereof to the date of birth certificate from the school first attended other than a play school. PW 5 who appeared with the record of the school stated that the prosecutrix was admitted in her school in Class 1st on 14th July 2005 through an open test and at the time of her admission her date of birth was mentioned as 10th January 2001. Thus even if she had attended any play school or a Madarsa at the village the same was irrelevant for the reason the school first attended other than the play school was the one where the prosecutrix was admitted in the 1st standard and her date of birth was mentioned as 10th January 2001. As per the record prosecutrix further left the school on 1st May 2013 while studying in 8th standard. Thus she had no matriculation certificate. Therefore as per the date of birth recorded in the school first attended the prosecutrix was a child in terms of Section 2(1)(d) of the POCSO Act as she was below the age of 18 years. Even if in the cross examination the father of the prosecutrix stated that this was the third child and there was a gap of two years in each child and the first child was born after two years of marriage the same cannot be taken as an exact estimation of the date of birth of the prosecutrix. If this version of PW 10 is accepted according to him he got married in the year 1987 and resided at his native place till 2002 and thus he stayed there for five years only. Crl.A.274 2020 According to him his first child was born after two years of marriage and that his one child died and he had eight children alive. According to him his four children who were born at his native place were born in his house and in 2002 he shifted all alone to Delhi and his family shifted in the year 2003 thus his version that his family shifted in the year 2003 there was a gap of 2 to 2½ years with one child having died in between deserves to be ignored for the reason this is all rough estimation based on his memory and he categorically stated that he could not tell exact difference of age between his other daughters and the prosecutrix and the age difference between the prosecutrix and the youngest child. The testimony of this witness cannot be used to rebut the documentary evidence giving the age of the prosecutrix who got admitted in the school in the year 2001 in Delhi at the school first attended. 11. Learned counsel for the appellant has further sought to raise the contradictions in the testimonies of the witnesses with regard to the recovery of the prosecutrix. SI Shiv Kumar is the witness who had gone with the father of the prosecutrix to rescue her who stated that on 18th May 2013 as per the instructions of SI Rishi Sharma he along with parents of the prosecutrix went to Bijnaur Uttar Pradesh in her search however no clue was found and they returned to Delhi on 20th May 2013. On 1st July 2013 the case file was marked to him for investigation as the main IO SI Shashi Dixit was busy in another official duty. PW 10 the father of the prosecutrix has clarified that after the prosecutrix was kidnapped and he got lodged the FIR effort was made by him to trace her daughter and he went to the police station and that he tried to search the accused and his daughter. During the next 24 days no clue was found and he met the DCP Crl.A.274 2020 of the area as well. He stated that while he was going to Maujpur he saw the Maruti Van belonging to the appellant near Seelampur Red light and when enquiry was made he came to know that the said car was parked with a dealer for sale. The said dealer called the appellant on the pretext of finding a good buyer for the car whereafter the appellant was recovered with his daughter at Maujpur along with the Investigating Officer. It is thus evident that after his daughter was recovered she was produced before the Investigating Officer PW 12 as also stated by PW 8 Woman Constable Sunni Devi and hence there is no contradiction in the testimony of the witnesses on this count. In view of the discussion aforesaid and as the prosecution has proved beyond the reasonable doubt that the prosecutrix was a ‘child’ at the time of alleged incident and that she was forcibly taken away from the lawful guardianship of her parents and offence of sexual intercourse was committed on her repeatedly and forcibly this Court does not find any error in the impugned judgment of conviction and order on sentence. 13. Appeal is dismissed. 14. Copy of the judgment be uploaded on the website of this Court and be sent to the Superintendent Tihar Jail for updation of record and intimation to CRL.M.(BAIL) 1532 2021In view of the order passed in the appeal the application is disposed of the appellant. as infructuous. JANUARY 07 2022 MUKTA GUPTA) JUDGE Crl.A.274 2020

Jurisdiction can quash a complaint, F.I.R or charge-sheet only in exceptional cases. : Allahabad High Court

The legal position on the question of quashing a complaint, FIR, or charge-sheet is well-established: the power to quash a complaint, FIR, or charge-sheet should be used sparingly and only in extraordinary circumstances. In most cases, the courts should refrain from interfering in criminal investigations. The FIR or the charge-sheet may be quashed in the exercise of powers under Article 226 of inherent powers under Section 482 of the Cr.P.C. if the allegations made in the FIR or the complaint, even if taken at face value and accepted in their entirety, do not prima facie constitute any offence or make out a case against the accused, this was put up by Justice Ramesh Sinha and Justice Vikas Kunvar Srivastav of the Allahabad High Court in the matter of Heera Lal Yadav versus State of U.P [MISC. BENCH No. – 13252 of 2021] This order was passed when Learned Senior Counsel appearing on behalf of the petitioner stated that the petitioner had previously challenged the impugned F.I.R. in this Court at Allahabad by filing Criminal Misc. Writ Petition No. 12605 of 2020: Heera Lal Yadav Vs. State of U.P. and 2 others, wherein, initially, a Co-ordinate Bench of this Court at Allahabad, vide order dated 14.12.2020, restrained the respondents from taking any further action. Further, The learned Senior Counsel sitting on behalf of the petitioner has contended that the contested F.I.R. was filed against eight people, including the petitioner. He argued that the petitioner was falsely implicated in the impugned F.I.R. because the entire selection/recruitment process was completed on the basis of a resolution of the Board of Directors of the Managing Committee/U.P. Co-operative Bank Ltd. Lucknow on 07.07.2015, and the petitioner was not working in the office of U.P. Co-operative Bank Ltd., Lucknow from 20.10.2014 to 22.10.2014. Learned Additional Government Advocate, on the other hand, argued that interim protection was granted to co-accused, namely Rabi Kant Singh, Ram Jatan Yadav, Santosh Kumar, and Rakesh Kumar Mishra, solely on the basis of an interim order dated 14.12.2020, which was granted in Criminal Misc. Writ Petition No. 12605 of 2020, which was subsequently quashed. Following that, because the impugned F.I.R. had been registered at police station S.I.T., Lucknow, the Co-ordinate Bench of this Court at Allahabad, by order dated 24.03.2021, dismissed the writ petition and granted the writ petitioner the liberty to approach the appropriate forum/Court if he so desired. He argued that, in dismissing the writ petition filed by the current writ petition, the Co-ordinate Bench of this Court at Allahabad did not extend or direct to continue the interim order dated 14.12.2020, implying that, once the writ petition is dismissed, the interim order dated 14.12.2020 becomes redundant as it merges with the final order. The court held at the same time, the court has the authority to quash the FIR/complaint if it sees fit, taking into account the quashing parameters and the self-restraint imposed by law, particularly the parameters put out by this Court in the cases of R.P. Kapur (supra) and Bhajan Lal (supra). Considering the aforementioned law and the submissions advanced by learned counsel for the petitioner, we are of the considered opinion that the submissions advanced by learned Counsel for the petitioner call for determination on questions of fact that can be adequately discerned either through proper investigation or by the trial court and even the sua sponte. At this point, a review of the record reveals, prima facie, offences, and there appears to be adequate grounds for further investigation in the case. In light of the foregoing, and in light of the charges stated in the FIR and the evidence presented, it cannot be said that no prima facie case has been established against the petitioner; rather, there appear to be sufficient grounds for further investigation. As a result, we see no reason to overturn the challenged F.I.R. 

Heera Lal Yadav vs State Of U.P. Thru. Addl. Chief ... on 30 June 2021 Allahabad High Court Heera Lal Yadav vs State Of U.P. Thru. Addl. Chief ... on 30 June 2021 Bench: Ramesh Sinha Vikas Kunvar Srivastav HIGH COURT OF JUDICATURE AT ALLAHABAD LUCKNOW BENCH Court No. 9 Case : MISC. BENCH No. 132521 Petitioner : Heera Lal Yadav Respondent : State Of U.P. Thru. Addl. Chief Secy. Home Lucknow & Ors Counsel for Petitioner : Meenakshi Singh Parihar Counsel for Respondent : G.A Hon ble Ramesh Sinha J Hon ble Vikas Kunvar Srivastav J Per Ramesh Sinha J. for the Bench)The Court has convened through Video Conferencing 2) Heard Sri H.G.S. Parihar learned Senior Advocate assisted by Mrs. Meenakshi Singh Parihar learned Counsel for the petitioner and Ms. Meera Tripathi learned Additional Government Advocate for the State respondents no. 1 and 2 3) The instant writ petition under Article 226 of the Constitution of India has been filed by the petitioner Heera Lal Yadav challenging the First Information Report dated 27.10.2020 to the extent of petitioner registered as Case Crime No. 00120 under Sections 120 B 471 468 467 and 420 I.P.C. Police Station S.I.T. Lucknow 4) Learned Senior Counsel appearing on behalf of the petitioner has submitted that earlier the petitioner has challenged the impugned F.I.R. before this Court at Allahabad by filing Criminal Misc. Writ Petition No. 126020 : Heera Lal Yadav Vs. State of U.P. and 2 others wherein initially a Co ordinate Bench of this Court at Allahabad vide order dated 14.12.2020 restrained the respondents from taking any coercive action against the petitioner in connection with the impugned F.I.R. and the same was continued from time to time however when the case was listed before Indian Kanoon Heera Lal Yadav vs State Of U.P. Thru. Addl. Chief ... on 30 June 2021 another Co ordinate Bench of this Court at Allahabad on 24.03.2021 the same was dismissed on the ground that this Court at Allahabad has no jurisdiction to hear the matter as the impugned F.I.R has been registered at Police Station S.I.T. Lucknow and liberty was granted to the petitioner to approach the appropriate forum court if so advised. Thereafter the petitioner has filed the instant writ petition challenging the impugned F.I.R 5) It has been argued by the learned Senior Counsel appearing on behalf of the petitioner that the impugned F.I.R. has been lodged against eight persons including the petitioner. He argued that the petitioner has falsely been implicated in the impugned F.I.R. as the entire process of selection recruitment were completed on the basis of the resolution of the Board of Directors of the Managing Committee U.P. Co operative Bank Ltd. Lucknow on 07.07.2015 and at that time the petitioner was not working in the office of U.P. Co operative Bank Ltd. Lucknow from 20.10.2014 to 6) Learned Senior Counsel appearing on behalf of the petitioner further argued that at present the p e t i t i o n e r i s h o l d i n g C l a s s I p o s t a n d w o r k i n g o n t h e p o s t o f A d d i t i o n a l Commissioner cum Additional Registrar Co operative Society U.P. Lucknow. On 20.10.2014 the State Government has appointed the petitioner on the post of Managing Director U.P. Co operative Bank Ltd. Lucknow. On 12.03.2013 the Commissioner cum Registrar Co operative Societies U.P. Lucknow wrote a letter to the Managing Director U.P. Co operative Bank Ltd. Lucknow for the direct recruitment on different post of Assistant Manager and Assistant ManagerState of U.P. Lucknow wrote a letter to the Principal Secretary Co operative U.P. Lucknow for the recruitment of the employee in the Co operative department on the different post. On 05.12.2014 the Commissioner cum Registrar Uttar Pradesh wrote a letter to the Principal Secretary Co operative Uttar Pradesh Lucknow. On 30.01.2015 the petitioner being the then Managing Director U.P. Co operative Bank Ltd Lucknow sent a requisition for the recruitment selection on the post of Assistant Manager Assistant Manager Computer) before the Secretary U.P. Co operative Institutional Service Board Lucknow Thereafter on 21.03.2015 the petitioner has proposed the educational qualification for the recruitment on the post in question which was sent before the Commissioner cum Registrar Co operative Societies Uttar Pradesh Lucknow for its approval. Thereafter the petitioner was transferred from the post of Managing Director U.P. Co operative Bank Ltd. Lucknow on 22.04.2015 and in his place on the same day i.e. 22.04.2015 co accused Rabikant Singh Additional Registrar Co operative Society took the charge of the post of Managing Director U.P. Co operative Bank Ltd. Lucknow. He argued that after the transfer and posted as Additional Registrar Co operative and Additional Commissioner in the office of the Registrar Co operative Societies L u c k n o w U t t a r P r a d e s h t h e p e t i t i o n e r h a s g o t n o c o n c e r n w i t h t h e f u r t h e r development recruitment selection appointment on the post of Assistant Manager and Assistant Managerin U.P. Co operative Bank Ltd. Lucknow 7) Learned Senior Counsel appearing for the petitioner submitted that co accused namely Rabi Kant Singh Ram Jatan Yadav and Santosh Kumar and Rakesh Kumar Mishra have approached this Court by filing writ petition Nos. 21792022252025621wherein interim protection has been granted to them. Therefore the Indian Kanoon petitioner is also entitled to get similar protection as has been granted to the co accused Heera Lal Yadav vs State Of U.P. Thru. Addl. Chief ... on 30 June 2021 8) Learned Additional Government Advocate on the other hand opposed the prayer for quashing the impugned F.I.R. and argued that interim protection has been granted to co accused namely Rabi Kant Singh Ram Jatan Yadav and Santosh Kumar and Rakesh Kumar Mishra only on the ground that interim order dated 14.12.2020 has been granted in Criminal Misc. Writ Petition No 126020 which has been filed by the petitioner before this Court at Allahabad. Thereafter as the impugned F.I.R. has been registered at police station S.I.T. Lucknow therefore Co ordinate Bench of this Court at Allahabad vide order dated 24.03.2021 dismissed the writ petition and granted liberty to the writ petitioner to approach the appropriate forum Court if so desire. He argued that while dismissing the writ petition filed by the present writ petition Co ordinate Bench of this Court at Allahabad has not extended or directed to continue the interim order dated 14.12.2020 meaning thereby after dismissal of the writ petition the interim order dated 14.12.2020 has become redundant as it merges into final order 9) It has further been argued by the learned Additional Government Advocate that on the basis of the interim order dated 14.12.2020 passed in Criminal Misc. Writ Petition No. 126020 which has been filed by the present writ petitioner co accused has sought interim protection which was granted to them. Now after dismissal of the aforesaid writ petition wherein interim order dated 14.12.2020 was not enforced as it merges into final order the petitioner has come before this Court seeking relief to grant him the benefit of the interim order as has been granted to co accused which cannot be granted to the present writ petitioner 10) On merits learned Additional Government Advocate has argued that in respect of the irregularities committed in selection held in the year 2015 number of complaints for corruption in the said selection was received in the office of Hon ble the Chief Minister and other office of the State Department whereupon an inquiry was entrusted to the S.I.T who after thorough enquiry has found that the petitioner who was the then Managing Director of U.P. Co operative Bank is responsible for making educational qualification for ten posts contrary to rules. Therefore it cannot be said that the petitioner has no concern with the aforesaid selection. He argued that from the perusal of the FIR prima facie it cannot be said that no cognizable offence is made out hence no ground exists for quashing of the F.I.R. or staying the arrest of the petitioner 11) Having heard the submissions advanced by the learned Counsel for the parties and gone through the record we find that initially the petitioner has filed Criminal Misc. Writ Petition No 126020 wherein vide order dated 14.12.2020 following interim order has been passed : As prayed list in the additional cause list on 15.1.2021 Till then no coercive action shall be taken against the petitioner in connection with FIR dated 27.10.2020 in Case Crime No. 00120 under section 120 B 471 468 467 and 420 IPC Police Station S.I.R. District Lucknow Indian Kanoon Heera Lal Yadav vs State Of U.P. Thru. Addl. Chief ... on 30 June 2021 12) The aforesaid interim order dated 14.12.2020 was extended from time to time as is evident from Annexure Nos. 2 to 4 to the writ petition. Thereafter co accused Rabi Kant Singh has approached this Court by filing Misc. Bench No. 217920 : Rabi Kant Singh Vs. State of U.P. and others wherein following interim order dated 12.01.2021 has been passed Heard Mr. H.G.S. Parihar learned Senior Advocate assisted by Mr. Prashant Kumar Singh learned counsel for the petitioner as well as learned A.G.A. on behalf of the State Learned A.G.A. was granted time vide order dated 9.12.2020 to submit progress report of the investigation done so far and the evidence if any collected against the petitioner regarding his involvement in the alleged crime Learned A.G.A. has filed short counter affidavit. However in the short counter affidavit no specific statement regarding progress report of the investigation done so far and the evidence if any collected against the petitioner regarding his involvement in the alleged crime. This fact has been noted by the court vide order dated 16.12.2020. The court thereafter had again granted time to learned A.G.A. to file counter affidavit Learned A.G.A. submits that the investigation is still pending and the averments made in the short counter affidavit are the only material available with the investigating authority regarding the investigation done so far Learned counsel for the petitioner has also submitted that co accused Heera Lal Yadav has been granted protection by this court at Allahabad vide order dated 14.12.2020 passed in Criminal Misc Writ Petition No.126020 copy of the order dated 14.12.2020 has been placed before the court same is taken on record We have considered the submissions made by parties counsel and gone through the records Let detailed counter affidavit be filed by the opposite parties within three weeks Till filing of counter affidavit or till filing of report under Section 173Cr.P.C. whichever is earlier no coercive action shall be taken against the petitioner in pursuance of impugned First Information Report dated 27.10.2020 registered as FIR Case Crime No.00120 under Sections 12 B 471 468 467 420 of IPC at Police Station SIT District Lucknow. However the petitioner will co operate with the investigation 13) Subsequently co accused Ram Jatan Yadav has filed Misc. Bench No. 222520 in which also following interim order dated 12.01.2021 has been passed : Heard Mr. Balram Yadav learned counsel for the petitioner as well as learned A.G.A. on behalf of Indian Kanoon Heera Lal Yadav vs State Of U.P. Thru. Addl. Chief ... on 30 June 2021 Learned A.G.A. was granted time vide order dated 9.12.2020 to submit progress report of the investigation done so far and the evidence if any collected against the petitioner regarding his involvement in the alleged crime Learned A.G.A. has filed short counter affidavit. However in the short counter affidavit no specific statement regarding progress report of the investigation done so far and the evidence if any collected against the petitioner regarding his involvement in the alleged crime. This fact has been noted by the court vide order dated 16.12.2020. The court thereafter had again granted time to learned A.G.A. to file counter affidavit Learned A.G.A. submits that the investigation is still pending and the averments made in the short counter affidavit are the only material available with the investigating authority regarding the investigation done so far Learned counsel for the petitioner has also submitted that co accused Heera Lal Yadav has been granted protection by this court at Allahabad vide order dated 14.12.2020 passed in Criminal Misc Writ Petition No.126020 copy of the order dated 14.12.2020 has been placed before the court same is taken on record We have considered the submissions made by parties counsel and gone through the records Let detailed counter affidavit be filed by the opposite parties within three weeks Till filing of counter affidavit or till filing of report under Section 173Cr.P.C. whichever is earlier no coercive action shall be taken against the petitioner in pursuance of impugned First Information Report dated 27.10.2020 registered as FIR Case Crime No.00120 under Sections 420 467 468 471 and 120 B of IPC at Police Station SIT District Lucknow. However the petitioner will co operate with the investigation 14) Thereafter co accused Santosh Kumar has filed Misc. Bench No. 25621 in which following interim order dated 29.1.2021 has been passed Heard Mr. H.G.S. Parihar learned Senior Advocate assisted by Mr. Saharsh learned Counsel for the petitioner learned AGA for the State respondents and perused the record The present writ petition has been filed by the petitioner namely Santosh Kumar seeking to quash the First Information Report dated 27.10.2020 registered as Crime No. F.I.R. No. 00120 under Sections 420 467 468 471 and 120B I.P.C. police station Special Investigation Team District Lucknow with a further prayer to stay the arrest during the pendency of the investigation of the said case Indian Kanoon Heera Lal Yadav vs State Of U.P. Thru. Addl. Chief ... on 30 June 2021 It has been argued by the learned Senior Counsel appearing on behalf of the petitioner that the impugned F.I.R. has been lodged against the petitioner with an oblique motive and just to harass the petitioner. He submits that co accused namely Rabi Kant Singh and Ram Jatan Yadav have also approached this Court by filing writ petition no. 21793of 2020 : Rabi Kant Singh Vs. State of U.P. and others and writ petition No. 222520 : Ram Jatan Yadav Vs. State of U.P. and others respectively and a Co ordinate Bench of this Court vide order dated 12.01.2021 has granted interim protection to co accused Rabi Kant Singh and Ram Jatan Yadav a copy of which has been annexed as Annexure nos. 10 and 11 to the writ petition respectively. Similarly co accused Heera Lal Yadav has also been granted protection by this Court at Allahabad vide order dated 14.12.2020 passed in Criminal Misc. Writ Petition No.126020 copy of the order dated 14.12.2020 has been annexed as Annexure no. 9 to the writ petition. He also submits that the role of the present writ petitioner in the impugned F.I.R. is similar to that of co accused. Therefore the petitioner is also entitled to get similar protection as has been granted to the co accused Considering the peculiar facts and circumstances of the case prima facie a case of interim relief is Learned AGA has accepted notice on behalf of the respondents Let counter affidavit be filed within four weeks. Rejoinder affidavit if any may be filed within two Connect with Writ Petition No. 222520and 217920and list thereafter Till filing of counter affidavit or till filing of report under Section 173Cr.P.C. whichever is earlier no coercive action shall be taken against the petitioner in pursuance of impugned First Information Report. However the petitioner will co operate with the investigation 15) Thereafter Criminal Misc. Writ Petition No. 126020 was dismissed vide order dated 24.03.2021 which reads as under Heard Sri O.P. Singh learned Senior Advocate assisted by Sri Indra Jit Singh learned counsel for the petitioner and Sri Amit Sinha learned counsel for the State and perused the record The present writ petition has been filed with following prayers: 1. Issue a writ of certiorari calling for record of the case and quashing the impugned first information report dated 27.10.2020 registered as Case Crime No.00120 under section 120 B 471 467 and 420 I.P.C. Police Station S.I.T. District Lucknow Annexure No.1) in respect of the petitioner 2. Issue a writ of mandamus commanding the respondent no to arrest the petitioner in pursuance to the impugned first information report dated 27.10.2020 registered as Indian Kanoon Heera Lal Yadav vs State Of U.P. Thru. Addl. Chief ... on 30 June 2021 Case Crime No.00120 under section 120 B 471 467 and 420 I.P.C. Police Station S.I.T. District Lucknow 3. Issue any other suitable writ order or direction which this Hon ble Court may deem fit and proper under the facts and circumstances of the case 4. Award cost to the writ petition in favour of the petitioner At the very outset learned counsel for the State raised a preliminary objection regarding maintainability of the present writ petition at Allahabad. It is argued that the impugned first information report has been registered at District Lucknow for offence which was committed at Lucknow and as such this Court has no jurisdiction to entertain the present writ petition and hear it. It is argued that on the own showing of the petitioner the impugned first information report the copy of which is annexed as Annexure 1 to the writ petition was registered at Police Station S.I.T. District Lucknow and as such this Court has no jurisdiction to hear and entertain the present writ petition which should be dismissed Learned Senior Advocate appearing for the petitioner argued that the present writ petition may be transferred to the Lucknow Bench of this Court in view of the judgement of Sri Nasiruddin Vs. State Transport Appellate Tribunal:2 SCC 671. It is argued that since the first information report has been registered at Lucknow this Court has powers to do so under Clause 14 of the United Provinces High CourtsOrder 1948 and as such the same be transferred to Lucknow for its hearing Before proceeding to examine the matter on merits we propose and consider it appropriate to deal with the preliminary objection raised by Sri Amit Sinha learned counsel for the State The Apex Court in the case of Sri Nasiruddinhas noted in paragraphs 12 and 13 as follows: 12. It is in this context that the following five questions were referred for decision to the Full Bench 1) Can a case falling within the jurisdiction of the Lucknow Bench of this Court be presented at Allahabad 2) Can the Judges sitting at Allahabad summarily dismiss a case presented at Allahabad pertaining to the jurisdiction of the Lucknow Bench 3) Can a case pertaining to the jurisdiction of Lucknow Bench presented and entertained at Allahabad be decided finally by the Judges sitting at Allahabad Indian Kanoon Heera Lal Yadav vs State Of U.P. Thru. Addl. Chief ... on 30 June 2021 without there being an order as contemplated by the second proviso to Article 14 of the U.P. High CourtOrder 1948 4) What is the meaning of the expression "in respect of cases arising in such areas in Oudh" used in first proviso to Article 14 of the High Courtorder 1948 Has this expression reference to the place where the case originated or to the place of the sitting of the last Court of authority whose decree or order is being challenged in the proceedings before the High Court 5) Whether this writ petition can be entertained heard and decided by the Judges sitting at Lucknow 13. The majority view of the Full Bench gave the following answers: 1) A case falling within the jurisdiction of Judges at Lucknow should be presented at Lucknow and not at Allahabad 2) However if such a case is presented at Allahabad the Judges at Allahabad cannot summarily dismiss it only for that reason. The case should be returned for filing before the Judges at Lucknow and where the case has been mistakenly or inadvertently entertained at Allahabad a direction should be made to the High Court office to transmit the papers of the case to Lucknow 3) A case pertaining to the jurisdiction of the Judges at Lucknow and presented before the Judges at Allahabad cannot be decided by the Judges at Allahabad in the absence of an order contemplated by the second proviso to Article 14 of the Amalgamation Order 1948 4) The expression "in respect of cases arising in such areas in Oudh" used in the first proviso to Article 14 of the High CourtOrder 1948 refers to legal proceedings including civil cases criminal cases petitions under Articles 226 227 and 228 of the Constitution and petitions under Articles 132 133 and 134 of the Constitution instituted before the Judges sitting at Lucknow and having their origin in the sense explained in the majority judgment in such areas in Oudh as the Chief Justice may direct. The expression "arising in such areas in Oudh" refers to the place where the case originated in the sense explained in the majority judgment and not to the place sitting of the last court or authority whose decree or order is being challenged in the proceeding before the High Court 5) The Lucknow Bench have no jurisdiction to hear writ petition No. 7564 which gave rise to writ petition No. 32970 While dealing with the said questions and the answers as given therein the conclusions as drawn by the Apex Court are in paragraph 38 of the said judgement Indian Kanoon Heera Lal Yadav vs State Of U.P. Thru. Addl. Chief ... on 30 June 2021 which are as follows: 38. To sum up. Our conclusions are as follows. First there is no permanent seat of the High Court at Allahabad. The seats at Allahabad and at Lucknow may be changed in accordance with the provisions of the order. Second the Chief Justice of the High Court has no power to increase or decrease the areas in Oudh from time to time. The areas in Oudh have been determined once by the Chief Justice and therefore there is no scope for changing the areas. Third the Chief Justice has power under the second proviso to paragraph 14 of the order to direct in his discretion that any case or class of cases arising in Oudh areas shall be heard at Allahabad. Any case or class of cases are those which are instituted at Lucknow. The interpretation given by the High Court that the word "heard" confers powers on the Chief Justice to order that any case or class of cases arising in Oudh areas shall be instituted or filed at Allahabad instead of Lucknow is wrong. The word "heard" means that cases which have already been instituted or filed at Lucknow may in the discretion of the Chief Justice under the second proviso to paragraph 14 of the order he directed to be heard at Allahabad Fourth the expression "cause of action" with regard to a civil matter means that it should be left to the litigant to institute cases at Lucknow Bench or at Allahabad Bench according to the cause of action arising wholly or in part within either of the areas. If the cause of action arises wholly within Oudh areas then the Lucknow Bench will have jurisdiction. Similarly if the cause of action arises wholly outside the specified areas in Oudh then Allahabad will have jurisdiction. If the cause of action in part arises in the specified Oudh areas and part of the cause of action arises outside the specified areas it will be open to the litigant to frame the case appropriately to attract the jurisdiction either at Lucknow or at Allahabad. Fifth a criminal case arises where the offence has been committed or otherwise as provided in the Criminal Procedure Code. That will attract the jurisdiction of the Court at Allahabad or Lucknow. In some cases depending on the facts and the provision regarding jurisdiction it may arise in either place The controversy as has been raised in the present case has been answered by the Apex Court in its conclusion which has been dealt with as the third conclusion therein. The same is at the cost of repetition being again extracted herein below: 38. ........................ Third the Chief Justice has power under the second proviso to paragraph 14 of the order to direct in his discretion that any case or class of cases arising in Oudh areas shall be heard at Allahabad. Any case or class of cases are those which are instituted at Lucknow. The interpretation given by the High Court that the word "heard" confers powers on the Chief Justice to order that any case or class of cases arising in Oudh areas shall be instituted or filed at Allahabad instead of Lucknow is wrong. The word "heard" means that cases which have already been instituted or filed at Lucknow may in the discretion of the Chief Justice under the second proviso to paragraph 14 of the Order be directed to be heard at Allahabad Indian Kanoon Heera Lal Yadav vs State Of U.P. Thru. Addl. Chief ... on 30 June 2021 A perusal of the third conclusion of the Apex Court in the case of Sri Nasiruddin supra) leaves no doubt that a case which has already been instituted or filed at Lucknow may in the discretion of the Chief Justice under the second proviso to paragraph 14 of the Amalgamation Order be directed to be heard at Allahabad but not vice versa. This leaves with no doubt that a case filed or instituted at Lucknow can be directed to be heard at Allahabad but a case filed or instituted at Allahabad cannot be directed to be heard at Lucknow. The legal proposition is quite clear and Looking to the position of law as stated above and the facts of the present case this Court comes to a conclusion that the preliminary objection regarding maintainability of the present writ petition at Allahabad as raised by the learned counsel for the State has substance. The argument of learned Senior Advocate that the present case be transferred to Lucknow as per the dictum laid down in the case of Sri Nasiruddin supra) is fallacious The present writ petition is dismissed on the ground that this court has no jurisdiction to hear the same However the petitioner is at liberty to approach the appropriate forum Court if so The party shall file computer generated copy of order downloaded from the official website of High Court Allahabad self attested by it alongwith a self attested identity proof of the said person(s)mentioning the mobile number(s) to which the said Aadhar Card is linked The concerned Court Authority Official shall verify the authenticity of such computerized copy of the order from the official website of High Court Allahabad and shall make a declaration of such verification in writing 16) It transpires from perusal of the aforesaid orders that co accused has been granted the parity of the interim order dated 14.12.2020 passed in Criminal Misc. Writ Petition No. 126020. Now the situation is that the said interim order dated 14.12.2020 has not become enforced as it merges into final order dated 24.03.2021 passed in Criminal Misc. Writ Petition No. 126020 whereby this Court at Allahabad while dismissing the writ petition filed by the petitioner granted liberty to approach the appropriate forum court if so advised. Thereafter the petitioner has filed the instant writ petition claiming the interim orders granted to co accused 17) On due consideration we are of the view that the petitioner cannot be granted the parity of interim order passed in the case of co accused for the reason that the basis for passing the interim order in the case of co accused as quoted hereinabove was the interim order dated 14.12.2020 passed in writ petition filed by the writ petitioner himself before this Court at Allahabad which is in fact not enforced after dismissal of the said writ petition. Thus the plea of the petitioner in this Indian Kanoon regard has no force and is rejected Heera Lal Yadav vs State Of U.P. Thru. Addl. Chief ... on 30 June 2021 18) However on merit it has been argued by the learned Senior Counsel appearing on behalf of the petitioner that the petitioner has no concern with the further development recruitment selection appointment on the post of Assistant Manager & Assistant Managerin U.P Co operative Bank Ltd. Lucknow as he was transferred to elsewhere at that time which was vehemently opposed by the learned AGA by saying that the petitioner was involved in making educational qualification for the selection contrary to rules therefore it cannot be said that the petitioner has no concern with the said irregularities in the selection 19) We have minutely examined the contentions of the learned Counsel for the parties and gone through the impugned F.I.R 20) The legal position on the issue of quashing of FIR or criminal proceedings is well settled that the jurisdiction to quash a complaint FIR or a charge sheet should be exercised sparingly and only in exceptional cases. The Courts should not ordinarily interfere with the investigations of cognizable offences. However where the allegations made in the FIR or the complaint even if taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused the FIR or the charge sheet may be quashed in exercise of powers under Article 226 or inherent powers under Section 482 of the Cr.P.C 21) Recently in Neeharika Infrastructure Private Limited vs. State of Maharashtraa three judge Bench of the Hon ble Supreme Court considered the powers of the High Court while adjudicating a petition for quashing of the FIR under Article 226 of the Constitution of India and under Section 482 of the Criminal Procedure Code 1973. In Neeharika Infrastructure Private Limitedthe appellants challenged an interim order issued by the Bombay High Court in a quashing petition filed under Section 482 Cr.P.C. and Article 226 of the Constitution. The Bombay High Court issued an interim order directing that "no coercive measures shall be adopted against the petitioners in respect of the said FIR". While examining the correctness of the said interim order Hon ble the Supreme Court in para 23 has held as under 23. In view of the above and for the reasons stated above our final conclusions on the principal core issue whether the High Court would be justified in passing an interim order of stay of investigation and or "no coercive steps to be adopted" during the pendency of the quashing petition under Section 482 Cr.P.C and or under Article 226 of the Constitution of India and in what circumstances and whether the High Court would be justified in passing the order of not to arrest the accused or "no coercive steps to be adopted" during the investigation or till the final report chargesheet is filed under Section 173 Cr.P.C. while dismissing disposing of not entertaining not quashing the criminal proceedings complaint FIR in exercise of powers under Section 482 Cr.P.C. and or under Article 226 of the Constitution of India our final conclusions are Indian Kanoon Heera Lal Yadav vs State Of U.P. Thru. Addl. Chief ... on 30 June 2021 i) Police has the statutory right and duty under the relevant provisions of the Code of Criminal Procedure contained in Chapter XIV of the Code to investigate into a cognizable offence ii) Courts would not thwart any investigation into the cognizable offences iii) It is only in cases where no cognizable offence or offence of any kind is disclosed in the first information report that the Court will not permit an investigation to go on iv) The power of quashing should be exercised sparingly with circumspection as it has been observed in the rarest of rare casesWhile examining an FIR complaint quashing of which is sought the court cannot embark upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the vi) Criminal proceedings ought not to be scuttled at the initial stage vii) Quashing of a complaint FIR should be an exception rather than an ordinary rule viii) Ordinarily the courts are barred from usurping the jurisdiction of the police since the two organs of the State operate in two specific spheres of activities and one ought not to tread over the other sphere ix) The functions of the judiciary and the police are complementary not overlapping x) Save in exceptional cases where non interference would result in miscarriage of justice the Court and the judicial process should not interfere at the stage of investigation of offences xi) Extraordinary and inherent powers of the Court do not confer an arbitrary jurisdiction on the Court to act according to its whims or caprice xii) The first information report is not an encyclopaedia which must disclose all facts and details relating to the offence reported. Therefore when the investigation by the police is in progress the court should not go into the merits of the allegations in the FIR. Police must be permitted to complete the investigation. It would be premature to pronounce the conclusion based on hazy facts that the complaint FIR does not deserve to be investigated or that it amounts to abuse of process of law. After investigation if the investigating officer finds that there is no substance in the application made by the complainant the investigating officer may file an appropriate report summary before the learned Magistrate which may be considered by the learned Magistrate in accordance with the known procedure xiii) The power under Section 482 Cr.P.C. is very wide but conferment of wide power requires the court to be more cautious. It casts an onerous and more diligent duty on the court Indian Kanoon Heera Lal Yadav vs State Of U.P. Thru. Addl. Chief ... on 30 June 2021 xiv) However at the same time the court if it thinks fit regard being had to the parameters of quashing and the self restraint imposed by law more particularly the parameters laid down by this Court in the cases of R.P. Kapurand Bhajan Lalhas the jurisdiction to quash the xv) When a prayer for quashing the FIR is made by the alleged accused and the court when it exercises the power under Section 482 Cr.P.C. only has to consider whether the allegations in the FIR disclose commission of a cognizable offence or not. The court is not required to consider on merits whether or not the merits of the allegations make out a cognizable offence and the court has to permit the investigating agency police to investigate the allegations in the FIR xvi) The aforesaid parameters would be applicable and or the aforesaid aspects are required to be considered by the High Court while passing an interim order in a quashing petition in exercise of powers under Section 482 Cr.P.C. and or under Article 226 of the Constitution of India. However an interim order of stay of investigation during the pendency of the quashing petition can be passed with circumspection. Such an interim order should not require to be passed routinely casually and or mechanically. Normally when the investigation is in progress and the facts are hazy and the entire evidence material is not before the High Court the High Court should restrain itself from passing the interim order of not to arrest or "no coercive steps to be adopted" and the accused should be relegated to apply for anticipatory bail under Section 438 Cr.P.C. before the competent court. The High Court shall not and as such is not justified in passing the order of not to arrest and or "no coercive steps" either during the investigation or till the investigation is completed a n d o r t i l l t h e f i n a l r e p o r t c h a r g e s h e e t i s f i l e d u n d e r S e c t i o n 1 7 3 C r . P . C . w h i l e dismissing disposing of the quashing petition under Section 482 Cr.P.C. and or under Article 226 of the Constitution of India. xvii) Even in a case where the High Court is prima facie of the opinion that an exceptional case is made out for grant of interim stay of further investigation after considering the broad parameters while exercising the powers under Section 482 Cr.P.C. and or under Article 226 of the Constitution of India referred to hereinabove the High Court has to give brief reasons why such an interim order is warranted and or is required to be passed so that it can demonstrate the application of mind by the Court and the higher forum can consider what was weighed with the High Court while passing such an interim order xviii) Whenever an interim order is passed by the High Court of "no coercive steps to be adopted within the aforesaid parameters the High Court must clarify what does it mean by "no coercive steps to be adopted" as the term "no coercive steps to be adopted" can be said to be too vague and or broad which can be misunderstood and or misapplied 22) Keeping in mind the aforesaid dictum of the Hon ble Supreme Court we find that in the instant case it transpires from the impugned F.I.R. that specific allegation has been levelled against the petitioner in the F.I.R. with regard to making educational qualification contrary to rules and that too this fact came into light after thorough inquiry conducted in the matter by the Special Investigation Team therefore it cannot be said that prima facie the petitioner cannot be involved in the instant Indian Kanoon Heera Lal Yadav vs State Of U.P. Thru. Addl. Chief ... on 30 June 2021 23) It is well settled that this Court has to eschew itself from embarking upon a roving enquiry into the last details of the case. It is also not advisable to adjudge whether the case shall ultimately end in submission of charge sheet and then eventually in conviction or not. Only a prima facie satisfaction of the court about the existence of sufficient ingredients constituting the offence is required in order to see whether the F.I.R. requires to be investigated or deserves quashing. The ambit of investigation into the alleged offence is an independent area of operation and does not call for interference in the same except in rarest of rare cases 24) Keeping in view the aforesaid law and considering the submissions raised by learned counsel for the petitioner we are of the considered view that the submissions advanced by the learned Counsel for the petitioner call for determination on questions of fact which may be adequately discerned either through proper investigation or which may be adjudicated upon only by the trial court and even the submissions made on points of law can also be more appropriately gone into only by the trial Court in case a charge sheet is submitted in this case. The perusal of the record makes out prima facie offences at this stage and there appears to be sufficient ground for investigation in 25) In view of the aforesaid considering the allegations made in the FIR and material brought on record it cannot be said that no prima facie case is made out against the petitioner rather there appears to be sufficient ground for investigation in the matter. Accordingly we do not find any justification to quash the impugned F.I.R 26) The petition lacks substance and is accordingly dismissed (Ramesh Sinha J Order Date : 30.6.2021 Indian Kanoon

‘Consensual Affair’ not a defence against charge of kidnapping a minor: Supreme Court of India

“A minor girl’s infatuation with her alleged kidnapper cannot by itself be allowed as a defence, for the same would amount to surreptitiously undermining the protective essence of the offence of kidnapping.” The court held that a ‘consensual affair’ is not a defence against the charge of kidnapping. The Supreme Court of India presided over by J. N.V. Ramana, J. S.A. Nazeer &amp; J. S. Kant laid down this ratio in the case of Anversinh Vs. State of Gujarat, [Criminal Appeal No. 1919 of 2010].   The brief facts of the case are that the Appellant and prosecutrix were in love with each other. The prosecutrix left her home and went away with the Appellant to his village. After a Police Complaint by the family of the prosecutrix the were able to locate both of them and after a medical examination of the prosecutrix an FIR was filed against the Appellant. The trial court held the Appellant guilty for rape and kidnapping of the prosecutrix under Section 376, 363 &amp; 366 of IPC. The High Court set aside the charge for rape as there was clear evidence that the relationship between the Appellant and the Prosecutrix was consensual and therefore the Appellant was charged for the offence of kidnapping under IPC. The main question before the Supreme Court was whether a consensual affair can be a defence against the charge of kidnapping a minor? The Apex court stated that the evidence on record clearly states that the accused had induced the prosecutrix to reach at a designated place to accompany him, it observed that, “His core contention appears to be that in view of consensual affair between them, the prosecutrix joined his company voluntarily. Such a plea, in our opinion, cannot be acceded to given the unambiguous language of the statute as the prosecutrix was admittedly below 18 years of age.” The Court observed that, “A perusal of Section 361 of IPC shows that it is necessary that there be an act of enticing or taking, in addition to establishing the child’s minority (being sixteen for boys and eighteen for girls) and care/keep of a lawful guardian. Such ‘enticement’ need not be direct or immediate in time and can also be through subtle actions like winning over the affection of a minor girl. However, mere recovery of a missing minor from the custody of a stranger would not ipso­facto establish the offence of kidnapping. Thus, where the prosecution fails to prove that the incident of removal was committed by or at the instigation of the accused, it would be nearly impossible to bring the guilt home.”

The appellant­Anversinh impugns the judgment pronounced by the High Court of Gujarat dated 28.07.2009 by which his conviction under Section 376 of the Indian Penal Code 1860 was of IPC was upheld and consequential sentence of rigorous that their eldest sixteen­year­old daughter had not returned home. Educated till Class VII the prosecutrix worked as a maid sweeping and mopping a few hours every noon and evening. The complainant­father made enquiries at her workplace where he learnt from a watchman that his daughter out of the vacant Bungalow No. 4 of the Ramjani Society with the from where they were brought back to Ahmedabad on 21.05.1998 subjected to sexual intercourse against her will. The prosecutrix’s father corroborated the version of events noted above and that he was informed by the prosecutrix’s friend Rekha that she had of birth at the time of admission was recorded as 08.02.1982. The by bus to the appellant’s village. She further claimed to have the appellant. The prosecutrix nevertheless admitted during cross­ examination to being in love with the appellant having had consensual sexual intercourse with him on a prior date and also having met him outside her home on previous occasions. It further emerged that during her alleged kidnapping she was seated with the appellant’s village where both went to work together and were living akin to husband and wife. PW­4 and PW­6 who were panch witnesses to the recording of the FIR physical condition of the prosecutrix and seizure of the prosecutrix’s clothes both turned at the Civil Hospital proved the medical record and injury certificates showing that the prosecutrix had indeed been subjected to sexual intercourse. Finally PW­7 was the police officer who registered the It is pertinent to mention that the Investigating Officer 1 SCR 243 Whether a consensual affair can be a defence against 11. Having given our thoughtful consideration to the rival submissions it appears to us that although worded succinctly the impugned judgment does not err in appreciating the law on kidnapping. It would be beneficial to extract the relevant parts of Sections 361 and 366 of IPC which define ‘Kidnapping from Lawful “361. Kidnapping from lawful guardianship.—Whoever takes eighteen] years of age if a female or any person of unsound mind unsound mind without the consent of such guardian is said to any person lawfully entrusted with the care or custody of such 366. Kidnapping abducting or inducing woman to compel will be compelled to marry any person against her will or in order which may extend to ten years and shall also be liable to fine and or immediate in time and can also be through subtle actions like missing minor from the custody of a stranger would not ipso­facto to prove that the incident of removal was committed by or at the 13. Adverting to the facts of the present case the appellant has unintentionally admitted his culpability. Besides the victim being 2 Thakorlal D Vadgama v. State of Gujarat 2 SCC 413 ¶ 10 the victim’s deposition that she was forcefully removed from the the testimonies of numerous witnesses make out a clear case of enticement. The evidence on record further unequivocally suggests 14. Behind all the chaff of legalese the appellant has failed to His core contention appears to be that in view of consensual affair plea in our opinion cannot be acceded to given the unambiguous language of the statute as the prosecutrix was admittedly below 18 15. A bare perusal of the relevant legal provisions as extracted Section 361 of IPC. Indeed as borne out through various other provisions in the IPC and other laws like the Indian Contract Act 361 IPC particularly goes beyond this simple presumption. It bestows the ability to make crucial decisions regarding a minor’s physical safety upon his her guardians. Therefore a minor girl’s infatuation 5 Satish Kumar Jayanti Lal Dabgar v. State of Gujarat 7 SCC 359 ¶ 15 with her alleged kidnapper cannot by itself be allowed as a defence for 16. Similarly Section 366 of IPC postulates that once the 17. The ratio of S. Varadarajanalthough attractive at first glance does little to aid the appellant’s case. On facts the case is where a minor with the knowledge and capacity to know the full without any assistance or inducement on part of the accused. The cited judgment therefore cannot be of any assistance without establishing: first knowledge and capacity with the minor of her actions second voluntary abandonment on part of the minor and 18. Unfortunately it has not been the appellant’s case that he had care of herself. In addition to being young the prosecutrix was not It is apparent that instead of being a valid defence the appellant’s vociferous arguments are merely a justification which relevant provisions of the IPC cannot be construed in any other that the consent of the minor would be no defence to a charge of kidnapping. No fault can thus be found with the conviction of the II. Whether the punishment awarded is just and ought 20. Having held so we feel that there are many factors which may not be relevant to determine the guilt but must be seen with a in State of Madhya Pradesh v. Surendra Singh6 on the need for undermine the public confidence in the efficacy of law. It is the question of sentence and proceed to impose a sentence society at large while considering the imposition of appropriate time without considering the degree of the offence will be counterproductive in the long run and against the interest of the 21. True it is that there cannot be any mechanical reduction of the Court finds it to be a case of gross injustice hardship or palpably upon the facts and circumstances of each case whether a superior Court should interfere with and resultantly enhance or reduce the sentence. Applying such considerations to the peculiar facts and 22. We say so for the following reasons: first it is apparent that no force had been used in the act of kidnapping. There was no pre­ planning use of any weapon or any vulgar motive. Although the 23. Second although not a determinative factor the young age of the accused at the time of the incident cannot be overlooked. As mentioned earlier the appellant was at the precipice of majority actions at such a young and impressionable age therefore ought to Third owing to a protracted trial and delays at different levels victim and the appellant are now in their forties are productive spouses and families. It therefore might not further the ends of 25. Fourth the present crime was one of passion. No other charges antecedents or crimes either before 1998 or since then have been leading a normal life. The possibility of recidivism is therefore 26. Fifth unlike in the cases of State of Haryana v. Raja Ram7 and Thakorlal D. Vadgama v. State of Gujarat8 there is no grotesque misuse of power wealth status or age which needs to be guarded social class and lived in geographical and cultural vicinity to each the prosecutrix the two could have been happily married and cohabiting today. Indeed the present instance is an offence: mala prohibita and not mala in se. Accordingly a more equitable sentence 27. Given these multiple unique circumstances we are of the opinion that the sentence of five years’ rigorous imprisonment this case. The concerns of both the society and the victim can be respected and the twin principles of deterrence and correction would be served by reducing the appellant’s sentence to the period of In light of the above discussion we are of the view that the prosecution has established the appellant’s guilt beyond reasonable period of imprisonment already undergone. The appeal is therefore

The Court declined to grant pre-arrest bail as petitioner no. 2 was guilty of strangulating the deceased: High court of Patna  

The petitioner no.2 was arrested under Sections 302, Indian penal code, “Punishment for murder”, section 34IPC, “Acts done by several persons in furtherance of common intention”. This is in connection with Kesaria PS Case No. 227 of 2020 dated 05.06.2020 This judgment was given in the high court of Judicature at Patna by honorable Mr. Justice Ahsanuddin Amanullah on the 30th of July 2021 in the case of Kapildeo Rai versus the state of Bihar criminal miscellaneous No. 37115 of 2020, Mr. Naresh Chandra Represented as the advocate for the petitioner no.2  and Mr. Anuj Kumar represented as the additional Public Prosecutor, the proceedings of the court were held via video conference. The following are the facts of the case, petitioner no.2 along with others were accused of strangulating her sister-in-law (the wife of her brother). The counsel representing the petitioner held that the petitioner is the unmarried younger sister of the husband of the deceased and she is not connected with this incident. The husband of the deceased is required to explain the incident and has been taken into custody, not his sister, even the mother of the petitioner was granted bail after being held behind the bars, he further held that even the informant claimed that the accused had no role in the crime and the petitioner has no other criminal antecedent. However, the additional public prosecutor held that the petitioner was the main reason for this crime, since the family was coercing the deceased to provide for Rs.1 lakh doe the marriage expenses of petitioner no.2, according to the post-mortem it was found that there was a black mark on the neck and blood was oozing from the nice which clearly indicates she was strangulated. On further investigation there was a black mark found on the right hand of the deceased and the petitioner was present during the occurrence of this crime and was a vital party to the crime because the deceased could not have been strangulated by one person alone and was done with help of the petitioner and even the mother confessed that the family was not happy with the deceased working, the lady had four children and there is no possibility of her committing suicide, and leaving her minor children behind. The APP further submitted that a clean chit has not been given to the accused and taking into consideration the future of the children and the family members of petitioner no.2 were clearly involved in murder, therefore it is a non-compoundable offense.

IN THE HIGH COURT OF JUDICATURE AT PATNA CRIMINAL MISCELLANEOUS No. 371120 Arising Out of PS. Case No. 227 Year 2020 Thana KESARIA District East Champaran 1. Kapildeo Rai aged 70 years Male Son of Late Tengar Rai. Baby Kumari aged about 22 years Female Daughter of Kapildeo Rai. Both resident of Village Bariya PS Kesaria District East Champaran The State of Bihar ... Petitioner s For the Petitioner s For the State Mr. Naresh Chandra Verma Advocate Mr. Anuj Kumar Shrivastava APP CORAM: HONOURABLE MR. JUSTICE AHSANUDDIN AMANULLAH ... Opposite Party s ORAL JUDGMENT Date : 30 07 2021 The matter has been heard via video conferencing. 2. Heard Mr. Naresh Chandra Verma learned counsel for the petitioners and Mr. Anuj Kumar Shrivastava learned Additional Public Prosecutor (hereinafter referred to as the ‘APP’ for the State 3. Learned counsel for the petitioners submitted that petitioner no. 1 namely Kapildeo Rai having died earlier such prayer on his behalf had been withdrawn and the matter is restricted to petitioner no. 2 namely Baby Kumari. 4. The petitioner no. 2 apprehends arrest in connection with Kesaria PS Case No. 227 of 2020 dated 05.06.2020 instituted under Sections 302 34 of the Indian Penal Code Patna High Court CR. MISC. No.371120 dt.30 07 2021 5. The allegation against the petitioner no. 2 and others is of strangulating the wife of her brother 6. Learned counsel for the petitioner submitted that she is the unmarried younger sister of the husband of the deceased and is not connected with the incident. It was submitted that even if some foul play was there it is for the husband of the deceased to explain and he is already in custody. Learned counsel submitted that even the mother of the petitioner no.2 has been granted bail after being taken into custody. It was submitted that the matter has also been compromised by the informant in which he has stated that the accused had no role in the crime. He submitted that the petitioner no. 2 has no other criminal antecedent 7. Learned APP submitted that the petitioner no. 2 was the main cause behind the incident as the family of the deceased was pressuring for Rs. 1 lakh for the marriage expenses of petitioner no. 2. Further it was submitted that in the postmortem it has been found that there was black mark on the neck and there was blood oozing from the nose and the opinion was that she was strangulated. It was further submitted that during inquest black mark has been found on the right hand of the deceased also. Thus it was submitted that the petitioner no. 2 who was very much present in the house when the occurrence took place was Patna High Court CR. MISC. No.371120 dt.30 07 2021 instrumental and party to the crime as the deceased could not have been strangulated by one person alone and the deceased being a lady it is but obvious that the ladies of the house would have committed the crime and most importantly the mother of the petitioner no. 2 has confessed that because the deceased was working her free movements was not liked by the petitioner’s family due to which she was strangulated and killed. It was further submitted that a lady having four children would not have committed suicide both in view of the finding in the postmortem which clearly states that it is a case of strangulation and not hanging and further the deceased being mother of four children could not have taken her life leaving behind her minor children With regard to the compromise learned APP submitted that the very reading of the same clearly shows that a clean chit has not been given to the accused and rather it has been said that taking into account the future of the children the compromise was being made which clearly indicates that the informant had not taken the stand that the petitioner no. 2 and her family members were not involved in the murder of the victim and thus it is obvious that the parties have compromised for other reasons. Moreover it was submitted that the offence relating to murder being non Patna High Court CR. MISC. No.371120 dt.30 07 2021 compoundable such compromise may not be of much importance and relevance especially at the present stage 8. Having considered the facts and circumstances of the case and submissions of learned counsel for the parties the Court is not inclined to grant pre arrest bail to the petitioner no. 2 9. Accordingly the petition stands dismissed (Ahsanuddin Amanullah J

Grant of bail in a heinous crime by ignoring material and evidence on record is against principles of law: High Court of Delhi

Once bail has been granted it should not be cancelled unless there is evidence that the conditions of bail are being infringed. The grounds for cancellation of bail broadly are interference or attempt to interfere with the due course of administration of justice or evasion or attempt to evade the due course of justice or abuse of the concession granted to the accused in any manner. One such ground for cancellation of bail would be where ignoring material and evidence on record a perverse order granting bail is passed in a heinous crime of this nature and that too without giving any reasons. Such an order would be against principles of law and the same was upheld by High Court of Delhi through the learned bench led by JUSTICE MUKTA GUPTA in the case of X vs. STATE (NCT OF DELHI) &amp; ANR. [CRL.M.C. 2946/2021] on 04.03.2022. The facts of the case are that the petition has been filed through the father/ legal guardian of the victim who is a female aged 37 years, suffering from bipolar mental disorder episodic mania and psychotic features and was diagnosed to be suffering from the mental disorder in 2015 with mania shortly after her marriage. The same has also resulted in initiation of divorce proceedings between the victim and her husband. The plaintiff’s counsel contended that respondent was living in the neighbourhood of the prosecutrix and thus as a neighbourer he knew the medical condition of the prosecutrix. It was submitted that the respondent took undue advantage of her medical condition by luring her and took her away to Nainital, where he committed the offence of rape on her. Thus, it was contended that while granting bail to the respondent Court failed to consider the legal principles applicable for grant of bail i.e. seriousness of offence, likelihood of the witness being intimidated, tampering with the evidence and the conduct of the accused. The respondent’s counsel contended that the prosecutrix is a major and had been married. She entered into a settlement with her husband for seeking divorce by mutual consent which shows her cognitive faculties. Considering the fact that the impugned order granting bail to the respondent suffers from gross-illegality as seriousness of the offence and the fact that respondent is likely to influence the prosecutrix by luring her again and/or intimidating her has not been considered, therefore, the Court set aside the impugned order. The bail granted to the respondent was cancelled. The Court observed, “Once bail has been granted it should not be cancelled unless there is evidence that the conditions of bail are being infringed. The grounds for cancellation of bail broadly are interference or attempt to interfere with the due course of administration of justice or evasion or attempt to evade the due course of justice or abuse of the concession granted to the accused in any manner. One such ground for cancellation of bail would be where ignoring material and evidence on record a perverse order granting bail is passed in a heinous crime of this nature and that too without giving any reasons. Such an order would be against principles of law.”

IN THE HIGH COURT OF DELHI AT NEW DELHI Reserved on: 4th February 2022 Decided on: 4th March 2022 CRL.M.C. 2946 2021 Represented by: Mr. Shreeyash U.Lalit and Mr.Tarun Narang Advocates. Petitioner STATE& ANR. Respondents Represented by: Ravi Nayak APP for State with SI Manju Yadav PS Vikaspuri. Mr. Abhay Kumar Advocate for R 2. HON BLE MS. JUSTICE MUKTA GUPTA By this petition the petitioner seeks setting aside of the order dated 7th September 2021 and the consequential cancellation of regular bail granted to the respondent No.2 by the learned ASJ Fast Track Court POCSO 1 Dwarka Court in FIR No. 457 2021. The petition has been filed through the father legal guardian of the victim who is a female aged 37 years suffering from bipolar mental disorder episodic mania and psychotic features since the year 2002 and was diagnosed to be suffering from the mental disorder in 2015 with mania shortly after her marriage. The same has also resulted in initiation of divorce proceedings between the victim and her husband. Learned counsel for the petitioner assailing the impugned order states that despite the fact that the learned Additional Sessions Judge called for the CRL.M.C. 2946 2021 report of IHBAS on 18th August 2021 21st August 2021 1st September 2021 and 6th September 2021 however without waiting for the final report which was received on 15th September 2021 passed the impugned order on 7th September 2021 granting regular bail to the respondent No.2 who was arrested on 30th July 2021. It is further stated that while granting bail though the learned Trial Court took notice of the initial statement of the victim recorded before the Police however failed to notice her detailed statement recorded under Section 164 Cr.P.C. before Metropolitan Magistrate. The mobile phone of the accused showed the mobile number saved with the title 376 and the accused transferred photos of the victim to the said number for which the mobile phone has already been sent to FSL and the report of FSL is still awaited. Statement of the prosecutrix recorded under Section 164 Cr.P.C. and the call detail record show that the prosecutrix came in touch with the respondent No.2 three days prior to 21st July 2021 and on 21st July 2021 he lured the prosecutrix on the pretext that there was an evil spirit of a dog in her body which needs to be removed. After taking the prosecutrix to Nainital instead of Vaishno Devi by putting vermilion in her head the prosecutrix was made to believe that they were married and committed sexual intercourse with her. Statement of the prosecutrix recorded by the learned Metropolitan Magistrate clearly shows that she was threatened. The respondent No.2 is living in the neighbourhood of the prosecutrix and thus as a neighbourer he knew the medical condition of the prosecutrix. Taking undue advantage of her medical condition he lured her and took her away to Nainital where he committed the offence of rape on her punishable under Section 376(2)(l) wherein the sentence awarded is not less than 10 years imprisonment which CRL.M.C. 2946 2021 may extend to life imprisonment and fine. Thus while granting bail to the respondent No.2 the learned Trial Court failed to consider the legal principles applicable for grant of bail i.e. seriousness of offence likelihood of the witness being intimidated tampering with the evidence and the conduct of the accused. It is further stated that the respondent No.2 does not have clean antecedents and that prior to the registration of above noted FIR two kalandras were registered against him and after registration of the above noted FIR the respondent No.2 is involved in FIR No. 734 2021 under Sections 323 341 354 506 IPC registered at PS Vikas Puri on 24th November 2021. Learned APP for the State contends that the statement of the prosecutrix recorded under Section 164 Cr.P.C. gives in detail the manner in which the respondent No.2 manipulated the prosecutrix and taking advantage of her mental condition lured her to Nainital where he committed the serious offence of rape on her which statement has not been considered by the learned Trial Court. Further as per the final report from the IHBAS Medical Board the prosecutrix was diagnosed with bipolar affective disorder and the diagnosis comes under the definition of “mental illness” under Section 2 of the Mental Health Care Act 2017. The Board also opined that based on the serial assessment ward behaviour observation as well as cross sectional examination the Board was of the opinion that there is no reason to believe that the prosecutrix may not be able to depose in the Court of law. Learned counsel for the respondent No.2 contends that the prosecutrix is a major and had been married. She entered into a settlement with her husband for seeking divorce by mutual consent which shows her cognitive faculties. After being brought to Delhi the prosecutrix gave her first CRL.M.C. 2946 2021 statement on 23rd July 2021 wherein she stated that she went voluntarily with respondent No.2 and that she established physical relationship of her own volition. It is further stated that not only in the statement before the Police but also recorded at the time of counselling by the NGO the prosecutrix reiterated that she went of her accord and established relationship as per her wish. It is further contended that in case the version of the prosecution is to be accepted that the prosecutrix suffers from a mental illness then her first marriage is invalid and therefore the respondent No.2 committed no offence by marrying her by putting vermillion on her head. The respondent No.2 also challenges the grant of permission to the father of the prosecutrix to act as a legal guardian as the prosecutrix is a major and is competent to perform her legal duties. The respondent No.2 states that there is no illegality in the impugned order as the learned Trial Court noted that no further investigation or recovery was required to be made from the respondent No.2. In view of the prosecutrix being a major and having consented to establishing relationship the respondent No.2 has been rightly released on regular bail by the learned Trial Court. A written complaint of the deponent and his wife i.e. the parents of the prosecutrix was received on 21st July 2021 wherein they stated that the prosecutrix aged 37 years was suffering from mental disorders and depression since 2002 and was taking medicines. When she has attacks of depression she looses her mental balance and becomes violent breaking household articles abusing and acts like a child and speaks irrationally. The divorce proceedings of their daughter was pending before the Tis Hazari Court however no divorce has been granted. At 6.15 PM on that day their younger daughter who stays in Kashmir received a video call from the CRL.M.C. 2946 2021 prosecutrix from which it was revealed that the prosecutrix was with one Shiva R o Site No.2 House No.3 Vikas Puri and they were in train. She told that she was going to Jammu. Their younger daughter got perturbed as Shiva @ Prabhakar Sharma was a person of criminal bent who fights with people in the locality takes drugs and has gone to jail number of times. Shiva has taken their daughter away by enticing her and they suspected that taking advantage of the mental condition of their daughter Shiva may not sell their daughter or do any wrong act with her. They also stated that their daughter had take ₹50 000 and gold jewellery at the instance of Shiva. Though the Police registered no FIR on this complaint however mobile phone record of the prosecutrix was collected from which it was revealed that the prosecutrix was not in Jammu but in Nainital. Hence a raiding team was sent to Nainital on 22nd July 2021 and on 23rd July 2021 the prosecutrix and Shiva were brought to Delhi. It was found out that Shiva had lured the prosecutrix stating that he was a Astrologer and a Palmist and on seeing her hand he stated that a soul of a black dog vested in her and she was required to be taken to a Tantric to remove the same and that he will take her to Vaishno Devi and remove the soul of black dog from her body. In her statement to the Police the victim on 23rd July 2021 stated that she was 37 years old married and her divorce case was going on. She was residing with her parents and suffering from depression since 2001. Shiva used to reside in a temple in her neighbourhood. He started speaking to her 2 3 days ago. Shiva told her that they would go to Nainital and on 21st July 2021 she went with Shiva without telling her family members. She went with Shiva to Hotel Corbett Nainital and where they established physical relationship with her consent. There Police reached and brought CRL.M.C. 2946 2021 them to the Police Station. She wanted no action against Shiva and herself. On the same day MLC of the prosecutrix was prepared wherein as per the history given it was stated that Shiva had forcible intercourse with her two times on 21st July 2021. No FIR on the statement of the parents of the victim were recorded and subsequently when the parents of the victim gave complaints to higher authorities followed by a further complaint dated 27th July 2021 along with the medical document via tele consultation dated 25th July 2021 the above noted FIR was registered and statement of the prosecutrix was recorded under Section 164 Cr.P.C. In her statement recorded under Section 164 Cr.P.C. before the learned Metropolitan Magistrate on 4th August 2021 the victim stated that around 15 20 days ago she went outside her house when she met Shiva Bhaiya who told her that he will get her married as she had told Shiva Bhaiya that he should get her married. Shiva had told her that the soul of a black dog vests in her and he will got her relieved from the same. Thereafter Shiva Bhaiya started sending her messages that he will get her married and would tell her about the details of the boy. The prosecutrix asked Shiva to take her to Vaishno Devi and there he should get her married through a priest. Shiva asked her to meet him on 21st July 2021. Both of them went to some places and thereafter boarded a train for Vaishno Devi. She stated that Shiva Bhaiya takes charas ganja and was hurling filthy abuses. In the train Shiva Bhaiya asked her to go to the bathroom with him so that he could have sex her. He asked for sindoor from her. She had mata ka tika with her which she gave to him and he put the same on her head. She did not go to the bathroom with him. Instead of taking her to Vaishno Devi Shiva Bhaiya took her to Kathgodam Nainital. In the train CRL.M.C. 2946 2021 Shiva Bhaiya made her video and told her that she has got married to him. In Nainital he took her to Aiysha Hotel where they stayed in room No. 201. There he again put vermillion on her head. The prosecutrix stated that she wanted to marry and bear a child on which Shiva told her that for a child she will have to sleep. The prosecutrix told him that she did not want a child from him as he took charas and ganja on which Shiva stated that he will get her married to some good boy. Thereafter he gave her fanta to drink and established physical relation. When he was performing sex with her she felt pain on which Shiva stated that the child is born like this. On this the prosecutrix stated that she did not want the child nor the marriage. She asked for return of her money and that he should let her go but he did not let her go. On the next day he took her to Corbett Hotel by bus at Ram Nagar. At the hotel when she was taking bath in the bathroom he was trying to enter the bathroom by opening door however she did not let him enter. After she came out he gave her a frooti to drink after which she felt dizzy and does not remember what happened thereafter. Thereafter she saw a video in the mobile on seeing which she vomited out. Shiva drank liquor and slept. She called the Police however the Police disconnected the phone. Then She called Vikas Puri Police Station and thereafter she called her sister but got no help. Thereafter she called her brother and the next day Police came and brought her to Delhi. The Police gave a bill of ₹25 000 spent to her brother and now her parents keep the house locked. She further stated that Shiva Bhaiya had threatened her that if she complains in the Police then he would kill her and her family members by pistol. She did not lodge the FIR due to the threat given and that Shiva had made her dirty videos while he was performing sex with her. CRL.M.C. 2946 2021 11. Vide the impugned order the learned Additional Sessions Judge after noting the contentions of the parties held that the video of the accused and the prosecutrix played in the Court prima facie shows that the prosecutrix was conscious oriented and aware about the nature of the act. The prosecutrix is seen voluntarily accompanying the accused and her consent does not appear to be vitiated by any kind of mental disorder. The learned Additional Sessions Judge further held that admittedly the bipoloar mental disorder does not permanently affect the mental status of the person concerned. It involves the episodic attack on the mental psychic of the person concerned that leads to extreme variations fluctuations in his or her mood. The learned ASJ noted the definition of bipolar disorder as „Manic Depressive Psychosis‟ as given in Modi‟s Textbook of Medical Jurisprudence and Toxicology and held that a person suffering from bipolar disorder returns to normalcy after attack without impairment of mental integrity. Hence it is not a permanent mental disorder and temporarily impacts the medical condition only if there is an episodic attack and the time period for which it lasts is variable. Further it only involves mood fluctuations that may or may not lead to legal insanity. It was also held that in the instant case there is no evidence on record to suggest that during the said three days i.e. 21st July 2021 till 23rd July 2021 the prosecutrix suffered any such attack. On the contrary the videos manifest that the prosecutrix appears to be in control of her senses conscious and oriented and her consent is thus not vitiated by the history of her medical condition. The learned ASJ further held that there is unexplained and unjustified delay of nearly 7 days in reporting the matter and in these circumstances the possibility of false implication of the accused by the prosecutrix under the CRL.M.C. 2946 2021 influence or pressure of her family members cannot be ruled out. It was held that the accused is no more required for the purpose of investigation. Admittedly he does not have any other previous criminal involvement and being guided by the sacrosanct principles that „Bail is rule and jail is an exception‟ bail was granted to the respondent No.2. It is trite law that cancellation of bail granted can be directed either because the the order granting bail is perverse illegal contrary to law or unjustified or if the accused violates the conditions of grant of bail such as tempering with the evidence interfering with the investigation influencing the witnesses or fleeing away from justice. In the present case the petitioner seeks cancellation of bail on the first ground that the order granting bail is perverse illegal and contrary to the settled principles of law of grant of bail. In the decision reported as 6 SCC 338 Puran and Ors. Vs. Rambilas and Ors. Hon’ble Supreme Court following the decision in 1978 Crl. LJ 129 Gurcharan Singh vs. Stateheld that the concept of setting aside the unjustified illegal and perverse order is totally different from the concept of cancelling the bail on the ground that accused has misconducted himself or because of some new facts requiring such cancellation. It was held : 10. Mr Lalit next submitted that once bail has been granted it should not be cancelled unless there is evidence that the conditions of bail are being infringed. In support of this submission he relies upon the authority in the case of Dolat Ram v. State of Haryana1 SCC 349 : 1995 SCC237] . In this case it has been held that rejection of bail in a non bailable case at the initial stage and the cancellation of bail already granted have to be considered and dealt with on different basis. It has been held that very cogent and overwhelming circumstances are necessary for an order CRL.M.C. 2946 2021 directing the cancellation of the bail already granted. It has been held that generally speaking the grounds for cancellation of bail broadly are interference or attempt to interfere with the due course of administration of justice or evasion or attempt to evade the due course of justice or abuse of the concession granted to the accused in any manner. It is however to be noted that this Court has clarified that these instances are merely illustrative and not exhaustive. One such ground for cancellation of bail would be where ignoring material and evidence on record a perverse order granting bail is passed in a heinous crime of this nature and that too without giving any reasons. Such an order would be against principles of law. Interest of justice would also require that such a perverse order be set aside and bail be cancelled. It must be remembered that such offences are on the rise and have a very serious impact on the society. Therefore an arbitrary and wrong exercise of discretion by the trial court has to be corrected. 11. Further it is to be kept in mind that the concept of setting aside the unjustified illegal or perverse order is totally different from the concept of cancelling the bail on the ground that the accused has misconducted himself or because of some new facts requiring such cancellation. This position is made clear by this Court in Gurcharan Singh v. State [(1978) 1 SCC 118 : 1978 SCC41 : AIR 1978 SC 179] . In that case the Court observed as under:the Sessions Judge “If however a Court of Session had admitted an accused person to bail the State has two options. It may move if certain new circumstances have arisen which were not earlier known to the State and necessarily therefore to that court. The State may as well approach the High Court being the superior court under Section 439(2) to commit the accused to custody. When however the State is aggrieved by the order of the Sessions Judge granting bail and there are no new circumstances that have cropped up except those already existing it is futile for the State to move the Sessions Judge again and it is competent in law to move the High Court for CRL.M.C. 2946 2021 cancellation of the bail. This position follows from the subordinate position of the Court of Session vis à vis the High Court.” 14. As noted above contention of learned counsel for the respondent No.2 is also that the father of the prosecutrix cannot be permitted to act as legal guardian. In other words learned counsel for the respondent No.2 contends that the present petition seeking cancellation of bail supported by the affidavit of the father of the prosecutrix is not maintainable. It may be noted that the parents of the prosecutrix are the complainants who lodged the complaint immediately on 21st July 2021 and certainly fall within the category of „aggrieved persons‟. Dealing with the locus standi of a person to challenge the order granting bail Hon‟ble Supreme Court in Puran & Ors.held that since the High Court can suo moto exercise the power to cancel the bail granted to an accused any person can file a petition requesting the High Court to exercise its jurisdiction. Further the present petition has been filed by the father of the prosecutrix on her behalf. The Hon‟ble Supreme Court in Puran and Ors.held : “14. Mr Lalit next submitted that a third party cannot move a petition for cancellation of the bail. He submitted that in this case the prosecution has not moved for cancellation of the bail. He pointed out that the father of the deceased had moved for cancellation of the bail. He relied upon the cases of Simranjit Singh Mann v. Union of India4 SCC 653 : 1993 SCC 22 : AIR 1993 SC 280] and Janata Dal v. H.S. Chowdhary3 SCC 756 : 1991 SCC933] . Both these cases dealt with petitions under Article 32 of the Constitution of India whereunder a total stranger challenged the conviction and sentence of the accused. This Court held that neither under the provisions of the Criminal Procedure Code nor under any other statute is a third party CRL.M.C. 2946 2021 stranger permitted to question the correctness of the conviction and sentence imposed by the court after a regular trial. It was held that the petitioner who was a total stranger had no locus standi to challenge the conviction and the sentence awarded to the convicts in a petition under Article 32. The principle laid down in these cases has no application to the facts of the present case. In this case the application for cancellation of bail is not by a total stranger but it is by the father of the deceased. In this behalf the ratio laid down the case of R. Rathinam v. State by DSP2 SCC 391 : 2000 SCC958] needs to be seen. In this case bail had been granted to certain persons. A group of practising advocates presented petitions before the Chief Justice of the High Court seeking initiation of suo motu proceedings for cancellation of bail. The Chief Justice placed the petitions before a Division Bench. The Division Bench refused to exercise the suo motu powers on the ground that the petition submitted by the advocates was not maintainable. This Court held that the frame of sub section 2) of Section 439 indicates that it is a power conferred on the courts mentioned therein. It was held that there was nothing to indicate that the said power can be exercised only if the State or investigating agency or a Public Prosecutor moves a petition. It was held that the power so vested in the High Court can be invoked either by the State or by any aggrieved party. It was held that the said power could also be exercised suo motu by the High Court. It was held that therefore any member of the public whether he belongs to any particular profession or otherwise could move the High Court to remind it of the need to exercise its power suo motu. It was held that there was no barrier either in Section 439 of the Criminal Procedure Code or in any other law which inhibits a person from moving the High Court to have such powers exercised suo motu. It was held that if the High Court considered that there was no need to cancel the bail then it could dismiss the petition. It was held that it was always open to the High Court to cancel the bail if it felt that there were sufficient reasons for doing so.” CRL.M.C. 2946 2021 15. One of the grounds on which the learned Additional Sessions Judge granted bail to the respondent No.2 is the unexplained and unjustified delay of nearly 7 days in reporting the matter thus there being possibility of false implication of the accused by the prosecutrix under the influence or pressure of her family members. The learned Additional Sessions Judge failed to note that a complaint recorded vide DD No. 109 A as noted above was lodged by the parents of the prosecutrix on 21st July 2021itself i.e. the day when the prosecutrix went. Thus on 21st July 2021 itself it was stated that their daughter has made a video call to their younger daughter from which it was revealed that she was with Shiva and he was taking her to Vaishno Devi. The complaint further stated that the prosecutrix was suffering from mental illness and that the respondent No.2 had earlier gone to jail was a drug addict that their daughter had been lured and they suspected that he may not sell her or do any illegal act with her. It is on this complaint when the location of the mobile phone of the prosecutrix was traced it was found that Shiva had actually taken her to Nainital and not Vaishno Devi. The police then traced them at Nainital and brought them to Delhi on 23rd July 2021. Thus there was no delay in reporting the matter to the police and the action thereon even if the FIR was registered lateron. 16. Further the learned ASJ though noted that in the statement recorded on 23rd July 2021 the prosecutrix stated that she went of her own free volition but failed to notice that the prosecutrix also stated that the respondent No.2 was in touch with her or speaking to her for the last 2 3 days only and he was taking her to Vaishno Devi to take out the evil spirit from her and thus on 21st July 2021 she left without telling her parents. Though the statement of the prosecutrix made to the Counsellor is not CRL.M.C. 2946 2021 admissible in evidence however the same also reveals that she told Shiva that she wanted a child and that he put vermillion on her head and stated that now she will have a baby. In the MLC recorded on 23rd July 2021 it was stated that forcible sexual intercourse was committed with her two times on 21st July 2021. In view of the statement of the prosecutrix since no FIR was recorded on 23rd July 2021 itself repeated complaints were made by the parents of the prosecutrix to various authorities when finally on 30th July 2021 the FIR was registered and an application filed before the learned Metropolitan Magistrate for recording of the statement of the prosecutrix under Section 164 Cr.P.C. on 31st July 2021 pursuant whereto her statement was recorded on 4th August 2021. In her statement recorded under Section 164 Cr.P.C. she has clearly stated the manner in which the respondent No.2 lured her that he will get her married to a good boy and then performed sexual relationship after intoxicating her by giving fanta and frooti. While granting bail to the respondent No.2 the learned Additional Sessions Judge totally ignored the statement of the prosecutrix recorded under Section 164 Cr.P.C. and also history noted in the MLC on 23rd July 2021 itself. 17. As noted above the respondent No.2 prepared two videos relied by the learned Additional Sessions Judge to infer the mental state of the prosecutrix. In the one of the two videos found in the mobile phone of the prosecutrix the respondent No.2 is stating that they have got married and he was taking the prosecutrix to Ram Nagar to perform the marriage again as they were Ram and Sita and though he was not Ram but his wife was certainly Sita. Admittedly no marriage was performed and merely by putting vermillion on the head of the prosecutrix she was made to believe that she had got married to the respondent No.2. The second video of the CRL.M.C. 2946 2021 respondent No.2 clearly shows the mala fide intent of the respondent No.2 wherein he is threatening the brother of the prosecutrix that now he will stay as a Ghar Jamayee and the family members will be out of the house. 18. The learned Additional Sessions Judge failed to notice that the respondent No.2 was living in the neighbourhood of the prosecutrix thus was aware of the mental faculties of the victim and taking advantage thereof as her marriage was broken and she was eager to get married he lured her stating that he would get the evil spirit out of her soul get her married to a boy and called her on 21st July 2021. On the pretext of taking her to Vaishno Devi the respondent No.2 took her to Nainital where he performed sexual relationship by giving intoxicants in the cold drinks. The learned Trial Court failed to notice that consciousness and orientation are different from being able to exercise sound mental judgment and to realise that the victim is being enticed to fall prey to the accused. 19. The Division Bench of this Court in the decision reported as 246 2018) DLT 204 X vs. State of NCT of Delhi accepting the plea of „unsoundness of mind‟ under Section 84 IPC taken for an accused who was suffering from bipolar disorder „Manic Depressive Psychosis‟ noted the medical literature as under: 45. Turning to the medical literature specific to bipolar disorder Modi’s Textbook of Medical Jurisprudence and Toxicology at page 753 defines “Bipolar Disorder" as “Manic Depressive Psychosis". It describes the affliction thus: “Bipolar disorder is used for a group of mental illnesses with primary disturbances of affect from which all other symptoms arise. The affect i.e. the mood varies between extreme poles of cheerfulness and sadness. The illness has a second characteristic of periodicity. The third characteristic is returning to normalcy from attack without impairment of CRL.M.C. 2946 2021 mental integrity. In practice one finds that a single attack of a mania or a single attack of depression can occur. It occurs in persons predisposed to mood disturbances.” xxx “The depressives rarely indulge in petty crimes. A minority may commit altruistic type of homicide. Aggressive impulses are normally inhibited by the psychotic condition. Hypochondrial delusions are often associated with homicidal impulses. Hence near relatives may be killed in order to prevent them from inheriting or developing some serious disease. The psychotic depressive kills from motive to his way of thinking and is inherently good as opposed to the person with paranoid illness who is motivated by spite and a desire to avenge the imaginary wrong. Homicidal and suicidal tendencies frequently co exist in depressives which stems from hopelessness futility and despair. They believe that the killing of loved ones followed by self destruction is the only practical solution.” In the Cambridge Handbook of Forensic Psychology edited by Jennifer M. Brown and Elizabeth A. Campbell it is inter alia observed that bipolar disorder previously known as manic depression has a mean onset age of about 30 and is characterized by mood swings that can range from extreme happiness depression) over a period of days or months. It is further noted that: “In the depressive phase symptoms include feeling sad and hopeless lack of energy difficulty concentrating loss of interest in everyday activities difficulty sleeping feelings of worthlessness and despair and suicidal thoughts. In the manic phase which usually comes after several periods of depression symptoms may include feeling elated and full of energy talking very quickly and feeling self important with great ideas not known to others but also being easily distracted irritated or agitated not sleeping or eating and doing things that bring negative consequences such as over spending and dominating others. Delusions stemming disorders can lead the individuals concerned to become violent for example if they believe that the lives of their to extreme CRL.M.C. 2946 2021 families have become intolerable or where they believe that no one must stand in the way of their important plansauthored by T. White a Consultant Forensic Psychiatrist based in Perth Australia Vol. 45 No.2 p.142) it is noted that: “The McArthur Violence Risk Assessment Study recently reported that patients with bipolar disorder or those with major depression were more schizophrenia to be violent over the course of a year. Similarly Swanson et al. in an early analysis of the National Institute for Mental Health Catchment Area Study reported an equally strong association for depression bipolar disorder and schizophrenia with reported violence. In addition the National Confidential Inquiry into Suicides and Homicides appeared to demonstrate a stronger relationship between depressive symptoms than positive psychotic symptoms in mentally disordered homicide offenders.” 20. Some of the main factors to be borne in mind while considering an application for grant of bail are: i) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence ii) nature and gravity of the accusation iii) severity of the punishment in the event of conviction iv) danger of the accused absconding or fleeing if released on bail CRL.M.C. 2946 2021 v) character behaviour means position and standing of the accused vi) likelihood of the offence being repeated vii) reasonable apprehension of the witnesses being influenced and viii) danger of course of justice being thwarted by grant of bail. 21. As noted above an order granting granting bail or rejecting bail is not to be interfered normally and it is incumbent upon the High Court to exercise its discretion judiciously cautiously and strictly in compliance with the principles laid down in a plethora of decisions of the Hon‟ble Supreme Court in regard to the cancellation of bail.22. Considering the fact that the impugned order granting bail to the respondent No.2 suffers from gross illegality as the learned ASJ totally ignored the statement of the prosecutrix recorded under Section 164 Cr.P.C. the seriousness of the offence that the statement of the prosecutrix is still to be recorded before the learned Trial Court and that the respondent No.2 is living in the vicinity of the prosecutrix and is thus likely to influence the prosecutrix by luring her again and or intimidating her the impugned order dated 7th September 2021 is set aside. The bail granted to the respondent No.2 is cancelled. Respondent No.2 will surrender to custody within one 23. Petition is disposed of. 24. Order be uploaded on the website of the Court. MUKTA GUPTA) MARCH 04 2022 CRL.M.C. 2946 2021

Additional Commissioner is a proper officer to issue a show-cause notice under Section 74(1) of the CGST Act: High court of Telangana

The monitory limit in the present case is above Rs.2,00,00,000/- (Rupees two crores). In such circumstances, and having regard to the above, it cannot be said with any degree of certainty that respondent No.4 is not the ‘proper officer’ competent to issue the impugned show cause notice. Such an observation was made by the Hon’ble Telangana High Court before Hon’ble Justice UJJAL BHUYAN &amp; Hon’ble Justice DR. CHILLAKUR SUMALATHA in the matter of  M/s AMBIKA FOOD INDUSTRIES PVT. LTD vs UNION OF INDIA, REP. BY ITS SECRETARY &amp; ors [W.P.NO.28893 OF 2021] The facts of the case were that a Show cause notice was issued against the petitioner by respondent no. 4 under section 74(1) of the CGST Act. The said Show Cause notice was assailed by the petitioner on the basis that respondent no. 4 was not a proper officer having jurisdiction to issue the impugned show cause notice. On the other hand, it was the contention of the respondents that respondent No.4 is indeed the ‘proper officer’ in the present case, and therefore, there should be no interference with the impugned show-cause notice on the ground that the notice issuing authority is not the proper officer. The Hon’ble High Court held that “As per this definition, ‘proper officer’ means the Commissioner or the officer of the central tax, who is assigned that function by the Commissioner in the Board. ” Additionally, the Hon’ble High Court observed that “As per Circular No.3/3/2017 – GST dated 05.07.2017 of the Board, which has been issued in exercise of powers conferred by clause (91) of Section 2 of the CGST Act, read with Section 20 of the IGST Act, and subject to sub-section (2) of Section 5 of the CGST Act, the Board has assigned the officers mentioned in column No.2 of the appended table, the functions of ‘proper officer’ in relation to various sections of the CGST Act. We find that at Sr.No.3 Deputy or Assistant Commissioner of Central Tax have been designated as ‘proper officer’ for discharging functions under sub-sections (1), (2), (3), (5), (6), (7), (9) and (10) of Section 74..” Further, it was observed by the Hon’ble High Court “Board’s Circular No.31/05/2018-GST dated 09.02.2018, more particularly in paragraph No.4 thereof, it is clarified that all officers up to the rank of Additional / Joint Commissioner of Central Tax are assigned as the ‘proper officer’ for issuance of show cause notices and orders under sub-sections (1), (2), (3), (5), (6), (7), (9) and (10) of Sections 73 and 74 of the CGST Act” Finally, the Hon’ble High Court dismissed the appeal on the aforesaid grounds but to meet the ends of justice granted a further three weeks time to the petitioner to file reply to the show cause notice dated 12.04.2021. Click Here To Read The Judgment Judgment Reviewed by: Rohan Kumar Thakur The monitory limit in the present case is above Rs.2,00,00,000/- (Rupees two crores). In such circumstances, and having regard to the above, it cannot be said with any degree of certainty that respondent No.4 is not the ‘proper officer’ competent to issue the impugned show cause notice. Such an observation was made by the Hon’ble Telangana High Court before Hon’ble Justice UJJAL BHUYAN &amp; Hon’ble Justice DR. CHILLAKUR SUMALATHA in the matter of  M/s AMBIKA FOOD INDUSTRIES PVT. LTD vs UNION OF INDIA, REP. BY ITS SECRETARY &amp; ors [W.P.NO.28893 OF 2021] The facts of the case were that a Show cause notice was issued against the petitioner by respondent no. 4 under section 74(1) of the CGST Act. The said Show Cause notice was assailed by the petitioner on the basis that respondent no. 4 was not a proper officer having jurisdiction to issue the impugned show cause notice. On the other hand, it was the contention of the respondents that respondent No.4 is indeed the ‘proper officer’ in the present case, and therefore, there should be no interference with the impugned show-cause notice on the ground that the notice issuing authority is not the proper officer. The Hon’ble High Court held that “As per this definition, ‘proper officer’ means the Commissioner or the officer of the central tax, who is assigned that function by the Commissioner in the Board. ” Additionally, the Hon’ble High Court observed that “As per Circular No.3/3/2017 – GST dated 05.07.2017 of the Board, which has been issued in exercise of powers conferred by clause (91) of Section 2 of the CGST Act, read with Section 20 of the IGST Act, and subject to sub-section (2) of Section 5 of the CGST Act, the Board has assigned the officers mentioned in column No.2 of the appended table, the functions of ‘proper officer’ in relation to various sections of the CGST Act. We find that at Sr.No.3 Deputy or Assistant Commissioner of Central Tax have been designated as ‘proper officer’ for discharging functions under sub-sections (1), (2), (3), (5), (6), (7), (9) and (10) of Section 74..” Further, it was observed by the Hon’ble High Court “Board’s Circular No.31/05/2018-GST dated 09.02.2018, more particularly in paragraph No.4 thereof, it is clarified that all officers up to the rank of Additional / Joint Commissioner of Central Tax are assigned as the ‘proper officer’ for issuance of show cause notices and orders under sub-sections (1), (2), (3), (5), (6), (7), (9) and (10) of Sections 73 and 74 of the CGST Act” Finally, the Hon’ble High Court dismissed the appeal on the aforesaid grounds but to meet the ends of justice granted a further three weeks time to the petitioner to file reply to the show cause notice dated 12.04.2021. Click Here To Read The Judgment Judgment Reviewed by: Rohan Kumar Thakur The facts of the case were that a Show cause notice was issued against the petitioner by respondent no. 4 under section 74(1) of the CGST Act. The said Show Cause notice was assailed by the petitioner on the basis that respondent no. 4 was not a proper officer having jurisdiction to issue the impugned show cause notice. On the other hand, it was the contention of the respondents that respondent No.4 is indeed the ‘proper officer’ in the present case, and therefore, there should be no interference with the impugned show-cause notice on the ground that the notice issuing authority is not the proper officer. The Hon’ble High Court held that “As per this definition, ‘proper officer’ means the Commissioner or the officer of the central tax, who is assigned that function by the Commissioner in the Board. ” Additionally, the Hon’ble High Court observed that “As per Circular No.3/3/2017 – GST dated 05.07.2017 of the Board, which has been issued in exercise of powers conferred by clause (91) of Section 2 of the CGST Act, read with Section 20 of the IGST Act, and subject to sub-section (2) of Section 5 of the CGST Act, the Board has assigned the officers mentioned in column No.2 of the appended table, the functions of ‘proper officer’ in relation to various sections of the CGST Act. We find that at Sr.No.3 Deputy or Assistant Commissioner of Central Tax have been designated as ‘proper officer’ for discharging functions under sub-sections (1), (2), (3), (5), (6), (7), (9) and (10) of Section 74..” Further, it was observed by the Hon’ble High Court “Board’s Circular No.31/05/2018-GST dated 09.02.2018, more particularly in paragraph No.4 thereof, it is clarified that all officers up to the rank of Additional / Joint Commissioner of Central Tax are assigned as the ‘proper officer’ for issuance of show cause notices and orders under sub-sections (1), (2), (3), (5), (6), (7), (9) and (10) of Sections 73 and 74 of the CGST Act” Finally, the Hon’ble High Court dismissed the appeal on the aforesaid grounds but to meet the ends of justice granted a further three weeks time to the petitioner to file reply to the show cause notice dated 12.04.2021. Click Here To Read The Judgment Judgment Reviewed by: Rohan Kumar Thakur The Hon’ble High Court held that “As per this definition, ‘proper officer’ means the Commissioner or the officer of the central tax, who is assigned that function by the Commissioner in the Board. ” Additionally, the Hon’ble High Court observed that “As per Circular No.3/3/2017 – GST dated 05.07.2017 of the Board, which has been issued in exercise of powers conferred by clause (91) of Section 2 of the CGST Act, read with Section 20 of the IGST Act, and subject to sub-section (2) of Section 5 of the CGST Act, the Board has assigned the officers mentioned in column No.2 of the appended table, the functions of ‘proper officer’ in relation to various sections of the CGST Act. We find that at Sr.No.3 Deputy or Assistant Commissioner of Central Tax have been designated as ‘proper officer’ for discharging functions under sub-sections (1), (2), (3), (5), (6), (7), (9) and (10) of Section 74..” Further, it was observed by the Hon’ble High Court “Board’s Circular No.31/05/2018-GST dated 09.02.2018, more particularly in paragraph No.4 thereof, it is clarified that all officers up to the rank of Additional / Joint Commissioner of Central Tax are assigned as the ‘proper officer’ for issuance of show cause notices and orders under sub-sections (1), (2), (3), (5), (6), (7), (9) and (10) of Sections 73 and 74 of the CGST Act” Finally, the Hon’ble High Court dismissed the appeal on the aforesaid grounds but to meet the ends of justice granted a further three weeks time to the petitioner to file reply to the show cause notice dated 12.04.2021. Click Here To Read The Judgment Judgment Reviewed by: Rohan Kumar Thakur Additionally, the Hon’ble High Court observed that “As per Circular No.3/3/2017 – GST dated 05.07.2017 of the Board, which has been issued in exercise of powers conferred by clause (91) of Section 2 of the CGST Act, read with Section 20 of the IGST Act, and subject to sub-section (2) of Section 5 of the CGST Act, the Board has assigned the officers mentioned in column No.2 of the appended table, the functions of ‘proper officer’ in relation to various sections of the CGST Act. We find that at Sr.No.3 Deputy or Assistant Commissioner of Central Tax have been designated as ‘proper officer’ for discharging functions under sub-sections (1), (2), (3), (5), (6), (7), (9) and (10) of Section 74..” Further, it was observed by the Hon’ble High Court “Board’s Circular No.31/05/2018-GST dated 09.02.2018, more particularly in paragraph No.4 thereof, it is clarified that all officers up to the rank of Additional / Joint Commissioner of Central Tax are assigned as the ‘proper officer’ for issuance of show cause notices and orders under sub-sections (1), (2), (3), (5), (6), (7), (9) and (10) of Sections 73 and 74 of the CGST Act” Finally, the Hon’ble High Court dismissed the appeal on the aforesaid grounds but to meet the ends of justice granted a further three weeks time to the petitioner to file reply to the show cause notice dated 12.04.2021. Click Here To Read The Judgment Judgment Reviewed by: Rohan Kumar Thakur Finally, the Hon’ble High Court dismissed the appeal on the aforesaid grounds but to meet the ends of justice granted a further three weeks time to the petitioner to file reply to the show cause notice dated 12.04.2021.

.. PETITIONER THE HON’BLE SRI JUSTICE UJJAL BHUYAN THE HON’BLE DR. JUSTICE CHILLAKUR SUMALATHA W.P.NO.28893 OF 2021 16.11.2021 M s AMBIKA FOOD INDUSTRIES PVT. LTD. REP. BY ITS DIRECTOR ALOK AGARWAL $ UNION OF INDIA REP. BY ITS SECRETARY MINISTRY OF FINANCE DEPARTMENT OF REVENUE CENTRAL SECRETARIAT NEW DELHI AND FOUR OTHERS. Counsel for the petitioner : Mr. Srinivas Chaturveduala Counsel for respondents : Mr. B.Narasimha Sharma Senior Standing Counsel for Central Goods and Services Taxes. < Gist Head Note : : Citations: 1. AIR 2021 SC 1699 DATE OF JUDGMENT PRONOUNCED SUBMITTED FOR APPROVAL: 16—11—2021 THE HON’BLE SRI JUSTICE UJJAL BHUYAN THE HON’BLE DR. JUSTICE CHILLAKUR SUMALATHA 1. Whether Reporters of Local Newspapers : Yes No may be allowed to see the Judgments 2. Whether the copies of judgment may be : Yes No marked to Law Reporters Journals 3. Whether Their Lordship wish to see the fair copy of the Judgment : Yes No THE HON’BLE SRI JUSTICE UJJAL BHUYAN THE HON’BLE DR. JUSTICE CHILLAKUR SUMALATHA W.P.NO.28893 OF 2021 O R D E RHeard Mr. Srinivas Chaturveduala learned counsel for the petitioner and Mr. B.Narasimha Sarma learned Senior Standing Counsel for Central Goods and Services Taxes. 2. By filing this petition under Article 226 of the Constitution of India petitioner has challenged legality and validity of the show cause notice dated 12.04.2021 issued by Additional Commissioner of Central Taxes and Customs Hyderabad Audit I Commissionerate Hyderabad. 3. By the impugned show cause notice Additional Commissioner i.e. the respondent No.4 has called upon the petitioner to show cause as to why the product manufactured and supplied to various customers during the period from July 2017 to March 2019 should not be classified under the tariff heading 21069099 of Customs Tariff Act 1975 made applicable to the Central Goods and Services Tax Act 2017 being the CGST not paid should not be demanded under Section 74(1) of the CGST Act. 3.2. That apart petitioner has also been called upon to show cause as to why an amount of Rs.3 08 73 057.00 being the Integrated Goods and Services Taxnot paid should not be demanded and recovered from the petitioner under Section 74(1) of the CGST Act read with Section 20 of the Integrated Goods and Services Tax Act 2017of the CGST Act. 4. Basic contention of learned counsel for the petitioner is that it is the sine qua non that the officer who issues the show cause notice under Section 74(1) of CGST Act has to be perforce a ‘proper officer’. He has referred to various provisions of the CGST Act and the documents annexed to the writ petition to contend that Additional Commissioner is not a ‘proper officer’ having jurisdiction to issue the impugned show cause notice. In support of his submissions learned counsel for the petitioner has also placed reliance on a recent decision of the Supreme Court in CANON INDIA PRIVATE LIMITED vs. COMMISSIOENR OF CUSTOMS1 which was in the context of the Customs Act 1962. 5. On the other hand Mr. B. Narasimha Sarma learned Senior Standing Counsel for respondents has also referred to various provisions of the CGST Act as well as circular dated 05.07.2017 of the Central Board of Excise and Customs and circular dated 09.02.2018 of the said Board to contend that Additional Commissioner i.e. the respondent No.4 is indeed the ‘proper officer’ in the present case and therefore there should be no interference with the impugned show cause notice on the ground that the notice issuing authority is not the ‘proper made at the Bar. 6. We have given our due consideration to the respective submissions 7. As already pointed out earlier the impugned show cause notice has been issued by respondent No.4 alleging contravention of various provisions of the CGST Act as well as the IGST Act where after petitioner has been called upon to show cause as to why the quantified amount of CGST as well as Telangana Goods and Services Tax besides IGST should not be 1 AIR 2021 SC 1699 5 recovered from the petitioner in addition as to why interest and penalty should not be levied and imposed on the petitioner. 8. Section 74 of the CGST Act deals with determination of tax not paid or short paid or erroneously refunded or input tax credit wrongly availed or utilized by reason of fraud or any willful misstatement or suppression of facts. 8.1. As per sub section thereof where it appears to the proper officer that any tax has not been paid or short paid or erroneously refunded or where input tax credit has been wrongly availed of or utilized by reason of fraud or any willful misstatement or suppression of facts to evade tax he shall serve notice on the person chargeable with tax which has not been so paid or which has been so short paid or to whom the refund has erroneously been made or who has wrongly availed or utilized input tax credit requiring him to show cause as to why he should not pay the amount specified in the notice along with interest and penalty. 8.2. Section 2(91) of the CGST Act defines the expression ‘proper officer’. As per this definition ‘proper officer’ means the Commissioner or the officer of the central tax who is assigned that function by the Commissioner in the Board. 6 9. Though learned counsel for the respondents had referred to Sections 3 to 5 of the CGST Act it would not be necessary for us to delve deep into the aforesaid provisions because those provisions deal with appointment of class of officers and not specifically with the appointment of ‘proper officer’. Nonetheless we may mention that as per sub sectionof Section 5 of CGST Act the officer of central tax may exercise the powers and discharge the duties conferred or imposed under the CGST Act on any other officer of central tax who is subordinate to him. 10. As per Circular No.3 3 2017 GST dated 05.07.2017 of the Board which has been issued in exercise of powers conferred by clauseof Section 2 of the CGST Act read with Section 20 of the IGST Act and subject to sub section of Section 5 of the CGST Act the Board has assigned the officers mentioned in column No.2 of the appended table the functions of ‘proper officer’ in relation to various sections of the CGST Act. We find that at Sr.No.3 Deputy or Assistant Commissioner of Central Tax have been designated as ‘proper officer’ for discharging functions under sub sections(2) (5) (7) andof Section 74. 10.1. Admittedly Deputy or Assistant Commissioner of Central Tax are officers subordinate to Additional Commissioner. In terms of Board’s Circular No.31 05 2018 GST dated 09.02.2018 more particularly in paragraph No.4 thereof it is clarified that all officers up to the rank of Additional Joint Commissioner of Central Tax are assigned as the ‘proper officer’ for issuance of show cause notices and orders under sub sections (2) (5) (7) and of Sections 73 and 74 of the CGST Act corresponding to Section 3 read with Section 20 of the IGST Act. As per the table appended thereto Additional or Joint Commissioner of Central Tax have been assigned functions as the ‘proper officer’ and the monetary limit of the said officers for issuance of show cause notice and orders under Sections 73 and 74 of the CGST Act and Section 20 of the IGST Act in the case of central tax and integrated tax not paid or short paid or erroneously refunded or input tax credit of central tax and integrated tax wrongly availed of or utilized is above Rs.2 00 00 000.00 Rupees two crores). 12. Admittedly the monitory limit in the present case is above Rs.2 00 00 000 is concerned the main issue confronting the Supreme Court was whether after clearance of the cameras on the basis that they were exempted from levy of basic customs duty the proceedings initiated by the Directorate of Revenue Intelligence for recovery of duty not paid under Section 28(4) of the Customs Act 1962 are valid in law It was in that context that the question which arose for consideration was whether the Directorate of Revenue Intelligence had the authority in law to issue a show cause notice under Section 28(4) of the Customs Act 1962 for recovery of duties allegedly not levied nor paid when the goods had been cleared for import by a Deputy Commissioner of Customs who had decided that the goods were exempted. Thus the question was as to whether in the context of Section 28(4) of the Customs Act 1962 the Directorate of Revenue Intelligence could be construed as the ‘proper officer’. 13.1. Therefore the issue before the Supreme Court in Canon India Private Limited was completely different and distinct from what is being canvassed by learned counsel for the petitioner to support his that respondent No.4 is not the ‘proper officer’ under Section 74(1) of the CGST Act. 14. Thus in the light of the above we are not inclined to entertain the writ petition. However for the ends of justice we grant further three weeks time to the petitioner to file reply to the show cause notice dated 12.04.2021. 9 If any such reply is filed within the aforesaid period of three weeks the same shall be considered by the authority in accordance with law. 15. All discussions made in the present order is only in response to the contention of the petitioner that respondent No.4 is not the ‘proper officer’. We have not expressed any opinion on merits and all contentions 16. Subject to the above observations writ petition is dismissed. 17. Interlocutory applications pending if any shall stand closed. No are kept open. order as to costs. UJJAL BHUYAN J DR. CHILLAKUR SUMALATHA J DATE:16—11—2021 L.R. copy to be marked. B O

Dispute arising out of land acquisition matter had the injuries of gentle and straightforward nature which formed the grounds for allowing the pre-arrest bail to the petitioner: High court Of Patna

The petitioner was alleged to have committed assault against the informant. The Court accepted the appeal for bail after considering the facts and circumstances to be not so grave. It was seen that the disputed matter contained wounds of gentle nature and was straightforward. The Hon’ble High Court of Patna before Justice Mr. Ahsanuddin Amanullah in the matter Aniket Singh v. The State of Bihar[Criminal Miscellaneous No. 37686 of 2020].  The applicant was apprehended arrest regarding a Case, established under Sections 341, 323, 324, 354-B, 447, 448, 379, 504/34 of the Indian Penal Code. The claim against the solicitors is general and omnibus and explicitly against applicant no. 1 that he was the requesting provider; solicitor no. 2 of tearing the garments of the source’s little girl and against candidate no. 3 of attacking with Dabiya on the top of the child of the witness. Learned direction for the candidates presented that there is a land question which is conceded in the actual FIR and the witness’ side was the assailant for which the applicant no. 1 has held up a case. From the case journal, it was presented that there is the claim of attack and attempting to shock the humility by tearing garments. Nonetheless, it isn’t disputed that wounds are gently scraped spot and straightforward. The court gave orders that the candidates will likewise give an endeavor to the Court that they will not enjoy any unlawful/crime, act infringing upon any law/legal arrangements, mess with the proof or impact the observers. Any infringement of the agreements of the bonds or the endeavor will prompt scratch-off of their bail bonds. The applicants will collaborate for the situation and be available under the steady gaze of the Court on every single date. Inability to coordinate or being missing on two successive dates, without adequate reason, will likewise prompt abrogation of their bail bonds. The Hon’ble High Court Of Patna held that the petitioner shall be allowed pre-arrest bail after considering all facts and circumstances.

IN THE HIGH COURT OF JUDICATURE AT PATNA CRIMINAL MISCELLANEOUS No.318120 Arising Out of PS. Case No. 526 Year 2019 Thana MAJHAULIA District West Champaran Pradeep Ram @ Ramayan Ram 40 Y M son of Late Sampurna Ram Sanful Ram 2. Gulshan Kumar @ Pappu Ram 20 Y M son of Sri Pradeep Ram Rajesh Ram @ Sandhu Ram @ Sadhu Ram 30 Y M son of Late Sheshman All resident of Village Jaukatia Teliya Tola P.S. Majhaulia District West The State of Bihar ... Petitioner s For the Petitioner s For the Opposite Party s CORAM: HONOURABLE MR. JUSTICE AHSANUDDIN AMANULLAH Mr. Umesh Chandra Verma Advocate Mr. Dashrath Mehta APP ... Opposite Party s Date : 26 03 2021 Heard Mr. Umesh Chandra Verma learned counsel for the petitioners and Mr. Dashrath Mehta learned Additional Public Prosecutorfor the 2. The petitioners apprehend arrest in connection with Majhaulia PS Case No. 5219 dated 06.10.2019 instituted under Sections 341 323 324 354 B 447 448 379 504 34 of the Indian Penal Code 3. The allegation against the petitioners is general and omnibus and specifically against the petitioner no. 1 that he was Patna High Court CR. MISC. No.318120 dt.26 03 2021 the order giver petitioner no. 2 of tearing the clothes of the informant’s daughter and against petitioner no. 3 of assaulting with Dabiya on the head of the son of the informant. 4. Learned counsel for the petitioners submitted that there is land dispute which is admitted in the FIR itself and actually the informant’s side was the aggressor for which the petitioner no. 1 has lodged Majhaulia PS Case No. 5119 on 01.10.2019 itself i.e. the date of occurrence even for the present case but the present case has been lodged after six days on 06.10.2019. Learned counsel submitted that the injuries are very minor and simple in nature and there is no explanation why after six days the FIR was lodged which clearly has been done to somehow create a defence to get over the case filed by the petitioner no. 1 against the informant’s husband and sons Learned counsel submitted that the petitioners do not have any criminal antecedent. 5. Learned APP from the case diary submitted that there is allegation of assault and also trying to outrage the modesty by tearing clothes. However it is not controverted that injuries are mild abrasion and simple in nature. 6. Having considered the facts and circumstances of the case and submissions of learned counsel for the parties in Patna High Court CR. MISC. No.318120 dt.26 03 2021 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 furtherthat one of the bailors shall be a close relative of the petitioners that the petitioners and the bailors shall execute bond with regard to good behaviour of the petitioners and that the petitioners shall also give an undertaking to the Court that they shall not indulge in any illegal criminal activity act in violation of any law statutory provisions tamper with the evidence or influence the witnesses Any violation of the terms and conditions of the bonds or the undertaking shall lead to cancellation of their bail bonds. The petitioners shall cooperate in the case and be present before the Court on each and every date. Failure to cooperate or being absent on two consecutive dates without sufficient cause shall also lead to cancellation of their bail bonds 7. It shall also be open for the prosecution to bring any violation of the foregoing conditions of bail by the Patna High Court CR. MISC. No.318120 dt.26 03 2021 petitioners to the notice of the Court concerned which shall take immediate action on the same after giving opportunity of hearing to the petitioners 8. The application stands disposed off in the (Ahsanuddin Amanullah J J. Alam

Strict adherence to conditions mentioned in the advertisement for a job hiring must be followed while being considered for a post.-High Court of Delhi.

Strict adherence to conditions mentioned in the advertisement for a job hiring must be followed while being considered for a post.-High Court of Delhi. Strict adherence to conditions mentioned in the advertisement for a job hiring must be followed while being considered for a post. If such an adherence is not made, they cannot be considered for the post and the appointment of such Individuals is illegal. The landmark judgement passed by the single bench of HON’BLE JUSTICE V. KAMESWAR RAO in DEVASTOTRA PODDAR &amp; ANR. VS. FOOD SAFETY AND STANDARDS AUTHORITY OF INDIA AND ORS. [W.P(C) 132/2021] dealt with the issue mentioned above. The brief facts of the case are, the petition has been filed by the petitioners challenging the result notice dated December 24, 2020 whereby the respondents have selected / appointed 13 persons including the respondent Nos.3 to 12 to the post of Assistant Director. The petitioners have also challenged the appointment of the respondent Nos.13 to 17 as Assistant Director.The result for the same was published on December 24, 2020, wherein the names of respondent Nos.3 to 12 also features, and accordingly, they have been issued appointment letters to the post of Assistant Director. The learned counsel for the petitioner submitted that, advertisement issued by the respondent No.1 for the post of Assistant Director contemplated under heading Note-1 that out of the total experience of five years sought for the post of Assistant Director, two years of experience should be in immediate lower pay level in central dearness allowance, which the respondent Nos.3 to 12 did not have. the immediate lower pay level in central dearness allowance of pay level 10 is pay level 9 in Rs.53,100- 1,51,100 with grade pay of Rs.5400/-. However, the respondents were working with a pay level of 7. The learned counsel for the respondents contended  that, the Recruitment Rules have to be read in conjunction with the advertisement issued by the respondent No.1 by drawing the attention to page 39 of the paper book to draw my attention to Note 1 which states out of five years of relevant experience, two years of experience should be in immediate lower pay level in the central dearness allowance, which has been made comparable with minimum annual cost to company of Rs.9.7 Lacs for last two years. That apart, he states, the feeder posts to Assistant Director (Technical) is also Technical Officer which is in pay level 7, and the respondent Nos.3 to 12 who were working on contractual basis were eligible for appointment. The learned judge heard the submissions by both the parties and observed that “The five years’ experience sought, should include two years of experience in immediate lower pay level in the central dearness allowance or equivalent industrial dearness allowance scale and in case of candidate working in private sector he or she shall be drawing minimum comparable annual cost to company for the last two years to be decided by the competent authority and shall be indicated in the advertisement on each occasion. Whereas the advertisement stipulated the same conditions except in case of candidates working in private sector he or she shall be drawing minimum”

4. IN THE HIGH COURT OF DELHI AT NEW DELHI Reserved on: Pronounced on: 25.11.2021 CONT.CAS(C) 429 2021 SONALI BHATIA Petitioner Through: Ms. Priya Hingorani Senior Advocate with Mr. Himanshu Yadav & Mr.Anirudh Jamwal Advs. ABHIVANSH NARANG Respondent Through: Respondent in person. HON BLE MR. JUSTICE VIPIN SANGHI HON BLE MR. JUSTICE JASMEET SINGH JUDGMENT OF THE COURT The present contempt petition has been filed by the Petitioner under Sections 10 11 and 12 of the Contempt of Courts Act 1971 alleging contempt of order dated 22.12.2020 passed by the Family Court in HMA No. 638 2018 and order dated 11.02.2021 passed in MAT. APP.No. 20 2021 by this Court. petition are as under. Briefly stated the facts giving rise to the filing of the present contempt The marriage between the Petitioner and respondent was solemnized on 18.11.2013 following Hindu rituals and customs. CONT.CAS(C) 429 2021 The Respondent filed a Divorce Petition bearing no. 638 2018 under Section 13(1)(ia) andof the Hindu Marriage Act 1955 on 03.04.2018. The said petition is still pending adjudication. On 07.08.2018 the Petitioner filed an application under Section 24 of the Hindu Marriage Act 1955 alongwith her Financial Affidavit seeking interim maintenance pendente lite at the rate of Rs. 1 02 000 per month and sum of Rs. 1 00 000 towards litigation expenses. In addition the Petitioner also claimed a sum of Rs. 2 50 000 towards furnishing the individual household and an independent car. The Family Court vide the order dated 22.12.2020 partially allowed the said Application of the Petitioner. The operative portion of the said order reads as under: ―14. Considering the totality of facts and circumstances of the case social and financial position and status of the parties in my view it is appropriate if the respondent wife is granted a monthly maintenance of Rs.35 000 per month. Accordingly the petitioner husband is ordered to pay an amount of Rs.35 000 per month to the respondent wife as maintenance from the date of filing of the application. The amount of maintenance received by the respondent wife in this case or under any proceedings is liable to be adjusted. The petitioner husband may clear arrears of maintenance by way of installments within six months. The petitioner husband is further ordered to pay Rs.75 000 to the respondent wife towards litigation expenses.” The Respondent being aggrieved by the said interim maintenance order filed an appeal bearing no. MAT. APP.No. 20 2021 along with an application to seek stay of the operation of the said order. This Court vide order dated 11.02.2021 passed in MAT. APP.CONT.CAS(C) 429 2021 No. 20 2021 issued notice and directed the respondent to comply with the interim maintenance order dated 22.12.2020 passed by the Family Court. The operative portion of the order dated 11.02.2021 passed by this Court reads as under: ―….List on 14.07.2021. On the next date the parties should remain personally present in Court. The appellant shall in the meantime comply with the order passed by the Family Court without prejudice to his rights & The Respondent has however failed to comply with the directions passed by this court and the family court. Consequently the Petitioner has preferred the present Contempt Case. Notice was issued to the respondent on 14.07.2021 which was accepted by the Respondent‟s counsel on his behalf. Two weeks time was granted to file a reply requiring him to make a full and complete disclosure of his income and expenditure in the last 12 months from all sources. The Respondent filed his reply dated 10.08.2021. 10. Vide orders dated 12.08.2021 and 08.09.2021 we directed the respondent to remain personally present in the court. However the Respondent did not appear before this Court on 09.09.2021 the date fixed. Different excuses were furnished by the Respondent and his counsel for his absence. Whereas his counsel stated that the Respondent had undergone an eye surgery the Respondent himself stated while appearing virtually that he had not undergone any eye surgery. In view of the same on 09.09.201 we were constrained to issue bailable warrants for his production returnable on 13.09.2021. 11. The respondent when the matter was listed on 09.09.2021 chose to CONT.CAS(C) 429 2021 accordingly. withdraw his matrimonial appeal and the same was dismissed as withdrawn 12. On 13.09.2021 the Respondent appeared and we heard submissions of learned counsels. The relevant extract of our order dated 13.09.2021 reads as follows: ―2. The present contempt petition has been preferred on account of the alleged and deliberate non compliance of our order dated 11.02.2021 passed in MAT.APP.(F.C.) 20 2021 and also the Order dated 22.12.2020 passed by the Ld. Principle Judge Family Court Patiala House New Delhi in HMA No. 638 2018. Upon issuance of notice the respondent has filed reply. Along with the reply the respondent has placed on record the statement of account of his bank account maintained with State Bank of India in the name of his firm M s. Equal Minerals for the period 01.08.2020 to 01.09.2020 to 31.01.2021 to 31.12.2020 01.01.2021 01.02.2021 to 04.03.2021 and 01.03.2021 to 31.03.2021. 3. At this stage we may observe that the petitioner has filed a rejoinder wherein the petitioner has brought on record the fact that the respondent deliberately did not disclose either before the Family court or before us the status of several other bank accounts maintained by him particulars of which could be gathered from the respondent’s Income Tax Return. The relevant averments of the petitioner contained in the rejoinder read as follows: Bank Accounts of the Respondent Whether declared by Respondent in his Financial Affidavit Periods for which bank statements not filed SBI A c no. I April 15 to May Oct. 18 CONT.CAS(C) 429 2021 SBI A c no. Sept 15 to March 16 Sept 16 to March 17 April 17 to March 18 June 18 to Oct 18 M s Equal Indian Overseas A c no not known) Axis Bank A c A c no not known) Joint A c no SBI Joint A c no. Not a single revealed from his statement filed Not a single revealed from his statement filed Not a single statement filed Not a single statement filed from his compliance affidavit dated 23.07.2019) The petitioner has also pointed out the incomes reflected by the respondent in his own ITR for Assessment Year 2012 2013 upto Assessment Year 2017 2018 which also reflect the capital invested by the respondent with his firm and the particulars therefore as follows: Capital with Firm AY 2012 13 21 37 273 AY 2013 14 16 49 789 AY 2014 15 13 35 444 7 90 789 8 54 211 9 86 539 AY 2015 16 14 26 106 11 59 548 42 18 674 43 99 247 48 91 038 59 23 317 CONT.CAS(C) 429 2021 AY 2016 17 16 16 538 AY 2017 18 15 79 540 10 12 947 10 35 994 63 81 379 70 81 702 The petitioner points out that the respondent purportedly advanced huge amounts of loan for his parents which are also reflected in his ITRs and the particulars thereof are as follows: Loan given by Respondent to his fatherApril 16 to Aug 16 5 months) 29 85 000 19 74 000 CONT.CAS(C) 429 2021 April 18 to May 18 24.8.2020 2 months) 8 92 000 1 50 000 1 00 000 2 00 000 2 00 000 50 000 50 000 50 000 50 000 50 000 50 000 50 000 50 000 The petitioner has also pointed out that the respondent is a Director in M s. Euro Polymers Pvt. Ltd. and he has been receiving Director’s remuneration which is also reflected in his ITRs for AY 2012 2013 to AY 2016 2017 particulars whereof are as follows: AY 2012 13 AY 2013 14 AY 2014 15 AY 2015 16 AY 2016 17 Director s Remuneration Commission Received 2 40 000 3 00 000 3 00 000 3 90 000 2 13 200 CONT.CAS(C) 429 2021 The petitioner points out that the respondent is the sole proprietor of M s. Equal Minerals and is a Director in M s. Euro Polymers Pvt. Ltd. which is a family owned concern. He and his mother are the only two Directors in the said company. He is also a Director in M s Equal Plastics Pvt. Ltd. which is admittedly the company of the Petitioner’s father. Various trademarks are held by M s Equal Minerals and M s Euro Polymers Pvt. Ltd. The petitioner has also pointed out that the respondent is leading a lavish lifestyle. The family owns a four storey bungalow at C 63 Inderpuri New Delhi of which three floors are owned by the respondent s family valued at over Rs. 15 crores. He also has a rented accommodation at House No. 1816 First Floor Sector 34 D Chandigarh. He also owns Plot No. 212 Phase 2 Industrial Area Panchkula Haryana. The petitioner claims that the respondent has beneficial interest in the family property at 3780 82 Reghar Pura Karol Bagh New Delhi. The respondent is driving two cars namely a Corolla Altis and a Ford Ecosport. He also owns two motorbikes i.e. Royal Enfield. The petitioner points out that the respondent has disclosed in his ITR for the AY 2017 18 that he has sold gold weighing 474.10 grams valued at Rs. 8 72 748 and 143.95 Crt. of diamond valued at Rs. 15 94 000 . The petitioner submits that it is her jewelry which was kept by the respondent when the petitioner was turned away from her matrimonial home and this jewelry was evidently sold by the respondent. The petitioner has also pointed out that when the parties were together they were leading luxurious lifestyle. They travelled abroad to celebrate new year’s and took holidays to different parts of the world such as Canada Malaysia Singapore. 10. Coming back to the bank statements filed by the respondent along with his reply it is seen from these statements of account that even if one were to ignore other bank accounts that the respondent may be holding and operating particulars of some of which disclosed by the CONT.CAS(C) 429 2021 petitioner on the basis of the information gathered by her from respondent‟s ITRs the respondent was continuously maintaining a healthy balance in the aforesaid bank account i.e. the State Bank of India which continuously is in the range of Rs. 2 lakhs and more. Despite having sufficient liquidity the respondent did not comply with the orders passed by the Family Court on 20.12.2020 as well as our order dated 11.02.2021. On our query the respondent who is present in person states that he preferred to maintain the balance and not pay the amount payable to the petitioner on account of his business. Ms. Raju submits that since notice had been issued in MAT.APP.(F.C.) 20 2021 wherein the respondent had challenged the order granting maintenance to the petitioner herein the amount was not paid. At the same time she does not deny the fact that we had ourselves directed while passing order dated 11.02.2021 in the respondent‟s MAT.APP.(F.C.) 20 2021 that he shall continue to comply with the order passed by the Family Court during the pendency of the appeal….” 13. After noting the aforesaid violations we found the Respondent guilty of contempt and issued show cause notice to him requiring him to show cause why he should not be punished. We also directed him to file an affidavit making a complete and full disclosure of his bank accounts including those highlighted by the petitioner having not been disclosed. The operative portion of the order dated 13.09.2021 passed by this Court reads as 10….It is therefore clear to us that the respondent is in deliberate intentional and conscious breach of inter alia our order dated 11.02.2021 passed in MAT.APP.(F.C.) 20 2021 which the respondent has also withdrawn. Therefore the order passed by the Family Court on 20.12.2020 in so far as the respondent is concerned has now attained finality. We therefore find the respondent guilty of contempt and issue notice to him to show cause as to why he should not be CONT.CAS(C) 429 2021 punished. The respondent is directed to file an affidavit making full and complete disclosure of all his bank accounts including those highlighted by the petitioner as not having been disclosed. He shall also provide complete list of the loans which he granted to his parents and which are reflected in his own ITRs. The statement of all the bank accounts shall be filed from 01.04.2017 onwards. He shall also place on record the statement of accounts of the account held in State Bank of India in the name of his firm M s. Equal Minerals for the months for which they have not been placed on record and up to date till 31.08.2021. The affidavit along with the documents shall be filed by the respondent within two weeks. It is made clear that no further time shall be granted. On the next date the respondent is bound down to be personally present before the Court. emphasis supplied) 14. The Respondent filed his compliance affidavit dated 28.09.2021 pursuant to the order dated 13.09.2021 passed by this Court. The Respondent annexed copies of bank statements along with the affidavit and categorically stated that he does not have any other accounts except the ones of which the statements were filed. The Respondent does not state that he does not or did not have the three accounts mentioned in the Rejoinder filed by the Petitioner of which he had not filed any Statement of Account. These three Accounts were forming part of the Tabulation contained in the Rejoinder extracted by us in our order dated 13.09.2021. The Respondent has not filed the Statements of Account of any of these two accounts despite our specific direction. He also does not deny having a Joint Bank Account with Punjab National Bank A c No.3063000100444407. However he has not filed any statement of account of the said Bank Account. 15. The Respondent has further stated that he had taken a home loan for his father in his own name for an amount of Rs. 1 50 00 000 429 2021 Crore and Fifty Lakhs only) through Axis Bank and another home loan in his own name for a sum of Rs. 1 Crore on his father‟s asking from Citi Bank. The respondent has stated that the said loan amounts have been entirely repaid by his father through his own personal funds and through his personal Bank Accounts. Another affidavit reiterating the same has been filed by the father of the respondent which forms a part of the compliance affidavit of the respondent as Annexure B. The Father of the respondent in his affidavit has further refused to disclose any of his bank statements. The respondent has also stated that he has outstanding loan liability of Rs. 8 lakhsto be repaid to various banks and has also stated to have a balance of Rs.1 10 000 cumulatively in all his bank accounts. 16. We had taken note of the stand of the Respondent his father that he his father are not obliged to disclose their Bank accounts statements from which such large amounts of loan taken by the Respondent had been repaid. On 30.09.2021 the Respondent was put to notice in the following 3. We may notice that along with the affidavit of the respondent he has also filed an affidavit of Mr. Ashok Kumar Narang his father wherein Mr. Narang has stated that he is not willing to disclose his bank statements. We may make it clear that we have not asked him to disclose his bank statements. However the respondent has sought to make out a case that loans to the tune of Rs. 2.5 crores taken in his name were taken for the benefit of the father and that the loans have been repaid by the father. Since the loans have been taken in the name of the respondent it would be for the respondent to satisfy us that they were repaid by his father and not by him otherwise we would be entitled to draw our conclusions. CONT.CAS(C) 429 2021 4. We have made it clear to the respondent that non production of the relevant documents will lead to drawl of adverse inference against him.17. The petitioner has filed her objections dated 22.10.2021 to the compliance affidavit dated 28.09.2021 filed by the respondent. Ms. Priya Hingorani learned Senior Advocate representing the petitioner has highlighted discrepancies the compliance affidavit filed by respondent. The objection of the petitioner is that the respondent has failed to comply with the order dated 13.09.2021 passed by this court. The Petitioner has placed on record a chart outlining the discrepancies with respect to the two home loans availed of by the respondent and his father and the repayment of the said loans. The petitioner has relied on the loan statement dated 01.03.2017 addressed to the respondent by Citi bank and has submitted that the said limited loan statement for Citibank mortgage loan no. 132579 does not disclose who re paid the loan of Rs. 1 Crore. Another loan bearing loan no. 132579 from Axis bank which was taken by the respondent in his individual capacity was repaid on 22.09.2016. However not a single statement has been produced to show who repaid the same and how. The respondent has failed to produce any document to establish that the repayment of the said loans was done by his father and not by him. In addition to the above the Petitioner has also pointed out that the self proprietary concern of the respondent namely „Equal Minerals‟ has a huge clientele to whom he supplies his products i.e. packaged drinking water packaged carbonated water soda pet bottles soda and plastic containers etc. It is pointed out by the petitioner that the said business of the CONT.CAS(C) 429 2021 respondent is stable and he predominantly deals in cash. It is further pointed out that the cash deposits reflected in the respondent‟s bank account have dropped drastically after the dispute arose between the parties. The petitioner has pointed out that the respondent deposited in his bank account cash between the period of 5 months from April 2015 to August 2015 to the tune of Rs 29 85 000 between April 2016 to August 2016 to the tune of Rs. 19 74 000 and between the period of 2 months from April 2018 to May 2018 Rs. 8 92 000 . However after the petitioner filed the application for maintenance on 07.08.2018 the cash deposits into the bank account by the respondent dropped significantly to an average of Rs. 1 lakh per month or less. 19. The petitioner has further placed reliance on a tabulated chart showing analysis of Bank Statements of the respondent provided by the respondent himself to corroborate her submission that even post lockdown the business of the respondent has been running well. It is pointed out that within the period of 18 months i.e. from March 2020 till August 2021 a sum of Rs. 1 05 29 687 was credited into the bank account of the respondent. It is further pointed out that in the said bank account at the end of every month there remained an average balance of Rs. 1 62 572 . 20. On 11.11.2021 the respondent stated that he has filed another response to our order dated 13.09.2021 and to the Petitioner‟s objection dated 22.10.2021. Even though the same was not on record a copy was handed over to us by the Respondent and we have taken the same on record. 21. The respondent has also tendered copies of communications dated 08.03.2017 from Citi Bank mortgages communication dated 20.10.2016 CONT.CAS(C) 429 2021 from Axis Bank communications from DLF Limited in relation to property No. ULT 141 PL2034 2033 PL2032 in the Ultima and in respect of property no. UTL 151 PL2035 2036 2037 in the Ultima dated 24.11.2016 another three communications from DLF Limited which have also been taken on record. We have gone through the same as well. 22. We have heard Ms. Hingorani learned senior counsel for the petitioner. The respondent is present in person. The respondent has informed us that he has discharged his counsel and would like to make submissions. We have heard him as well. His defence is that he does not have the means to comply with the order dated 22.12.2020 passed by the Family Court and our order dated 11.02.2021. Therefore there is no question wilful and deliberate disobedience of the said order by him leading to civil contempt. 23. Before we examine the facts of this case we consider it appropriate to take note of the law relating to contempt particularly civil contempt. Section 2(b) of the Contempt of Courts Act 1971 defines „Civil Contempt‟ to mean ―wilful disobedience to any judgment decree direction order writ or other process of a court or wilful breach of an undertaking given to a court.” Section 10 of the said act empowers the High Court to punish contempt‟s of subordinate Courts. It reads “Every High Court shall have and exercise the same jurisdiction powers and authority in accordance with the same procedure and practice in respect of contempts of courts subordinate to it as it has and exercises in respect of contempts of itself”. Section 12 of the act prescribes the punishment for contempt of court in so far as it is relevant it read: ―12. Punishment for contempt of court.—(1) Save as otherwise CONT.CAS(C) 429 2021 expressly provided in this Act or in any other law a contempt of court may be punished with simple imprisonment for a term which may extend to six months or with fine which may extend to two thousand rupees or with both: Provided that the accused may be discharged or the punishment awarded may be remitted on apology being made to the satisfaction of the Court. Explanation.—An apology shall not be rejected merely on the ground that it is qualified or conditional if the accused makes it bona fide. 2) Notwithstanding anything contained in any law for the time being in force no court shall impose a sentence in excess of that specified in sub section for any contempt either in respect of itself or of a court subordinate to it. 3) Notwithstanding anything contained in this section where a person is found guilty of a civil contempt the court if it considers that a fine will not meet the ends of justice and that a sentence of imprisonment is necessary shall instead of sentencing him to simple imprisonment direct that he be detained in a civil prison for such period not exceeding six months as it may think fit.” 24. The Supreme court in T. Sudhakar Prasad v Govt. of A.P. 1 SCC 516 has held that the powers of contempt are inherent in nature. The Supreme Court and the High Courts are courts of record and by virtue of being courts of record have inherent jurisdiction to punish for contempt of themselves and the provisions of the Constitution Article 129 and Article 215 only recognise the said pre existing situations. The Supreme Court has also made similar observations in Supreme Court Bar Association v. Union of India 4 SCC 409 and recently in Suraz India Trust V Union of India 2021 SCC OnLine SC 833. 25. We may also take note of the judgment Supreme Court in Rama Narang v. Ramesh Narang & Ors. 11 SCC 114. In this decision the CONT.CAS(C) 429 2021 Supreme Court held that merely because an order or decree would be executable would not take away the Court‟s jurisdiction to deal with the matter under the Contempt of Courts Act provided the Court is satisfied with the violation is such that it would warrant punishment under Section 13 of the Act. The Supreme Court further held that it would neither be in consonance with the statute nor judicial authority or principle or logic to draw any distinction between the wilful violation of the terms of a consent decree and a decree passed on adjudication. It would be seen from the facts that we have already taken note of hereinabove and the further aspects that we would now proceed to take notice that the present is not a case of mere inability on the part of the respondent in complying with the order passed by the Family Court and by this Court. The situation is that the respondent has stubbornly and obstinately refused to comply with the said orders on completely false premise of his financial inability. Despite our repeated orders he has failed to make a clean breast of all his accounts incomes and expenditures. The loan document from Citi bank with regard to UTL 151 The Ultima DLF Garden City Sector 81 Gurgaon in which the respondent is shown as to be the applicant and his father to be the co applicant and another loan document from the Axis Bankpertaining to the property bearing No. UTL 141 the Ultima DLF Garden City Sector 8 Gurgaon disclose that the loan has been taken on the behalf of the father of the respondent. 28. There is no document on record to rebut the presumption that the loan was primarily taken by the Respondent and therefore he repaid the same. CONT.CAS(C) 429 2021 Pertinently in the past transactions disclosed by the respondent he claims to have advanced large amounts of loans to his parents. Thus it cannot be accepted that his father had repaid the loans taken by him from the above two banks. He has flatly refused to place on record the bank account details of himself his father to substantiate his plea that his father had repaid these loans from his own resources. It therefore emerges that the respondent has sought to acquire the said properties by his own funds and only with a view to evade his liability towards the petitioner he has used the name of his father benami. The sale deeds or the agreements to sell with the builder have also not been filed. This leaves us with no option but to draw an adverse inference against the respondent with regard to the funding and ownership of the said properties in favour of the respondent. 29. The bank statements of the respondent clearly show that the respondent was continuously maintaining a decent balance in the range of Rs. 1 1.5 Lakhs and more. The same was observed by us in our earlier order dated 13.09.2021. On our pointed query the Respondent stated that he has chosen to give precedence to his business over compliance of the orders passed by the Family Court as well as this Court. Ms. Hingorani counsel for the petitioner has been able to demonstrate that the respondent has falsely deposed in his compliance affidavit and has blatantly failed to comply with the orders passed by this Court as well the family Court. 30. The respondent has falsely claimed that he maintains only those bank accounts of which he has filed his statement of accounts with his compliance affidavit. Pertinently he does not dispute or deny the fact that he owns the other accounts taken note of hereinabove namely Indian Overseas Bank CONT.CAS(C) 429 2021 Axis Bank and SBI Joint Account No. 10211443836. With his compliance affidavit he has only filed a statement of Indian Overseas Bank for the period 07.08.2016 to 25.09.2021. However the said statement is not continuous and complete. He has not filed a single statement of joint account maintained by him with Punjab National Bank bearing Account No. 306300010044407. The cash incomes of the respondent have substantially over the years and remarkably dropped ever since disputes arose between the parties. The respondent has therefore stopped depositing the cash being generated in his income. It was for him to explain this phenomenon which he has not even bothered to address despite grant of opportunity. It is obvious to us that the respondent is suppressing his true income only with a view to evade compliance of the orders passed by the Family Court and by this Court requiring him to pay maintenance to the petitioner of entire arrears of maintenance. In view of the aforesaid facts it is abundantly clear to us that the Respondent is guilty of intentionally and deliberately violating and not complying with the order dated 22.12.2020 passed by the Family Court and order dated 11.02.2021 passed by this Court. 32. More than adequate indulgence has been shown to the Respondent but he chooses to be adamant and obstinate. The actions omissions of the Respondent in choosing to show complete disregard to the orders of the Court cannot be countenanced. If such action is permitted it will lead to anarchy and the Rule of Law would become a casualty. The orders of the Courts would be taken lightly and breached at the own sweet will of the individual concerned. There has been no effort on the part of the respondent CONT.CAS(C) 429 2021 to comply with the aforesaid orders. If he had acted bona fide he would have paid or deposited at least a portion of the outstanding amount to the petitioner. However the Respondent has chosen not to pay a penny. It is the dignity and majesty of the court which needs to be preserved. The judiciary as an institution has garnered faith of the common masses as a trusted institution only because judicial orders are enforced in an appropriate case even at the pain of contempt. The faith posed by the people in the judiciary has to be protected in the interest of society and also to meet the ends of observed as under: 33. The Supreme Court in Ashok Paper Kamgar Union v. Dharam Godha 11 SCC 1 dealt with civil contempt wherein the Court “17. Section 2(b) of Contempt of Courts Act defines „civil contempt‟ and it means wilful disobedience to any judgment decree direction order writ or other process of a Court or wilful breach of undertaking given to a Court. „Wilful‟ means an act or omission which is done voluntarily and intentionally and with the specific intent to do something the law forbids or with the specific intent to fail to do something the law requires to be done that is to say with bad purpose either to disobey or to disregard the law. It signifies a deliberate action done with evil intent or with a bad motive or purpose. Therefore in order to constitute contempt the order of the Court must be of such a nature which is capable of execution by the person charged in normal circumstances. It should not require any extra ordinary effort nor should be dependent either wholly or in part upon any act or omission of a third party for its compliance. This has to be judged having regard to the facts and circumstances of each case ” It has been time and gain reiterated by the Supreme Court that the CONT.CAS(C) 429 2021 orders of Courts have to be obeyed unless and until they are set aside in appeal revision. The onus is on the party to establish and satisfy the court that the order is null and void and therefore not executable or enforceable. However in the present case the respondent has withdrawn his appeal against the order of the Family Court. Thus there is no question of his establishing that the order passed by the Family Court granting maintenance to the petitioner or the order passed by this Court in the respondent‟ matrimonial appeal was null and void. Even otherwise they cannot be considered as null and void since they were passed by Courts of competent jurisdiction after hearing the respondent herein. The Respondent has not shown any regard towards the majesty of the court by obeying its orders. He has shown no remorse or regret for non compliance of the aforesaid orders. If there is wilful disobedience to any judgment decree direction order writ or other process of a court or wilful breach of undertaking given to the court the contempt court shall take note of such violation that needs to be punished. The wilful disobedience by the contemnor undermines the dignity and authority of the Courts and outrages the majesty of law. In Ram Kishan vs. Tarun Bajaj & Ors 16 SCC 204 the Court has delineated the contours for initiating civil contempt action. The Court observed thus: 12. Thus in order to punish a contemnor it has to be established that disobedience of the order is “wilful”. The word “wilful” introduces a mental element and hence requires looking into the mind of a person contemnor by gauging his actions which is an indication of one s state of mind. “Wilful” means knowingly intentional conscious calculated and deliberate with full knowledge of consequences flowing therefrom. It excludes casual accidental bona fide or unintentional acts or genuine inability. Wilful acts does not encompass involuntarily or negligent actions. The act has to be CONT.CAS(C) 429 2021 done with a ―bad purpose or without justifiable excuse or stubbornly obstinately or perversely‖. Wilful act is to be thoughtlessly from an act done carelessly heedlessly or inadvertently. It does not include any act done negligently or involuntarily. The deliberate conduct of a person means that he knows what he is doing and intends to do the same. Therefore there has to be a calculated action with evil motive on his part. Even if there is a disobedience of an order but such disobedience is the result of some compelling circumstances under which it was not possible for the contemnor to comply with the order the contemnor cannot be punished. ―Committal or sequestration will not be ordered unless contempt involves a degree of default or misconduct.‖ 35. The conduct of the respondent taken note of hereinabove shows that he has tried to act over smart with the Court by concealing his true income and expenditure and the channels into which his incomes are flowing and the manner in which they have been utilised. He has not come clean despite grant of repeated opportunities. His conduct shows that he his defiantly disobeying the orders of the Court despite being called upon to comply with them repeatedly. 36. The Supreme Court in the case of Supreme Court Bar Association vs Union Of India & Anr 4 SCC 409 observed the object of punishment in the case of civil contempt and also remarked upon the jurisdiction exercised by the contempt court to protect the administration of justice from maligned. The Court observed thus: 34. The object of punishment being both curative and corrective these coercions are meant to assist an individual complainant to enforce his remedy and there is also an element of public policy for punishing civil contempt since the administration of justice would be undermined if the order of any court of law is to be disregarded with impunity. Under some circumstances compliance of the order may be secured without resort to CONT.CAS(C) 429 2021 the earnings of coercion the contempt power. For example disobedience of an order to pay a sum of money may be effectively countered by attaching contemner. In the same manner committing the person of the defaulter to prison for failure to comply with an order of specific performance of conveyance of property may be met also by the court directing that the conveyance be completed by an appointed person. Disobedience of an undertaking may in the like manner be enforced through process other than committal to prison as for example where the breach of undertaking is to deliver possession of property in a landlord tenant dispute. Apart from punishing the contemner the Court to maintain the Majesty of Law may direct the police force to be utilised for recover of possession and burden the contemner with costs exemplary or 42. The contempt of court is a special jurisdiction to be exercised sparingly and with caution whenever an act adversely effects the administration of justice or which tends to impede its course or tends to shake public confidence in the judicial institutions. This jurisdiction may also be exercised when the act complained of adversely effects the Majesty of Law or dignity of the courts. The purpose of contempt jurisdiction is to uphold the majesty and dignity of the Courts of law. It is an unusual type of jurisdiction combining "the jury the judge and the hangman" and it is so because the court is not adjudicating upon any claim between litigating parties. This jurisdiction is not exercised to protect the dignity of an individual judge but to protect the administration of justice from being maligned. In the general interest of the community it is imperative that the authority of courts should not be imperiled and there should be no unjustifiable interference in the administration of justice. It is a matter between the court and the contemner and third parties cannot intervene. it is exercised in a summary manner in aid of the administration of justice the majesty of law and the dignity of the courts. No such act can be permitted which may have the tendency to shake the public confidence in the fairness and impartiality of the administration of justice. CONT.CAS(C) 429 2021 37. We therefore impose a fine upon the respondent of Rs. 2 000 . We punish him with simple imprisonment for a term of 3 months. 38. We have considered the aspect that mere imposition of a fine of Rs.2 000 would not meet the ends of justice and that a sentence of imprisonment is necessary considering the fact that the arrears owed by him are far in excess of the fine imposed and the fact that he has deliberately wilfully intentionally and defiantly disobeyed the directions issued to him by the Family Court and by this Court despite grant of opportunities. 39. However in case the respondent exhibits his apology by complying with the orders passed by the Family Court and by this Court in his matrimonial appeal and makes payment of entire arrears of maintenance within two weeks and undertakes to continue to pay the same during pendency of HMA No. 638 2018 or till the time the order dated 22.12.2020 continues to remain in force and tenders an unconditional apology to this Court we shall consider recalling the punishment of him undergoing simple imprisonment provided he complies with the aforesaid direction within the next two weeks. However in case he does not comply with this direction in the next two weeks he is directed to surrender before the Jail Superintendent Central Jail Tihar New Delhi on 09.12.2021. VIPIN SANGHI J JASMEET SINGH J NOVEMBER 25 2021 CONT.CAS(C) 429 2021

The plaintiff cannot be allowed to Amend the plaint while rejecting  such  plaint under Order VII Rule 11(d) CPC: Supreme Court

In a proceeding of rejection of the plaint under Order 7 Rule -11 (d) of CPC, the supreme court held that the plaintiff cannot amend the plaint. It was also observed that cases falling under the ambit of clauses (b) and (c) are covered under the proviso to  Rule 11  and have no application under Order 7 Rule 11(d). A division comprising of Justices DY Chandrachud and MR Shah adjudicating the matter of Sayyed Ayaz Ali vs. Prakash G Goyal [CA 2401-2402 of 2021] dealt with the issue of whether to grant the present appeal or not and disregard the judgment passed by the High Court. In the present case, an appeal has been preferred arising from the judgment passed by a Single Judge at Nagpur bench of the High Court of Bombay. The plaintiff in the previous suit is the Appellant in the present suit. The appeal is preferred against the judgment passed in favor of the first respondent who filed for rejection of the plaint on the ground that it was barred under clauses (b) and (d) of Order-7 Rule -11 of Code of Civil Procedure 1908 “CPC”. The appellant of the present case was directed to seek proper relief and pay the court fee thereon within 15 days, otherwise, appropriate order will be passed. This order of the Trial Judge, insofar as it permitted the appellant to carry out an amendment for seeking appropriate reliefs was assailed before the High Court in a Civil Revision Application. The appellant instituted a Writ Petition1 under Article 227 of the Constitution for challenging the order of the Trial Judge allowing the application under Order 7 Rule 11 of the CPC. The High Court decided both the civil revision application and the writ petition by a common judgment. The Single Judge held that since the plaint was rejected under Order 7 Rule 11(d) there was no occasion to direct that an amendment be made to the plaint. Civil revision was allowed on this basis. The writ petition filed by the appellant was held to be an “afterthought and belated” and no relief was granted to the appellant in the writ proceedings. That is how the proceedings have reached this Court. The appellant is essentially aggrieved by the decision of the Trial Court and the High Court to allow the application under Order 7 Rule 11(d) of the CPC. The Appellant contended that the High Court had erroneously upheld the finds of the Trial Court under Order 7 Rule 11 of the CPC had to be allowed. Under Order 7 Rule 11(d), a plaint shall be rejected “where the suit appears from the statements in the plaint to be barred by any law”. The appellant has sought a declaration against the third, fourth and fifth defendants regarding their act of entering upon the property on 24 November 2012 and interfering with the plaintiff’s peaceful possession. An injunction has been sought against all the defendants restraining them from interfering with the plaintiff’s peaceful possession over the suit property. the suit has been instituted to protect the possession of the plaintiff simpliciter without claiming a declaration of title. Seeking a declaration of title is, according to the submission, not mandatory: what the proviso to Section 34 provides is that seeking a mere declaration of the title without seeking further relief is impermissible. On these grounds, it is urged that the suit could not be held to be barred by Section 34 of the Specific Relief Act. Learned counsel urged that whether the suit would be maintainable in the absence of the plaintiff-appellant seeking a declaration of title is a distinct question, but it cannot be held to be barred by any law within the meaning of Order 7 Rule 11(d). The Respondents contended that the writ petition was not maintainable on the ground that against the rejection of the plaint, the remedy of the appellant was to file a regular first appeal since an order of rejection operates as a decree. It has been urged that the appellant, after having complied with the order of the Trial Court, deliberately filed a writ petition, instead of an appeal, to avoid the issue of limitation in filing an appeal. Also, it was submitted that availability of a remedy of the first appeal under Section 96 of the CPC would not ipso facto bar recourse to the writ jurisdiction

Reportable IN THE CIVIL APPELLATE JURISDICTION Civil Appeal Nos 2401 24021 SLPNos. 29975 299718 Sayyed Ayaz Ali Appellant Prakash G Goyal & Ors. .... Respondents Dr Dhananjaya Y Chandrachud J These appeals arise from a judgment of a Single Judge at the Nagpur Bench of the High Court of Judicature at Bombay. The appellant is the plaintiff in a suit instituted before the Civil Judge Senior Division at Nagpur. The first respondent filed an application at Exhibit 50 for the rejection of the plaint on the ground that it was barred under clausesandof JUDGMENT Order 7 Rule 11 of the Code of Civil Procedure 1908there was no occasion to direct that an amendment be made to the plaint. The civil revision was allowed on this basis. The writ petition filed by the appellant was held to be an “after thought and belated” and no relief was granted to the appellant in the writ proceedings. That is how the proceedings have reached this Court. The appellant is essentially aggrieved by the decision of the Trial Court and the High Court to allow the application under Order 7 Rule 11(d) of the CPC. Since the controversies in the present case arise out of the application under Order 7 Rule 11 it would be necessary to set out in brief the contents of the plaint. Parties would be referred to on the basis of their respective positions in the suit. The 1plaintiff claims that he came into contact with the third defendant who is a financial broker. The third defendant is alleged to have arranged a loan of Rs 7 lacs with interest at 5 per cent month subject on the plaintiff executing an agreement and blank documents as security for the loan. Against the loan of Rs 7 lacs the plaintiff is alleged to have executed an agreement dated 3 April 2012 in favour of the nominees of the third defendant and executed documents which were blank. Thereafter it is alleged that the plaintiff needed an additional finance of Rs 22 lacs and the third defendant took the plaintiff to the first defendant. The first defendant is alleged to have agreed to give a loan of Rs 22 lacs on the condition that the plaintiff executed a sale deed in respect of land of Mauza: Kanholi towards security for repayment of the loan. The amount was paid over on 11 May 2012 and was to carry interest of 5 per cent per month and in consideration the plaintiff is alleged to have executed documents including a sale deed dated 11 May 2012. In the meantime the fourth defendant is alleged to have expressed the desire to sell plot Nos 23 A 29 34 35 A 24 25 26 27 and 28 admeasuring 25.009 sq. ft. out of land bearing Khasra No 82 3 Mauza: Gorewada. P.R. No 9 Tah: and District Nagpur. This property has been referred to as the suit property. The fourth defendant is alleged to have shown an agreement dated 22 March 2011 in his favour. The plaintiff is alleged to have been shown certain documents between Shoab Asad Murtuja Khan and Shashikant Grihanirman Sahakari Sanstha. After negotiation it is stated that the plaintiff agreed to purchase the suit property at Rs 1950 per sq. ft. out of which the plaintiff agreed to pay Rs 1400 per sq. ft. to Shashikant Grihanirman Sahakari Sanstha and Rs 550 per sq. ft. to the fourth defendant. Since the plaintiff did not have funds for the purchase of the property it is alleged that he met the first defendant through the third defendant and sought a loan for the amount. The third defendant is alleged to have agreed to a loan of Rs 1.5 crores subject to the deduction of the earlier loans of Rs 7 lacs and Rs 22 lacs together with interest. According to the plaintiff it was however a condition that the sale deed of Plot No 23A and 24 would be executed directly in the name of the first defendant and second defendant towards security for the repayment of the loan and the sale deed for Plot Nos 25 to 29 34 and 34A would be executed in the joint names of the first and second defendants and the plaintiff. The plaintiff is alleged to have entered into an agreement for the purchase of the suit property on 15 June 2012. The amount alleged to have been paid for the loan was obtained by the plaintiff from the first defendant. The sale deed for plot Nos 23A and 24 was executed and registered on 27 June 2012 in the names of the first and second defendants while the sale deed for the remaining plots was executed in the joint names of the first and second defendants and the plaintiff. The plaintiff claims to have been placed in exclusive possession of the entire suit property and it is his case that the names of the first and second defendants were incorporated in the sale deed only for security for the repayment of the loan. The plaintiff claims to have commenced development on the land and to have purchased an adjoining plot bearing no 9A on 28 September 2012. According to the plaintiff on 26 September 2012 the first and third defendants came to the suit property and demanded the repayment of the interest on the loan of Rs 1.5 crores. The plaintiff is alleged to have made certain payments on 8 September 2012 and to have furnished postdated cheques towards the interest for the months of November and December 2012. The plaintiff alleged that he completed the work of leveling the plots. On 24 November 2012 the third fourth and fifth defendants are alleged to have entered the suit property along with thirty unknown persons and to have demanded the payment of Rs. 1.50 crores within two days. The police it is alleged did not take any action on the complaint registered by the plaintiff. The first and second defendants are alleged to have conspired with Defendants 3 to 5 to commit criminal acts against the plaintiff with the help of the local police. Crime No 475 of 2012 was registered on 28 November 2012 under Sections 143 147 447 and 427 of the Indian Penal Code. According to the plaintiff during the pendency of the suit a compromise was arrived with the first and second defendants. It has been alleged that though certain amounts were paid to the first and second defendants pursuant to the compromise they have refused to execute a sale deed in return and have recovered an amount of Rs. 50 lacs from the plaintiff under the garb of a compromise. The reliefs which have been sought in the suit are as follows: “1. declare that the acts of the defendants no.3 to 5 to enter into the suit property on 24 11 2012 and to beat assault and to interfere with the peaceful possession of the plaintiff is criminal illegal arbitrary and without any authority. 2. Pass decree for permanent perpetual injunction against defendants their agents servants and the person acting on their behalf thereby restraining them from interfering with the peaceful possession of the plaintiff over the suit property and from dispossessing the plaintiff from the suit property in any manner of whatsoever nature permanently in the interest of After the institution of the suit on 26 November 2012 an application was filed on behalf of the second defendant for the rejection of the plaint under clauses b and d of Rule 11 of Order 7 of the CPC. The rejection was sought on the ground that the plaintiff has admitted the execution of sale deeds in favour of the first and second defendants. Despite this no declaration of invalidity has been sought in regard to the sale deeds. The submission was that the plaintiff did not seek the cancellation of the sale deeds on the ground that they were executed only as a security for the loan transaction. Further no declaration was sought by the plaintiff to the effect that the sale deeds did not confer any right title or interest on the defendants. As a result of this the suit would be barred by Section 34 of the Specific Relief Act 1963. The application under Order 7 Rule 11 was rejected by the Trial Judge on 1 August 2017. The Trial Judge observed that the plaintiff has claimed a declaration simpliciter that the act of the defendants in entering upon the suit property on 24 November 2012 is illegal besides which a permanent injunction has been sought to protect the possession of the plaintiff. The Trial Judge held that the plaintiff having failed to seek a declaration that the sale deeds were executed only as a security for the loan transaction the suit is not maintainable in view of the provisions of the Section 34 of the Specific Relief Act. The Trial Judge held: “14 …as discussed above the plaintiff neither sought relief of cancellation of alleged sale deeds nor for declaration that the alleged sale deeds were executed for security purpose and not its real sense. Therefore I am of the view that present application deserves to be allowed. However as discussed above the plaintiff is ready to pay the requisite court fee thereon. Therefore I give my finding point No. l affirmative and so far as point No.2 is concerned I pass following order. 1] Application is allowed. 2] The plaintiff is directed to seek proper relief and pay court fee thereon within 15 days otherwise appropriate order will be passed.” Aggrieved by the order of the Trial Judge granting liberty to the plaintiff appellant to amend the plaint despite allowing the application under Order 7 Rule 11 Defendant Nos 1 a to 1 d and Defendant No 2 filed a civil revision application before the High Court. On 11 September 2017 and 23 July 2018 the appellant instituted a writ petition challenging the order of the Trial Judge allowing the applicationof Defendant No 2 under Order 7 Rule 11. The High Court by its judgment and order dated 14 September 2018 held that: On a reading of the plaint it is clear that the sale deeds were executed in the names of the first and second defendants with regard to plot Nos 23A Sale deeds were executed in respect of the plot Nos 25 to 29 34 and 34A in the joint names of the plaintiffs together with the first and second and 24 defendants iii) According to the plaintiff these sale deeds in the name of the first and second defendants were a security for the repayment of the loan It was necessary for the plaintiff to seek a declaration that the sale deeds were executed merely as a security for the repayment of the loan and a failure to seek such a declaration would come within the purview of the proviso to Section 34 of the Specific Relief Act 1963 The Trial Court having allowed the application under Order 7 Rule 11(d) of the CPC committed an error in granting time to the plaintiff to amend the plaint to seek proper relief and pay court fees. Where the rejection of the plaint takes place under Order 7 Rule 11(d) there would be no question of granting time to the plaintiff to rectify the defects in the plaint. Where the suit appears from the statements in the plaint to be barred by any law the defects are not curable and vi) The challenge by the plaintiff to the order rejecting the plaint under Order 7 Rule 11(d) is without substance. The order on Exhibit 50 was passed on 1 August 2017. On the basis of the order the plaintiff sought an amendment of the plaint under Order 6 Rule 17 on 14 August 2017 by seeking a declaration in respect of the sale deeds. The order under Exhibit 50 was challenged in a civil revision application on 12 September 2017 and the plaintiff was served by substituted service in April 2018 and it was only on 24 July 2018 that the plaintiff sought to challenge the order under Exhibit 50. Consequently the challenge is belated and is an afterthought. Mr Vinay Navare learned Senior Counsel appearing on behalf of the appellant plaintiff submitted that the High Court has erroneously upheld the finding of the Trial Judge that the application under Order 7 Rule 11 of the CPC had to be allowed. Under Order 7 Rule 11(d) a plaint shall be rejected “where the suit appears from the statements in the plaint to be barred by any law”. The appellant has sought a declaration against the third fourth and fifth defendants in regard to their act of entering upon the property on 24 November 2012 and interfering with the peaceful possession of the plaintiff. An injunction has been sought against all the defendants restraining them from interfering with the peaceful possession of the plaintiff over the suit property. Section 342 of the Specific Relief Act indicates that A person entitled to any legal character or to any right as to any property may institute a suit against any person denying or interested to deny his title to such character or right The court may in its discretion make a declaration that the plaintiff is so entitled and the plaintiff need not in such a suit ask for further relief and iii) Under the proviso no court shall make any such declaration where the plaintiff being able to seek further relief than a mere declaration of title omits to do so. It has been urged that the proviso to Section 34 applies to a situation where a plaintiff has sought a mere declaration of title but omits to seek further or 2 “34. Discretion of court as to declaration of status or right Any person entitled to any legal character or to any right as to any property may institute a suit against any person denying or interested to deny his title to such character or right and the court may in its discretion make therein a declaration that he is so entitled and the plaintiff need not in such suit ask for any further relief: Provided that no court shall make any such declaration where the plaintiff being able to seek further relief than a mere declaration of title omits to do so. Explanation. A trustee of property is a "person interested to deny" a title adverse to the title of someone who is not inexistence and for whom if in existence he would be a trustee.” consequential relief. The submission is that in the present case the suit has been instituted to protect the possession of the plaintiff simpliciter without claiming a declaration of title. Seeking a declaration of title is according to the submission not mandatory: what the proviso to Section 34 provides is that seeking a mere declaration of title without seeking further relief is impermissible. On these grounds it is urged that the suit could not be held to be barred by Section 34 of the Specific Relief Act. Learned counsel urged that whether the suit would be maintainable in the absence of the plaintiff appellant seeking a declaration of title is a distinct question but it cannot be held to be barred by any law within the meaning of Order 7 Rule 11(d). The appellant instituted a writ petition before the High Court on 23 July 2018 to challenge the order of the Trial Court allowing the application for rejecting the plaint under Order 7 Rule 11. For clarity it is necessary to extract the reliefs which were claimed before the High Court in the writ petition: “1. …quash and set aside the order passed below Exh: 50 ANNEXURE F) on 01 08 2017 in RCS No.4990 2012 Sayyad Vs. Om Mittal and others) by the 5th Joint Civil Judge Junior Division Nagpur… 2. Reject the application at Exh: 50 filed RCS No.4990 2012 Sayyad Vs. Om Mittal and others) pending on the file of 5th Joint Civil Judge Junior Division in the interest of justice.” The High Court has in the course of its judgment rejected the writ petition on the ground that it was “by way of an afterthought and belated”. This was on the premise that after the order of the Trial Judge dated 1 August 2017 the appellant filed an application under Order 6 Rule 17 on 14 August 2017 in terms of the liberty granted by the Trial Judge for amending the plaint to seek a declaration in regard to the sale deeds in question. The first and second defendants to the suit challenged the grant of the liberty by the Trial Judge by filing a revision application on 12 September 2017 and it was only on 24 July 2018 that the appellant plaintiff sought to challenge the order rejecting the plaint under Order 7 Rule 11(d). 11 Mr Pankaj Kothari learned Counsel appearing on behalf of the respondents defendants raised a preliminary objection to the maintainability of the writ petition on the ground that against the rejection of the plaint the remedy of the appellant was to file a regular first appeal since an order of rejection operates as a decree. It has been urged that the appellant after having complied with the order of the Trial Court deliberately filed a writ petition instead of an appeal to avoid the issue of limitation in filing an appeal. Mr Navare learned Senior Counsel contested the submission by urging that since a civil revision application had been filed by the first and second defendants before the High Court the appellant plaintiff was justified in seeking recourse to the writ jurisdiction of the High Court. Moreover he submitted that the availability of a remedy of a first appeal under Section 96 of the CPC would not ipso facto bar a recourse to the writ jurisdiction. Section 2(2) of the CPC defines the expression ‘decree’ in the following terms: “(2) “decree” means the formal expression of an adjudication which so far as regards the Court expressing it conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint and the determination of any question within section 144 but shall not include— a) any adjudication from which an appeal lies as an appeal from an order or b) any order of dismissal for default. is preliminary when Explanation.—A decree proceedings have to be taken before the suit can be completely disposed of. It is final when such adjudication completely disposes of the suit. It may be partly preliminary and partly final ” Order 7 Rule 13 provides that the rejection of the plaint “on any of the grounds hereinbefore mentioned shall not of its own force preclude the plaintiff from presenting a fresh plaint in respect of the same cause of action”. The definition of “decree” in Section 2(2) “shall be deemed to include the rejection of a plaint”. Hence the order of the Trial Court rejecting the plaint is subject to a first appeal under Section 96 of the CPC. The writ petition filed by the appellant was liable to be rejected on that ground. We therefore affirm the judgment of the High Court rejecting the writ petition though for the above reason leave it open to the appellant to pursue the remedy available in law. The High Court while exercising its revisional jurisdiction accepted the plea of the first and second defendants that the Trial Judge having allowed the application Order 7 Rule 11(d) was not justified in granting to the appellant plaintiff liberty to amend the plaint by seeking appropriate reliefs and paying the court fee. In this context it is necessary to advert to Order 7 Rule 11 which provides as follows: “11. Rejection of plaint.— The plaint shall be rejected in the following cases:— a) where it does not disclose a cause of action b) where the relief claimed is undervalued and the plaintiff on being required by the Court to correct the valuation within a time to be fixed by the Court fails to do so c) where the relief claimed is properly valued but the plaint is returned upon paper insufficiently stamped and the plaintiff on being required by the Court to supply the requisite stamp paper within a time to be fixed by the Court fails to do so d) where the suit appears from the statement in the plaint to be barred by any law e) where it is not filed in duplicate f) where the plaintiff fails to comply with the provisions of rule Provided that the time fixed by the Court for the correction of the valuation or supplying of the requisite stamp paper shall not be extended unless the Court for reasons to be recorded is satisfied that the plaintiff was prevented by any cause of an exceptional nature from correcting the valuation or supplying the requisite stamp paper as the case may be within the time fixed by the Court and that refusal to extend such time would cause grave injustice to the plaintiff.]” The proviso quoted above deals with a situation where time has been fixed by the Court for the correction of the valuation or for supplying of the requisite stamp paper. Under the proviso the time so fixed shall not be extended unless the court for reasons to be recorded is satisfied that the plaintiff was prevented by a cause of an exceptional nature from complying within the time fixed by the court and that a refusal to extend time would cause grave injustice to the plaintiff. The proviso evidently covers the cases falling within the ambit of clausesandand has no application to a rejection of a plaint under Order 7 Rule 11(d). In the circumstances the High Court was justified in coming to the conclusion that the further direction that was issued by the Trial Judge was not in consonance with law. For the above reasons we affirm the judgment of the Single Judge of the High Court: allowing the revision application filed by the first and second defendants dismissing the writ petition filed by the appellant plaintiff. Since the dismissal of the writ petition has been upheld on the ground that the order rejecting the plaint operates as a decree within the meaning of Section 2(2) of the CPC the appellant is at liberty to take recourse to the remedy against the rejection of the plaint as prescribed by the CPC. The appeals shall stand disposed of in the above terms. Pending application(s) if any stand disposed of ….….....................................................J. Dr Dhananjaya Y Chandrachud] New Delhi July 20 2021

The petitioners were released on bail after being arrested under Sections 406, 420, 467, 468, 471, 448, 506/34 of the Indian Penal Code: High court of Patna

The petitioners were arrested under Section 406 IPC, “Punishment for criminal breach of trust”, section 420, “Cheating and dishonestly inducing delivery of property”, section 467, “Forgery of valuable security, will”, section 468, “Forgery for purpose of cheating”, section 471 “Using as genuine a forged 1[document or electronic record]”, section 448, “Punishment for house-trespass “, section 506, “Punishment for criminal intimidation “, section 34 IPC, “Acts done by several persons in furtherance of common intention”. This is in connection with Dumraon PS Case No. 127 of 2020 dated 15.04.2020. This judgment was given in the high court of Judicature at Patna by honorable Mr. Justice Ahsanuddin Amanullah on the 3rd of August 2021 in the case of and Ramlal Goswami others versus the state of Bihar criminal miscellaneous No. 22918 of 2021, Mr. Manoj Kumar Represented as the advocate for the petitioner and Mr. Ram Sumiran represented the state of Bihar as the additional Public Prosecutor, the proceedings of the court were held via video conference. The following are the facts of the case, the informant is the cousin brother of petitioner no.1 and had bought land with the help of the petitioner but during this process, he was cheated in respect to the rates, and also the same piece of land was being sold by the petitioners to two different parties which is a violation of the law and the petitioners were accused and held in custody for the same. The counsel for the petitioners held that according to the FIR the informant sold the same land for a much higher price than the price he was paying for land, where he accused to petitioners of cheating him dishonestly, further the counsel held that this dispute is purely a civil case and not a criminal one. The counsel submitted as the informant was the first cousin of the petitioner no.1 there is a possibility he was well aware of the ground realities and was not ignorant of the same. Regarding the statement that the land was sold to two different people, the petitioners have filed a supplementary affidavit where under oath they claim they have no sold the same land to two different people. The petitioners are husband and wife and have no other criminal antecedent. There is also a lack of evidence cause no other complaints were made so far and no documents regarding the same were brought on record. Hence the court is obliged to grant bail for the same. The additional Public prosecutor held that the petitioners have been clearly accused of cheating the informant and according to the investigation the same piece of land was registered for two people which is a violation of the law. After considering the facts and circumstances of the case and submissions the high court concluded that “the petitioners will 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 Chief Judicial Magistrate, in connection to PS Case No. 127 of 2020, under 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 petitioners, and (ii) that the petitioners shall cooperate with the Court and the police/prosecution. Failure to cooperate shall lead to the cancellation of their bail bonds. 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 the opportunity of hearing to the petitioners.”

IN THE HIGH COURT OF JUDICATURE AT PATNA CRIMINAL MISCELLANEOUS No. 229121 Arising Out of PS. Case No. 127 Year 2020 Thana DUMRAON District Buxar 1. Ramlal Goswami aged about 44 years Male S o Late Gauri Shankar 2. Dharmshila Devi @ Savita Devi aged about 35 years wife of Ramlal Both resident of village Badka Dhakaich P.S. Krishna Brahm District ... Petitioner s ... Opposite Party s The State of Bihar Appearance : For the Petitioner s For the State CORAM: HONOURABLE MR. JUSTICE AHSANUDDIN AMANULLAH ORAL JUDGMENT Mr. Manoj Kumar with Mr. Anil Kumar Roy Advocates Mr. Ram Sumiran Roy APP The matter has been heard via video conferencing. 2. Heard Mr. Manoj Kumar learned counsel along with Mr. Anil Kumar Roy learned counsel for the petitioners and Mr. Ram Sumiran Roy learned Additional Public Prosecutorfor the State. 3. Learned counsel for the petitioners submitted that he may be permitted to add alias name of petitioner no. 2 which is Savita Devi. 4. Prayer allowed. 5. Let necessary correction be made in the cause title Date : 03 08 2021 Patna High Court CR. MISC. No. 229121 dt.03 08 2021 2 4 by learned counsel for the petitioners through e mode by day after tomorrow. 6. The petitioners apprehend arrest in connection with Dumraon PS Case No. 1220 dated 15.04.2020 instituted under Sections 406 420 467 468 471 448 506 34 of the Indian Penal Code. 7. The allegation against the petitioners is that the informant who is the cousin brother of petitioner no. 1 had bought land through the petitioner no. 1 but he was cheated both with regard to the rates as also that the same piece of land being sold by the petitioners to two different persons. 8. Learned counsel for the petitioners submitted that in the FIR itself it has been stated that the informant had sold his land at a much higher price than the price he was paying for the land which he alleges to have been negotiated by the petitioner no. 1 for him. Further it was submitted that all such dispute relating to money is a purely civil in nature for which criminal case is an abuse of the process of the Court. Learned counsel submitted that the informant being the first cousin of the petitioner no. 1 and having sold his land was very well aware of the ground realities and cannot take a stand that he was ignorant of what was the actual position. Further it was submitted that Patna High Court CR. MISC. No. 229121 dt.03 08 2021 3 4 the petitioners have filed a supplementary affidavit in which a categorical stand has been taken on oath that the petitioners have not sold the same piece of land to two different persons. Learned counsel submitted that the petitioners are simple citizens being husband and wife and have no other criminal antecedent. It was submitted that had the allegation been correct the other person aggrieved would also have filed a case and most importantly neither any name of any person has been taken nor details of any document that the same piece of land was transferred to two persons has been either mentioned or brought on record. 9. Learned APP submitted that the petitioners are alleged to have cheated the informant and have got the same piece of land registered in favour of two persons. 10. 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 Chief Judicial Magistrate Buxar in Dumrao PS Case No. 127 of 2020 subject to the conditions laid down in Patna High Court CR. MISC. No. 229121 dt.03 08 2021 4 4 Section 438(2) of the Code of Criminal Procedure 1973 and furtherthat one of the bailors shall be a close relative of the petitioners andthat the petitioners shall cooperate with the Court and the police prosecution. Failure to cooperate shall lead to cancellation of their bail bonds. 11. 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 aforementioned terms. 12. The petition stands disposed of Anjani

Concerted Efforts by State Departments Necessary to Restore Temple Properties & Recover Monetary Loss: Madras High Court

The review meetings were conducted by the District Collectors. However, there is lack of coordination between the Departments and only through joint actions by the Departments, the issues can be resolved in an efficient manner. The illegalities are not only confined to the HR &amp; CE Department. These were upheld by High Court of Madras through the learned bench of Honourable Mr. Justice S.M. Subramaniam in the case A. Radhakrishnan v. Secretary to Government &amp; Ors.( W.P.No.27646 of 2021) The crux of the case is petitioner in person states that for the past about 25 years, he has involved in to secure and safeguard the temple properties and to restore the said properties for the benefit of the temples concerned. The petitioner states that in Krishnagiri District, while inspecting several temples, the properties worth about several crores belong to many temples are being looted and large scale of illegal mining operations are permitted with the active and passive collusion of the public officials. The petitioner made several representations approached the authorities in person, participated in review meetings conducted and he relies on the orders of the District Collector, Krishnagiri in proceeding dated February 2018 wherein the District Collector raised 15 queries for collecting the details and for initiation of further action in respect of the fact that the District Collector considered the seriousness of the issue and insisted the competent authorities of the HR &amp; CE Department to ascertain the details for the purpose of initiation of action. Though the District Collector issued the proceedings in the year 2018, no much progress has been made by the authorities on account of lack of coordination between the Department and therefore, the petitioner is constrained to move the present Writ Petition. The learned Special Government Pleader appearing on behalf of the HR &amp; CE Department and the learned Additional Government Pleader appearing on behalf of the other Government Departments, made submissions stating that actions are initiated in respect of the serious allegations raised by the petitioner. The District Collector convened meetings and review meetings and on 23.11.2011, the Officials from various Departments participated in the review meeting conducted through video Conferencing and certain required particulars were also collected and discussions were made for further actions. In this regard, show cause notice was issued by the Director of Geology and Mining to initiate action against the allegations of illegal mining operations.  The bench of Honourable Mr. Justice S.M. Subramaniam while disposing if the petition observed and stated “This Court is frequently receiving several such allegations of abuse of temple properties and fraudulent registration of the documents in respect of the temples properties, non-collection of lease amount is also an issue, which is to be looked into by the authorities when the provisions of the HR &amp; CE Act unambiguously stipulates that the manner in which the temple properties are to be leased out or dealt with and regarding fixing of fair rent, recovery of rent etc. It is unfortunate that none of the provisions are implemented properly, which resulted in looting of the properties by few greedy men and the persons, who have been involved in such illegalities. There are large scale allegations regarding the administration of temple properties across the State of Tamil Nadu. Recently, there are instances of recovery of properties by the HR &amp; CE Department and the actions would not be sufficient to deal with the issues as a whole”

W.P.No.276421IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 01.02.2022CORAM :THE HONOURABLE MR. JUSTICE S.M. SUBRAMANIAMW.P.No. 276421A.Radhakrishnan ... Petitioner in personVs.1.The Secretary to Government Tourism Culture and Endowments DepartmentSecretariatChennai 600 009.2.The Secretary to Government Revenue Department SecretariatChennai 600 009.3.The Secretary to Government Industrial Department SecretariatChennai 600 009.4.The Secretary to Government Home Department SecretariatChennai 600 009.5.The CommissionerHindu Religious & Charitable Endowments119 Nungambakkam High Road Chennai 600 034.https: www.mhc.tn.gov.in judis W.P.No.2764216.The Commissioner of Revenue Administration ChepaukChennai 600 005.7.The Commissioner of Land Administration ChepaukChennai 600 005.8.The Commissioner of Survey and SettlementsChepaukChennai 600 005.9.The Director Geology and MiningGuindyChennai 600 032.10.The Director General of Policeand Head of the Police ForceDr.Radhakrishnan Salai Chennai 600 004.11.The Inspector Cell Officer1st Floor CollectorateSalem 636 001.12.The District Executive Magistrate cum Collector Krishnagiri.13.The Deputy Inspector General of Police Salem RangeSalem 636 007.14.The Regional Deputy Director Survey and Land Records Department Collectorate Campus Coimbatore.15.The Joint Commissioner Hindu Religious & Charitable EndowmentsThiruvanamalai.https: www.mhc.tn.gov.in judis W.P.No.27642116.The Assistant Commissioner Hindu Religious & Charitable EndowmentsKrishnagiri.17.The Executive OfficerArulmigu Veera Anjaneyarswamy TempleBaiyur SappanipattyErrahalli PanchayatKrishnagiri Taluk and District.18.The Fit PersonArulmigu Anumantharaya Swamy TempleNagamangalam VillageThenkanikottai TalukKrishnagiri District.19.The Fit Person Arulmigu Pattalamman TemplePalekuli VillageKrishnagiri Taluk and District.20.The Fit Person Arulmigu Periyamalai Perumal TemplePalekuli VillageKrishnagiri Taluk and District.21.The Present AdministratorArulmigu Varadharaja Perumal TempleOld ArasampattyPendarahalli VillagePochampalli TalukKrishnagiri District.22.The Executive OfficerArulmigu Kothandaramaswamy TempleBaiyur Kaveripattinam VillageKrishnagiri Taluk and District.https: www.mhc.tn.gov.in judis W.P.No.27642123.The Fit Person Arulmigu Kasiviswanathar TempleKoolikanapalli VillageHosur TalukKrishnagiri District.24.Thiru. GovindarajHead AssistantAssistant Commissioner s OfficeHindu Religious & Charitable Endowments Department Krishnagiri... RespondentsPrayer : Writ Petition filed under Article 226 of the Constitution of India for issuance of a Writ of Mandamus directing the respondents 5 to 16 to secure and safeguard the properties of the 17th to 23rd respondents temples by considering the petitioner s representations dated 19.09.2016 07.09.2018 06.05.2021 29.11.2021 and 11.12.2021 and also as per the instructions issued by the 12th respondent in Na.Ka.No.23461 2016 LR2 dated 23.02.2018. For Petitioner : Mr. A.Radhakrishnan Party in personFor RR 1 5 15 & 16: Mr. T.Chandrasekaran Special Government Pleader HR & CEFor RR 2 to 4 and 6 to 14: Mr.V. Manoharan Additional Government PleaderFor RR 1 7 to 24 : Mr. S.Sithirai Anandan O R D E Rhttps: www.mhc.tn.gov.in judis W.P.No.276421A Writ of Mandamus has been instituted to direct the respondents 5 to 16 to secure and safeguard the properties of the 17th to 23rd respondents temples by considering the petitioner s representations dated 19.09.2016 07.09.2018 06.05.2021 29.11.2021 and 11.12.2021 and also as per the instructions issued by the 12th respondent in Na.Ka.No.23461 2016 LR2 dated 23.02.2018.2. The petitioner in person states that for the past about 25 years he has involved in to secure and safeguard the temple properties and to restore the said properties for the benefit of the temples concerned. The petitioner states that in Krishnagiri District while inspecting several temples the properties worth about several crores belong to many temples are being looted and large scale of illegal mining operations are permitted with the active and passive collusion of the public officials. He took several efforts to control the illegal mining operations in temples properties and to restore the properties for the welfare of the temple activities and for the benefit of the devotees and to honour the donors who donated the properties for providing service to the temples.https: www.mhc.tn.gov.in judis W.P.No.2764213.The petitioner made several representations approached the authorities in person participated in review meetings conducted and he relies on the orders of the District Collector Krishnagiri in proceeding dated February 2018 wherein the District Collector raised 15 queries for collecting the details and for initiation of further action in respect of the fact that the District Collector considered the seriousness of the issue and insisted the competent authorities of the HR & CE Department to ascertain the details for the purpose of initiation of action. Though the District Collector issued the proceedings in the year 2018 no much progress has been made by the authorities on account of lack of coordination between the Department and therefore the petitioner is constrained to move the present Writ Petition.4. The learned Special Government Pleader appearing on behalf of the HR & CE Department and the learned Additional Government Pleader appearing on behalf of the other Government Departments made submissions stating that actions are initiated in respect of the serious allegations raised by the petitioner. The District Collector convened meetings and review meetings and on 23.11.2011 the Officials from various Departments participated in the review meeting conducted through https: www.mhc.tn.gov.in judis W.P.No.276421Video Conferencing and certain required particulars were also collected and discussions were made for further actions. In this regard show cause notice was issued by the Director of Geology and Mining to initiate action against the allegations of illegal mining operations.5. The petitioner in person reiterated by stating that meetings are conducted however actions are yet to be taken in respect of illegal mining and for recovery of temples properties running to several crores. The petitioner in person brought to the notice of this court that the illegal mining itself is running to more than 200 crores and the income derived from the mining operations are not gone to the temples and therefore the illegal mining are to be dealt with in the manner known to law. 6. Considering the submissions made on behalf of the parties to the Writ Petition on hand this Court is of the considered opinion that the allegations set out by the petitioner in his representations are no doubt shocking to the concious of this Court. Illegal mining operations itself is running to more than 200 Crores. Several acres of temples properties are being looted and documents are registered fraudulently and the properties belong to the temples are not being utilised for the benefit of the temples. https: www.mhc.tn.gov.in judis W.P.No.2764217. Few great souls donated their hard earned property and money and jewelleries and other belongings for the welfare of the temples and to do service to the temples and to the devotees. When such great souls donated their valuable properties for a particular purpose the Administers of the temples are duty bound to ensure that the properties donated are utilised for the purpose for which it is donated and in the event of non maintenance the authorities competent are also liable and must be held responsible for their lapse negligence and dereliction of duty. 8. The HR & CE Act provides protection and maintenance of the temple properties and the actions to be initiated in the event of any violations. It is unfortunate that the provisions of the HR & CE Act has not been implemented in an effective manner by the competent authorities resulted in looting of the temple properties in a large scale manner across the State of Tamilnadu.9. This Court is frequently receiving several such allegations of abuse of temple properties and fraudulent registration of the documents in respect of the temples properties non collection of lease amount is also an https: www.mhc.tn.gov.in judis W.P.No.276421issue which is to be looked into by the authorities when the provisions of the HR & CE Act unambiguously stipulates that the manner in which the temple properties are to be leased out or dealt with and regarding fixing of fair rent recovery of rent etc. It is unfortunate that none of the provisions are implemented properly which resulted in looting of the properties by few greedy men and the persons who have been involved in such illegalities. There are large scale allegations regarding the administration of temple properties across the State of Tamil Nadu. Recently there are instances of recovery of properties by the HR & CE Department and the actions would not be sufficient to deal with the issues as a whole. 10. In view of the fact that the properties belong to the temples which are all illegally dealt with by many persons require effective coordination with other concerned Departments for recovery. The Authorities Competent shall form a Committee and ensure that the recovery of the temple properties are made in an effective and speedy manner so as to ensure that the properties are protected and maintained for the interest of the temple and to fulfil the desires of the donors as per their wishes.https: www.mhc.tn.gov.in judis W.P.No.27642111. In the present case the petitioner has taken several steps through revenue authorities and through the authorities of the HR & CE Department. The review meetings were conducted by the District Collectors. However there is lack of coordination between the Departments and only through joint actions by the Departments the issues can be resolved in an efficient manner. The illegalities are not only confined to the HR & CE Department. The temple properties are registered in an illegal manner and the documents are executed in a fraudulent manner and illegal mining operations are done running to several crores. Therefore actions by the Registration Department Revenue Department Police Department Mining and Geology Department HR & CE Department and other connected Departments are just and necessary for the purpose of effective action for recovery of the temple properties and to recover the monetary loss caused to the temple by way of illegal mining operations or otherwise.12. In the present case no doubt the District Collector has initiated actions for the purpose of collecting the details regarding the temple properties which were illegally dealt with by the private persons and with the active and passive collusion of the public officials. https: www.mhc.tn.gov.in judis W.P.No.27642113. It is made clear that the public officials who all are responsible for such collusion dereliction of duty negligence or corrupt are also be prosecuted and all appropriate actions are to be initiated against those public authorities also. 14. Large scale illegalities fraudulent execution of documents and corrupt practices may not be possible without the knowledge of the Officials of the Department concerned. The active or passive collusion of the public officials cannot be ruld out. Thus actions are to be initiated against all such officials both under the Criminal Law and under the Government Servants Disciplinary Rules and under the relevant Law applicable for the purpose of recovery of financial losses caused to the temple properties. Unless such stringent and stern actions are taken it may not be possible to set right the illegalities and frauds occurred in the matter of dealing with temple properties jewelleries belongings etc.15. This Court is of the considered opinion that a policy decision has been taken by the Government to take over the temples on account of large scale allegations against the Trustees and Administrators of the https: www.mhc.tn.gov.in judis W.P.No.276421temple. It was taken over in the interest of public at large and Hindu Religious and Charitable Endowments Act and Rules are enacted. Therefore the Government after taking over the temples and enacted law for the purpose of administering and maintenance of temple properties and its belongings and other activities then the officials of the Department are bound to implement the Act and Rules scrupulously. Unfortunately scrupulous implementation of the Act and Rules are lacking for several years which resulted in looting of the temple properties across the State of Tamil Nadu by greedymen and persons with muscle power and even by politicians. Undoubtedly such large scale allegations and illegalities may not happen without the collusion of the Department Officials. No doubt large scale properties belong to the temple have been dealt with an illegal manner and in violation of the provisions of the Act for several years it may be difficult for the Authorities now to immediately restore all such properties. However consistent and efficient actions are certainly warranted for the purpose of complying with the provisions of the Act and Rules regarding the protection of temple properties its belongings and to maintain clean administration. The transparent and efficient administration of the Government Departments are the constitutional mandate. After taking over the temples the Government cannot allow any such illegalities https: www.mhc.tn.gov.in judis W.P.No.276421by any person. In the event of allowing such illegalities to happen in a larger scale then the Department had failed in its objective under the provisions of the Act and therefore a change in policy decision may be required. In this context fixing personal liability on the officials are of paramount importance. The officials not functioning in the interest of the temple are to be identified and their work performance are to be monitored and the Head of the Department is bound to initiate all appropriate actions. If the Head of the Department itself is not functioning efficiently then the Government has to initiate all appropriate actions. Thus any lapses or negligence must be viewed seriously.16. The allegations raised by the petitioner with documents and evidences are serious in nature. Large scale allegations are shocking to the conscience of this Court. Thus those illegalities and frauds must be brought down and stopped forthwith by initiating all necessary actions. It is not sufficient if the properties are recovered the financial losses already caused to the temple are also to be recovered by following the procedures as contemplated. https: www.mhc.tn.gov.in judis W.P.No.27642117. In view of the facts and circumstances considered in the aforementioned paragraphs this Court is inclined to pass the following orders:The District Collector Krishnagiri is directed to convene a review meeting during the first week of March 2022 in the presence of all concerned Government Department Officials and consider the progress made in the matter of dealing with the illegalities fraudulent activities illegal mining etc. allegedly going on in respect of temple properties and the actions already initiated for the purpose of recovery of temple properties and to recover the financial losses caused to the temple.(ii) The respondents 5 to 16 are directed to initiate swift actions to prevent all the illegal mining operations and consequential illegalities in respect of temple properties and further initiate all necessary actions including criminal prosecution and civil actions for recovery against all concerned. The actions are to be initiated to cancel the illegal execution of documents or otherwise if any brought to the notice.(iii) The respondents 5 to 16 are directed to conduct enquiry wherever necessary in respect of the collusion or corrupt practices of the https: www.mhc.tn.gov.in judis W.P.No.276421public officials in dealing with temple properties and initiate all appropriate actions under Criminal Law and departmental disciplinary proceedings as the case may be and proceed with such cases as expeditiously as possible.(iv) The respondents 1 to 16 are directed to initiate all necessary steps to prevent any further illegalities fraudulent execution of documents etc. in respect of temple properties and appropriate guidelines instructions and directions are to be issued to all the Subordinates as expeditiously as possible.(v) The respondents 1 2 3 and 5 are directed to monitor the actions initiated by the respective Subordinate Officials of the concerned Departments and issue appropriate guidelines instructions or directions wherever required as the case may be and initiate actions if there is any lapses negligence or dereliction of duty on the part of the Subordinate Officials.18. With the above directions this Writ Petition stands disposed of. https: www.mhc.tn.gov.in judis W.P.No.276421However there shall be no order as to costs. 01.02.2022Internet : Yes Index : Yes NoSpeaking order Non Speaking orderVsg SvnTo1.The Secretary to Government Tourism Culture and Endowments DepartmentSecretariatChennai 600 009.2.The Secretary to Government Revenue Department SecretariatChennai 600 009.3.The Secretary to Government Industrial Department SecretariatChennai 600 009.4.The Secretary to Government Home Department SecretariatChennai 600 009.5.The CommissionerHindu Religious & Charitable Endowments119 Nungambakkam High Road Chennai 600 034.6.The Commissioner of Revenue Administration https: www.mhc.tn.gov.in judis W.P.No.276421ChepaukChennai 600 005.7.The Commissioner of Land Administration ChepaukChennai 600 005.8.The Commissioner of Survey and SettlementsChepaukChennai 600 005.9.The Director Geology and MiningGuindyChennai 600 032.10.The Director General of Policeand Head of the Police ForceDr.Radhakrishnan Salai Chennai 600 004.11.The Inspector Cell Officer1st Floor CollectorateSalem 636 001.12.The District Executive Magistrate cum Collector Krishnagiri.13.The Deputy Inspector General of Police Salem RangeSalem 636 007.14.The Regional Deputy Director Survey and Land Records Department Collectorate Campus Coimbatore.15.The Joint Commissioner Hindu Religious & Charitable Endowmentshttps: www.mhc.tn.gov.in judis W.P.No.276421Thiruvanamalai.16.The Assistant Commissioner Hindu Religious & Charitable EndowmentsKrishnagiri.17.The Executive OfficerArulmigu Veera Anjaneyarswamy TempleBaiyur SappanipattyErrahalli PanchayatKrishnagiri Taluk and District.18.The Fit PersonArulmigu Anumantharaya Swamy TempleNagamangalam VillageThenkanikottai TalukKrishnagiri District.19.The Fit Person Arulmigu Pattalamman TemplePalekuli VillageKrishnagiri Taluk and District.20.The Fit Person Arulmigu Periyamalai Perumal TemplePalekuli VillageKrishnagiri Taluk and District.21.The Present AdministratorArulmigu Varadharaja Perumal TempleOld ArasampattyPendarahalli VillagePochampalli TalukKrishnagiri District.22.The Executive OfficerArulmigu Kothandaramaswamy Templehttps: www.mhc.tn.gov.in judis W.P.No.276421Baiyur Kaveripattinam VillageKrishnagiri Taluk and District.23.The Fit Person Arulmigu Kasiviswanathar TempleKoolikanapalli VillageHosur TalukKrishnagiri District.24.Thiru. GovindarajHead AssistantAssistant Commissioner s OfficeHindu Religious & Charitable Endowments Department KrishnagiriS.M. SUBRAMANIAM J.https: www.mhc.tn.gov.in judis W.P.No.276421vsg SvnW.P.No. 27642101.02.2022

Under S.39 (7), Insurance Laws (Amendment) Act, 2015 nominee now has a beneficial interest in the amount payable and is no longer a mere receiver nominee: High Court of Delhi

Section 39 of the Insurance Act, 1938 was amended adding Sub-section (7). Beneficiary nominee means a nominee who was entitled to receive the entire proceeds under an insurance policy and a collector nominee means a nominee other than a beneficiary nominee. Keeping this distinction in mind, sub-section (7) of Section 39 was carefully and cautiously drafted and the words used by the legislature are ‘beneficial interest’. This was held in SMT. SHWETA SINGH HURIA &amp; ORS. LTD v. SMT. SANTOSH HURIA &amp; ANR [RFA 310/2020] in the High Court of Delhi by a single bench consisting of JUSTICE JYOTI SINGH. Facts are that a Respondent had filed a suit for partition or separation of shares of Respondent, recovery of Rs. 54,14,077/-, rendition of accounts and permanent injunction against the Appellants. Trial Court had decided both the applications by a common order, dismissing the application under Order VII Rule 11 CPC and allowing the application under Order XII Rule 6 CPC. The Appellants have filed a regular first appeal against the same. The counsel for the Appellants contended that there was no admission on the part of the Appellants enabling the Trial Court to pass a decree under Order XII Rule 6 CPC. It was also contended that the Life Insurance Policies of Late Shri Vineet Huria were governed by Insurance Act, 1938 as amended by Insurance Laws (Amendment) Act, 2015. The counsel for respondent opposed the appeal and submitted that the partial decree had been rightly passed by the Trial Court on an application under Order XII Rule 6 CPC. He contended that the nominee does not have an absolute right over the estate of the deceased, as the nomination is not a ‘Will’. The court made reference to the judgment of Apex court in the case of  Smt. Sarbati Devi &amp; Anr. Vs. Smt. Usha Devi., wherein it was held that “We approve the views expressed by the other High Courts on the meaning of Section 39 of the Act and hold that a mere nomination made under Section 39 of the Act does not have the effect of conferring on the nominee any beneficial interest in the amount payable under the life insurance policy on the death of the assured. The nomination only indicates the hand which is authorised to receive the amount, on the payment of which the Patna High Court CWJC No.12012 of 2018 dt.25-09- 2019insurer gets a valid discharge of its liability under the policy. The amount, however, can be claimed by the heirs of the assured in accordance with the law of succession governing them”. The court also made reference to the amended sec 39 of the Insurance act and to the recommendations of 190th Report of the Law Commission of India, wherein it was recommended that “Every policyholder shall have an option to indicate in clear terms whether the person or persons being nominated by the policyholder is/ are a beneficiary nominee(s) or a collector nominee(s)”.

IN THE HIGH COURT OF DELHI AT NEW DELHI Date of decision: 18.05.2021 RFA 310 2020 and CM No. 34490 2020 SMT. SHWETA SINGH HURIA & ORS. Appellants Through: Ms. Ekta Gambhir Advocate. SMT. SANTOSH HURIA & ANR. Respondents Through: Mr. Rakesh Wadhwa Advocate for R 1. HON BLE MS. JUSTICE JYOTI SINGH JYOTI SINGH J. The Appellants have filed the present Regular First Appeal assailing the preliminary decree dated 16.09.2020 passed by the Trial Court in CS No. 390 2019. Appellant No. 1 herein is Defendant No. 1 before the Trial Court and Respondent No. 1 is the Plaintiff. Defendants No. 2 & 3 are minor children of Defendant No. 1 and are Appellants No.2 3 herein whereas Respondent No. 2 is the husband of Respondent No.1 and was Defendant No. 4 before the Trial Court. Appellant No. 1 was married to Late Sh. Vineet Huria and Respondent No. 1 is his mother. The facts germane for deciding the present appeal are that Respondent No. 1 Plaintiff filed a suit for partition or separation of shares of Respondent No. 1 recovery of Rs. 54 14 077 rendition of accounts RFA 310 2020 and permanent injunction against the Appellants herein and Respondent No. 2 father of Late Shri Vineet Huria. Respondent No. 1 pleaded that her deceased son late Shri Vineet Huria and Respondent No. 2 were sole and absolute joint owners of property bearing No. MIG Flat No. 35 Block A Type B Pocket 3 Bindapur Dwarka New Delhi Respondent No. 1 motherAppellant No. 1 wifeAppellants No. 2 & 3 son and daughter. It was further pleaded that Respondent No. 1 inherited the estate of her deceased son as he died intestate to the extent of 1 4th share in his immovable and moveable assets and Appellants were entitled to the remaining 3 4th share. Her deceased son was in a high income group with numerous properties including moveable and immovable in his own name and in the name of his wife and children besides investments in Demat and Mutual Funds etc. the details whereof were not in the knowledge of Respondent No.1 and needed to be ascertained and identified for partition. It was also averred that the deceased son of Respondent No. 1 had 50% share in the flat at Dwarka apart from various insurance policies. After his demise Appellant No. 1 received substantial cash amounts totaling to Rs. 3 12 56 311 on account of insurance policies Provident Fund and CGHS medical reimbursement benefits etc. Appellant No.1 was legally obliged to share 1 4th with Respondent No. 1 i.e. Rs. 78 14 077 whereas she parted only with a sum of Rs. 24 00 000 . RFA 310 2020 Upon being served with the summons in the suit Appellants filed their written statement. In the interregnum vide order dated 13.05.2019 the learned Trial Court directed the Appellants and Respondent No. 2 to maintain status quo with respect to possession of flat at Dwarka and also restrained the Appellants from expending the cash amounts received as The Appellants amongst various pleas on merits in the written statement took a preliminary objection to the maintainability of the suit on the ground that with respect to the moveable assets of the deceased succession certificate was required from a Court of competent jurisdiction under Section 372 of the Indian Succession Act 1925. Preliminary objections regarding pecuniary jurisdiction Court fee and misjoinder of causes of action were also taken in the written statement. On merits it was pleaded that the suit property was purchased exclusively out of the funds invested by the deceased husband of Appellant No. 1 and the name of Respondent No. 2 was added in the sale deed out of respect. The entire expenditure on the home furnishing etc. including water electricity bills was incurred by the deceased. In a nutshell it was the case of the Appellants that Respondent No. 2 was merely an ostensible owner to the share of 50% of the suit property and not the real owner. It was further pleaded in the written statement that in complete discharge of their share in the suit property Respondents No. 1 & 2 had accepted payment of Rs. 24 00 000 from Appellant No. 1 towards half share of the suit property as that would have helped in getting the suit RFA 310 2020 property transferred in the name of the Appellants and also assured execution of Relinquishment Deed in their favour. The amount was paid through two cheques for Rs. 12 00 000 each and both the cheques were duly encashed. Later however Respondents became dishonest and changed their stand. As far as the insurance policies were concerned it was pleaded that the deceased husband of the Appellant No.1 had nominated her as a sole nominee and she had an exclusive right over the monetary benefits under them. It was averred in the written statement that the policies are governed by Insurance LawsAct 2015 which came into force w.e.f. 26.12.2014 whereby the Insurance Act 1938 which is a Special Law was amended. By virtue of the amended provision Appellant No. 1 became a ‘beneficial nominee’ and was entitled to the benefits under the policies to the exclusion of Respondents No. 1 & 2. With respect to Provident Fund and other benefits under the Mutual Funds etc. it was averred that the suit was premature as the said amounts had not been received by Appellant No. 1. Reimbursements of medical expenses were for the expenses incurred by her on the treatment of her late husband at the rates fixed by the CGHS and were paid to her being an employee of Kendriya Vidhyalaya. Respondent No. 1 thus had no right to claim any share in the same. 11. Along with the replication Respondent No. 1 filed an application under Order XII Rule 6 CPC 1908 on the basis of an alleged admission by the Appellants in the written statement that Appellant No. 1 had received a sum of Rs. 2 48 53 000 as well as amounts under Policies RFA 310 2020 bearing No. 1841177 and 14430566 with ICICI Bank and on that basis 1 4th share was claimed in the application as a Class I legal heir of Late Shri Vineet Huria. 12. Reply was filed to the application by the Appellants denying that there were any admissions and that the suit was being contested on legal objections its maintainability. maintainability was decided against them the claims on merits could only be decided in a full fledged trial. It was categorically stated that Respondent No. 1 had no right to claim the benefits under the policies as Appellant No.1 was the nominee. 13. Along with the written submissions Appellants filed an application under Order VII Rule 11 CPC to which reply was filed by Respondent No. 1. Learned Trial Court decided both the applications by a common order dated 16.09.2020 dismissing the application under Order VII Rule 11 CPC and allowing the application under Order XII Rule 6 CPC. A preliminary decree was passed in favour of Respondent No. 1 directing Appellant No. 1 to transfer pay a sum of Rs. 54 14 077 in the account of Respondent No. 1. The impugned order to the extent it has partially decreed the suit under Order XII Rule 6 CPC is assailed by the Appellants before this Court. 15. Learned counsel for the Appellants contended that there was no admission on the part of the Appellants enabling the Trial Court to pass a decree under Order XII Rule 6 CPC. The relief claimed under the said RFA 310 2020 provision is discretionary in nature and cannot be claimed as a matter of right as held by the Supreme Court in S.M. Asif vs. Virender Kumar Bajaj 9 SCC 287. It is a well settled proposition of law that unless the admission is clear unambiguous and unconditional the discretion of the Court should not be exercised to deny a valuable right of defense to a Defendant in a full fledged trial and for this reliance was placed on the judgment in Hari Steel & General Industries Ltd. vs. Daljit Singh3 CLJ 472. It was next contended that the Life Insurance Policies of Late Shri Vineet Huria were governed by Insurance Act 1938 as amended by Insurance LawsAct 2015which came into effect from 26.12.2014. Since the policies in question matured after the 2015 Amendment came into force sub sections of Section 39 added by the Amendment Act would apply. By virtue of sub Sectionwhere the holder of insurance policy in his lifetime nominates his parents or spouse or children or any of them the nominee(s) shall be beneficially entitled to the amount payable by the insurer unless it is proved that the holder of the policy having regard to the nature of his title to the policy could not have conferred any such beneficial title on the nominee. 17. To highlight the marked difference the 2015 Amendment brought out Ms. Gambhir by way of an illustration pointed out that the newly added sub Section 39carves out an exception in favour of a class of nominees and it is under this even a father gets right to the benefits in case he is a nominee albeit under the general law of inheritance he has RFA 310 2020 no right being a Class II heir under the Hindu Succession Act 1956. The argument is that there is a complete change in law of nomination under the insurance policies and the underlying intent of the Legislature is to honour and respect the will of the insured with regard to the recipient of benefits under the policies. Under the new regime nominee gets a beneficial interest in the amounts payable under the Life Insurance Policy on the death of the assured and no longer remains as a mere collector nominee. It was submitted that amendment to Section 39 was made pursuant to 190th Report of the Law Commission wherein the judgment in Sarbati Devi vs. Usha Devi1 SCC 424 was also considered. In the said decision the Supreme Court held that nomination would not confer any beneficial interest on the nominee and it is a mere authorization to receive the insurance amount which can be claimed by the legal heirs of the assured in accordance with law of succession governing the parties. The judgment has been followed successively by various High Courts in a long line of cases holding that mere nomination effected under Section 39 shall not deprive the legal heirs to the amount under the Insurance Policies. However as per Ms. Gambhir the said judgments would be of no avail to Respondent No.1 as the said decisions are based on the unamended Section 39 while the present case relates to policies which have matured in 2018 post the 2015 Amendment. 19. Learned counsel for the Appellants relied upon the judgement of Rajasthan High Court in Ramgopal & Ors. vs. General Public & Ors. S.B. Civil Misc. Appeal No. 27 2018 decided on 05.04.2019 wherein RFA 310 2020 according to her judgement in Sarbati Deviwas distinguished in view of the 2015 Amendment and Court held that wherever the provisions of amended section 39 will be applicable beneficial nominee shall be entitled to the benefits under the insurance policies to the exclusion of any other legal heir who is not a nominee. 20. Per contra Mr. Rakesh Wadhwa learned counsel for Respondent No. 1 opposed the appeal and submitted that the partial decree has been rightly passed by the Trial Court on an application under Order XII Rule 6 CPC. Drawing the attention of the Court to the said provision learned counsel argued that based on admission of facts in the pleadings or otherwise orally or in writing it is open to the Court at any stage of the suit without waiting for determination of any other question between the parties to make such order or give a judgment having regard to the admissions. Appellant No.1 admitted in the written statement that she had received a sum of Rs. 2 48 53 000 as well as money under two policies as a nominee of the deceased. Being the mother Respondent No. 1 is a Class I legal heir and entitled to 1 4th share and there is no infirmity in the order of the Trial Court as the admissions were clear and unambiguous. It is argued that reliance of the Appellants on the Insurance Act 1938 as amended by Insurance Laws Act 2015 is misplaced in view of the settled law that a nominee does not have an absolute right over the estate of the deceased as nomination is not a ‘Will’. Several Courts have held from time to time that a nominee in an insurance policy only acts as a receiver on behalf of the legal heirs of the deceased policy holder and once the money is received by the nominee RFA 310 2020 disbursement under the policy has to follow the testamentary disposition under the law of succession which cannot be overridden by the Insurance Act 1938 even after the said amendment. No judgment has been cited by the counsel for the Appellants which denies a legal heir the right to claim the amounts payable under the Insurance Policy and on the contrary it has been held that a policy holder continues to hold interest in the policy during his lifetime and the nominee acquires no interest during the lifetime of a policy holder. On the death of a policy holder the amount payable under the policy becomes a part of his estate and will be disbursed in accordance with the law of succession either testamentary or intestate. Nomination is only for the benefit of the insurer so that he gets a valid discharge of its liability under the policy and is not embroiled in the litigations inter se the legal heirs of the insured. Reliance was placed by Mr. Wadhwa on the following judgments to support his contentions. Smt. Sarbati Devi & Anr. Vs. Smt. Usha Devi1 SCC Shipra Sengupta Vs. Mridul Sen Gupta & Ors. 10 SCC 680. Shakti Yezdani & Anr. Vs. Jayanand Jayant Salgaonkar & Ors. Appeal No. 313 of 2015 decided by Bombay High Court on 01.12.2016. Smt. Rampali Vs. The State Govt. of NCT of Delhi & Ors. FOA No. 184 2017 decided by Hon’ble High Court of Delhi on 24.04.2017. Khushboo Gupta Vs. The Life Insurance Corporation of India & Ors. CWJC No. 12012 of 2018 decided on RFA 310 2020 vi. Oswal Greentech Ltd. Vs. Mr. Pankaj Oswal & Ors. CA no. 4118 decided by National Company Law Appellate Tribunal Delhi on 14.11.2019. vii. S. Shafeek & Ors. Vs. State of Kerala 2020 SCC Online Ker 636. viii. Smt. Ramayee Vs. the Principal Comptroller of Defence & Ors. W.P. No. 18544 of 2016 decided on 22. Learned counsel for the Respondent had also relied on a judgment of the Rajasthan High Court in Chaini Devi vs. General Public S.B. Civil Misc. Appeal No. 2302 2018 decided on 11.03.2019 where the Court took note of the amended to Section 39 but decided the lis by applying the law laid down in Sarbati Deviand the judgment of Allahabad High Court in Javitri Devi vs. Smt. Meera Devi & Ors.116 ALR 358 and dismissed the appeal. In the said case the wife daughter and son of the deceased policy holder had claimed benefits under the insurance policy been Class I legal heirs. The Trial Court had allowed the claim in their favour and against the said order the nominee filed an appeal staking a claim on the basis of his nomination in the policy. The High Court did not find favour with the contentions of the Appellant on the ground that the Supreme Court in Sarbati Devi had held that Section 39 of the Insurance Act 1938 is not intended to act as a third mode of succession and that the expression ‘the amount shall be payable to the nominee’ in Section 39does not mean that the amount shall belong to the nominee. I have heard the learned counsels for the parties and examined their rival contentions. RFA 310 2020 24. The relationship between the parties to the lis is that Appellant No.1 is the daughter in law of the Respondents herein and the widow of Late Shri Vineet Huria. Appellants No. 2 & 3 are the minor son and daughter of Appellant No. 1 and grandchildren of Respondents No. 1 & 2. Respondent No. 1 had filed a suit before the Trial Court for partition rendition of accounts permanent injunction and recovery of Rs.54 14 077 from the Appellants. 25. During the pendency of the suit Respondent No. 1 filed an application under Order XII Rule 6 CPC for judgment on admission based on an alleged admission in the written statement filed by the Appellants that Appellant No. 1 had received as sum of Rs. 2 48 53 000 as well as the amount under two policies from ICICI Bank wherein her deceased husband was the policy holder. Respondent No. 1 claimed 1 4th share in the amounts under the said policies as a Class I heir of the deceased on the ground that mere nomination of Appellant No. 1 could not defeat her right under the law of succession. 26. The Trial Court by a common order dated 16.09.2020 allowed the application under Order XII Rule 6 CPC and dismissed the application filed by the Appellants under Order VII Rule 11 CPC. Trial Court vide the impugned order held Respondent No. 1 entitled to recover 1 4th share in the benefits under the policies Provident Fund and medical reimbursement etc. which were valued at Rs. 3 12 56 311 in the plaint. From the 1 4th share which came to Rs. 78 14 077 Trial Court excluding a sum of Rs.24 00 000 received by Respondent No. 1 and directed payment of balance of Rs. 54 14 077 . RFA 310 2020 27. The proposition of law laid down by the Supreme Court in Sarbati Devi and relied upon by counsel for the Respondent cannot be disputed and is a binding dictum. The Supreme Court held that nomination would not confer any beneficial interest on the nominee under an insurance policy and a nominee is only an authorized hand to receive the insurance amount which is subject to be disbursement amongst the legal heirs under the law of succession governing the parties. In fact the said judgment has been followed subsequently in a long line of judgments not only by this Court but different High Courts from time to time. Relevant paras of Sarbati Deviare as under: “5. We shall now proceed to analyse the provisions of Section 39 of the Act. The said section provides that a holder of a policy of life insurance on his own life may when effecting the policy or at any time before the policy matures for payment nominate the person or persons to whom the money secured by the policy shall be paid in the event of his death. If the nominee is a minor the policy holder may appoint any person to receive the money in the event of his death during the minority of the nominee. That means that if the policy holder is alive when the policy matures for payment he alone will receive payment of the money due under the policy and not the nominee. Any such nomination may at any time before the policy matures for payment be cancelled or changed but before such cancellation or change is notified to the insurer if he makes the payment bona fide to the nominee already registered with him the Patna High Court CWJC No.12012 of 2018 dt.25 09 2019 insurer gets a valid discharge. Such power of cancellation of or effecting a change in the nomination implies that the nominee has no right to the amount during the lifetime of the assured. If the policy is transferred or assigned under Section 38 of the Act the nomination automatically lapses. If the nominee or where there are nominees more than one all the nominees die before the policy matures for payment the money due under the RFA 310 2020 policy is payable to the heirs or legal representatives or the holder of a succession certificate. It is not necessary to refer to sub sectionof Section 39 of the Act here. But the summary of the relevant provisions of Section 39 given above establishes clearly that the policy holder continues to hold interest in the policy during his lifetime and the nominee acquires no sort of interest in the policy during the lifetime of the policy holder. If that is so on the death of the policy holder the amount payable under the policy becomes part of his estate which is governed by the law of succession applicable to him. Such succession may be testamentary or intestate. There is no warrant for the position that Section 39 of the Act operates as a third kind of succession which is styled as a statutory testament in para 16 of the decision of the Delhi High Court in Uma Sehgal case AIR 1982 Del 36 : ILR2 Del 315] . If Section 39 of the Act is contrasted with Section 38 of the Act which provides for transfer or assignment of the rights under a policy the tenuous character of the right of a nominee would become more pronounced. It is difficult to hold that Section 39 of the Act was intended to act as a third mode of succession provided by the statute. The provision in sub section of Section 39 which says that the amount shall be payable to the nominee or nominees does not mean that the amount shall belong to the nominee or nominees. We have to bear in mind here the special care which law and judicial precedents take in the matter of execution and proof of wills which have the effect of diverting the estate from the ordinary course of intestate succession and that the rigour of the rules Patna High Court CWJC No.12012 of 2018 dt.25 09 2019 governing the testamentary succession is not relaxed even where wills are registered. xxx 8. We have carefully gone through the judgment of the Delhi High Court in Uma Sehgal case2 Del 315] . In this case the High Court of Delhi clearly came to the conclusion that the nominee had no right in the lifetime of the assured to the amount payable under the policy and that his rights would spring up only on the death of the assured. The RFA 310 2020 Delhi High Court having reached that conclusion did not proceed to examine the possibility of an existence of a conflict between the law of succession and the right of the nominee under Section 39 of the Act arising on the death of the assured and in that event which would prevail. We are of the view that the language of Section 39 of the Act is not capable of altering the course of succession under law. The second error committed by the Delhi High Court in this case is the reliance placed by it on the effect of the amendment of Section 60(1)(kb) of the Code of Civil Procedure 1908 providing that all moneys payable under a policy of insurance on the life of the judgment debtor shall be exempt from attachment by his creditors. The High Court equated a nominee to the heirs and legatees of the assured and proceeded to hold that the nominee succeeded to the estate with all plus and minus points . We find it difficult to treat a nominee as being equivalent to an heir or legatee having regard to the clear provisions of Section 39 of the Act. The exemption of the moneys payable under a life insurance policy under the amended Section 60 of the Code of Civil Procedure instead of devaluing the earlier decisions which upheld the right of a creditor of the estate of the assured to attach Patna High Court CWJC No.120118 dt.25 09 2019 the amount payable under the life insurance policy recognises such a right in such creditor which he could have exercised but for the amendment. It is because it was attached the Code of Civil Procedure exempted it from attachment in furtherance of the policy of Parliament in making the amendment. The Delhi High Court has committed another error in appreciating the two decisions of the Madras High Court in Karuppa Gounder v. Palaniamma1 MLJ 86 ILRMad 434] and in B.M. Mundkur v. Life Insurance Corporation of India1 MLJ 59 : ILR3 Mad 336] . The relevant part of the decision of the Delhi High Court in Uma Sehgal case2 Del 315] reads thus:"10. In Karuppa Gounder v. Palaniamma 1 MLJ 86 : ILRMad 434] K had nominated his wife in the insurance policy. K died. RFA 310 2020 It was held that in virtue of the nomination the mother of K was not entitled to any portion of the insurance amount. xxx 12. Moreover there is one other strong circumstance in this case which dissuades us from taking a view contrary to the decisions of all other High Courts and accepting the view expressed by the Delhi High Court in the two recent judgments delivered in the year 1978 and in the year 1982. The Act has been in force from the year 1938 and all along almost all the High Courts in India have taken the view that a mere nomination effected under Section 39 does not deprive the heirs of their rights in the amount payable under a life insurance policy. Yet Parliament has not chosen to make any amendment to the Act. In such a situation unless there are strong and compelling reasons to hold that all these decisions are wholly erroneous the Court should be slow to take a different view. The reasons given by the Delhi High Court are unconvincing. We therefore hold that the judgments of the Delhi High Court in Fauza Singh case and in Uma Sehgal case2 Del 315] do not lay down the law correctly. They are therefore overruled. We approve the views expressed by the other High Courts on the meaning of Section 39 of the Act and hold that a mere nomination made under Section 39 of the Act does not have the effect of conferring on the nominee any beneficial interest in the amount payable under the life insurance policy on the death of the assured. The nomination only indicates the hand which is authorised to receive the amount on the payment of which the Patna High Court CWJC No.12012 of 2018 dt.25 09 2019 insurer gets a valid discharge of its liability under the policy. The amount however can be claimed by the heirs of the assured in accordance with the law of succession governing 28. However the contention of the Appellant is that Section 39 of the Insurance Act 1938 was amended by The Insurance LawsRFA 310 2020 Act 2015 which has come into force w.e.f 26.12.2014 and by virtue of amended sub sectionof Section 39 nominee has a beneficial interest in the amount payable under the Life Insurance Policy on the death of the assured and no longer remains a mere receiver nominee whose rights under the unamended Section were subject to rights and claims of the legal heirs under the law of succession. In order to appreciate the legal nodus that arises it is imperative to compare and contrast relevant provisions of the unamended and amended Sections 39 respectively which are extracted hereunder for ready reference: Unamended Section 39: 39. Nomination by policy holder. The holder of a policy of life insurance on his own life may when effecting the policy or at any time before the policy matures for payment nominate the person or persons to whom the money secured by the policy shall be paid in the event of his death. Where the nominee or if there are more nominees than one a nominee or nominees survive the person whose life is insured the amount secured by the policy shall be payable to such survivor or survivors. 7) The provisions of this section shall not apply to any policy of life insurance to which Section 6 of the Married Women s Property Act 1874 applies or has at any time applied: Amended Section 39: 39.The holder of a policy of life insurance on his own life may when effecting the policy or at any time before the policy matures for payment nominate the person or persons to whom RFA 310 2020 the money secured by the policy shall be paid in the event of his 6) Where the nominee or if there are more nominees than one a nominee or nominees survive the person whose life is insured the amount secured by the policy shall be payable to such survivor or survivors. 7) Subject to the other provisions of this section where the holder of a policy of insurance on his own life nominates his parents or his spouse or his children or his spouse and children or any of them the nominee or nominees shall be beneficially entitled to the amount payable by the insurer to him or them under sub sectionunless it is proved that the holder of the policy having regard to the nature of his title to the policy could not have conferred any such beneficial title on the The provisions of sub sections and shall apply to all policies of life insurance maturing for payment after the commencement of the Insurance Laws Act 2015. 11) Where a policyholder dies after the maturity of the policy but the proceeds and benefit of his policy has not been made to him because of his death in such a case his nominee shall be entitled to the proceeds and benefit of his policy. Section 39 was amended by the amending Act No. 15 and was pursuant to the recommendations of 190th Report of the Law Commission of India relevant passages from which are as under: The Law Commission’s views: 7.1.12 There appears to be a consensus of sorts on the need for drawing a clear distinction between a beneficial nominee and a collector nominee. It is not possible to agree to the suggestion made by some of the insurers that in all cases the payment to the nominee would tantamount to a full discharge of the RFA 310 2020 insurer‟s liability under the policy and that unless the contrary is expressed the nominee would be the beneficial nominee. Although it is true that this is the law in USA Canada and South Africa the social realities of our country where the death of a sole breadwinner of the family immediately throws the remaining family into hardship cannot be lost sight of. To deny in such instance the right of the legal representatives to the policy amount on the basis that the nominee is a different person seems harsh. On the other hand what appears reasonable is to give an option to the policyholder to clearly express whether the nominee will collect the money on behalf of the legal representativesor whether the nominee will be the absolute owner of the monies in which case such nominee will be the beneficial nominee. Public interest and the peculiar social realities in India cannot permit the adoption of the procedures followed in Canada USA or South Africa. The Commission is not agreeable to the suggestion that a provision similar to s.45 ZA as in the Banking Regulation Act 1949 should be adopted. 7.1.13 The suggestion that a proviso be added to make the nomination effectual for the nominee to receive the policy money in case the policyholder dies after the maturity of the policy but before it can be encashed has also been welcomed by the responses and is hereby recommended. Final recommendations of the Law Commission in regard to Section 39: 7.1.14 After considering all the responses and reexamining the entire issue the final recommendations of the Law Commission regard to s.39 may be summarised as under: a) A clear distinction be made in the provision itself between a beneficial nominee and a collector nominee. b) It is not possible to agree to the suggestion made by some of the insurers that in all cases the payment to the nominee would RFA 310 2020 tantamount to a full discharge of the insurer‟s liability under the policy and that unless the contrary is expressed the nominee would be the beneficial nominee. c) An option be given to the policyholder to clearly express whether the nominee will collect the money on behalf of the legal representativesor whether the nominee will be the absolute owner of the monies in which case such nominee will be the beneficial nominee. d) A proviso be added to make the nomination effectual for the nominee to receive the policy money in case the policyholder dies after the maturity of the policy but before it can be encashed. Suggested Amendment of Section 39: “7.1.15 To give effect to the above recommendations the Law Commission is of the view that s.39 be recast as follows: xxx 7) Subject to the other provisions of this section where the holder of a policy of insurance on his own life nominates his parents or his spouse or his children or his spouse and children or any of them the nominee or nominees shall be beneficially entitled to the amount payable by the insurer to him or them under sub sectionunless it is proved that the holder of the policy having regard to the nature of his title to the policy could not have conferred any such beneficial title on the nominee. 8) Subject as aforesaid where the nominee or if there are more nominees than one a nominee or nominees to whom sub sectionapplies die after the person whose life is insured but before the amount secured by the policy is paid the amount secured by the policy or so much of the amount secured by the policy as represents the share of the nominee or nominees so dying shall be payable to the heirs or legal representatives of the nominee or nominees or the holder RFA 310 2020 of a succession certificate as the case may be and they shall be beneficially entitled to such amount. xxx 10) The provisions of sub sections(8) andshall apply to all policies of life insurance maturing for payment after the commencement of this Act. 11) Every policyholder shall have an option to indicate in clear terms whether the person or persons being nominated by the policyholder is are a beneficiary nominee(s) or a collector nominee(s). Provided where the policyholder fails to indicate whether the person being nominated is a beneficiary nominee or a collector nominee it will be deemed that the person nominated is a beneficiary nominee. this sub section the purposes of Explanation: For expression „beneficiary nominee‟ means a nominee who is entitled to receive the entire proceeds payable under a policy of insurance subject to other provisions of this Act and the expression „collector nominee‟ means a nominee other than a beneficiary nominee.” 31. As is evident from a reading of the recommendations of the Law Commission a distinction was carved out between ‘beneficiary nominee’ and ‘collector nominee’ and Section 39 of the Insurance Act 1938 was amended accordingly adding sub Section of Section 39 was carefully and cautiously drafted and the words used by the legislature are ‘beneficial interest’. RFA 310 2020 32. Perusal of the impugned order of the Trial Court shows that the Appellants had brought the 2015 Amendment to the notice of the Trial Court including the judgment of the Rajasthan High Court in Ramgopal supra). But the Trial Court has not even dealt with the legal issue raised before it and allowed the application under Order XII Rule 6 CPC based on the unamended provisions of Section 39. It is a settled law that the rights of the parties to a lis have to be decided in accordance with the statutory provisions and law that prevails on the day the cause of action arises. In the present case Appellants had specifically flagged the issue of applicability of the amendment to Section 39 on the ground that Late Shri Vineet Huria died on 11.07.2018 and the policy had matured after the Amendment to Section 39 came into force. It was thus incumbent upon the Trial Court to have considered and examined the issue once the same was raised and highlighted by the Appellants and taken a decision accordingly with respect to the benefits accruing under the insurance policies in question. 34. Perusal of the impugned order reflects another error committed by the Trial Court even in the quantum of the amount directed to be paid i.e Rs. 54 14 077 . The said figure as aforesaid has been arrived at by dividing Rs. 3 12 56 311 into 4 shares out of which 1 4th share comes to Rs. 78 14 077 and then deducting Rs.24 00 000 the amount already received by Respondent No.1. Thus it is evident that the starting point of the calculation is a figure of Rs. 3 12 56 311 which in fact is the sum total of all the benefits claimed in the plaint under the head of moveable RFA 310 2020 assets excluding 2 ICICI Polices and includes benefits relating to Provident Fund and medical reimbursement etc. Trial Court erred in not appreciating that in the application filed under Order XII Rule 6 CPC Respondent No.1 had claimed only Rs. 2 48 53 000 on account of the policies referred to in the table in the plaint from serial numbers 1 to 6 and benefits under Policies bearing No. 1841177 and 14430566 with ICICI Bank. As far as other benefits are concerned they were not claimed in the application and the Appellants had contested the claims on the ground that provident fund had not been received and medical reimbursements were on account of the medical expenses incurred on Appellant No. 1’s deceased husband and had been received being an employee of KVS in her own right. 35. The Trial Court erroneously clubbed all the moveable assets claimed in the plaint with the claims to the policies and decided the entitlement of Respondent No.1 to 1 4th share in all the assets applying the law of nomination applicable only to insurance policies under the Insurance Act. In applying the wrong law and criteria Trial Court also overlooked the fact that in the application the claims were limited to insurance policies. 36. Since the Trial Court has not considered the legal issue of the 2015 Amendment to the Insurance Act 1938 raised by the Appellants it would be appropriate to remand the matter back to the Trial Court. Accordingly it is directed that the learned Trial Court shall consider the matter afresh taking into account the respective contentions of the parties and the law on the subject. In so far as the respective claims to other moveable assets RFA 310 2020 are concerned excluding the policies the same shall be decided by the Trial Court separately and at the appropriate time. 37. Accordingly the appeal is allowed and the order of the Trial Court dated 16.09.2020 in CS No. 390 2019 is set aside. It is made clear that this Court has not expressed any opinion on the merits of the case and the Trial Court shall decide the issue uninfluenced by any observations made by this Court and in accordance with law and the facts on record. 38. The appeal is disposed of along with the pending application. MAY 18 2021 yo JYOTI SINGH J RFA 310 2020

The rules framed under Tripura Value Added Tax Act do not envisage virtual hearing of assessment proceedings: High Court Of Tripura

The case of the department appeared to be that office value was nothing but it was the value of the goods indicated in the transport permit granted from time to time. Such an opinion was held by The Hon’ble High Court Of Tripura before The Hon’ble Chief Justice Mr. Akil Kureshi and The Hon’ble Mr. Justice S.G. Chattopadhyay regarding the case of  ITC Limited vs. . The State of Tripura and Ors [W.P.(C) No. 340 of 2021].  The facts of the case were related to a challenge made by the petitioner against the order dated 26.02.2021 passed by the Superintendent of Taxes, Agartala. A sum of Rs.1,18,79,583/- was demanded by way of unpaid taxes with interest and penalty for the assessment year 2015-16 under Tripura Value Added Tax Act. Another order dated 23rd March 2021 was also challenged by the petitioner. It seemed the petitioner challenged these orders on the ground of breach of principles of natural justice. Further, it appeared in the first half of 23rd November 2020 no one was present on behalf of the petitioner before the Assessing Officer. Moreover, the Assessing Officer had other commitments due to which the hearing could not be conducted. The petitioner was sent many notices regarding new dates of hearing but nobody participated from their side. The Assessing Officer had no choice and concluded the hearing upon which the impugned order of assessment was passed.  The advocate representing the Government contended that the proposal of hearing of assessment proceedings was not mentioned in the rules under the Tripura Value Added Tax Act. Hence, the Assessing Officer had no facility for conducting the same. Furthermore, the petitioner stated that his representative was present during the hearing dated 23.11.2020 before the Assessing Officer, which the officer didn’t deny. Also, the officer did not conclude the proceedings on 23.11.2020. It was found strange that the company suddenly abandoned the assessment proceedings and incurred the risk of substantial ex-parte liability after duly attending all previous hearings. The Hon’ble Court stated “In a given case, we will examine the provisions under the relevant statute more closely and will also take into account the viewpoint of the administration in resisting such virtual hearings. In the present case, however, in the interest of justice, we would permit such virtual hearing.” The Court also stated that it revoked the very order due to inadequate hearing, so to examine the legality of the case was unnecessary.  Thus,  The Hon’ble High Court Of Tripura after considering all the submissions stated that “… he assessment proceedings are revived and restored to file of the Assessing Officer. To avoid any confusion regarding intimation of the date of next hearing, it is provided that such hearing shall take place before the Assessing Officer on 8th November, 2021 at 11 am if so convenient to the Assessing Officer… The petitioner shall not ask for adjournment of the hearing. If, however, the Assessing Officer requires the hearing to take place on some other day in addition to the hearing of 8th November, 2021 it would be open for him to do the same so however, that the subsequent hearing shall also take place virtually in the same manner provided above… The assessment shall be framed afresh latest by 28th February, 2022… Petition disposed of accordingly. Pending application(s), if any, shall also stand disposed of.”

Page HIGH COURT OF TRIPURA W.P.(C) No. 3421 ITC Limited having its Registered & Head Office at Virginia House 37 Jawaharlal Nehru Road Kolkata West Bengal 700071 and also corporate office at Virginia House 37 Jawaharlal Nehru Road Kolkata West Bengal 700071 and Branch Office at ITC Limited c o Ratan Debnath R.K. Nagar Opposite Govt. Cattle Firm West Tripura Tripura 799008 represented by its Authorized Signatory Ashwani Kumar Designation Assistant Manager Finance Address 21 Bangla School Lane O.C. Compound Ranchi G.P.O. Jharkhand 834001 camped at Agartala Petitioner(s) 1. The State of Tripura Represented by The Secretary Finance Department) Finance Department Civil Secretariat New Capital Complex P.O. Kunjaban Agartala District: West Tripura 799006 2. The Commissioner of Taxes Government of Tripura Gurkhabasti P.N Complex P.S Capital Complex District West Tripura Pin 799006 Charge I Agartala Kar Bhavan Palace Compound P.S. East Agartala District 3. The Superintendent of Taxes West Tripura Respondent(s) : Mr. Rohan Shah Advocate. Mr. Tapas Kumar Deb Advocate. Mr. Nirnoy Paul Advocate. For Petitioner(s) For Respondent(s) : Mr. D. Bhattacharya Government Advocate. Mr. K. De Additional Government Advocate. Mr. S. Saha Advocate. Date of Judgment & Order : 4th October 2021. Whether fit for reporting : NO. Page HON’BLE THE CHIEF JUSTICE MR. AKIL KURESHI HON’BLE MR. JUSTICE S.G. CHATTOPADHYAY JUDGMENT & ORDERAkil Kureshi CJ) The petitioner has challenged an order dated 26.02.2021 passed by the Superintendent of Taxes Agartala demanding a sum of Rs.1 18 79 583 by way of unpaid taxes with interest and penalty for the assessment year 2015 16 under Tripura Value Added Tax Act. The petitioner has also challenged an order dated 23rd March 2021 passed by the Superintendent of Taxes rejecting the petitioners’ application for rectification of the assessment order. These orders are challenged primarily on the ground of breach of principles of natural justice which are canvassed by the counsel for the petitioner in following manner: According to the petitioner after certain hearings before the Assessing Officer further hearing was fixed on 23.11.2020. On 23.11.2020 the representative of the petitioner company was present to advance his arguments before the Assessing Officer. However the Assessing Officer could not conduct the hearing. Thereafter there was no further communication or notice from the Assessing Officer to the petitioner or its representative till the order of assessment was passed on 26.02.2021. In short the case of the petitioner is that the assessment order was passed without completing the hearing of the assessment proceedings. Learned counsel for the petitioner contended that the Assessing Officer in the impugned order has compared the dealer’s value with “office value” and the difference between two is taken as undisclosed sale value for the purpose Page of demanding further taxes. Counsel submitted that this office value was gathered by the Assessing Officer behind the back of the petitioner and utilized in the order of assessment without sharing it with the petitioner. Counsel further submitted that the Assessing Officer failed to take into account several documents on record and erroneously came to the conclusion that the petitioner had not produced the F Form along with the return but produced only at the time of the assessment and therefore the same was considered as inter state sale. by the petitioner. The Assessing Officer failed to exercise the power of rectification provided under section 74 of the TVAT Act though strong grounds were made out The case of the petitioner also is that due to high number of cases of Corona in the country including in Kolkata where the Head Office of the petitioner company is situated a request was made to the Assessing Officer for virtual hearing. The Assessing Officer however did not grant any such liberty. 2] On the other hand the case of the department is that no one was present on behalf of the petitioner before the Assessing Officer in the first half of 23rd November 2020. The Assessing Officer had other commitments in the second half and therefore the hearing could not be conducted on that day. Thereafter several notices were sent to the petitioner for fresh dates of hearing however the representative of the petitioner did not participate. The Assessing Officer Page therefore had no choice but to conclude the hearing upon which the impugned order of assessment was passed. Learned Government Advocate for the respondents submitted that the office value of the goods is nothing but the value indicated in the transportation permits granted to the petitioner for movement of the goods. Such value is very much available to the petitioner and thus the Assessing Officer has not taken into account any material which the petitioner was not in possession of. The Government counsel submitted that the Assessing Officer has passed a reasoned order. If the petitioner has any grievance about the same it must be ventilated in appeal proceedings. In view of statutory appeal available this court should not entertain the writ petition directing against the order of assessment. Learned Government advocate submitted that the rules framed under TVAT Act do not envisage virtual hearing of assessment proceedings. In any case the Assessing Officer has no facility for conducting the same. He had therefore not accepted the request of the petitioner for virtual hearing. First dealing with the question of adequate hearing before the Assessing Officer passed in order of assessment the petitioner has averred in the petition that: “The hearing from 16.11.2020 to 18.11.2020 was recorded by the Respondent No.3 in the proceedings sheet and the same was duly signed by representatives of the Petitioner. Next date of hearing was fixed as 23.11.2020 to highlight the issues with the documents submitted and to produce further documents if required post scrutiny of documents submitted. The same was noted in the Page It was further stated that: proceedings sheet which were countersigned by the representatives of the Petitioner. As per the schedule representatives of the Petitioner appeared on 23.11.2020 for the final hearing. However the Petitioner was informed telephonically that the Respondent No.3 is not in office. Subsequently representatives of the Petitioner visited the office of the Respondent No.3 on multiple occasions to facilitate closure of assessment for the Relevant Period. However no final hearing was “The Respondent partly conducted a hearing and fixed a further hearing to hear the Petitioners further on factual issues. The further hearing which was fixed on 23.11.2020 was never held. Despite follow ups by the Petitioners no further hearings were held. The Respondent thereafter passed the Impugned Assessment Order 26.02.2021. The Petitioner has been denied a full and fair opportunity of hearing. The Impugned Assessment Order 26.02.2021 is in breach of the principles of natural justice and is unsustainable and bad in In response to these averments of the petitioner on oath the respondents in the reply have stated as under: to appear before the dealers failed “9. That the concerned Superintendent by forenoon of 23.11.2020 after which the concerned Superintendent of Taxes had to go out with the Inspectors of Taxes for market survey as part of routine office work under GST and P. Tax 10. That with regard to statements made in para 6 of the Writ Petition I say that the dealer has been called several times vide Notice in FORM XXXV which have been served by post. The copies of the notices and the stamp registered have been attached here for your kind The dealer submitted statements of C Forms F forma procured by them Sales register etc. vide E mail dated 16.11.2021 from the e mail address namely raticol@gmail.com which were to be checked and status was to be discussed and if any discrepancy were found it easy to be communicated to the dealer during hearing fixed on Page However as the dealer failed to appear during forenoon of 23.11.2020 the hearing could not take place as the assessing authority had to go out for routine office work the report of the inspection has been attached here for your kind perusal.” In the rejoinder the petitioner has reiterated that the scheduled hearing did not take place on 23.11.2020 and thereafter despite follow up by the petitioner no further hearing was held. With respect to the service of notices of hearing the petitioner has stated as under: “That so called further hearing notices were sent is averred by the Department but there is no evidence produced that these were served upon the Petitioners.” And thereafter as under: “Petitioner was in receipt of the Notice No. 745 dated 30.09.2020 and Notice No.: 855 dated 19.10.2020 only to which specific replies were filed and hearings between 16.11.2020 & 18.11.2020 were attended. However the Petitioner is not in receipt of specified notice(s) other than those captured above including Show Cause Notice dated 05.02.2021. Further copy of such notices along with proof of dispatch has not been shared as part of the Counter Affidavit. The Petitioner first became aware of existence of such notice(s) on receipt of proceeding sheet in response to RTI application. Copies of such notices along with proof of dispatch were not even shared in response to the RTI application.” To put it simply according the petitioner representative was present before the Assessing Officer on 23.11.2020 the hearing did not proceed. The Assessing Officer has not denied this. He has only stated that in the first half of the date no one had remained present and in the second half he had some other commitments. In any case the Assessing Officer did not conclude the proceedings on 23.11.2020. Thereafter though the Assessing Page Officer has contended that several notices were sent to the petitioner there is no evidence of service of any of them. The petitioner has gone on affidavit stating that no such notice was received by the petitioner after 23.11.2020. Even otherwise it is difficult to believe that a company which was duly represented by the legal representative virtually on all previous hearing dates would suddenly abandon the assessment proceedings and incur the risk of substantial ex parte liability arising against it. We wonder why the Assessing Officer did not use the electronic mode of communication of the hearing dates. Whether the rules envisage or not nothing stops the Assessing Officer from dispatching a copy of the notice of hearing through official E mail address of the assessee company. Be that as it may in facts of the present case in our opinion the assessee deserves an opportunity of making further arguments before the Assessing Officer. This is additionally so since one of the grounds raised by the petitioner is that several documents of duty paid were already on record which the Assessing Officer has ignored possibly because the representative of the petitioner was not present at the last date of hearing to clarify these aspects. It is well known through series of judgments of the Supreme Court that where there is clear breach of principles of natural justice availability of alternative remedy would not prevent the High Court from exercising this jurisdiction. Before closing however we may clarify one aspect. As noted the case of the department appears to be that office value is nothing but the value of the goods indicated in the transport permit granted from time to time. If that be so surely the petitioner cannot claim surprise about the contents of such permits Page granted by the department. However if the department wishes to rely upon any other documents or material which is not within the knowledge or possession of the petitioner the principles of natural justice require that the same must be provided to the petitioner before it can be used against it. We cannot appreciate the stand of the department that even during the time when the Corona Virus was at its peak the administrative and legal representatives of the assessee company must appear before the Assessing Officer physically for conducting the hearings. Across the country courts at different levels not only High Court and Supreme Court but several District Courts also have operated virtually for months on end disposing of large number of contested cases. In a given case if the Head Office of the assessee company is located outside the state insistence on personal appearance would require several people to travel long distances exposing them as well as others to cross infections. There were times when severe restrictions on inter state movements particularly originating from the states which were recording high number of Corona cases imposed. Insisting on personal hearing would either expose representatives to catching infection or force the Assessing Officer to adjourn the hearings resulting into delays. In a given case we will examine the provisions under the relevant statute more closely and will also take into account the view point of the administration in resisting such virtual hearings. In the present case however in the interest of justice we would permit such virtual hearing. This is so for the Page reason that the petitioner is a company whose Head Office is registered at Kolkata. Its representatives such as accountants and legal representatives would have to travel long distances to appear before the Assessing Officer and it is not certain that such hearing could be concluded in one day. When we are quashing the very order of assessment on the ground of inadequate hearing it is not necessary to examine the legality of the order passed by the Assessing Officer on rectification application. In the result impugned order dated 26.02.2021 is set aside. Resultantly the order rejecting the petitioner s application for rectification does not survive. The assessment proceedings are revived and restored to file of the Assessing Officer. To avoid any confusion regarding intimation of the date of next hearing it is provided that such hearing shall take place before the Assessing Officer on 8th November 2021 at 11 am if so convenient to the Assessing Officer failing which he may fix any other time of the day. Such hearing shall take place through virtual mode. The representative of the petitioner shall create a link for such hearing on any of the recognized platforms and communicate the same to the Assessing Officer at least the previous day. The petitioner shall not ask for adjournment of the hearing. If however the Assessing Officer requires the hearing to take place on some other day in addition to the hearing of 8th November 2021 it would be open for him to do the same so however that the subsequent hearing shall also take place virtually in the same manner provided above. The assessment shall be framed afresh latest by 28th February 2022. As Page 1 long as it is done within such time there shall be no question of limitation in framing the assessment and the petitioner shall not be able to challenge the same as time barred assessment. It is clarified that we have focused only on the effective hearing being granted to the petitioner. Now that the assessment is set aside the fresh assessment shall be made after hearing the petitioner. All contentions of the petitioner are kept open. Petition disposed of accordingly. Pending application(s) if any shall also stand disposed of. J CJ Rudradeep

Prohibitory orders purports exercise of power of sealing premise under Section 51(b) of the Disaster Management Act, 2005: The High Court of Sikkim

The order, in purported exercise of the powers conferred under Section 51(b) of the Disaster Management Act, 2005 (the Act) read with Section 3 (b) of the Sikkim Public Health and Safety (Covid-19) Regulations, 2020 directed the sealing of the said premise. In the Hon’ble High Court of Sikkim led through the single-bench by Justice Bhaskar Raj Pradhan in the matters of Krishna Kumari Chettri and Anr. v. State of Sikkim and Ors.[WP (Crl.)/1/2020].  The facts of the case are the petitioner has preferred the present writ petition against the State-respondents seeking various reliefs. They were aggrieved by the impugned order dated 23/05/2020 issued under the signature of respondent no.2 alleging violation of prohibitory orders and directives and non-compliance of the Standard Operating Procedure for social distancing in the Body Vibes Gym, Rangpo Bazar run by the petitioners. On 17/06/2020 the respondent no.2 issued another impugned order under Section 51 of the Act directing the respondent no.3 to register a case against the Body Vibes Gym as per the provisions of Section 51(b) of the Act. Pursuant thereto First Information Report (FIR) No. 20 of 20 dated 20.06.2020 was registered at the Rangpo police station under Section 188 of the Indian Penal Code, 1860 (IPC). On 17.09.2020, I.A. No. 01 of 2020 preferred by the petitioners was heard by this court. Pursuant thereto the impugned order dated 23.05.2020 stayed. In so doing Body Vibes Gym was de-sealed and it started its activities. The learned Additional Advocate General fairly submits that due to the change in the present COVID-19 situation and the lockdown conditions being lifted the running of the Body Vibes Gym is no longer an issue. She further submits that the State authorities are not pursuing the impugned orders and the FIR against the proprietor of the Body Vibes Gym of the Rangpo Bazar. In view of the assurance given by the learned Additional Advocate General Mr Sabyasachi Chatterjee, learned counsel for the petitioners submits that there is no need to pursue the writ petition further. The court directed “Taking cognizance of the categorical statement of the learned Additional Advocate General this court directs that the State authorities shall not pursue the impugned orders and close the files relating to them as well as FIR No. 20 of 2020 lodged on 20.06.2020 under Section 188 IPC against the proprietor of Body Vibes Gym, Rangpo Bazar at the Rangpo police station”.

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

Restriction can be imposed on the defendant from committing a breach of contract : High Court Of New Delhi

The present petition of the appellant was under Order 39 Rules 1 and 2 CPC, and the same issue was held in the judgement passed by a Single bench judge HON’BLE MR. JUSTICE SANJEEV SACHDEVA, in the matter RAVINDER KUMAR AHUJA V. MST. SALIDA AHMAD AND ORS dealt with an issue mentioned above. In this case, the 1st application was been dismissed holding that the relief sought in the application is beyond the subject matter FAO 249/2021 of the suit. So, The learned counsel of the appellant submits that the trial court has erred in holding that the relief claimed is beyond the subject matter of the suit, in as much as, in prayer (ii), an injunction has been sought against the respondents, inter-alia, from holding any function, unlawful assembly or doing any illegal act on any part of the property. He also submits that the appellant owns the entire property and has been continuously using the same from the very inception till date. He also mentioned that proxy litigations were also filed by the respondents unsuccessfully before several forums. Meanwhile, an Issue notice was issued, Notice is accepted by the learned counsel appearing for respondents no. 1, 4, 5, 7 &amp; 8. And also Learned counsel appearing for respondents no. 1, 4, 5, 7 &amp; 8  submitted that they are proposing to hold the marriage function of respondent no. 4. Learned counsel, under instruction, submitted that given the controversy raised and without prejudice to their rights and contentions, they shall not hold the proposed marriage function on the subject property. So given the above, an appeal is disposed of binding the respondents to their statements that no marriage function shall be held in the subject premises as proposed. It was pointed out by learned counsel appearing for the appellant that the wall adjoining the servant quarters was been broken by the respondents to bring in their guests from that side. This was also disputed by the learned counsel appearing for the respondents who submits that the wall has fallen on account of natural circumstances. The court perused the facts and argument’s presented, it thought that- “Without getting into the said controversy, the appellant is permitted to have the said wall repaired”.

IN THE HIGH COURT OF DELHI AT NEW DELHI Judgment delivered on: 10th November 2021 FAO 249 2021 RAVINDER KUMAR AHUJA Appellant MST. SAHIDA AHMAD AND ORS Respondents Advocates who appeared in this case: For the Petitioners : Mr. Abhishek Singh Mr. J. Amal Anand Mr. Elvin Advocates with Appellant in person Joshy Ms. KirtikaChhatwal For the Respondents : Mr. Hem C. Vashisht Advocate for R 1 4 5 7& 8 CORAM: HON’BLE MR. JUSTICE SANJEEV SACHDEVA SANJEEV SACHDEVA J. CM APPLN. 39693 2021 & 39695 2021Allowed subject to all just exceptions. FAO 249 2021& CM APPLN. 39692 2021an injunction has been sought against the respondents inter alia from holding any function unlawful assembly or doing any illegal act on any part of the property. Learned counsel for the appellant submits that the appellant is in possession of the entire property and has been continuously using the same from the very inception till date. He further submits that proxy litigations were also filed by the respondents unsuccessfully before several forums. He submits that in case the respondents are not restrained from holding any marriage function in the subject property grave prejudice would be caused to the appellant. Issue notice. Notice is accepted by learned counsel appearing for respondent no. 1 4 5 7 & 8. Learned counsel appearing for respondent no. 1 4 5 7 & 8 submits that they are ones who are proposing to hold the marriage function of respondent no. 4. Learned counsel under instruction submits that in view of the controversy raised and without prejudice to their rights and contentions they shall not hold the proposed marriage function on the subject property. The statement is taken on record. FAO 249 2021 In view of the above appeal is disposed of binding the respondents to their statements that no marriage function shall be held in the subject premises as proposed. This would however be without prejudice to the rights and contentions of the parties and would not in any manner influence the trial court in the final adjudication of the suit. It is pointed by learned counsel appearing for the appellant that the wall adjoining the servant quarters has been broken by the respondents for the purposes of bringing in their guests from that side. This is disputed by learned counsel appearing for the respondents who submits that the wall has fallen down on account of natural circumstances. 13. Without getting into the said controversy appellant is permitted to have the said wall repaired. 14. Copy of the order be uploaded on the High Court website and be also forwarded to learned counsels through email by the Court Master. SANJEEV SACHDEVA J NOVEMBER 10 2021 FAO 249 2021

L. CHANDRA KUMAR V/S UNION OF INDIA AND ORS

“Judicial review is an integral, fundamental part of the constitution and falls within the ambit of basic structure Doctrine” In this case the impact of Articles 323-A and 323-B (under which the tribunals are created) on the power of judicial review and superintendence of the High Court ( under Articles 226 &amp;227) and of the Supreme Court( under Article 32) was in question.To reduce the burden of litigation from the High Courts and Supreme Court a long time search was going on for a mechanism to relieve the courts, the Law Commission recommended for the establishment of tribunals consisting of judicial and administrative members to decide service matters. The idea of setting up service tribunals also found favour in the case of K.K. Dutta v. Union of India which advocated for setting upof service tribunals to save the courts from avalanche of writ petitions and appeals in servicematters.It was against the backdrop that Parliament passed Constitution (Forty- Second Amendment) Act, 1976, which added Part- XIV- A in the Constitution. This Part is entitled as ‘Tribunals’ and consists of only two Articles- Article 323-A, dealing with administrative tribunals and Article 323-B, dealing with tribunals for other matters.Article 323-A, enables the Parliament to take out the adjudication of disputes relating to service matters from the civil courts and the High Courts and place it before the administrative tribunals. In pursuance of Article 323-A, the Parliament passed the Administrative Tribunals Act, 1985. The Act authorised the Central Government to establish one Central Administrative Tribunal and the State Administrative Tribunals. The purpose of the Act was to provide speedy and inexpensive justice to the aggrieved public servants.Under Article 323-B, the Parliament and the State Legislatures are authorised to provide for the establishment of tribunals for the adjudication of disputes relating to the following matters: taxation, foreign exchange, import and export; industrial and labour; land reforms; ceiling on urban property, elections to Parliament and State Legislatures; food stuffs, rent and tenancy rights.These articles 323-A and 323-B have been brought up to set up various tribunals as adjudicatory bodies. These enable the Parliament as well as the State Legislatures, to exclude the jurisdiction of all courts except that of this Court under Article 136 regarding matters falling within the jurisdiction of the concerned tribunals. Even before the Tribunal had been established, several writ petitions had been filed challenging the constitutional validity of Article 323-A and 323-B of the Constitution for excluding the jurisdiction of this Court under Article 32 of the Constitution and of that of the High Courts under Article 226 of the Constitution.The validity of the Act was challenged before this Court which was upheld in Sampath Kumar’s case. While upholding the validity of Section 28 of the Act in Sampath Kumar’s case this Court took the view that the power of judicial review need not always be exercised by an equally efficacious alternative mechanism and not necessarily by regular courts. In this case the Court held that though judicial review is a basic feature of the Constitution, the vesting of the power of judicial review in an alternative institutional mechanism, after taking it away from the High Courts, would not do violence to the basic structure so long as it was ensured that the alternative mechanism was an effective and real substitute for the High Court.PROCEDURAL HISTORY:The petitioner has submitted that the impugned constitutional provisions, in so far as they seek to divest the High Courts of their power of superintendence over all Tribunals and Courts situated within their territorial jurisdiction, violate the basic structure of the Constitution. Further pointed out that tribunals constituted under Articles 323A and 323B can be vested with the power of judicial review over administrative action, the power of judicial review of legislative action cannot be conferred upon them. This proposition flows from Kesavananda Bharati’s case where it was held that under our constitutional scheme, only the constitutional courts have been vested with the power of judicial review of legislative action.The respondent has submitted that that the jurisdiction of this Court under Article 32 of the Constitution is sacrosanct and is indisputably a part of the basic structure of the Constitution. This position had been clearly enunciated well before the 42nd Amendment to the Constitution was conceived. Therefore, Parliament must be deemed to have been aware of such a position and it must be concluded that the jurisdiction under Article 32 was not intended to be affected. However, the jurisdiction of the High Courts under Article 226 was sought to be removed by creating alternative institutional mechanisms.Further it was submitted by the respondent that Articles 323A and 323B do not seek to exclude the supervisory jurisdiction of the High Courts over all Tribunals situated within their territorial jurisdiction. Viewed from this perspective, the High Courts would still be vested with constitutional powers to exercise corrective or supervisory jurisdiction therefore there is no vice of unconstitutionality.The respondents also contended that the vires of a provision are to be dealt with by a Bench consisting of a judicial member and these guidelines will be followed in future citing the decision of this court in the case of Amulya Chandra’s and Dr. Mahabal Ram’s case.ISSUE BEFORE THE COURT:Whether the power conferred upon the Parliament by Article 323-A (2) (d) or upon the State Legislature by Article 323-B (3) (d) of the Constitution of India, to totally exclude the jurisdiction of ‘all courts’, except that of the Supreme Court under Article 136, in respect of disputes and complaints referred to in Article 323-A(1) or Article 323-B(2), is against the power of judicial review conferred on the High Courts under Articles 226/227 and on the Supreme Court under Article 32 of the Constitution?Whether the Tribunals constituted either under Article 323A or under Article 323B of the Constitution, possess the competence to test the constitutional validity of a statutory provision or rule?Whether the Tribunals, as they are functioning at present, can be said to be the effective substitutes for the High Court in discharging the power of judicial review? If not, what are the changes required to make them conform to their founding objectives?RATIO OF THE COURT:On the issue of excluding the jurisdiction the court held that although Section 28 was originally enacted in express terms with Article 323A of the Constitution and the only exception was made in respect to the jurisdiction of the Supreme Court under Article 136 but when the final hearing of Sampat Kumar’s case was concluded the provision was already amended to save the jurisdiction of the Supreme Court under Article 32 of the Constitution. It also pointed out that as Sampat Kumar case was specifically related with power of judicial review of the Supreme Court, and as it already had been returned to the court, the court expressed itself satisfied with the position as it had emerged during the pendency of Sampat Kumar case and the court did not ventured to address the larger issue of whether Article 323A (2) also required a similar amendment. The court also held that the Act was to perform a substitution role and not a supplemental role.In the case of Sampat Kumar case it was found that the case did not specifically addressed the question regarding the power of the Administrative Tribunals in striking down a statute or provision as unconstitutional. In J. B. Chopra’s case the Division Bench felt that it would follow as a logical and direct consequence of the judgment in Sampat Kumar’s case. In M. B. Majumdar v. Union of India the bench held that Administrative Tribunals can be equated with High courts as regards to its jurisdiction in service matters but not in case of service conditions of the members of the tribunal. In R. K. Jain v. Union of India, which coincidently had the same bench as in the discussed case, analyzed the relevant provisions, and cases such as Sampat Kumar, Chopra, Majumdar case found that the Tribunals under Article 323A cannot be substitutes to the High Court as their performance was not satisfactory and also because they leave the litigants with only one remedy under 136 by the way of appeal to the Supreme Court which is costly affair. The court  suggested that an expert body like the Law Commission of India should study the feasibility of providing an appeal to a two judge Bench of the High Court from a decision of the Tribunals.The court observed that the power of judicial review vested on the constitutional Courts cannot be bestowed on newly created quasi-judicial bodies which are susceptible to executive influences. After citing various cases like Kesavananda Bharati’s case, Indira Nehru Gandhi v. Raj Narain, the Court came to the conclusion that judicial review is indeed a basic feature of the Constitution.On the issue of competence of tribunals under the alleged articles the court cited took help from the American practice regarding judicial review. The court also found that the definition of judicial review in America and in India are similar and therefore went on to review the position of judicial review in America and for this relied on the view of Henry J. Abraham(Henry J. Abraham, The Judicial Process), an acclaimed American Constitutional Law scholar. It found that theoretically every Court in America, no matter how high or low, had the power of judicial review although it is seldom used. That is there is no blanket prohibition on the conferment of judicial power upon Courts other than the U. S. Supreme Court.The court also agreed that if the power of judicial review under Article 32 of the Constitution, which has been described as the heart and soul of the Constitution, can be additionally conferred on any other court, there is no reason why the same cannot be done in case of the power conferred upon the High Court under Article 226 of the Constitution. However it is must that the jurisdiction of the High Court under Articles 226/227 and of the Supreme Court under Article 32 is retained and the Tribunals function as a supplementary body.However the court held that the jurisdiction of the Tribunals would be subject to the review of the High Court under Articles 226/227. This would serve two purposes, firstly, it will ensure that frivolous claims would be filtered out through the process of adjudication in the Tribunal and secondly, the High Court will not lose its power of judicial review. Therefore the Supreme Court held that the Tribunals constituted either under Article 323A or under Article 323B of the Constitution, possess the competence to test the constitutional validity of a statutory provision or rule subject to the review by the High Court. The court further held that Clause 2(d) of Article 323-A and clause 3(d) of Article 323-B to the extent they exclude the jurisdiction of the High Court and the Supreme Court were held to be unconstitutional.On the issue of present functioning of the tribunals and tribunals as substitutes of High Court, the Court pointed out that the Tribunals are not substitutes of the High Court but are supplementary. The court further suggested that the tribunals will function as a supplementary body and all such decisions of the Tribunals will be subject to the scrutiny before a Division Bench of the respective High Courts. That to remove the inefficiency of the Tribunals the tribunals should be made subject to the supervisory jurisdiction of the High Court. And the Ministry may appoint an independent supervisory body to oversee the working of the tribunals.The court held that till a wholly independent body is set for the purpose of overseeing the working of the Tribunals, all such Tribunals will be under single nodal ministry whose members would be appropriately be a Ministry of Law.DECISION HELD BY COURT:In this case the judgement was given by JUSTICE A.M AHMADI that the Tribunals created under Article 323A and Article 323B of the Constitution are possessed of the competence to test the constitutional validity of statutory provisions and rules. All decisions of these Tribunals will, however, be subject to scrutiny before a Division Bench of the High Court within whose jurisdiction the concerned Tribunal falls.The Tribunals will, nevertheless, continue to act like Courts of first instance in respect of the areas of law for which they have been constituted. It will not, therefore, be open for litigants to directly approach the High Courts even in cases where they question the vires of statutory legislations (except where the legislation which creates the particular Tribunal is challenged) by overlooking the jurisdiction of the concerned Tribunal. Section 5(6) of the Act is valid and constitutional and is to be interpreted in the manner we have indicated. All these matters may now be listed before a Division Bench to enable them to be decided upon their individual facts in the light of the observations contained in this judgment.

Briefcased.in Case Name: L.CHANDRA KUMAR V S UNION OF INDIA & ORS. Case Year: 1997 “Judicial review is an integral fundamental part of the constitution and falls within the ambit of basic structure Doctrine” L. CHANDRA KUMAR V S UNION OF INDIA AND ORS Case name: L.Chandra kumar V S Union of india & ors. Case number: Civil appeal number 4880 Court: The Supreme Court of India Bench: JUSTICE A.M. Ahmadi JUSTICE M.M. Punchhi JUSTICE K. Ramaswamy JUSTICE S.P. Bharucha JUSTICE Saiyed Saghir Ahmad JUSTICE K. Venkataswami JUSTICE K.T. Thomas. Decided on: MARCH 18 1997 Relevant Act Sections: Articles 323 A and 323 B of the Constitution 1950 Section 28 of the Administrative Tribunals Act 1985  BRIEF FACTS AND PROCEDURAL HISTORY: 1. In this case the impact of Articles 323 A and 323 Bon the power of judicial review and superintendence of the High Courtand of the Supreme Court( under Article 32) was in question. 2. To reduce the burden of litigation from the High Courts and Supreme Court a long time search was going on for a mechanism to relieve the courts the Law Commission recommended for the establishment of tribunals consisting of judicial and administrative members to decide service matters. The idea of setting up service tribunals also found favour in the case of K.K. Dutta v. Union of India which advocated for setting up of service tribunals to save the courts from avalanche of writ petitions and appeals in service 1 | P a g e Briefcased.in Case Name: L.CHANDRA KUMAR V S UNION OF INDIA & ORS. Case Year: 1997 3. It was against the backdrop that Parliament passed Constitution Act 1976 which added Part XIV A in the Constitution. This Part is entitled as ‘Tribunals’ and consists of only two Articles Article 323 A dealing with administrative tribunals and Article 323 B dealing with tribunals for other matters. 4. Article 323 A enables the Parliament to take out the adjudication of disputes relating to service matters from the civil courts and the High Courts and place it before the administrative tribunals. In pursuance of Article 323 A the Parliament passed the Administrative Tribunals Act 1985. The Act authorised the Central Government to establish one Central Administrative Tribunal and the State Administrative Tribunals. The purpose of the Act was to provide speedy and inexpensive justice to the aggrieved public servants. 5. Under Article 323 B the Parliament and the State Legislatures are authorised to provide for the establishment of tribunals for the adjudication of disputes relating to the following matters: taxation foreign exchange import and export industrial and labour land reforms ceiling on urban property elections to Parliament and State Legislatures food stuffs rent and tenancy rights. 6. These articles 323 A and 323 B have been brought up to set up various tribunals as adjudicatory bodies. These enable the Parliament as well as the State Legislatures to exclude the jurisdiction of all courts except that of this Court under Article 136 regarding matters falling within the jurisdiction of the concerned tribunals. Even before the Tribunal had been established several writ petitions had been filed challenging the constitutional validity of Article 323 A and 323 B of the Constitution for excluding the jurisdiction of this Court under Article 32 of the Constitution and of that of the High Courts under Article 226 of the Constitution. 7. The validity of the Act was challenged before this Court which was upheld in Sampath Kumar’s case. While upholding the validity of Section 28 of the Act in Sampath Kumar’s case this Court took the view that the power of judicial review need not always be exercised by an equally efficacious alternative mechanism and not necessarily by regular courts. In this case the Court held that though judicial review is a basic feature of the Constitution the vesting of the power of judicial review in an alternative institutional mechanism after taking it away from the High Courts would not do violence to the basic structure so long as it was ensured that the alternative mechanism was an effective and real substitute for the High Court. 2 | P a g e Briefcased.in Case Name: L.CHANDRA KUMAR V S UNION OF INDIA & ORS. Case Year: 1997  PROCEDURAL HISTORY: 1. The petitioner has submitted that the impugned constitutional provisions in so far as they seek to divest the High Courts of their power of superintendence over all Tribunals and Courts situated within their territorial jurisdiction violate the basic structure of the Constitution. Further pointed out that tribunals constituted under Articles 323A and 323B can be vested with the power of judicial review over administrative action the power of judicial review of legislative action cannot be conferred upon them. This proposition flows from Kesavananda Bharati’s case where it was held that under our constitutional scheme only the constitutional courts have been vested with the power of judicial review of legislative action. 2. The respondent has submitted that that the jurisdiction of this Court under Article 32 of the Constitution is sacrosanct and is indisputably a part of the basic structure of the Constitution. This position had been clearly enunciated well before the 42nd Amendment to the Constitution was conceived. Therefore Parliament must be deemed to have been aware of such a position and it must be concluded that the jurisdiction under Article 32 was not intended to be affected. However the jurisdiction of the High Courts under Article 226 was sought to be removed by creating alternative institutional mechanisms. 3. Further it was submitted by the respondent that Articles 323A and 323B do not seek to exclude the supervisory jurisdiction of the High Courts over all Tribunals situated within their territorial jurisdiction. Viewed from this perspective the High Courts would still be vested with constitutional powers to exercise corrective or supervisory jurisdiction therefore there is no vice of unconstitutionality. 4. The respondents also contended that the vires of a provision are to be dealt with by a Bench consisting of a judicial member and these guidelines will be followed in future citing the decision of this court in the case of Amulya Chandra’s and Dr. Mahabal Ram’s case.  ISSUE BEFORE THE COURT: 1. Whether the power conferred upon the Parliament by Article 323 A(d) or upon the State Legislature by Article 323 B(d) of the Constitution of India to totally exclude the jurisdiction of ‘all courts’ except that of the Supreme Court under Article 136 in respect of disputes and complaints referred to in Article 323 A(1) or Article 323 B(2) is 3 | P a g e Briefcased.in Case Name: L.CHANDRA KUMAR V S UNION OF INDIA & ORS. Case Year: 1997 against the power of judicial review conferred on the High Courts under Articles 226 227 and on the Supreme Court under Article 32 of the Constitution 2. Whether the Tribunals constituted either under Article 323A or under Article 323B of the Constitution possess the competence to test the constitutional validity of a statutory provision or rule 3. Whether the Tribunals as they are functioning at present can be said to be the effective substitutes for the High Court in discharging the power of judicial review If not what are the changes required to make them conform to their founding objectives  RATIO OF THE COURT: 1. On the issue of excluding the jurisdiction the court held that although Section 28 was originally enacted in express terms with Article 323A of the Constitution and the only exception was made in respect to the jurisdiction of the Supreme Court under Article 136 but when the final hearing of Sampat Kumar’s case was concluded the provision was already amended to save the jurisdiction of the Supreme Court under Article 32 of the Constitution. It also pointed out that as Sampat Kumar case was specifically related with power of judicial review of the Supreme Court and as it already had been returned to the court the court expressed itself satisfied with the position as it had emerged during the pendency of Sampat Kumar case and the court did not ventured to address the larger issue of whether Article 323Aalso required a similar amendment. The court also held that the Act was to perform a substitution role and not a supplemental role. 2. In the case of Sampat Kumar case it was found that the case did not specifically addressed the question regarding the power of the Administrative Tribunals in striking down a statute or provision as unconstitutional. In J. B. Chopra’s case the Division Bench felt that it would follow as a logical and direct consequence of the judgment in Sampat Kumar’s case. In M. B. Majumdar v. Union of India the bench held that Administrative Tribunals can be equated with High courts as regards to its jurisdiction in service matters but not in case of service conditions of the members of the tribunal. In R. K. Jain v. Union of India which coincidently had the same bench as in the discussed case analyzed the relevant provisions and cases such as Sampat Kumar Chopra Majumdar case found that the Tribunals under Article 323A cannot be substitutes to the High Court as their performance was not satisfactory and also because they leave the litigants with only one remedy under 136 by the way of appeal to the Supreme Court which is costly 4 | P a g e Briefcased.in Case Name: L.CHANDRA KUMAR V S UNION OF INDIA & ORS. Case Year: 1997 affair. The court suggested that an expert body like the Law Commission of India should study the feasibility of providing an appeal to a two judge Bench of the High Court from a decision of the Tribunals. 3. The court observed that the power of judicial review vested on the constitutional Courts cannot be bestowed on newly created quasi judicial bodies which are susceptible to executive influences. After citing various cases like Kesavananda Bharati’s case Indira Nehru Gandhi v. Raj Narain the Court came to the conclusion that judicial review is indeed a basic feature of the Constitution. 4. On the issue of competence of tribunals under the alleged articles the court cited took help from the American practice regarding judicial review. The court also found that the definition of judicial review in America and in India are similar and therefore went on to review the position of judicial review in America and for this relied on the view of Henry J. Abraham(Henry J. Abraham The Judicial Process) an acclaimed American Constitutional Law scholar. It found that theoretically every Court in America no matter how high or low had the power of judicial review although it is seldom used. That is there is no blanket prohibition on the conferment of judicial power upon Courts other than the U. S. Supreme Court. 5. The court also agreed that if the power of judicial review under Article 32 of the Constitution which has been described as the heart and soul of the Constitution can be additionally conferred on any other court there is no reason why the same cannot be done in case of the power conferred upon the High Court under Article 226 of the Constitution. However it is must that the jurisdiction of the High Court under Articles 226 227 and of the Supreme Court under Article 32 is retained and the Tribunals function as a supplementary body. 6. However the court held that the jurisdiction of the Tribunals would be subject to the review of the High Court under Articles 226 227. This would serve two purposes firstly it will ensure that frivolous claims would be filtered out through the process of adjudication in the Tribunal and secondly the High Court will not lose its power of judicial review. Therefore the Supreme Court held that the Tribunals constituted either under Article 323A or under Article 323B of the Constitution possess the competence to test the constitutional validity of a statutory provision or rule subject to the review by the High Court. The court further held that Clause 2(d) of Article 323 A and clause 3(d) of 5 | P a g e Briefcased.in Case Name: L.CHANDRA KUMAR V S UNION OF INDIA & ORS. Case Year: 1997 Article 323 B to the extent they exclude the jurisdiction of the High Court and the Supreme Court were held to be unconstitutional. 7. On the issue of present functioning of the tribunals and tribunals as substitutes of High Court the Court pointed out that the Tribunals are not substitutes of the High Court but are supplementary. The court further suggested that the tribunals will function as a supplementary body and all such decisions of the Tribunals will be subject to the scrutiny before a Division Bench of the respective High Courts. That to remove the inefficiency of the Tribunals the tribunals should be made subject to the supervisory jurisdiction of the High Court. And the Ministry may appoint an independent supervisory body to oversee the working of the tribunals. 8. The court held that till a wholly independent body is set for the purpose of overseeing the working of the Tribunals all such Tribunals will be under single nodal ministry whose members would be appropriately be a Ministry of Law.  DECISION HELD BY COURT: 1. In this case the judgement was given by JUSTICE A.M AHMADI that the Tribunals created under Article 323A and Article 323B of the Constitution are possessed of the competence to test the constitutional validity of statutory provisions and rules. All decisions of these Tribunals will however be subject to scrutiny before a Division Bench of the High Court within whose jurisdiction the concerned Tribunal falls. 2. The Tribunals will nevertheless continue to act like Courts of first instance in respect of the areas of law for which they have been constituted. It will not therefore be open for litigants to directly approach the High Courts even in cases where they question the vires of statutory legislationsby overlooking the jurisdiction of the concerned Tribunal. Section 5(6) of the Act is valid and constitutional and is to be interpreted in the manner we have 3. All these matters may now be listed before a Division Bench to enable them to be decided upon their individual facts in the light of the observations contained in this 6 | P a g e indicated.

In order to maintain a claim petition, it is sufficient for the claimant to establish his loss of dependency: High Court of Gauhati

Section 166 of the MV Act makes it clear that every legal representative who suffers on account of the death of a person in a motor vehicle accident should have a remedy for the realization of compensation. Such an opinion was held by The Hon’ble High Court of Gauhati before The Hon’ble Mr. Justice Devashis Baruah in the matter of Farhanaz Hussain Vs. Jaytun Nessa and Anr [CRP/5/2017]. The facts of the case were associated with an order which was challenged by the petitioner in the instant petition. In the said impugned order it was stated that the petitioner was not a legal heir of Late Anowar Hussain who expired due to an accident. The proceedings of the case of Late Anowar Hussain was initiated by his mother. It was also held that if the petitioner was successful in proving her legal status then she would be entitled to receive her share in the compensation amount which might be awarded for the death of Late Anowar Hussain. It was reported that the deceased was travelling from Guwahati to Tezpur in his newly bought vehicle, which was driven by his employed driver. The vehicle dashed into an iron barrier of railway track which led to the death of the deceased.  It was reported that the Court below rejected the prayer of the petitioner to bring as a co-claimant primarily on the ground that no documentary evidence has been filed by the petitioner nor the petitioner had approached the Civil Court to have her status declared as the wife of Late Anowar Hussain for which the Court below held that she was not the legal heir of Late Anowar Hussain.  The Hon’ble Court after examining the submissions stated that “…  The documents on record prima facie shows that the Petitioner apart from claiming that she is the wife is also intermeddling with the estate of the deceased and under such circumstances she has a right to seek impleadment as a Respondent in terms with the first proviso to Section 166(1) of the Act. In that view of the matter, I am interfering with the impugned order thereby impleading the petitioner herein as a respondent no.4 in MAC Case No.226/2011 with the liberty to file her written statement in the said proceedings… The petition stands disposed of accordingly. The interim order passed earlier stands vacated. Taking into consideration that the accident occurred on 26.01.2011 and the claim proceedings is of the year 2011, the Court below is requested to dispose of the matter as expeditiously as possible preferable within a period of 6 (six) months from the date of appearance of the parties.”

Page No.# 1 6 THE GAUHATI HIGH COURT HIGH COURT OF ASSAM NAGALAND MIZORAM AND ARUNACHAL PRADESH) Case No. : CRP 5 2017 Farhanaz Hussain Pin 784027. PETITIONER W o Late Anowar Hussain Vill Gotlong P.O. _ Koliabhomora P.S. Tezpur District Sonitpur Assam Versus 1. Jaytun Nessa W o Md. Samsul Hussain Village Samdhara P.O. Naharbari District Sonitpur Assam 2. National Insurance Co. Ltd Represented by its Branch Manager Tezpur Branch Main Road Tezpur P.O Tezpur District Sonitpur Assam RESPONDENTS Page No.# 2 6 BEFORE HON’BLE MR. JUSTICE DEVASHIS BARUAH For the petitioner : Mr. D.K. Medhi Mr. M. Choudhury …. Advocates For the respondent no.2 : Mr. R.K. Bhatra Ms. A. Borar Date of hearing : 28.10.2021 Date of judgment : 03.11.2021 Ms. P. Hujuri. … Advocates JUDGMENT AND ORDERon the date of accident i.e. 26.01.2011 was travelling in his newly purchased Mahendra make Bolero vehicle from Guwahati to Tezpur driven by his employed driver Sri Parma Das. The said ill fated vehicle dashed against the iron barrier of the railway track at Ketekibari on the PWD road leading to Tezpur town and accordingly the said vehicle was badly damaged and Late Anowar Hussain expired. Pursuant to the death of Late Anowar Page No.# 3 6 Hussain the mother of the deceased filed a claim petition registered as MAC Case No.226 2011 before the Member Motor Accident Claims Tribunal Tezpur 4. During the course of the proceedings before the Court below on 28.11.2014 attention of the Court below was brought to the fact that the deceased was also survived by his wife i.e the petitioner herein and accordingly by the order dated 28.11.2014 the Court below felt that the controversy as regards the non joinder of the petitioner as a claimant needs to be set at rest prior to starting of the cross examination in the case. Subsequently vide another order dated 28.07.2015 prima facie proof that the deceased Late Anowar Hussain had a wife was brought to the attention of the Court below for which the claimant was directed to furnish the name of the said wife and to implead her as claimant along with the present claimant Pursuant to the said order dated 28.07.2015 the claimantfiled an application stating inter alia that the dispute as regards the claim of the petitioner to be the wife of the deceased Anowar Hussain is pending in the Court of the District Judge in Title Suit No.9 2013 and Revocation Case Nos.99 2013 and 100 2013 and as such requested that further steps as regards impleading the wife of the deceased as a co claimant be kept in abeyance till the dispute is resolved in the said proceedings. The Court below vide an order dated 18.08.2015 fixed it for necessary orders. Subsequent thereto on 20.07.2016 the claimant brought to the attention of the Court below that T.S.(S C) 9 2013 Misc.(S C Revocation Case No.99 2013 and Misc.Revocation Case No.100 2013 were dismissed and therefore requested the Court below to proceed with the claim petition by taking the evidence of the claimant witness no.1. On the same date the petitioner preferred a petition under Order I Rule 10(2) read with Section 151 of the CPC to implead the petitioner as one of the co claimant. The Court below fixed 05.08.2018 for filing objection to the petition filed by the petitioner. Accordingly objections was filed and pursuant thereto by the impugned order dated 05.10.2016 the Court below rejected the prayer of the petitioner for impleadment as a co claimant primarily on the ground that no documentary evidence has been filed by the petitioner nor the petitioner had approached the Civil Court to have her status declared as the wife of Late Anowar Hussain for which the Court below held that she is not the legal heir of Late Anowar Hussain. 5. I have heard the learned counsel for the petitioner as well as the respondent no.2 as well as have also perused the materials on records including the impugned order. 6. A perusal of the impugned order would go to show that the Court below on the face of it had committed an error in coming to a conclusion that in order to file a claim for compensation under Section 163 of the Motor Vehicles Act 1988the claimant has to be a legal heir of the deceased person. At this stage it is relevant to mention that Section 166 of the Act provides for filing an application seeking compensation. Sub Sectionof Section 166 stipulates who are the persons who can file an application seeking compensation. The said Sub Sectionof Section 166 is quoted hereinbelow 1) An application for compensation arising out of an accident of the nature specified in sub sectionof section 165 may be made— a) by the person who has sustained the injury or b) by the owner of the property or c) where death has resulted from the accident by all or any of the legal representatives of the deceased or Page No.# 4 6 d) by any agent duly authorised by the person injured or all or any of the legal representatives of the deceased as the case may be: Provided that where all the legal representatives of the deceased have not joined in any such application for compensation the application shall be made on behalf of or for the benefit of all the legal representatives of the deceased and the legal representatives who have not so joined shall be impleaded as respondents to the application.” 7. From a perusal of the above quoted section it would transpire that an application seeking compensation can be madeby the person who has sustained the injury or by the owner of the property or where death has resulted from the accident by all or any of the legal representatives of the deceased or by any agent duly authorized by the person injured or all or any of the legal representatives of the deceased as the case may be. The first proviso to Sub Section of Section 166 of the Act stipulates that where all the legal representatives of the deceased have not been joined in any such application for compensation the application shall be made on behalf of or for the benefit of all the legal representatives of the deceased and the legal representatives who have not so joined shall be impleaded as respondent to the application. The second proviso to Sub Sectionof Section 166 of the Act is however not applicable to the dispute herein. 8. A perusal of the claim petition encloses as Annexure 1 to the petition as well as the objection filed by the Respondent no.1 to the application filed by the Petitioner seeking impleadment enclosed as Annexure 11 to the petition show that the Respondent no.1 had claimed her right to file the application for compensation on the ground that she is a legal representative of the deceased. Now therefore the question arises is as to whether the petitioner is also a legal representative of Late Anowar Hussain inasmuch as the First Proviso to sub Section of Section 166 of the Act stipulates that in case all the legal representatives are not there on record the legal representatives who have not so joined shall be impleaded as respondents to the application. 9. Therefore in order to adjudicate on the legality of the order dated 05.10.2016 it would be relevant to find out as to whether the petitioner can be considered to be a legal representative of Late Anowar Hussin. This aspect assumes importance in view of the fact that for the purpose of computation of the just and fair compensation by applying the principles as laid down by the Supreme Court both in the case of Sarla Verma vs. Delhi Transport Corporation reported in6 SCC 121 and National Insurance Company Limited vs. Pranay Sethi reported in16 SCC 680 it is necessary for the Claims Tribunal to find out as to whether the person claiming is a legal representative because in absence of that it would be difficult to fix the amount of deduction which is required to be made while computing the compensation. In that view of the matter it would be relevant for disposal of the instant case to find out as to whether the petitioner is a legal representative and is entitled to be impleaded in the said claim proceedings. 10. The provisions of the Act are framed with the object of providing relief to the victims or their families. It is a beneficial legislation as could be seen from a perusal of the provisions thereof. It aims at providing a just compensation to be determined on the foundation of fairness reasonableness and equitability. Although determination can never be arithmetically exact or perfect an endeavor should be made by the Court to award just and fair compensation. As already stated in the judgment of Sarla Vermait was held that Page No.# 5 6 when the deceased was married the deduction towards personal and living expenses of the deceased should be one thirdwhere the number of dependent family members is between 2 and 3 one fourth where the number of dependent family members is between 4 and 6 and one fifth where the number of dependent family members exceeds sixof the Act. In that view of the matter I am interfering with the impugned order thereby impleading the petitioner herein as a respondent no.4 in MAC Case No.226 2011 with the liberty to file her written statement in the said proceedings. The parties are directed to appear before the learned Court below on 29.11.2021. The Court below thereupon shall proceed with the matter in accordance with law. 12. The petition stands disposed of accordingly. The interim order passed earlier stands vacated. Taking into consideration that the accident occurred on 26.01.2011 and the claim proceedings is of the year 2011 the Court below is requested to dispose of the matter as expeditiously as possible preferable within a period of 6 months from the date of appearance of the parties. JUDGE

Unless the medical evidence totally excludes out the eye witness version, eye witness testimony is preferred to medical evidence: Gauhati High Court

The medical evidence value is usually only substantial. It shows that the injuries were allegedly caused and nothing more. The use of medical evidence by the defence aims to illustrate that the injuries could not be produced in the way that the eye-witnesses allegedly were and discredit them. Unless the medical record in its turn goes so far as to exclude totally all possibilities of injuries the testimony of the eyewitnesses may not be cast out on the grounds of a supposed discrepancy between the testimony and the medical proof. The judgement was passed by the High Court of Gauhati in the case of Anan Nayak v. the State of Assam [CRL.A(J)/36/2018] by Division Bench consisting of Hon’ble Justice N. Kotiswar  &amp; Justice Soumitra Saikia. The facts of the case are that an FIR was lodged by the wife of the deceased against the appellant Mangra Nayak. It was alleged that he held her husband’s hand and the appellant felled her husband by striking a blow on his head with a shovel. Before killing her husband he was struck on his neck which incident was witnessed by the complainant’s son. On the basis of the said FIR, the investigation was held and both the appellants were charge-sheeted. Learned counsel for the appellants submits that though the said weapon of crime was stated to be a shovel which was stated to have been recovered from the house of the father-in-law of the appellant, the said weapon was never produced before the court during the trial. Further, the said weapon was never sent for forensic examination to match the fingerprints on the weapon with that of the appellants nor the bloodstain found on the weapon of crime was sent for forensic examination. According to the learned counsel for the appellants, non-production of the weapon of crime and non-examination forensically of the same are serious lapses on the part of the investigation which would cast a doubt on the veracity of the prosecution case. It has been submitted that if the weapon of crime had been sent for forensic examination and the fingerprints and the blood available on the same were matched with the victim and the appellants, these could have clinched the matter. However, as the same had not been done, it cannot be said that the prosecution has been able to prove the case against the appellants beyond all reasonable doubts. He further relied on Yogesh Singh Vs. Mahabeer Singh, wherein it was held that “failure to examine the weapon of murder for fingerprints to connect the accused with it is extremely fatal to the prosecution case.” Learned counsel for the respondent submitted that the session court has dealt with this meritoriously and hence, the petition should be dismissed.

Page No.# 1 13 HIGH COURT OF ASSAM NAGALAND MIZORAM AND ARUNACHAL PRADESH) THE GAUHATI HIGH COURT Case No. : CRL.A(J) 36 2018 S O. SRI MANGRA NAYAK ANAN NAYAK @ PAPU NAYAK P.S. DIBRUGARH DIST. DIBRUGARH. R O. MAIJAN PATHERTALI GAON THE STATE OF ASSAM REP. BY P.P. ASSAM With CRL.A(J) 37 2018 MANGRA NAYAK S O. LT. JOGE NAYAK R O. MAIJAN PATHERTALI GAON P.S. DIBRUGARH DIST. DIBRUGARH. THE STATE OF ASSAM REP. BY P.P. ASSAM . Respondent Page No.# 2 13 Advocate for the appellant Mr. Arunangshu Dhar Amicus Curiae. Advocate for the Respondent : Ms. B. Bhuyan Addl. P.P. HON’BLE MR. JUSTICE N. KOTISWAR SINGH HON’BLE MR. JUSTICE SOUMITRA SAIKIA JUDGMENT & ORDERN. Kotiswar Singh J) Heard Mr. A. Dhar learned amicus curiae for the appellants. Also heard Ms. B. Bhuyan learned Additional Public Prosecutor Assam for the State respondent. These 2 jail appeals have been preferred against the common judgment and order dated 22.12.2017 passed by the learned Sessions Judge Dibrugarh in Sessions Case No.148 2014 by which the appellants were found guilty under Section 302 34 IPC and sentenced to undergo Life Imprisonment and also to pay a fine of Rs.1 000 only each in default of payment of fine to undergo rigorous imprisonment for 1 one) month each. The appellants were also convicted under Sections 341 34 IPC and sentenced to rigorous imprisonment for 6 months. Both the sentences are to run The brief facts of the case as unfolded in course of the trial was that an FIR was lodged on 30.04.2014 by one Smt. Sita Lohar wife of the deceased late Dilip Lohar stating that at 2.30 P.M. on 30.04.2014 Sri Anan Nayak @ Pappu Nayak and Mangra Nayak appellants herein both residents of Maijar Pathartoli Line confronted her husband Dilip Lohar on the Page No.# 3 13 road of Pathartoli Line. The appellant Mangra Nayak held her husband’s hand and the appellant Anan Nayak @ Pappu felled her husband by striking a blow on his head with a shovel. Before killing her husband he was struck on his neck which incident was witnessed by complainant’s son Rajib Lohar. On the basis of said FIR investigation was held and both the appellants were charge sheeted. The prosecution produced as many as 9 witnesses including the son of the deceased Rajib Lohar and the complainant. On the basis of the evidences which were adduced in course of trial learned Session Judge Dibrugarh convicted the appellants under Section 302 as well as 341 IPC as mentioned above against which the present 2 appeals have been preferred. A brief reference to the evidence adduced in course of the trial may be appropriate. P.W.1 Smt. Sita Lohar wife of the deceased late Dilip Lohar the complainant lodged the FIR on the basis of the information furnished by her son Rajib Lohar. She testified that on the day of incident she was returning home after working in the Tea Estate and noticed a gathering on the road inside the Line and when she went there she found her husband lying on the ground in an unconscious state. Her son was sitting near her husband. When she asked her son Rajib as to what happened to his father her son narrated the incident and told her that after assaulting her husband with a shovel the appellants ran away towards the Tea Estate. Thereafter someone called a 108 Ambulance and his father was taken to the Dibrugarh Medical College where he was declared dead. P.W. 2 the son of the deceased namely Rajib Lohar is the eye witness of the case who stated that both his father and the co accused are the co villagers. The incident took place at around 3 P.M. on the day of occurrence. He stated that his father came home taking a fish along. As his father had Rs.10 less for the price of the fish he took the same from his home and went to the appellant Mangra’s house where the P.W.2 followed his father. His father came across both the appellants on the road. The appellant Mangra held his father’s hands by bending on the back and the appellant Anan dealt three blows on his father’s head with a shovel. On receiving the blows his father fell on the ground. Thereafter P.W. 2 sat near his father. When his mother reached the place of occurrence he narrated to her as to what had happened. Thereafter a lot of people assembled there and his maternal uncle called a 108 Ambulance and took his father to the Dibrugarh Medical College where he was declared dead. The police also came to the place of occurrence and questioned him about the incident and the police took him to the court and he made a statement before the Page No.# 4 13 The Doctor who performed the postmortem on the dead body of the deceased was examined as the P.W.3 who found the following injuries as recorded in the postmortem “1. Incised wound of size 7X1X3 cm present on sub mental area of neck. 2. Incised wound of size 9X1.5X3 cm present on front of the neck at upper part scalp obliquely.” 3. Incised wound of size 8X2 cm bone deep present on left front parietal area of P.W.3 gave the opinion that the death was caused due to coma as a result of head injuries. According to him all injuries were antemortem caused by sharp cutting heavy weapon and homicidal in nature. He also gave the opinion that the head injuries found on the deceased were sufficient to cause death in ordinary course. He however stated in his cross examination that this type of injury could not be caused by a shovel. Other formal witnesses were also examined. P.W. 4 Arjun Tanti is a co villager when went along with the police to the house of the appellant Anan Nayak where Anan Nayak produced the shovel from his father in law’s house which he had used in the incident and police seized the same. P.W. 4 is a seizure witness of the shovel. P.W. 5 was another co villager and he had visited the medical college and saw the dead body where he saw injuries on the neck and back side of the head of the deceased. P.W. 6 is co villager of the appellant as well as the deceased who stated that on the date of incident while he was working in the house of the ward member of Maijan Natun Gaon Pritam another son of the deceased came and told him that his father was lying on Page No.# 5 13 the road. Thereupon he went to the place of occurrence where he found the deceased lying with injuries on his neck and head. He thereafter informed the ambulance and the deceased was taken to the Medical College. P.W. 7 Bijay Shah was another villager who knew the deceased as well as both the appellants. He proceeded to the place of occurrence on learning that a murder had taken place and on reaching the place of occurrence he found the deceased lying on the road and was bleeding from the head and his son was covering the injuries by placing a gamocha on the injuries. On being asked the boy told him that his father had sustained injuries on his head as a result of blow being dealt with a shovel. However the boy did not tell him as to who had assaulted his father. Thereupon he was declared as a hostile witness. On being cross examined by the Prosecution he denied having stated before the police that when enquiring he learnt that the appellants had killed the deceased by dealing blows with shovel. On being cross examined by the defence he stated that the son of the deceased did not tell him who assaulted his father. P.W.8 was the driver of an Ape Vehicle by which the appellant was taken to a house along with the police personnel and from his house the police personnel recovered a shovel. Thereafter P.W.8 drove them back to the Police Station. P.W.9 was the Investigating Officer who went along with the appellant Anan Nayak to recover the weapon which was used in the incident as stated by the appellant Anan Nayak. He stated that appellant Anan Nayak took the police to his father in law Rustom Karmakar’s house and produced the shovel from beneath one bed inside the house which was seized in presence of the witnesses. P.W. 9 deposed that P.W.7 Bijay Shah stated while recording his statement that he saw the deceased lying with injuries on neck head and left hand and his son was trying to get rid of houseflies by waving a gomasha and upon enquiring about the matter he learnt that Anan Nayak had killed the deceased by dealing blows with shovel. On the basis of the aforesaid evidences and other evidences on record the learned trial court convicted the appellants under Sections 302 and 341 IPC. The learned counsel for the appellants has submitted that there was only one eye witness to the aforesaid incident who happened to be the minor son of the deceased P.W.2 Page No.# 6 13 whose evidence could not be said to be fully trustworthy as he was an interested person since his father was the victim. It has been also submitted that his statement recorded under Section 164 Cr.P.C. is in variance of the deposition made before the Court. It has been submitted that while in course of trial the P.W. 2 testified mentioning about shortage of Rs.10 and for buying fish and proceeding towards the house of the appellants P.W. 2 merely stated in his statement under Section 164 Cr.P.C. that his father handed over fish to him and after washing his hand and feet when his father was going to the line for a walk he was following him. The learned counsel for the appellants submits that the incident took place on 30.04.2014 whereas the statement of P.W.2 was recorded on 05.05.2014 and the deposition was made before the Court on 26.08.2014. Thus there is a distinct possibility of the child being tutored to improve upon the case. According to the learned counsel for the appellants the details mentioned in his deposition before the Court are absent in his statement recorded under Section 164 Cr.P.C. Learned counsel for the appellants also submits that though the said weapon of crime was stated to be a shovel which was stated to have been recovered from the house of the father in law of the appellant Anan Nayak the said weapon was never produced before the court during the trial. Further the said weapon was never sent for forensic examination to match the fingerprints on the weapon with that of the appellants nor the blood stain found on the weapon of crime was sent for forensic examination. According to the learned counsel for the appellants non production of the weapon of crime and non examination forensically of the same are serious lapses on the part of the investigation which would cast a doubt on the veracity of the prosecution case. It has been submitted that if the weapon of crime had been sent for forensic examination and the finger prints and the blood available on the same were matched with the victim and the appellants these could have clinched the matter. However as the same had not been done it cannot be said that the prosecution has been able to prove the case against the appellants beyond all reasonable doubts. Learned counsel for the appellants has also submitted that though it was claimed by the sole eye witness P.W.2 that his father was hit by the appellants Anan Nayak and Mangra Nayak on his head and neck by a shovel the doctor who performed the postmortem in his cross examination categorically stated that such type of injury could not have been caused by Page No.# 7 13 a shovel. It has been submitted by the learned counsel for the appellants thus that there is inconsistency between the medical evidence and the eye witness account. In view of the aforesaid inconsistency between the ocular evidence of P.W. 2 and that of the expert witness of the P.W. 3 it cannot be said with certainty the death was caused because of the injuries caused by the shovel. The Ld. Counsel for the appellants referring to the decision of the Hon’ble Supreme Court in Datar Singh vs. State of Punjab 4 SCC 272 submits that failure to examine the weapon of murder for fingerprints to connect the accused with it is extremely fatal to the prosecution case. Further relying on the decision of Yogesh Singh Vs. Mahabeer Singh 11 SCC 195 it has been submitted that evidence of a child witness must find adequate corroboration before it is relied upon. It should be evaluated more carefully and with greater circumspection because a child is susceptible to be swayed by what others tell him and thus a child witness is an easy prey to tutoring. It has been submitted that the fact that there were discrepancies in the statement of child witness PW 2 made before the trial court and before the Magistrate made under Sec.164 CrPC would cast a doubt on the veracity of the evidence Further it has been submitted that no crime could be committed without any motive. In the present case the prosecution has failed to prove the motive behind the killing of the Having heard the learned counsel for the appellants and the State and having considered the materials on record we proceed to examine the correctness of the impugned of the child witness PW 2. deceased by the appellants. As far as the homicidal nature death of the deceased Dilip Lohar is concerned there is no doubt about the same. It has been also proved by medical evidence that the death was caused as a result of head injuries caused by sharp cutting heavy weapon and it was homicidal in nature. Page No.# 8 13 This Court has to consider now as to who were responsible for the death of the deceased and how the crime was committed. From the records it is clear that there was only one eye witness namely the PW 2 who was a minor child of the deceased. He was aged about 14 years when he was examined by the trial court on 26.08.2014. When the incident occurred on 30.04.2014 it was about four months before the PW2 was examined by the court. So it may be safely assumed that the child witness would be about 13 14 years. Considering the age of the child it cannot be said that he would be able to state the facts coherently. P.W.2 had categorically stated before the trial Court that he knew both the appellants as they were co villagers. Whatever P.W.2 had stated before the Court was a substantive reiteration of what he had stated before the Magistrate under Section 164 CrPC. In his statement made under Sec. 164 CrPC he categorically mentioned that at about 3:30 P.M. on 30.04.2014 his father handed over fish to him and after washing his hands and feet he was going to the Line to have a walk and he was following him. He further stated that while going a little ahead he saw that Mangra Nayak the appellant held his father’s hand by bending those on the back and appellant Anan Nayak dealt blow on his father’s head and neck with a shovel. His father fell down and remained lying there. They then ran away from the spot. He then called people in the neighbourhood. Later on a 108 Ambulance was called and his father was taken to the hospital and died on the way. As far as statement deposition before the concerned court he reiterated as to the factum of assault of his father by the appellants that while he was following his father on his way towards the appellant Mangra’s house he came across both the appellants Mangra Nayak and Anan Nayak on the road and Mangra held his father’s hand by bending those on the back and the appellant Anan dealt three blows on his father’s head with a shovel. Receiving the blows his father fell on the ground and that he sat near his father. 25. What has been added in his deposition before the trial court is that about the shortage of 10rupees for purchasing fish and also what happened after the incident. This part of the deposition not being very consequential non mentioning of the same in the 164 CrPC statement in our opinion is not very natural. 26. P.W.2 also stated in addition that when his mother reached the place of occurrence he told her as to what had happened to his father about the assault by the appellants Mangra Page No.# 9 13 and Anan. But he also mentioned about the people assembled there as stated in his statement under Section 164 CrPC. He also mentioned about the calling of 108 Ambulance which took his father to the hospital. He also mentioned in his deposition that the police had taken him to a Magistrate for recording his statement. This addition cannot be said to be embellishment in as much other prosecution witnesses who was declared hostile also stated but on being asked the boytold him that his father had sustained injury on his head as a result of blow being dealt with a Though in his cross examination P.W.7 denied having stated to the police during investigation that on enquiry about the mother I learnt that the appellants had killed the deceased by dealing blows with shovel the I.O. of the case P.W.9 testified that the P.W.7 stated to him to the aforesaid effect by exhibiting his statement recorded under Sec.161 Thus in our opinion non mentioning by the P.W.2 about informing his mother when enquired that the appellants had assaulted the deceased does not really impeach the veracity of the testimony of P.W.2. In examining the statement of P.W. 2 recorded under Sec. 164 CrPC soon after the incident we have noted that what was material and relevant to the incident had been recorded i.e. witnessing the appellants assailing the deceased and with a shovel and thereafter running away. It may be also noted that the statement was recorded on 05.05.2014. the incident happened on 30.04.2014. As per the case diary the police interrogated and examined several witnesses on 30.04.2014 01.05.2014 and thereafter on 05.05.2014 the statement of P.W. 2 was recorded under Sec. 164 CrPC. Under the circumstances we are of the view that there was no inordinate delay in recording the statement of P.W.2 to cast any doubt on the veracity of the same. He was cross examined by the defence as to whether his school was closed to which Page No.# 10 13 he replied that as on that day his school was closed. Thus it clearly indicated that his presence in the place of occurrence cannot be said to be stage managed. We have also noted that P.W.1 the mother of P.W.2 and wife of the deceased stated in her deposition that she saw her son P.W.2 at the place of occurrence and saw her husband lying on the ground in an unconscious state and that she saw her son P.W.2 sitting near her husband. In the cross examination she also stated that on the day of the incident the school was closed. Though he mentioned in the cross examination that there are lots of houses near the place of occurrence and neighbouring people would come out if an incident takes place in the night he was not asked specifically by the defence as to whether he could recognize any of the persons who had gathered at the place. He denied the suggestion that he had falsely deposed that the appellants had assaulted his father and he had adduced false evidence and being tutored by the members of his family and also denied that none of the people residing near the place of occurrence witnessed the incident. Cross examination of P.W.2 child witness does not show that his deposition has been shaken on material aspect of the evidence. Having gone through the evidence of the P.W.2 we are of the opinion that the child witness P.W.2 who was about 13 14 years was capable of giving proper evidence and his deposition does not suffer from any inconsistency. It appears to be natural to be at the place of occurrence along with the father who had witnessed both the appellants assaulting his father with a shovel. Similarly P.W. 7 though was declared a hostile witness stated in his deposition that he saw the deceased lying on the road and bleeding from the head. He also saw his son covering injuries by pressing a gomasa on the injuries and on being asked the boy told him that his father had sustained injury on his head as a result of blow being dealt with shovel. Thus the presence of the boy i.e. P.W.2 is testified by both the mother and the P.W. 7. In our view the presence of the child witness P.W.2 at the place of occurrence therefore cannot be doubted. 31. As mentioned above P.W.7 however resiled from his statement made to the police under Sec. 161 CrPC that enquiring to the mother he learnt that the appellants had killed the deceased by dealing blows with shovel. This was specific to the question of the Prosecution in the cross examination after declaring P.W.7 as a hostile witness when P.W.7 stated before the Page No.# 11 13 In his statement before the police he said that “I saw deceased Dilip Lohar lying on the road below the embankment and bleeding from the head. Dilip Lohar’s son covered his injuries by pressing a Gamosaon the injuries. On being asked the boy told me thathad sustained injury on his head as a result of blow being dealt with shovel. The boy did not tell me as to who had assaulted his father. Police questioned me.” As regards the aforesaid denial the same question was put to P.W.9 who was the Investigating Officer. He stated before the Court that in his statement made before him the witness Bijay Shah P.W. 7 had stated that “I saw that Dilip Lohar was lying with injuries on neck head and left hand and his son was trying to get rid of houseflies by waving a Gamosa bath towel). Upon inquiring about the matter I learnt that Anand Naik and Managra Naik had killed Dilip by dealing blows with shovel.” We have also seen Ext.10 and gone through Ext.10. Ex. 10is the signature of P.W. 9. It is found that the P.W.7 had stated so which he denied having said when cross Thus apart from the factum of statement as to who had killed the deceased which P.W.7 did not want to mention in his deposition other facts about seeing the deceased lying on the ground and also seeing the child witness near the dead body is not disputed by the P.W. 7 himself. as to impeach his credibility. Thus we find the evidence of P.W.2 reliable and trustworthy. Nothing has been shown Of course an attempt has been made by the Prosecution based on the medical opinion as available in the post mortem report and deposition of P.W.3 that the injuries were caused by sharp cutting heavy weapon and those type of injury cannot be caused by a Belcha a shovel contrary to P.W.2 had stated in his deposition and the statement under Section 164 Page No.# 12 13 We have also noted that though the said shovel was seized it was not produced in course of the trial which we find to be lacuna which lacuna we do not consider to be vital as the cause of the death has been otherwise sufficiently proved by eye witnesses and medical It is also to be noted that the opinion of the Doctor is merely an expert opinion which though entitled to due consideration by the Court it cannot have an overriding effect of effacing the testimonial evidence unless the medical opinion totally rules out any such injury by shovel. It is also to be noted that the expert opinion was given by the Doctor without seeing the weapon of crime. Therefore his opinion was of general nature which does not totally rule out the injuries which may be caused by a shovel on the body. Unfortunately in absence of the shovel which was seized this Court also is not in the position to state with certainty but it is also a fact that a shovel after long use can become sharp edged on the sides and as such since the opinion of the Doctor was that the injuries were caused by a sharp cutting heavy weapon use of Belcha which is a heavy weapon cannot be totally ruled out in spite of the opinion of the Medical Officer. The injuries found on the body of the deceased corresponds to the description given by the P.W.2 of the assault by the appellants on the head of the deceased. Merely because of this doubt as to whether the said shovel could have caused the injury cannot in our view demolish the prosecution case and the ocular evidence of the child witness. In the case of Solanki Chimanbhai Ukabhai vs State Of Gujarat 2 SCC 174 the Hon’ble Supreme Court held that the testimony of eye witness would be preferable to medical evidence unless the medical evidence completely rules out the eye witness It was held in para 13 of the aforesaid case Solankias follows: “13. Ordinarily the value of medical evidence is only corroborative. It proves that the injuries could have been caused in the manner alleged and nothing more. The use which the defence can Page No.# 13 13 make of the medical evidence is to prove that the injuries could not possibly have been caused in the manner alleged and thereby discredit the eye witnesses. Unless however the medical evidence in its turn goes so far that it completely rules out all possibilities whatsoever of injuries: taking place in the manner alleged by eye witnesses the testimony of the eye witnesses cannot be thrown out on the ground of alleged inconsistency between it and the medical In the present case the testimony of the child witness was that his father was struck with a shovel on his head by the appellants and the post mortem report also mentions of the head injuries. Though the Medical Doctor gave his opinion that this type of injury cannot be caused by a Belcha it does not necessarily mean that such injury cannot be caused by Belcha at all. He did not give any opinion that ruling out such injury caused by the Belcha. As mentioned above Belcha used frequently can have sharp edge on the sides. Thus we do not consider that medical evidence completely rules out of possibilities of the injuries received by the deceased father because of the use of Belcha. In our view the specific and categorical statement of P.W.2 that the appellant Anan struck blows in his father’s head with a shovel can be relied upon for conviction of the appellants in spite of the opinion of the Doctor expressing his view that this type of injury cannot be caused by a Belcha. Accordingly for the reasons discussed above we are also satisfied that the appellants were guilty of committing the offences under Sections 302 341 34 IPC and have been correctly convicted by the learned trial court. The appeals CRL.A.(J) No. 36 2018 and CRL.A.(J) No. 37 2018 are accordingly dismissed as devoid of merit. Comparing Assistant

Passing an order in the absence of the necessary party is bad in the eyes of law: High Court Of Orissa

It has appeared from the records that the writ petitioners had misled the learned Single Judge. Such an opinion was held by The Hon’ble High Court of Orissa before The Hon’ble Mr. Chief Justice B.P. Routray in the matter of Gundam Manga Raju Vs. Tirthabasi Mohapatra (since dead) through LRs and others [W.A. No.45 of 2009].  The facts of the case were related to a land dispute. The learned single judge directed to record half a share of the land in favour of Respondent No.2, which was assailed in the present appeal. It was admitted that the Member, Board of Revenue in Revenue Appeal confirmed that Gangadhar Satapathy settled the land in favour of Abhimanyu Das by Gountia Lease Patta dated 6th November 1943. Later the Abhimanyu sold the land in question to Tirthabasi. An objection case was filed by Respondent No.7 when the consolidation operation started in that area. All the objection cases through a common order were rejected by the consolidation officer. It was reported that 7 appeals were allowed by a common order with the direction to record the purchased lands separately in the name of respective purchasers.  It was submitted that Respondent Nos.1 and 2 preferred the revision and the writ petition on behalf of the Appellant and excluded her as a party. The learned Single in her absence passed the impugned order. The perused records revealed that the present Appellant was not impleaded as a party in the writ petition. Moreover, the learned Single Judge was misled since the writ petitioners stated that all seven appeals were filed by Respondent No.7. After thorough considerations, The Hon’ble Court ruled out that “… In view of the discussions made in the foregoing paragraphs, since the impugned order has been passed in absence of the appellant who is a necessary party, the same is liable to be set aside on that score only. Accordingly, the order of the learned Single Judge dated 21st February 2008 is set aside. The writ appeal is allowed, but in the circumstances without any order as to costs.” Click here to read the Judgment

IN THE HIGH COURT OF ORISSA AT CUTTACK WRIT APEAL No.45 OF 2009 From the judgment dated 21st February 2008 passed by learned Single Judge in O.J.C. No.71998) Gundam Manga Raju Versus Tirthabasi Mohapatrathrough LRs and others Advocate(s) appeared in this case: ….… For Appellant Mr. P.K. Kar Advocate For Respondents Mr. D.K. Nayak Advocate For Respondent Nos.1 & 2) Mr. D.K. Mohanty A.G.A. B.P. Routray J. CORAM : THE CHIEF JUSTICE JUSTICE B.P. ROUTRAY JUDGMENT 28th October 2021 1. The dispute pertains to an extent of land measuring area Ac.19.55 decimals of mouzaChakuli under Attabira P.S. The direction of the learned Single Judge dated 21st February 2008 for recording half share of the land in favour of Respondent No.2 has been assailed in the present appeal. W.A. No.409 2. The admitted facts of the case are that the then Gountia namely Gangadhar Satapathy settled the land in favour of Abhimanyu Das by Gountia Lease Patta dated 6th November 1943 which was later confirmed by the Member Board of Revenue in Revenue Appeal No.98 53 54. Said Abhimanyu Das sold the land in question to Tirthabasi Mohapatra and Dhirabati Mohapatravide Registered Sale Deed No. 985 dated 4th April 1960. Subsequently Tirthabasi along with Abhimanyu sold the land to G. Janaki Rama RaoG. Gani Raju and another vide RSD No.2670 dated 30th March 1963. 3. When the consolidation operation started in the area Objection Case Nos.181 183 184 185 and 1881 were filed by the Respondent No.7. Objection Case No.182 1981 pertaining to area Ac.1.50 decimals out of total Ac.19.55 decimals was filed by the present Appellant. It is the case of the Appellant that she purchased the aforesaid land from her vendor G. Gani Raju vide RSD No.2255 dated 9th September 1980. The Consolidation Officer rejected all the objection cases by common order dated 26th February 1982. Being aggrieved by the order of the Consolidation Officer the Appellant filed Appeal Case No.139 1982 and Respondent No.7 filed Appeal Case Nos. 134 1982 135 1982 136 1982 137 1982 138 1982 and 140 1982 before the Deputy Director Consolidation of Holdings Sambalpur. All those seven appeals were allowed by a common order dated 29th January 1983 with the direction to record the purchased lands separately in the name of respective purchasers. As such final consolidation patta was issued in W.A. No.409 favour of the Appellant in respect of her land measuring area Ac.1.50 decimals in Consolidation Khata No.214. 4. Being aggrieved by the order of the appellate court Respondent Nos.1 and 2 filed revision before the Joint Commissioner Settlement and Consolidation Sambalpur in C.R. Case No.27 329 1984 which was dismissed. It was then challenged by Respondent Nos.1 and 2 before this Court in OJC No.71998. The learned Single Judge by order dated 21st February 2008 allowed the writ petition in favour of Respondent Nos.1 and 2. The relevant portion of the said order is reproduced below. “6. Heard learned counsel for the parties at length. Perused all the materials including the impugned order. Fact remains the petitioners by a joint regd. Sale deed purchased the lands way back in the year 1960. The lands having been acquired by them they should be treated as co tenants or joint owners. Only because petitioner No.2 is the wife it cannot be presumed that she was a benamidar. After abolition of benami transaction such a presumption consonance with law. However fact remains Dhirabati Petitioner No.2 has not alienated her share. Thus OP No.4 having purchased the land from petitioner No.1 by the regd. Sale deed on 03.05.1963 acquired only the share of Tirthabasi petitioner No.1. He cannot put any claim on the share of Dhirabati. is also not In view of the aforesaid clear position of law this Court has no hesitation to set aside the order passed by the Commissioner and directs accordingly. Consequently it is held that Dhirabati Petitioner No.2 being the owner in respect of the half of the lands purchased by her and she having not executed any sale deed the said lands should be recorded in her favour. W.A. No.409 With the aforesaid observation the writ petition is disposed of. The Consolidation Officer Atabira is directed to record the lands in favour of petitioner No.2 in consonance the observations in this order.” 5. It is submitted on behalf of the Appellant that Respondent Nos.1 and 2 preferred the revision as well as the writ petition without impleading her as a party. Despite the fact apparent on record that the revisional order dated 23rd February 1998 is against the order passed in Appeal Case No.139 1982 filed by the present Appellant the learned Single Judge has passed the impugned order in absence of necessary party. It is further submitted that since the purchase of land extending Ac.1.50 decimals out of Ac.19.55 decimals by the Appellant is not disputed she is a necessary party in the revision case as well as in the writ petition and the impugned order of the learned Single Judge which has been passed in her absence is thus bad in the eye of law. 6. It is worthwhile to mention here that this Court by order dated 10th August 2009 has directed to maintain statusquo in respect of the property in question. 7. Perusal of the records of the writ petition reveals that admittedly the present Appellant was not impleaded as a party in the writ petition. Similarly the copy of the order of the Joint Commissioner in C.R. Case No.27 329 1984 as impugned in the writ petition does not reveal the name of the present Appellant in the array of parties therein. As seen from the order of the revisional court it is observed at para 7 that the revision is liable for rejection in absence of challenge to the order in respect of other Appeal Cases except Appeal Case No.134 1982. It is W.A. No.409 important to note here that the appellate order under challenge in the revision before the Joint Commissioner was the common order passed in seven Appeal Cases including the Appeal of present appellant. Despite such specific observations of the revisional court in the order impugned before the learned Single Judge he proceeded to set aside the revision order in absence of the present Appellant. Undoubtedly the Appellant is a necessary party in the writ petition for he is affected by any such observations made regarding grant of 50% share in favour of Dhirabati Respondent No.2). In other words the order of the learned Single Judge has effectively set aside the appellate court’s order dated 29th January 1983 passed in Appeal Case No.139 1982 also Babubhai Muljibhai Patel v. Nandlal Khodidas Barot 1974) 2 SCC 706] and Sarguja Transport Service v. STAT1 SCC 5]) W.A. No.409 B.K. Barik P.A. 9. It also appears from the record that the writ petitioners have misled the learned Single Judge by stating that all seven appeals were filed by Respondent No.7. 10. In view of the discussions made in the foregoing paragraphs since the impugned order has been passed in absence of the appellant who is a necessary party the same is liable to be set aside on that score only. Accordingly the order of the learned Single Judge dated 21st February 2008 is set aside. order as to costs. 11. The writ appeal is allowed but in the circumstances without any Judge (Dr. S. Muralidhar) Chief Justice W.A. No.409

The Kerala Agro Industries VS Beta Engineers

The “principal” and “agent” will be held to have consented if they have agreed to a state of facts on which the law imposes the consequences which result from agency, even if they do not recognize it themselves and even if they have professed to disclaim it The facts of the case are that the respondent/plaintiff filed the subject suit for recovery of monies against the appellants/defendants for having supplied a total of 417 numbers of Golden Rocker Sprayers and 100 numbers of knapsack sprayers.The respondent/plaintiff is a manufacturer and supplier of Agriculture, Anit-Malaria and other pest control sprayers and spare parts. Originally, the order which the respondent/plaintiff claimed was placed upon it on 3.12.1999, was for 300 golden rocker sprayers 100 numbers of knapsack sprayers, however, subsequently the quantity of Golden Rocker Sprayers was increased to 400 numbers vide telegram dated 27.12.1999 which was said to have been sent by the appellants/defendants and thereafter to 417 numbers.The respondent/plaintiff claimed that a total amount of ` 8,48,053/- became due from the appellants/defendants and for which the bill bearing No.1558 dated 28.12.1999 was sent to the appellants/defendants. The appellants/defendants paid a sum of ` 4 lacs, leaving a balance of ` 4, 48,053/- and for recovery of which the subject suit was filed.ISSUE BEFORE THE COURT:Whether the judgment of trial court faced any misconduct?Whether the consent is mandatory between principal and agent?RATIO OF THE COURT:This court referred to the judgement of trial court that the trial Court arrived at a conclusion that Mr. M.A. Jose was not the authorized agent and he acted in excess of the authority, consequently the respondent/plaintiff is not bound by the action of Mr. M.A. Jose in receiving back 195 numbers of rocker sprayers and 45 numbers of knapsack sprayers. This conclusion was arrived at firstly on the ground that there was no term and condition in quotation, Ex.P2 dated 29.4.1999 that Mr. M.A. Jose could receive back any goods which were sold by the respondent/plaintiff to the appellants/defendants.Another reason for arriving at the conclusion that Mr. M.A. Jose was not the agent was that because as per the trial Court, there was nothing on record to prove that the respondent/plaintiff by any written communication or by its conduct/representation made the appellants/defendants believe that Mr. M.A. Jose was authorized to take back the goods. Yet another reason for holding that the case of the appellants/defendants is not correct because it was held by the trial Court that respondent/plaintiff wrote letters dated 29.12.1999, 21.1.2000 and 1.3.2000 asking for payment, and to which letters no disputes were raised that payment was not liable to be made on account of goods having been returned to the respondent/plaintiff through Mr. M.A. Jose.This court observed some wholly misconstrued the relevant documents which have been filed and exhibited in the trial Court. In fact, the trial Court has committed clear cut illegality in avoiding to make reference to the various relevant portions of the documents/correspondence existing on record. Once we look at the relevant portions of the documents and correspondence on record, it becomes clear that Mr. M.A. Jose was in fact the agent of the respondent/plaintiff and therefore the appellant/defendant was fully justified in taking Mr. M.A. Jose as the agent of the respondent/plaintiff, who could receive back the goods. BeforeThe court refered to the documents/correspondence on record, it is relevant first to refer to Sections 182, 186 of the Contract Act, 1872 and which Sections read as under:“182. Agent and principal defined. – An agent is a person employed to do any act for another, or to represent another in dealings with third person. The person for whom such act is done, or who is so represented, is called the principal.186. Agents authority may be expressed or implied – The authority of an agent may be expressed or implied.The court stated that the relationship of principal and agent can be express or implied or partly express or partly implied. The relationship of principal and agent therefore can also arise on account of the principal and agent conducting themselves as such. Once a person is taken as an agent unless therefore there are words restricting the authority of the agent, ordinarily an agent would be entitled to represent the principal within the ordinary scope of business conducted by the agent on behalf of the principal. At this stage it is necessary to refer to some of the relevant observations of the Supreme Court on the aspect of relationship of principal and agent as contained in the judgment reported as Chairman, Life Insurance Corpn. and Ors. Vs. Rajiv Kumar Bhasker (2005) 6 SCC 188 “The relationship of principal and agent can only be established by the consent of the principal and the agent. The consent need not necessarily be to the relationship of principal and agent itself. The “principal” and “agent” will be held to have consented if they have agreed to a state of facts on which the law imposes the consequences which result from agency, even if they do not recognize it themselves and even if they have professed to disclaim it. Nor is the use of or omission of the word “agent” conclusive. The consent must, however, have been given by each of them, either expressly or by implication from their words and conduct. Agency is a legal concept which is employed by the Court when it becomes necessary to explain and resolve the problems created by certain fact situations. When the existence of an agency relationship would help to decide an individual problem, and the facts permit a court to conclude that such relationship existed at a material time, then whether or not any express or implied consent to the creation of an agency may have been given by one party to another, the Court is entitled to conclude that such relationship was in existence at the time, and for the purpose in question.The court observed that in the face of the documentary evidence being the plaint where the respondent/plaintiff admits that Mr. M.A.Jose was working on commission with the respondent/plaintiff, i.e. as a commission agent, the specific admission in the letter dated 15.12.1999, Ex.P5/DA that Mr. M.A.Jose was their representative by stating “our representative Mr. Jose” and copy of this letter is marked to Mr. Jose, the fact that Mr. Jose received payment on behalf of the respondent/plaintiff vide Ex.P8/DA dated 15.3.2000, in my opinion, leaves no manner of doubt that Mr. Jose was in fact an agent acting for and on behalf of the respondent/plaintiff. Surely, if “a representative”, a term mentioned in the letter dated 15.12.1999, Ex.P5/DA and by which the subject order was placed, is not an agent then what else is a representative.A representative is indeed a very wide term and such representative can, therefore, unless the scope of authority is specifically curtailed, without doubt, would have led the appellants/defendants to believe that the appellants/defendants could even return the goods to the said agent, Mr. M. A. Jose. Any doubt as to the complete authority of the agent, Mr. M. A. Jose to act for and on behalf of the respondent/plaintiff is clear from the course of dealing including of Mr. M. A. Jose having received the payment as evidenced by Ex.P8/DA dated 15.3.2000. Though, the respondent/plaintiff has conveniently chosen to deny the document being the letter dated 12.1.2000, Ex.DW1/5, and which is a letter on the letter-head of the respondent/plaintiff by which Mr. M.A.Jose took back 35 numbers of Rocker sprayers, in my opinion, such a convenient denial cannot take away the validity and effect of this letter dated 12.1.2000The court observed that the judgement of trial court faced misconduct and this court stated that not too much weight can be attached to the appellants/defendants not replying to the letters dated 29.12.1999, 21.1.2000 and 1.3.2000.This court decided a civil case on balance of probabilities. A civil Court puts all the evidence which have been led in a melting pot so as to determine the final picture which has to emerge. In my opinion, in view of the admitted documents/correspondence on record, there is no manner of doubt that Mr. M.A.Jose was an agent acting for the respondent/plaintiff, and in view of the ratio of the judgment of the Supreme Court in the case of Chairman, LIC (supra),Mr. M.A. Jose clearly had ostensible general authority which was clear from the correspondence between the parties and also the course of dealing, and therefore, the respondent-plaintiff/principal was clearly bound to honour the actions of the agent, Mr. M. A. Jose of having received back the goods as held by the Supreme Court in the case of Chairman, LIC (supra). The respondent-plaintiff/principal is estopped in the facts of the case from denying that actual authority existed in Mr. M.A. Jose in taking back the goods.DECISION HELD BY COURT:At last the court stated that appeal is accepted. Suit of the respondent/plaintiff shall stand dismissed. Parties are left to bear their own costs. Decree sheet be prepared.The bank guarantee furnished by the appellants/defendants pursuant to the order dated 27.4.2005 shall stand discharged. The amount which has been deposited by the appellants/defendants in this Court, being the amount of `22,403/-, along with accrued interest be also released back to the appellants/defendants. Trial Court record be thereafter sent back.

IN THE HIGH COURT OF DELHI AT NEW DELHI RFA No. 418 2003 Judgment reserved on : 22nd December 2011 Date of Pronouncement : 9th January 2012 M S. THE KERALA AGRO INDUSTRIES CORPORATION LTD. & ANR. APPELLANTS Through: Mr. C.N. Sreekumar Advocate with Ms. Resmitha R. Chauhan Advocate. M S. BETA ENGINEERS HON‟BLE MR. JUSTICE VALMIKI J.MEHTA To be referred to the Reporter or not ..... RESPONDENT Through: Mr. B.S. Arora Advocate. VALMIKI J. MEHTA J. This Regular First Appeal filed under Section 96 of the Code of Civil Procedure 1908 impugns the judgment of the trial Court dated 30.1.2003 decreeing the suit of the respondent plaintiff for recovery of ` 4 99 500 with pendente lite and future interest @ 24% per annum. The facts of the case are that the respondent plaintiff filed the subject suit for recovery of monies against the appellants defendants for having supplied a total of 417 numbers of Golden Rocker Sprayers and 100 numbers of knapsack sprayers. The respondent plaintiff is a manufacturer and supplier of Agriculture Anit Malaria and other pest control sprayers and RFA No. 418 2003 spare parts. Originally the order which the respondent plaintiff claimed was placed upon it on 3.12.1999 was for 300 golden rocker sprayers 100 numbers of knapsack sprayers however subsequently the quantity of Golden Rocker Sprayers was increased to 400 numbers vide telegram dated 27.12.1999 which was said to have been sent by the appellants defendants and thereafter to 417 numbers. The respondent plaintiff claimed that a total amount of ` 8 48 053 became due from the appellants defendants and for which the bill bearing No.1558 dated 28.12.1999 was sent to the appellants defendants. The appellants defendants paid a sum of ` 4 lacs leaving a balance of ` 4 48 053 and for recovery of which the subject suit was filed. The appellant No.1 defendant M s. Kerala Agro Industries Corporation Ltd. a Kerala State Government undertaking contested the suit and the basic point of defence was that out of the total sprayers supplied the representative of the respondent plaintiff one Mr. M.A. Jose had taken back 195 numbers of rocker sprayers and 45 numbers of knapsack sprayers and therefore unless credit is given for these sprayers having taken back no payment could be made. In fact considering that out of the total bill of ` 8 48 053 a sum of ` 4 lacs was already paid it was urged before this Court that a very negligent amount if at all would remain due respondent plaintiff once the value for 195 numbers of Golden Rocker Sprayers and 45 numbers of knapsack sprayers is reduced from the claim of RFA No. 418 2003 the respondent plaintiff. The main issue which was argued before the trial Court was with respect to whether Mr. M.A. Jose was the agent of the respondent plaintiff and whether he had received back 195 numbers of Golden Rocker Sprayers and 45 numbers of knapsack sprayers from the appellants defendants. The relevant issue in this regard which was framed by the trial Court was modified as issue No.3 which reads as under: “MODIFIED ISSUE NO.3 “Whether Sh. M.A. Jose was authorized by the plaintiff to collect sprayers back from the defendant on behalf of the plaintiff and the said goods were returned by the defendant to him as alleged in the Written Statement If so to what effect. OPD” The trial Court has held that Mr. M.A. Jose was not the agent of the respondent plaintiff for receiving back of the goods. It is also held that Mr. M.A. Jose acted in excess of authority in receiving back the goods and therefore the respondent plaintiff was not liable. The relevant observations made by the trial Court in this regard read as under: Perusal of the telegram Ex.P.4 shows that if has been sent by Mr. S.C. Bose i.e. DW.1 Divisional Engineer of the defendant company. The said telegram is not sent by Mr. Jose as is being claimed by the defendants. So it is proved that the goods in question were sent by the plaintiff to the defendants in pursuance of the order Ex.P.3 followed by enhanced order vide telegram Ex.P.4 dated 27.12.1998. As already mentioned above receipts of goods as mentioned as mentioned in the Bill Ex.DW.1 p.1 is not disputed by the defendants in any manner whatsoever. However the plea of the defendants is that they had placed an order for supply of 300 Rocker Sprayers and RFA No. 418 2003 100 Knapsack Sprayers 9 litre capacity but the plaintiff sent excess supply. Their plea is that the excess goods were received from the plaintiff vide the said bill with an understanding between the defendants and Mr. Jose Local Representative of the plaintiff that Mr. Jose would take back part goods and so that goods were returned to Mr. Jose for and on behalf of the plaintiff company. It is not disputed that the plaintiff had sent the goods in question to the defendants vide Bill Ex.DW.1 P.1. As mentioned in the quotation Ex.P.2 the orders taken directly or through the Representative of the plaintiff were subject to confirmation by the plaintiff. The plaintiff vide their letter Ex.D.1 PX had sought confirmation from the defendants regarding order for enhanced number of goods. The said letter is duly admitted by the defendants during admission denial of documents vide endorsement dated 09.7.2002. The defendants vide telegram Ex.P.4 which is dated 27.12.99 asked the plaintiff to send the enhanced number of goods as mentioned in the telegram. As already mentioned above the said telegram is duly proved to have been sent by the defendants to the plaintiff. It is further shows that the confirmation for supply of enchanced number of goods sought by the plaintiff vide their letter Ex.D1 PX was sent by the defendants to the plaintiff vide telegram Ex.P.4. That means the concluded contract came into existence between the parties vide telegram Ex.P.4. This further shows that the terms and conditions as mentioned in the quotations Ex.P.2 has been duly accepted by the defendants . As per the terms and conditions contained therein the goods once sold were not to be taken back by the plaintiff. There is no clause in that contract under which the defendants could return part of goods to Mr. M.A. Jose a Representative of the plaintiff. There is nothing on record by the defendants to prove that the plaintiff vide any written communications or by their conduct representations made the defendants to believe that Mr. M.A. Jose was authorized to enter into any agreement with the defendant for an on their behalf and to take back any part of goods from the defendants for and on behalf of the plaintiff. The terms and conditions contained in Ex.P.2. go to show that even the orders received through the Representative were subject to confirmation by the plaintiff and so there is no question of Mr. M.A. Jose being RFA No. 418 2003 authorized to take part of goods supplied by the plaintiff to the defendants vide Bill Ex.DW.1 P.1 in pursuance of a concluded contract between the plaintiff and the defendants. Besides the plaintiff has placed on communications dated 29.12.1999 21.1.2000 and 01.03.2000. Letter dated 29.12.1999 another letter dated 21.1.2000 and the Fax message dated 01.3.2000 have been admitted by the defendants during admission denial of documents. They did not dispute the contents of the said documents at any point of time and therefore can be read in evidence against the defendants. Vide letter dated 29.12.1999 the plaintiff had requested the defendants to release the payment for the goods supplied by them to the defendants. Similarly vide letter dated 21.1.2000 the plaintiff while referring to invoice No.1558 Ex.DW.1 P.1 again asked for payment from the defendants for the goods supplied. Similarly letter dated 01.3.2000 has been admitted by the defendants during admission denial of the documents. Its contains where also not disputed by the defendants and therefore the document and its contents are deemed to have been proved by the defendants. Vide this letter also the plaintiff has reiterated their demands for the goods supplied vide invoice bill No.1558 which is Ex.DW.1 P.1. As borne out from the invoice bill Ex.DW.1 P.1 copy of which has also been admitted by the defendants and Mark Ex.P.6 shows that the goods were received by the defendants from the plaintiff. However the defendants did not send reply to any of the communications dated 29.12.1999 21.1.2000 and 01.3.2000 disputing their liability of the entire amount of the bill i.e. Rs.8 48 053 on the plea that they had returned back part of goods to Mr. M.A. Jose under an expressed or implied authority by the plaintiff to him. The defendants brought the fact regarding return of part of goods to Mr. M.A. Jose for the first time vide their reply Ex.P.10 D.A. in reply to the letter dated 06.6.2000sent by the plaintiff. Vide letter dated 06.6.2000 the plaintiff had informed the defendants about the non payment of the full amount of Rs.8 48 053 against bill No.1558 dated 28.12.1999. Admittedly the said letter was received by the defendant and was replied by the defendants vide letter dated 22.6.2000 which is Ex.P.10 D.A. It was vide this reply dated 22.6.2000 that the defendant RFA No. 418 2003 informed the plaintiff for the first time that Mr. M.A. Jose Representative of the plaintiff had collected back 215 Rocker Sprayers and 64 Knapsack Sprayers from them till 14.2.2000. Non information on the part of the defendant in that regard despite receipt of admitted letter dated 21.1.2000 and 01.3.2000 which were received by the defendants subsequent to alleged taking back of aforesaid quantity of Rocker Sprayers and Knapsack Sprayers by Mr. M.A. Jose is not explained. The defendants did not inform the plaintiff for the reasons best known to them. This further goes to show that had the defendants given back part of goods to Mr. M.A. Jose at the instructions or under the authority of plaintiff the defendants would have certainly informed the plaintiff in that regard. Their silence in that regard for a period of almost six months leads to irresistible inference that they did not do so as they knew very well that they had given back a part of goods admittedly received against bill No. 1558 dated 28.12.1999 as per understanding between the defendants and Mr. Jose and not at the instructions of the plaintiff either expressed or implied authority of the plaintiff for that purpose. Besides in reply Ex.P.10 D.A dated 22.6.2000 by the defendant to the plaintiff‟s demand of balance payment of Rs.4 48 053 against the aforesaid bill No. 1558 dated 28.12.1999 out of the total bill amount of Rs.8 48 053 . The defendant did not allege that 215 Rocker Sprayers and 65 Knapsack Sprayers out of those received against the aforesaid bills were returned to Mr. Jose entire under any written authority by the plaintiff in his favour or that the plaintiff had at any point of time acted so as to make the defendants believe that the plaintiff has authorized Mr. Jose to collect back the said goods from the defendants. These facts go to show that the plea of the defendant that Mr. M.A. Jose had been given back 215 Rocker Sprayers and 65 Knapsack Sprayers out of the goods admittedly received against the bill No. 1558 dated 28.12.1999 under any expressed or implied authority by the plaintiff in favour of MR. Jose in an afterthought. This plea of the defendants also cannot be believed in view of accepted terms and conditions of the concluded contract between the plaintiff and the defendants according to which goods once sold could not be returned back by the defendants. The above RFA No. 418 2003 evidence goes to show that the defendant has failed to prove that Mr. M.A. Jose was authorized to receive back 215 Rocker Sprayers and 65 Knapsack Sprayers out of the said articles received vide Bill No. 1558 dated 28.12.1999 for and on behalf of the plaintiff. Issue is accordingly decided against the defendants and in favour of the plaintiff. xxxx xxxx The proposition of law laid down by the Hon‟ble Calcutta High Court by Hon‟ble Patna High Court and by Hon‟ble Apex Court in the above noted three cases is squarely applicable to the facts of this case. In the light of the findings on Issue No.3 above it is held that by operation of Section 237 of the Contract Act the plaintiff is not bound by the aforesaid acts of Mr. M.A. Jose as the defendant has failed to prove that the plaintiff has by his words or conduct induced the defendants to believe that the alleged acts of Mr. M.A. Jose were within the scope of his authority given by the plaintiff. Therefore the return of 215 Rocker Sprayers and 65 Knapsack Sprayers by the defendants to Mr. Jose assuming the same were received back by Mr. M.A. Jose is no answer to the plaintiff‟s claim in the suit. Hence the plaintiff is entitled to recover a principle sum of Rs.4 48 053 along with the interest of Rs.51 447 till the date of institution of the suit. Issue is accordingly decided in favour of the plaintiff and against the defendants.” A reading of the aforesaid paras of the impugned judgment shows that the trial Court arrived at a conclusion that Mr. M.A. Jose was not the authorized agent and he acted in excess of the authority consequently the respondent plaintiff is not bound by the action of Mr. M.A. Jose in receiving back 195 numbers of rocker sprayers and 45 numbers of knapsack sprayers. This conclusion was arrived at firstly on the ground that there was no term and condition in quotation Ex.P2 dated 29.4.1999 that Mr. M.A. Jose could RFA No. 418 2003 receive back any goods which were sold by the respondent plaintiff to the appellants defendants. Another reason for arriving at the conclusion that Mr. M.A. Jose was not the agent was that because as per the trial Court there was nothing on record to prove that the respondent plaintiff by any written conduct representation made appellants defendants believe that Mr. M.A. Jose was authorized to take back the goods. Yet another reason for holding that the case of appellants defendants is not correct because it was held by the trial Court that respondent plaintiff wrote letters dated 29.12.1999 21.1.2000 and 1.3.2000 asking for payment and to which letters no disputes were raised that payment was not liable to be made on account of goods having been returned to the respondent plaintiff through Mr. M.A. Jose. I am afraid that the impugned judgment has wholly mis construed the relevant documents which have been filed and exhibited in the trial Court. In fact the trial Court has committed clear cut illegality in avoiding to make reference to the various relevant portions of the documents correspondence existing on record. Once we look at the relevant portions of the documents and correspondence on record it becomes clear that Mr. M.A. Jose was in fact the agent of the respondent plaintiff and therefore the appellant defendant was fully justified in taking Mr. M.A. Jose as the agent of the respondent plaintiff who could receive back the goods. RFA No. 418 2003 Before I refer to the documents correspondence on record it is relevant first to refer to Sections 182 186 187 and 188 of the Contract Act 1872 and which Sections read as under: “182. „Agent‟ and „principal‟ defined. An „agent‟ is a person employed to do any act for another or to represent another in dealings with third person. The person for whom such act is done or who is so represented is called the „principal‟. 186. Agent‟s authority may be expressed or implied The authority of an agent may be expressed or implied. 187. Definitions of express and implied authority An authority is said to be express when it is given by words spoken or written. An authority is said to be implied when it is to be inferred from the circumstances of the case and things spoken or written or the ordinary course of dealing may be accounted circumstances of the case. 188. Extent of agent‟s authority An agent having an authority to do an act has authority to do every lawful thing which is necessary in order to such act. An agent having an authority to carry on a business has authority to do every lawful thing necessary for the purpose or usually done in the course of conducting such business.” A reading of the aforesaid provisions shows that the relationship of principal and agent can be express or implied or partly express or partly implied. The relationship of principal and agent therefore can also arise on account of the principal and agent conducting themselves as such. Once a person is taken as an agent unless therefore there are words restricting the authority of the agent ordinarily an agent would be entitled to represent the principal within the ordinary scope of business conducted by the agent on RFA No. 418 2003 behalf of the principal. At this stage it is necessary to refer to some of the relevant observations of the Supreme Court on the aspect of relationship of principal and agent as contained in the judgment reported as Chairman Life Insurance Corpn. and Ors. Vs. Rajiv Kumar Bhasker 6 SCC 188. The summary of different paragraphs of this judgment pertaining to relationship of principal and agent are contained in head note D of this judgment which reads as under: “The relationship of principal and agent can only be established by the consent of the principal and the agent. The consent need not necessarily be to the relationship of principal and agent itself. The “principal” and “agent” will be held to have consented if they have agreed to a state of facts on which the law imposes the consequences which result from agency even if they do not recognize it themselves and even if they have professed to disclaim it. Nor is the use of or omission of the word “agent” conclusive. The consent must however have been given by each of them either expressly or by implication from their words and conduct. Agency is a legal concept which is employed by the Court when it becomes necessary to explain and resolve the problems created by certain fact situations. When the existence of an agency relationship would help to decide an individual problem and the facts permit a court to conclude that such relationship existed at a material time then whether or not any express or implied consent to the creation of an agency may have been given by one party to another the Court is entitled to conclude that such relationship was in existence at the time and for the purpose in question. Ostensible or apparent authority comes about where the principal by words or conduct has represented that the agent has the requisite actual authority and the party dealing with the agent has entered into a contract with him in reliance on that representation. The principal in these is stopped from denying that actual RFA No. 418 2003 authority existed. In the commonly encountered case the ostensible authority is general in character arising when the principal has placed the agent in a position which in the outside world is generally regarded as carrying authority to enter into transactions of the kind in question. Ostensible general authority may also arise where the agent has had a course of dealing with a particular contractor and the principal has acquiesced in this course of dealing and honoured transactions arising out of it. xxxx underlining added) xxxx A reading of the ratio laid down by the Supreme Court in the case of Rajiv Kumar Bhaskershows that even if principal and agent deny that they are having the relationship of principal and agent they will have to be taken as principal and agent if they are held to have consented and acted as per a state of facts which imposes the consequences of relationship of principal and agent and it is not necessary that the agent is described as an „agent‟. The Supreme Court clearly observes that when the facts of a case permit to conclude that there existed a relationship of principal and agent between two persons then whether or not any express or implied consent to the creation of an agency may have been given by one party to another a Court is still entitled to conclude that relationship of an agency was in existence between a principal and an agent. A principal by ostensible words of conduct can represent that agent has the requisite actual authority and the person dealing with the agent can place reliance on such a representation and whereupon the principal is estopped from denying that actual authority vests RFA No. 418 2003 in an agent to act as an agent. The ostensible general authority can also arise from a course of dealing. In view of the aforesaid legal position let us see the facts which have emerged on record. It is also relevant to note before referring to the actual documents correspondence on record that the relationship between the parties for supplying of sprayers did not arise for the first time under the subject order dated 3.12.1999 but existed from over a year earlier inasmuch as other orders were also placed upon the respondent plaintiff by the appellants defendants and with respect to which payments were made and there are no disputes with respect to the earlier supplies. With this preface let us see the documents correspondence on record as to whether the same bring out a course of dealing giving ostensible general authority to an agent whereby the principal can be said to have represented that the agent is duly authorized to act on behalf of the principal respondent plaintiff. The first letter necessary to be referred in this regard is the letter dated 18.11.1998 sent by the respondent plaintiff to the appellants defendants. This letter is marked by the respondent plaintiff to Mr. M.A. Jose specifically referring him as a Sales Executive. Then there is the letter dated 15.12.1999 making reference to the subject order dated 3.12.1999 which specifically refers to Mr. M.A. Jose as “our representative Mr. Jose”. At this stage it must be kept in mind that the RFA No. 418 2003 Supreme Court in Rajiv Kumar Bhasker’s casehas held that an agent need not be called by the term „agent‟ and thus „representative‟ surely is an agent. Copy of this letter dated 15.12.1999 is in fact marked to Mr. Jose. It was Mr. M.A. Jose who received payments on behalf of respondent plaintiff and one such payment is evidenced by the receipt dated 15.3.2000 Ex.P8 DA and which was a receipt showing that Mr. M.A.Jose had received a demand draft of `1 73 077 . There is in fact also a letter written by Mr. M.A.Jose on the letter head of the respondent plaintiff and which is dated 12.1.2000 asking for handing over back 35 numbers of Rocker sprayers. That the requisite numbers of Rocker sprayers and Knapsack sprayers as stated by the appellants defendants have been given back to Mr. M. A. Jose is established beyond doubt by means of the delivery challans duly receipted by Mr. M. A. Jose and which are dated 12.1.2000 Ex.DW1 6) 2.2.2000 14.2.2000 and 15.3.2000 Ex.DW1 12). The respondent plaintiff in fact in its plaint also admits that Sh. M. A. Jose was working for the respondent plaintiff on commission i.e. as a commission agent for the respondent plaintiff. The appellants defendants have also pleaded and which pleadings have been proved by the deposition of its witness Sh. G. Subhash Chandra Bose DW1 appellants defendants have always been consistently dealing with the respondent plaintiff only through Mr. M. A. Jose and such course of dealings RFA No. 418 2003 included placing of orders upon the respondent plaintiff through Mr. M.A.Jose an aspect admitted by the respondent plaintiff in the letter dated 15.12.1999 Ex.P5 DA. This witness DW1 has also deposed with respect to goods in question being received by the appellants defendants through Mr.M.A.Jose and also making of payment to Mr. M. A. Jose. In my opinion in the face of the aforesaid documentary evidence being the plaint where the respondent plaintiff admits that Mr. M.A.Jose was working on commission with the respondent plaintiff i.e. as a commission agent the specific admission in the letter dated 15.12.1999 Ex.P5 DA that Mr. M.A.Jose was their representative by stating “our representative Mr. Jose” and copy of this letter is marked to Mr. Jose the fact that Mr. Jose received payment on behalf of the respondent plaintiff vide Ex.P8 DA dated 15.3.2000 in my opinion leaves no manner of doubt that Mr. Jose was in fact an agent acting for and on behalf of the respondent plaintiff. Surely if “a representative” a term mentioned in the letter dated 15.12.1999 Ex.P5 DA and by which the subject order was placed is not an agent then what else is a representative. A representative is indeed a very wide term and such representative can therefore unless the scope of authority is specifically curtailed without doubt would have led the appellants defendants to believe that the appellants defendants could even return the goods to the said agent Mr. M. A. Jose. Any doubt as to the complete authority of the agent Mr. M. RFA No. 418 2003 A. Jose to act for and on behalf of the respondent plaintiff is clear from the course of dealing including of Mr. M. A. Jose having received the payment as evidenced by Ex.P8 DA dated 15.3.2000. Though the respondent plaintiff has conveniently chosen to deny the document being the letter dated 12.1.2000 Ex.DW1 5 and which is a letter on the letter head of the respondent plaintiff by which Mr. M.A.Jose took back 35 numbers of Rocker sprayers in my opinion such a convenient denial cannot take away the validity and effect of this letter dated 12.1.2000. Whatever doubt remains becomes clear from the document being letter dated 1.7.2000 Ex.DW1 13 and at the back of which are contained the minutes of the meeting when the brother of the partner of the respondent plaintiff one Sh. Hari Prakash visited the office of the appellants defendants. These minutes of meeting clearly show that it is Mr. M. A. Jose who took Mr. Hari Prakash to the office of the appellants defendants and the appellants defendants have never dealt with anyone else except Mr. Jose. The presence of Mr. Jose when this meeting took place on 3.7.2000 becomes clear from the endorsement in Hindi written by Sh. Hari Prakash on Ex.DW1 12 which states that he has heard both the parties i.e. the appellants‟ defendants‟ representative on one hand and Mr. M. A. Jose on the other. In my opinion what appears from the facts of the present case is that either a fraud is sought to be perpetrated on the appellants defendants by RFA No. 418 2003 the respondent plaintiff along with its representative Mr. M.A.Jose or more probably the respondent plaintiff has fallen out with this agent Mr. M.A.Jose who had received back 195 numbers of Rocker sprayers and 45 numbers of Knapsack sprayers from the appellants defendants. In fact in my opinion it can be said that there is a fraud being played upon the appellants defendants by the respondent plaintiff along with Mr. M.A.Jose because in the cross examination of the witness of the respondent plaintiff Sh.Anil Kumar PW1 this witness in categorical terms admitted on 1.11.2002 respondent plaintiff has taken no action whatever against Mr. M.A.Jose for taking back the goods without instructions. Surely once it came to light that Mr. M.A.Jose had received sprayers of a huge amount of over `4 00 000 then surely if there is the taking of these sprayers without authority of the respondent plaintiff then the respondent plaintiff surely would have sent at least notices and complaints to Mr. M. A. Jose mentioning of his illegal conduct and fraud being played and possibly even file a case for fraud however admittedly no such thing was done by the respondent plaintiff and entitling the drawing of conclusion of a possible collusion for the purpose of committing fraud by the respondent plaintiff along with Mr. M. A. Jose on the appellants defendants. Even if there is no issue of fraud possibly it appears that there could have been certain dues of the respondent plaintiff to Mr. M. A. Jose and therefore in spite of Mr. M. A. RFA No. 418 2003 Jose allegedly having illegally taken back sprayers of huge value of over 4 00 000 however no action whatsoever was taken against Mr. M. A. Jose possibly because of certain dues which could have existed of the respondent plaintiff towards Mr. M. A. Jose. Learned counsel for the respondent plaintiff laid great stress on the fact that in Ex.P2 dated 29.4.1999 it is specifically mentioned that goods once sold shall not be taken back under any circumstances and therefore Mr. M.A.Jose had no right to receive back the goods. I really fail to understand his argument because once goods are sold surely it could have been appellants defendants for return of certain goods and if a principal can agree to an alteration of the term of the supply surely an agent could also have done so. In addition I may also mention that the order dated 3.12.1999 and the respondent‟s plaintiff‟s letter dated 15.12.1999 Ex.P5 DA does not talk of contractual relationship with respect to this earlier terms and conditions contained in Ex.P2 dated 29.4.1999 and which have specifically not been incorporated in the contract dated 3.12.1999 15.12.1999. Learned counsel for the respondent plaintiff also placed reliance upon three judgments reports as Mohd. Ekram & Ors. vs. Union of India AIR 1959 Patna 337 Kamal Singh Dugar vs. Corporated EngineersRFA No. 418 2003 Pvt. Ltd. AIR 1963 Calcutta 464 and State of Orissa vs. United India Insurance Co. Ltd. AIR 1997 SC 2671 in support of the proposition that when the agent acts beyond the scope of his authority including by committing a fraud the principal will not be liable. In my opinion all these judgments are based on the assumption that Mr.M.A.Jose acted beyond the scope of his authority however before these judgments can apply it was necessary to prove that the authority agency of Mr. M.A.Jose was specifically restricted to not receiving back the goods and which was duly brought to the notice of the appellant defendant however I have already referred to in detail above respondent plaintiff itself referring to Mr. M.A.Jose as representative or commission agent and which terms are wide terms to show complete agency without any restriction of authority. That there was no restriction of authority becomes clear also from the course of dealing between the parties through Mr. M.A.Jose and as per which course of dealing Mr. M.A.Jose not only supplied these sprayers to the appellants defendants but in fact received payments with respect to the same. The judgments which are therefore cited on behalf respondent plaintiff have no application to the facts of the case. In the Mohd. Ekram & Ors.(supra) case relied upon the admitted position was that the railways re booked the consignment without expressed authority i.e. the agent was found to have acted beyond authority and so is the position in the other cases of Kamal Singh Dugarand RFA No. 418 2003 State of Orissa also has been collected by Mr. Jose. Our supply order KTR S 58F 1977 dt. 3 12 99 was also collected by Mr. Jose on consignment could be sent through direct truck only if an order of 400 pieces is given. It was also agreed that he will manage to dispose off the excess quantities if any on his own the understanding You have also confirmed that you have received the confirmation to supply 400 Rocker Sprayers 100 Knapsack Sprayers and other items through your representatives Mr. Jose vide your Lr. No.BE 12 99 1119 dt. 15 12 99. 4. We regret to inform you that the telegram dt. 27 12 99 as seen from the photocopy enclosed with your above letter) is not seen sent either by the undersigned or from this office. You may kindly trace the origin of the telegram which might also have been sent by your representative Mr. Jose. RFA No. 418 2003 5. It is a matter of great concern to us that even though all the transactions on your behalf were being done through your authorized representative Mr. M.A. Jose you have now disowned him through your letter under reference. However on receipt of your above letter by 2 PM on 1 7 2000 I have booked a trunk call to 0482 252307 to contact Mr. Jose at his residence. Unfortunately I could not get Mr. Jose as he has gone to Kottayam to receive one of your managers who is expected to arrive at Kottayam through K.K. express as told by the father of Mr. Jose who attended the phone. I have also passed the message such that Mr. Jose or the Manager of the Beta Engineers may contact me back immediately on their arrival. As explained above being the fact we The Kerala Agro Industries Corpn. Ltd. strongly feel that there is a small of fraud either on your part or on your representative‟s part. Under this circumstances in order to settle this issue we request that you may either depute one of your authorities along with Mr. Jose to this office to discuss the matter in detail and to find a solution or send us the credit note as demanded vide our Lr. No.KTR S 58F 883 dt. 22 6 2000. Thanking you FOR THE KERALA AGRO INDUSTRIES CORPN. LTD. Yours faithfully Sd REGIONAL ENGINEER Copy to: Sri M.S. Jose Kunchirakkattu Kadaplamattam Kortayam 686 571. The EngineerH.O. for information.” RFA No. 418 2003 In my opinion therefore not too much weight can be attached to the appellants defendants not replying to the letters dated 29.12.1999 21.1.2000 and 1.3.2000. A civil case is decided on balance of probabilities. A civil Court puts all the evidence which have been led in a melting pot so as to determine the final picture which has to emerge. In my opinion in view of the admitted documents correspondence on record there is no manner of doubt that Mr. M.A.Jose was an agent acting for the respondent plaintiff and in view of the ratio of the judgment of the Supreme Court in the case of Chairman LIC supra) Mr. M.A. Jose clearly had ostensible general authority which was clear from the correspondence between the parties and also the course of dealing and therefore the respondent plaintiff principal was clearly bound to honour the actions of the agent Mr. M. A. Jose of having received back the goods as held by the Supreme Court in the case of Chairman LIC (supra). The respondent plaintiff principal is estopped in the facts of the case from denying that actual authority existed in Mr. M.A. Jose in taking back the In view of the above appeal is accepted. Suit of the respondent plaintiff shall stand dismissed. Parties are left to bear their own costs. Decree sheet be prepared. RFA No. 418 2003 18. The bank guarantee furnished by the appellants defendants pursuant to the order dated 27.4.2005 shall stand discharged. The amount which has been deposited by the appellants defendants in this Court being the amount of `22 403 along with accrued interest be also released back to the appellants defendants. Trial Court record be thereafter sent back. JANUARY 09 2012 VALMIKI J. MEHTA J. RFA No. 418 2003

Nothing should be used against the person which has not been brought to his notice: High Court of Delhi

The Bank is required to disclose the documents and evidence which the Identification Committee has relied upon to arrive at the decision to issue the show-cause notice. The disclosure must be such as to enable the noticee to appreciate the scope of the allegations made against it and, if the allegations are based upon documents which the Bank states are already in the possession of the noticee, such as its own accounts, to identify the transactions upon which the Bank seeks to rely. This was held in SHANTANU PRAKASH v.UNION BANK OF INDIA &amp; ORS. [W.P.(C) 5309/2021 &amp; W.P.(C) 5313/2021] in the High Court of Delhi by a single bench consisting of JUSTICE PRATEEK JALAN. Facts are that the petitioners were promoter-directors of M/s Educomp Solutions Ltd. a borrower of the Bank, and guarantors of loans taken by the Company from the Bank. CIRP commenced against the Company and is pending before the NCLT. The Bank issued show-cause notice to the Company and contemplated declaration of the noticees as wilful defaulters The Identification Committee, in the absence of the petitioners, and passed an order and classified the petitioners as ‘wilful defaulters”. The Counsel for the petitioners submitted that the procedure adopted by the Bank in the present case was in violation of the principles of natural justice and the provisions of the Master Circular. The documents referred to in the impugned show cause notice were not supplied to the petitioners, despite their requests. The counsel on behalf of the respondent submitted that the documents referred to in the show cause notice are principally the accounts of the Company itself to which the petitioners had access. There was no occasion to supply the same documents to the petitioners again. Bank was not undertaking judicial or quasi-judicial proceedings thus adherence to the principles of natural justice would not be required. The court made reference to the judgment delivered by the division bench of Delhi High court in Aap Infrastructures Ltd. Vs. Bank of Baroda and Anr, wherein it had been observed that “Secondly, it is clear that both the Committees have neither considered nor dealt with the stand taken by the petitioner in its reply to the show-cause notice. The said Committees or at least the Review Committee was required to refer to the reply and dealt with the same while rejecting the reply of the petitioner to the show cause notice. This would have been in compliance of principles of natural justice as reasons would indicate, application of mind, that too what were the relevant considerations for the authorities to reject the reply of the petitioner to the show cause notice”. The court also relied on the judgment delivered by the Apex court in Natwar Singh vs. Director of Enforcement and observed that “the Court had also reiterated the flexible approach to be adopted while considering claims of violation of natural justice. Upon consideration of the applicable statutory and regulatory scheme, the Court held that the petitioner therein was entitled to the documents relied upon by the authority, but not to other documents in its possession.”

99 & 101 IN THE HIGH COURT OF DELHI AT NEW DELHI Date of Decision: 13th May 2021 W.P.(C) 5309 2021 with CM APPLs. 16327 16329 2021 SHANTANU PRAKASH Petitioner UNION BANK OF INDIA & ORS. W.P.(C) 5313 2021 with CM APPLs. 16351 16353 2021 Respondents JAGDISH PRAKASH Petitioner UNION BANK OF INDIA & ORS. Present: Mr. Dayan Krishnan Sr. Adv. with Mr. Aditya Dewan & Respondents Mr. Siddharth Chechani Advocates for the petitioners. Mr. O.P. Gaggar Advocate for the Respondent Bank. HON’BLE MR. JUSTICE PRATEEK JALAN PRATEEK JALAN J.video conferencing. The proceedings in the matter have been conducted through CM APPLs. 16328 16329 2021in W.P.(C) 5309 2021 CM APPLs. 16352 16353 2021in W.P.(C) 5313 2021 Exemptions allowed subject to all just exceptions. The applications are disposed of. W.P.(C) 5309 2021 & W.P.(C) 5313 2021 W.P.(C) 5309 2021 with CM APPLs. 16327 2021W.P.(C) 5313 2021 with CM APPLs. 16351 2021Issue notice. Mr. O.P. Gaggar learned counsel for respondent no. 1 Union Bank of Indiaaccepts notice. In view of the order which I propose to pass it is not necessary to issue notice to the other respondents. The petitions are taken up for disposal with the consent of learned counsel for the parties. These proceedings arise out of actions taken by the Bank against the petitioners under the Master Circular on Wilful Defaulters dated 01.07.2015issued by the Reserve Bank of India. The petitioners have challenged a show cause notice dated 22.10.2020 issued to them the order of the Identification Committee dated 04.02.2021 and the order of the Review Committee dated 06.04.2021. and 3(c) of the Master Circular respectively.] The petitioners Mr. Shantanu Prakash and Mr. Jagdish Prakash were promoter directors of M s Educomp Solutions Ltd. a borrower of the Bank and gurantors of loans taken by the Company from the Bank. JP claims to have resigned as a director in 2014. It is undisputed that corporate insolvency resolution proceedings have commenced against the Company and the matter is pending before the National Company Law Tribunal5309 2021 & W.P.(C) 5313 2021 In the meanwhile the Bank issued the impugned show cause notice dated 22.10.2020 to the Company and to the guarantors of the Company’s debts including the petitioners herein. The show cause notice contemplated declaration of the noticees as wilful defaulters in terms of the Master Circular. The petitioners were required to furnish their objections failing which the Bank intended to take action in terms of the Master Circular. SP responded to the impugned show cause notice by a communication dated 03.12.2020. He requested the Bank to supply him with a copy of the minutes of the Identification Committee meeting dated 07.02.2020 upon which the impugned show cause notice was based and any other documents which were relied upon in the show cause notice. However he also responded to the allegations on merits without prejudice to his rights and contentions. JP who is the father of SP claims that he did not receive the impugned show cause notice at all and therefore did not respond to it. It is undisputed that neither of the petitioners participated in the personal hearing offered to them by the Identification Committee. They have stated that they failed to participate in the hearing inter alia due to COVID 19 infection and other medical issues. The Identification Committee however considered the issue at a meeting on 22.01.2021 in the absence of the petitioners and passed an order dated 04.02.2021. It classified the petitioners as ‘wilful defaulters’ based upon the grounds mentioned in the show cause notice dated 22.10.2020 which were reproduced in its order. The relevant extracts of impugned order of the Identification W.P.(C) 5309 2021 & W.P.(C) 5313 2021 Committee are as follows: “After careful examination of the facts of the case and the submission from borrower representative and Bank the its meeting held on Identification Committee 22.01.2021 passed the order as under: The Committee observed that in spite of providing sufficient opportunity of personal hearing the borrower promoters whole time directors guarantors have failed to appear for personal hearing. Hence the committee decided to classify them as wilful defaulters based on the grounds mentioned in the show cause notice served to them which are reproduced herein below: • The company has provided loans amounting to to related party M s Authorgen Rs.3.75 crores Technologies Ltd. during January March 2013 even when it itself was under huge debt. Subsequently the loan was written off by ESL and Authorgen was sold off. • The company made in subsidiaries associate concerns outstanding at Rs.1684.40 crores as on 31.03.2016. Thus the company diverted in other companies fund by • Upon review of customer ledger of Edu Smart Services Pvt. Ltd. it was noted that ESSPL has been one of the largest debtors to ESL for the FY 2015 16 & 2016 17 despite being a related party of • It was observed that retail sales amounting to Rs.2.53 cr. was booked without contractual obligations and the company did not receive the payments pertaining to these sales. • Upon review of financial statements and customer ledger accounts of related parties for the period 31.05.2015 to 30.05.2017 it was noted that a knock W.P.(C) 5309 2021 & W.P.(C) 5313 2021 off entry of Rs. 0.50 crore where ESL’s customer viz. ESSPL made a direct payment to ESL’s vendor viz. Rational Business Corporation Pvt. Ltd. which resulted in the set off of ESL’s debtor with that of operations creditor. ESL was supposed to receive this payment from ESSPL which was directly used to pay Rational Business Corporation. Thus an operational creditor was made a payment before making payments to outstanding secured creditors. This payment has been categorized under preferential payments. • The following transactions have been categorized as a preferential transactions as payments were made prior to making payment to outstanding secured ü Payment of Rs.7.00 crores made to a related party Educomp Learning Hour Pvt. Ltd. on behalf of Edu Smart Services Pvt. Ltd. prior to making payments to outstanding secured ü Three payment transactions aggregating to Rs.5.10 crores were made during period 31.05.2016 to 30.05.2017 to HP Financial Services Private Limited against unsecured loans from HP Financial. ü Six Payment transactions to SKS Fincap Private Limited aggregating to Rs. 1.14 crore were made between 29.06.2016 and 07.03.2017. In light of the above facts the committee is of the view that borrower promoters whole time directors guarantors have indulged in the act of wilful default by diversion siphoning off banks’ funds. Hence the committee concluded that the said borrower its promoters directors guarantors be declared as wilful The Committee directed that the order be served on the time directors its promotors whole W.P.(C) 5309 2021 & W.P.(C) 5313 2021 guarantors allowing them to file appeal against the order of Identification Committee within 15 days to place the same before Review Committee for final view. Ordered Emphasis supplied.) The aforesaid order of the Identification Committee was communicated to the petitioners on 09.02.2021. Both the petitioners approached the Review Committee on 19 20.02.2021. The Review Committee thereafter passed the impugned order dated 06.04.2021 noting that the order of the Identification Committee and the representations made by the noticees were placed before it. The operative portion of the order of the Review Committee reads as follows: “The said order of Identification Committee and representations made by company promoters directors guarantors were placed before "Review Committee for Non Cooperative Borrowers and Wilful Defaulters" for taking a decision in the matter. The "Review Committee" its meeting held on 22.03.2021 considered the entire material brought on borrower promoters directors guarantors and views of Identification Committee. After careful examination of the facts of the case the Review Committee observed that there is unimpeachable evidence s against the promoters directors guarantors and their act would fall under the purview of RBI guidelines on "Wilful Defaulter". Hence the Review Committee confirmed the order passed by Identification Committee on Wilful Defaulters in its meeting held on 22.01.2021 declaring the promoters W.P.(C) 5309 2021 & W.P.(C) 5313 2021 whole time directors guarantors as Wilful Defaulters.” The petitioners have challenged the show cause notice as well as the orders of the Identification Committee and the Review Committee by way of these writ petitions. Relevant clauses of the Master Circular Clauses 2.5 and 3 of the Master Circular are relevant for adjudication of the disputes raised in these petitions. Clause 2.5 enumerates the penal provisions which would be visited upon an account holder upon classification as a “wilful defaulter”. It thereafter states as follows: “It would be imperative on the part of the banks and FIs to put in place a transparent mechanism for the entire process so that the penal provisions are not misused and the scope of such discretionary powers are kept to the barest minimum. It should also be ensured that a solitary or isolated instance is not made the basis for imposing the penal action.” Emphasis supplied.) The requirements of the mechanism referred to in the above provision are elaborated in Clauses 3(a) to 3(c) of the Master Circular in the following terms: “3. Mechanism for identification of Wilful Defaulters The mechanism referred to in paragraph 2.5 above should generally include the following: a) The evidence of wilful default on the part of the its promoter whole time borrowing company and W.P.(C) 5309 2021 & W.P.(C) 5313 2021 director at the relevant time should be examined by a Committee headed by an Executive Director or equivalent and consisting of two other senior officers of the rank of GM DGM. If the Committee concludes that an event of wilful default has occurred it shall issue a Show Cause Notice to the concerned borrower and the promoter whole time director and call their submissions and after considering their submissions issue an order recording the fact of wilful default and the reasons for the same. An opportunity should be given to the borrower and the promoter whole time director for a personal hearing if the Committee feels such an opportunity is necessary. c) The Order of the Committee should be reviewed by another Committee headed by the Chairman Chairman Managing Director or the Managing Director & Chief Executive Officer CEOs and consisting in addition to two independent directors non executive directors of the bank and the Order shall become final only after it is confirmed by the said Review Committee. However if the Identification Committee does not pass an Order declaring a borrower as a wilful defaulter then the Review Committee need not be set up to review such Submissions of counsel 10. Mr. Dayan Krishnan learned Senior Counsel for the petitioners submits that the procedure adopted by the Bank in the present case was in violation of the principles of natural justice and the provisions of the Master Circular. He submits that the documents referred to in the impugned show cause notice dated 22.10.2020 were not supplied W.P.(C) 5309 2021 & W.P.(C) 5313 2021 to the petitioners despite their requests. He has taken me through the impugned orders of the Identification Committee and the Review Committee to contend that neither committee has considered the representations of the petitioners nor disclosed the reasons for rejection of their contentions. In support of his arguments Mr. Krishnan relies upon the judgments of the Supreme Court in State Bank of India vs. Jah Developers 6 SCC 787 and Indian Commodity Exchange Limited vs. Neptune Overseas Limited & Ors. 2020) SCC Online SC 967and of a coordinate bench of this Court in Aap Infrastructures Ltd. Vs. Bank of Baroda and Anr.177 DRJ 252. 11. Mr. Gaggar who appears for the Bank on advance notice submits that the documents referred to in the show cause notice dated 22.10.2020 are principally the accounts of the Company itself to which the petitioners had access. As such he submits that there was no occasion to supply the same documents to the petitioners again. He distinguishes the judgment in Indian Commodity Exchangeon the ground that the Bank is not undertaking judicial or quasi judicial proceedings for which adherence to the principles of natural justice as elucidated in the aforesaid judgment would be required. D. Analysis Infirmities in the impugned orders 12. Having heard learned counsel for the parties I am of the view W.P.(C) 5309 2021 & W.P.(C) 5313 2021 that the matter requires to be remanded to the Bank for reconsideration in view of infirmities in the impugned orders of the two committees. Clause 2.5 of the Master Circular itself emphasises the importance of transparency in the identification of a “defaulter” and the checks and balances necessary to avoid misuse of discretionary exercise of power. The interpretation of the Master Circular in Jah Developers also underscores the requirements of natural justice in the context of the consequences contemplated upon identification as a “wilful defaulter” under the Master Circular. The following observations of the Court are directly applicable: “24. Given the above conspectus of case law we are of the view that there is no right to be represented by a lawyer in the in house proceedings contained in Para 3 of the Revised Circular dated 1 7 2015 as it is clear that the events of wilful default as mentioned in Para 2.1.3 would only relate to the individual facts of each case. What has typically to be discovered is whether a unit has defaulted in making its payment obligations even when it has the capacity to honour the said obligations or that it has borrowed funds which are diverted for other purposes or siphoned off funds so that the funds have not been utilised for the specific purpose for which the finance was made available. Whether a default is intentional deliberate and calculated is again a question of fact which the lender may put to the borrower in a show cause notice to elicit the borrower s submissions on the same. However we are of the view that Article 19(1)(g) is attracted in the facts of the present case as the moment a person is declared to be a wilful defaulter the impact on its fundamental right to carry on business is W.P.(C) 5309 2021 & W.P.(C) 5313 2021 defaulter the wilful institutions can even change direct and immediate. This is for the reason that no additional facilities can be granted by any bank financial institutions and entrepreneurs promoters would be five years. promoter director of a wilful defaulter cannot be made promoter or director of any other borrower company. Equally under Section 29 A of the Insolvency and Bankruptcy Code 2016 a wilful defaulter cannot even apply to be a resolution applicant. Given these drastic consequences it is clear that the Revised Circular being in public interest must be construed reasonably. This being so and given the fact that Para 3 of the Master Circular dated 1 7 2013 permitted the borrower to make a representation within 15 days of the preliminary decision of the First Committee we are of the view that first and foremost the Committee comprising of the Executive Director and two other senior officials being the First Committee after following Para 3(b) of the Revised Circular dated 1 7 2015 must give its order to the borrower as soon as it is made. The borrower can then represent against such order within a period of 15 the Review Committee. Such written representation can be a full representation on facts and law 13. The judgment of this Court in Aap Infrastructures is W.P.(C) 5309 2021 & W.P.(C) 5313 2021 also instructive as to the requirement of consideration of the noticees’ submissions by the committees constituted under the Master Circular: “13. Insofar as the plea of Mr. Nandrajog that the petitioner in his reply to show cause has admitted the allegations made against it is concerned the same is not appealing. This I say so for two reasons firstly which has already been noted by me above that the copy of the order passed by the First Committee dated February 20 2018 has not been given to the petitioner. Secondly it is clear that both the Committees have neither considered nor dealt with the stand taken by the petitioner in its reply to the show cause notice. The said Committees or at least the Review Committee was required to refer to the reply and dealt with the same while rejecting the reply of the petitioner to the show cause notice. This would have been in compliance of principles of natural justice as reasons would indicate application of mind that too what were the relevant considerations for the authorities to reject the reply of the petitioner to the show cause notice.” Emphasis supplied.) The Division Bench decision of this Court in Indian Oil Corporation Ltd. Vs. SPS Engineering Ltd. 128 DLT 417 also lays down that an authority is required to deal at least in brief with the explanation given in response to a show cause notice. 14. Applying these principles to the facts of the present case it is clear that both the impugned orders fall short. The order of the Identification Committee dated 04.02.2021 does not reveal any consideration of SP’s reply dated 03.12.2020 to the impugned show cause notice. Without prejudice to his request for supply of documents the representation offered various responses to the allegations made by the Bank. Although the order of the Identification W.P.(C) 5309 2021 & W.P.(C) 5313 2021 Committee refers to the submissions of the borrower it has confirmed the allegations in the show cause notice merely on the basis that the petitioners did not appear for the personal hearing. The judgment in Aap Infrastructure makes it clear that consideration of the noticees’ response is necessary. The order of the Identification Committee is under the Master Circular subject to review which is characterized by the Supreme Court in Jah Developers as “a full representation on facts and law 5309 2021 & W.P.(C) 5313 2021 ii) Disclosure of documents 17. What remains to be considered is the contention of Mr. Krishnan regarding the supply of documents relied upon in the impugned show cause notice. Clauses 3(a) and of the Master Circular require the Identification Committee to examine the evidence of wilful default on the part of the borrowing company and its promoter whole time directors and come to a conclusion as to whether a show cause notice is to be issued. In the present case the impugned show cause notice reveals that such an exercise was undertaken by the Identification Committee in its meeting on 07.02.2020. The meeting was held on the basis of the recommendation received from “IFB Delhi”.The allegations against the Company presumably based on the evidence brought before the Identification Committee have been set out in the impugned show cause notice. 18. Mr. Krishnan’s contention is that the documents referred to in the show cause notice are required to be supplied to the noticees. For this purpose he relies upon the following observations in the judgment of the Supreme Court in Indian Commodity Exchange supra): “32. We have no doubt that a proper show cause notice was served on Respondent No. 2 herein. The moot point however remains as to what is the effect of not serving him with the documents he sought for and within the compass of time which was given to him to respond. W.P.(C) 5309 2021 & W.P.(C) 5313 2021 33. Once again it may be stated that a large part of the documents would have been within the custody of the Respondent No. 2 herein or for that matter with Respondent No. 1 herein. However this would not encompass all the documents. Not only that when reliance is placed on as many as 4 000 pages of documents it would not be fair to expect that the party in question ferrets through its own record trying to locate the documents when on basis of formation of an opinion for issuance of the show cause notice logic and requirement of law both would dictate that the show cause notice should be comprehensive enough with full supporting documents being handed over. The answer cannot be that they are free to inspect 4 000 pages on their own! In fact in so many terms ultimately most of those documents were made available and it would not be appropriate to go back into the issue of whether the documents should have been supplied or not. In a sense that chapter closed with the supply of documents on 5.7.2011 even though some more documents were sought 34. We fail to appreciate why there should have been a cussedness in handing over mere copies of documents when serious allegations and serious consequences which would flow to the respondents herein. Not only that the endeavour to conclude the proceedings within a span of two weeks thereafter cannot in our view be said to be an adequate opportunity as has been found by the SAT. An opportunity of hearing is not a mere nicety but a valuable right. That it does not fall in a straitjacket formula is no doubt the accepted legal position 5309 2021 & W.P.(C) 5313 2021 Chairman Board of Mining Examination] and whether there were unnecessary adjournments being sought which were declined13 SCC 255 paragraph 30) is that “nothing should be used against the person which has not been brought to his notice”. In paragraph 26 of the said judgment the Court also reiterated the flexible approach to be adopted while considering claims of violation of natural justice. Upon a consideration of the applicable statutory and regulatory scheme the Court held that the petitioner therein was entitled to the documents relied upon by the authority but not to other documents in its In the facts of the present case Mr. Gaggar may be correct in W.P.(C) 5309 2021 & W.P.(C) 5313 2021 submitting that the Bank will not be required to supply copies of the Company’s own accounts to the Company itself. However at the very least the transactions based upon which the Bank has arrived at its conclusion must be identifiable from the disclosure. Mr. Krishnan points out that the petitioners in the present case are not the Company itself which is under the control of a resolution professional but its erstwhile directors one who claims to have resigned in 2014 and the other who was a director until the Company went under the resolution process. 22. Mr. Gaggar’s submission regarding the distinction between an administrative decision and a quasi judicial judicial decision does not persuade me to a contrary conclusion. It is now well settled that the principles of natural justice are applicable to administrative decisions as well. Reference may be made for this purpose inter alia to the decisions of the Supreme Court in Canara Bank vs. Debasis Das 2003) 4 SCC 557 and Manohar vs. State of Maharashtra 13 SCC 14 5309 2021 & W.P.(C) 5313 2021 set aside. dated 22.10.2020. 24. The petitions are therefore disposed of with the following The impugned orders of the Identification Committee and the Review Committee dated 04.02.2021 and 06.04.2021 respectively are The matter is remanded to the Identification Committee of the Bank for a fresh decision pursuant to the impugned show cause notice Prior to the Identification Committee taking a fresh decision the Bank will address a communication to the petitioners disclosing any documents which it considers necessary in accordance with law or alternatively stating its conclusion that no further disclosure of documents is required. The Bank will give the petitioner at least 15 days’ time to submit an additional representation after the aforesaid communication. The Bank will also give the petitioners an opportunity of a personal hearing before the Identification Committee which may pass a fresh order in accordance with law thereafter. In the event the Identification Committee reaches a conclusion adverse to the petitioners the petitioners will have 15 days’ time to submit a representation for consideration of the Review Committee which will thereafter proceed in accordance with the procedure laid down in law and give a reasoned decision. The question of adequacy of the disclosure made by the Bank pursuant to this judgment is left open. W.P.(C) 5309 2021 & W.P.(C) 5313 2021 MAY 13 2021 It is made abundantly clear that this Court has not expressed any opinion on the merits of the parties’ contentions. 25. The pending applications are also disposed of. PRATEEK JALAN J W.P.(C) 5309 2021 & W.P.(C) 5313 2021

Formulate an action plan to provide vaccines to the disabled: Karnataka High Court

The Karnataka High Court directed the State Government directing the State Government to come out with a scheme for providing vaccination to the persons with benchmark disability. A single judge bench of Abhay Oka CJI, in The Re Karnataka High Court case; [W.P.No.6435/2020]; dealt with the issue of providing vaccination to the disabled and those from the age group pf 18-44. The facts of the case are as follows. The broad policy of the Government of India is that the State quota of vaccines of each State will be divided into two parts. The first part is of 50% which will be of free supply of vaccines by the Government of India to the State Governments. The State Governments are required to use this quota for free vaccination. As far as the remaining 50% is concerned, 25% quota can be procured by the State Government by directly placing the orders with the manufacturers/suppliers. Even the said quota of 25% is required to be utilized by the State Government for free vaccination. The remaining 25% can be utilized by authorized private hospitals and private agencies by purchasing vaccines directly from the manufacturers/suppliers. In the written submissions, the State Government has set out its requirement of the quantity of vaccines which will be sufficient to give the second dose to the beneficiaries who have taken the first dose. The learned Advocate General was categorical in making a statement that no beneficiary in the State who has taken the first dose of COVAXIN will be denied the second dose of COVAXIN as and when it becomes due. The learned Advocate General also stated that the State Government has stopped giving the first dose of COVAXIN to any person falling in any of the age groups or any of the categories. In fact, the State Government is relying upon the advisory issued by it to the private agencies who are administering vaccines from 25% quota to utilize the available stock of COVAXIN at their respective health care 3 facilities as a second dose for the age group of 45 plus who are awaiting for the second dose.

ORDER CJ & AKJ: W.P.No.6435 2020 & 27.05.2021 connected matters Through Video Conferencing) Now we are dealing with the issue of vaccination. It is repeatedly pointed out to the Court that the broad policy of the Government of India is that the State quota of vaccines of each State will be divided into two parts. The first part is of 50% which will be of free supply of vaccines by the Government of India to the State Governments. The State Governments are required to use this quota for free vaccination. As far as the remaining 50% is concerned 25% quota can be procured by the State Government by directly placing the orders with the manufacturers suppliers. Even the said quota of 25% is required to be utilized by the State Government for free vaccination. The remaining 25% can be utilized by authorized private hospitals and private agencies by purchasing vaccines directly manufacturers suppliers. In the written submissions filed on 25th May 2021 in paragraphs 4 and 8 the State Government has set out its requirement of the quantity of vaccines which will be sufficient to give the second dose to the beneficiaries who have taken the first dose. As regards COVAXIN the figures given in paragraph 4 indicate that the State is likely to have 4 20 140 doses as on 1st June 2021. The second dose is due to 3 65 178 beneficiaries as on 28th May 2021. Thus it can be broadly said that considering the requirement of the second dose of vaccine as on 1st June 2021 the quantity which the State may have as on 1st June 2021 will be barely sufficient to meet the requirement of the second dose. The learned Advocate General was categorical in making a statement that no beneficiary in the State who has taken the first dose of COVAXIN will be denied the second dose of COVAXIN as and when it becomes due. The learned Advocate General also stated the State Government has stopped giving the first dose of COVAXIN to any person falling in any of the age groups or any of the categories. In fact the State Government is relying upon the advisory issued by it to the private agencies who are administering vaccines from 25% quota to utilize available stock of COVAXIN at their respective health care facilities as a second dose for the age group of 45 plus who are awaiting for the second dose. As regards COVISHIELD vaccine the figures are set out in paragraph 8 which show that 10 52 720 doses of COVISHIELD were available as on 24th May 2021 and 7 17 310 doses are likely to be allocated by the Central Government in this month. It is stated that these doses will take care of all those who are due for the second dose as of today and all those who will become due for the second dose by 17th June 2021. The State Government has made a clear statement in paragraph 9 of the written submissions that so far as the beneficiaries above the age of 45 years are concerned priority will be given to those individuals for whom the second dose of COVISHIELD has become due and it is only subject to availability of vaccination doses at the respective centres and the State as a whole that the first dose of COVISHIELD will be administered to persons belonging to the age group of 45 plus category. As regards the age group of 18 44 years priority will be given only to Frontline Workers for the first dose of COVISHIELD. Annexure R8 is a Press Note issued by the State Government which clearly records that the first dose of COVAXIN is not available with the State for the category of 18 44 age group. However for identified Frontline Workers or vulnerable groups and Priority groups the first dose of COVISHIELD will be administered by concerned through Nodal Officers. The State Government has also placed on record a letter dated 20th May 2021 addressed by the National Health Mission of the State Government to all the District Deputy Commissioners and the Chief Commissioner of BBMP. The said letter identifies the categories of Frontline Workers and Priority groups. The letter again reiterates that first priority will be given to those beneficiaries under the age group of 18 44 years who fall under the category of State Corona Frontline Workers as specified in Annexure 1 of the said letter. Thereafter the Priority groups will be vaccinated. The list of beneficiaries falling under Priority groups is at Annexure 2 to the said letter. The same letter appoints Implementing Officers at various levels and fixes their For the sake of completion we may also refer to the memo dated 25th May 2021 filed by the learned standing counsel for the Central Government. It records that allocation of 50% of direct procurement quota to the State Government is of a total 15 98 220 doses out of which 13 54 050 is the quota of COVISHIELD. The State Government has received full quota of COVISHIELD and out of the quota of 2 44 170 doses of COVAXIN the State has received 1 44 170 doses. However it also records that the private agencies have ordered for 16 16 660 doses out of which they have received 5 73 200 doses of COVISHIELD and 85 660 doses of COVAXIN. 8. When we invited the attention of the learned Additional Solicitor General of India to the fact that the private agencies in the State seem to have exceeded the quota of 25% her the policy framed by the Central Government is a broad policy and may be that if in some States the private parties do not avail of the full quota of 25% the remaining quota can be made available to the private agencies in the other States. We may record here that as of today the private agencies have exceeded their quota only by about 18 000 doses. The real issue will arise if the private agencies are going to exceed the quota of 25% by a fairly large amount of doses. If such a situation arises the Government of India will have to make its stand clear. Today we are not issuing any direction as the quota has exceeded only by about 18 000 doses. Thus the scenario which emerges today is that out of the total 75% quota of vaccine which will be received by the State Government the first dose of COVAXIN cannot be given to any age group and any category. Secondly as the position stands in the age group of 18 44 years as of today the first dose of COVISHIELD can be administered only to the Frontline Workers and Priority groups as provided in the State Government s letter dated 20th May 2021. 10. As vaccination is one of the most effective modes of the spread of COVID 19 virus the State Government will have to come out with an action plan in what manner they are going to provide vaccination to the persons belonging to the age group of 45 plus and to the age group of 18 44 years starting with first dose. As of today from the figures which are placed on record it appears to be very difficult for the State Government to give first dose of vaccination to the persons belonging to the age group of 45 plus and to the age group of 18 44 years. By Tuesday the 1st June 2021 the State Government must make its stand very clear. In view of this peculiar situation we had requested Dr. Prasanna the President of Private Hospitals and Nursing Homes Association to appear and address the Court. Accordingly yesterday he appeared and addressed the Court. His stand was that what is stated in the letter dated 24th May 2021 Annexure R4 the written submissions dated 25th May 2021 is only an advisory and it is not a direction to the private healthcare facilities who are using 25% quota for providing vaccination at a charge. He stated that the private health care facilities will have no option but to even administer COVAXIN as the first dose to anyone who approaches these facilities who has been registered. Moreover he stated that the advisory of the State Government does not even suggest that as far as possible the available doses of COVISHIELD should be used to give second dose to those who have already taken the first dose. 12. Thus on one hand the persons who belong to the age group of 18 years and above who visit the State Government establishments for the first dose of vaccination are not likely to get their first dose as of today unless they fall under any of the two categories that is Frontline Workers and Priority groups. But if such a person approaches private health care facilities he may get the first dose of COVAXIN or COVISHIELD by paying certain amount. Similarly those who have taken the first dose of COVISHIELD and COVAXIN from the State Government establishments will have to wait for the second dose till the respective dates on which the second dose will be administered are communicated to them. Thus if a beneficiary who has taken the first dose of COVISHIELD from the State Government free quota has completed 12 weeks he may not immediately get the second dose from the State Government establishments but if he goes to the private health care facilities he may immediately get the second dose of vaccination by paying the necessary amount. It is necessary for both the Central Government and the State Government to take a note of this situation in the context of Article 14 of the Constitution of India. We direct both the Central Government and the State Government to make a statement on this aspect on the question of issuing directions to those private health care facilities which are using 25% quota for administering the first dose. The response shall be filed within one week. In one of our earlier orders we had observed that it is necessary to ensure that every citizen is made aware of requirement of online registration for vaccination and it should be ensured that he gets assistance for registration. There may be many classes of society who are not able to register themselves for vaccination and unless they register themselves even if the doses are available they may not be the State Government agencies establishments. Moreover as per the policy of the State Government which is reflected from the letter dated 20th May 2021 even those who belong to the category of Frontline Workers and Priority groups must be made aware of their eligibility to get the vaccination on priority basis. The State Government will come out with its action plan for ensuring that those who are entitled to priority and even those who are not entitled to priority are not prevented from taking vaccination only because they are unable to register themselves. The State Government may consider of directing the implementing officers appointed by the letter dated 20th May 2021 to take necessary steps in this behalf in relation to all age groups. 14. There is already an order issued by this Court to the State Government directing the State Government to come out with a scheme for providing vaccination to the persons with benchmark disability. Now the State Government has recognized persons with disability including mentally retarded persons and one care taker as Frontline Workers. The State Government will have to come out with an action plan showing in what manner they are going to administer vaccine to the persons belonging to this category who due to their disability will not be in a position to go to the vaccination centres or Government hospitals. 15. Now we deal with the availability of oxygen. In the written submissions filed by the State Government on 25th May 2021 it is stated that with effect from 23rd May 2021 the allocation of oxygen for the State of Karnataka has been revised from 1 015 MT to 1 200 MT. Out of the allocation of 1 200 MT 370 MT is allocated from the places outside the State of Karnataka. From the figures givien in paragraph 16 it is apparent that except on 22nd May 2021 the State has not reached the upper limit of quota of 1 015 MT which was prevailing till 23rd May 2021. Even the chart produced along with the memo dated 25th May 2021 by the learned standing counsel appearing for the Government of India indicates that the State is not able to draw its full allocated quota. The chart annexed to the said memo shows that from 10th May 2021 till 24th May 2021 only a quantity of 297.04 MT could be procured by the State from outside the State. We therefore direct the State Government to place on record written submissions affidavit by 1st June 2021 setting out the difficulties if any faced by the State Government while procuring the quota of oxygen from outside the State. If the State Government is facing real difficulty in securing the quota from any particular unit in other States it must approach the Central Government immediately so that the Central Government can take an appropriate decision on the said grievance. 16. There is already a direction issued by the Apex Court way back on 30th April 2021 to create a buffer stock of adequate quantity of oxygen to each district. Annexure R14 is a chart giving buffer stock. However the State has not fixed minimum buffer stock for each district. There appears to be a serious issue in some districts regarding the availability of storage Therefore the State Government will have to take a decision of fixing a minimum quantity of buffer stock in each district at least on weekly basis so that even if on a particular day the buffer stock is for emergency the same can be replenished to the extent of the minimum quantity fixed. The State Government will have to take immediate appropriate steps to provide adequate storage capacity in each district. The State Government will respond even on this aspect by 1st June 2021. 17. Another issue canvassed is regarding the distribution of oxygen within the State as in many districts there is no production of oxygen. The State Government is relying upon the Government Order dated 15th May 2021 under which in exercise of powers under Section 24 of the Disaster Management Act 2005 the Chairman of the State Executive Committee has appointed the Regional Commissioners for each Revenue Division as Nodal Officers for the respective of Revenue Divisions. This takes care of major difficulty in allocation of oxygen to the districts. However if in any particular Revenue Division there is no production of oxygen at all the State Government will have to lay down the modalities which will permit the Regional Commissioner of that particular Revenue Division to secure an adequate quantity of oxygen from other Revenue Divisions. The State Government s response on this aspect must be placed on record by 1st June 2021. FOOD SECURITY 18. Now we come to the issue of food security. At the outset we must refer to the order dated 24th May 2021 passed by the Apex Court in suo motu Writ Petition No.6 2020 which takes care of the issue of food security of migrant workers. The direction issued by the Apex Court is in paragraph 15. Therefore as far as this Court concerned it will have to deal with the food security of the other vulnerable sections of society. The first section will be of those who have ration cards and those who have applied for ration cards but have no income. The second section will be of those who have no income and have not even applied for ration cards on various reasons. The third issue will be of mid day meal. The Central Government will make its stand very clear whether mid day meal is being supplied even during the school vacations. On all aspects of food security we will hear the parties on 3rd June 2021 at 3.30 OTHER ASPECTS 19. The issue regarding payment of ad hoc compensation to the victims of Chamarajanagar incident will be also of victims. considered on that day including the issue regarding number 20. The learned Additional Advocate General has placed on record an order dated 26th May 2021 by which earlier orders regarding lockdown have been modified and the movement of advocates their para legal personnel clerks and other support staff will be permitted only during the Court working days on production of Letters. Secondly the offices of the advocates law firms are permitted to function with 50% of staff strength strictly adhering to COVID appropriate behaviour. Therefore now the members of the Bar may not face any difficulty in reaching their offices. As directed in paragraph.4 of the order dated 16th April 2021 interim orders passed by various Court were extended. Paragraph.4 of the order dated 16th April 2021 reads thus: "4. We issue the following interim directions: All interim orders passed by the Karnataka High Courtall the District Courts Civil Courts Family Courts Labour Courts Industrial Tribunals and all other Tribunals in the State over which this Court has the power of superintendence which are due to expire in the period between 17th April 2021 and 29th May 2021 will continue to operate till 29th May 2021. eviction dispossession or demolition have been passed by the High Court District Courts or Civil Courts the same shall remain in abeyance till 29th May 2021. iii) It is however made clear that if any party desires to apply for vacating the interim orders it will be open for the said party to apply to the concerned Courts Tribunals praying vacating the orders. If such applications are made the Courts Tribunals are free to consider the same in accordance with law without being influenced by continuation of interim reliefs by this Court". Paragraph.2 of the order dated 22nd April 2021 reads thus: "2. We direct that the interim orders of bail and interim orders of pre arrest bail passed by various Criminal Courts in Karnataka which are likely to expire between 23rd April 2021 and 29th May 2021 shall stand extended to 29th May 2021. However if applications are made by the State or prosecuting agency or by any person cancellation of the bail the concerned Courts will hear such applications in accordance with law". 17 We direct that the interim directions issued on 16th April 2021 and 22nd April 2021 which are quoted above shall continue to operate till 5th July 2021. Paragraph Nos.21 and 22 above shall be notified on the website of this Court by Registrar (Judicial). List these petitions on 3rd June 2021 at 3.30 p.m. Sd CHIEF JUSTICE JUDGE Sd

College cannot adopt unfair means to grant admission: Supreme Court of India

A compensation of Rs. 10 Lakhs was granted to an MS Surgery course aspirant for illegally denying her admission into the college and granting an admission to a candidate who ranked below her in the merit list. The College that denied her admission was directed to reserve one seat for this aspirant in the management quota in the next academic year of (2021-22). This was laid down by J. L Nageshwara Rao and Hemant Gupta in the case of National Medical Commission Vs. Mothukuru Sriyah Koumudi, [Civil Appeal No. 3940 of 2020].  The medico aspirant in her NEET PG 2020 scored 327 marks and was granted a provisional admission to the MS (General Surgery) course in the Kamineni Academy of Medical Science and Research Center, Hyderabad under Management Quota. The aspirant was asked by the authorities to report before the college on July 29 or 30 to submit the documents and pay the fees. The medico aspirant reached the college on those dates, but her admission was not completed. Further, the aspirant tried to meet the Chairman of the college, but she was not permitted to meet him. Later a candidate below her rank was granted admission to the college. The Medico Aspirant filed a writ petition in the High Court seeking denial of the admission granted to the other candidate. The High Court allowed the Writ Petition and directed the Medical College to create or sanction one seat for the Petitioner and further directed the College to grant her admission to the PG medical course. The National Medical College approached the Supreme Court on the grounds that creating another seat for the medico aspirant would be contrary to the law that has been laid down by the Supreme Court itself. 

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

Rape is just not forcible intercourse, it means to inhabit and destroy everything: Orissa High Court

Given the severity of the allegation and the witness of the accused who had been discharged before the trial was held and the above position arising from the application by the learned lawyer based on recorded material, I am not compelled to release the applicant on bail. The judgement was passed by the High Court of Orissa in the case of Gobinda Chandra Mallik v. the State of Odisha and anr [BLAPL No.6679 OF 2020] by Single Bench consisting of Hon’ble Justice S. K. Panigrah. The facts of the case are that the petitioner dragged the victim to an under-construction house where he inappropriately touched the private parts of the victim. The cousin of the victim witnessed the whole incident and she was threatened by the petitioner of committing similar misconduct with her if she raises a protest. Thereafter the matter was reported to the local Sarpanch and on the advice of the said Sarpanch, the FIR was lodged by the mother of the victim e under Sections 341, 294, 506, 354-B read with Section 34 of I.P.C. and Section 12 of the POCSO Act, 2012. Learned Senior Counsel for the petitioner, submitted that the petitioner is an innocent person and has been falsely implicated in this case by the Police. The petitioner has never committed the alleged offences and has no role to play in it. Learned Court below has rejected the bail application of the petitioner without taking into consideration the materials available on record and without applying its judicial mind. Further, the medical examination has been conducted on the victim and the said report reflects no sign of forceful sexual misconduct and the wearing apparels do not suggest any sign of forceful sexual act. Hence, the petitioner should be granted bail. One of the main contentions was cleared by referring to Mohd. Imran Khan v. NCT of Delhi, wherein it was held that “it is trite law that a woman, who is the victim of sexual assault, is not an accomplice to the crime but is a victim of another person’s lust. The prosecutrix stands at a higher pedestal than an injured witness as she suffers from emotional injury. Therefore, her evidence need not be tested with the same amount of suspicion as that of an accomplice. The Evidence Act, 1872.”

HIGH COURT OF ORISSA: CUTTACK BLAPL No.6679 OF 2020 In the matter of an application under Section 439 of the Criminal Procedure Code 1973) Gobinda Chandra Mallik State of Odisha and another … Opposite Parties … Petitioner Versus For Petitioner Mr. Dharanidhar Nayak Senior Advocate and M s. Bini Mishra and B. K. Das For Opposite Parties : Mr. S. S. Kanungo Additional Government Advocate THE HONOURABLE SHRI JUSTICE S.K. PANIGRAHI Date of Hearing: 04.03.2021 Date of judgment: 16.03.2021 1. The petitioner has filed the instant application under Section 439 of Cr.P.C. seeking bail in connection with Nikirai P.S. Case No.103 of 2020 corresponding to G.R. Case No.68 of 2020 pending before the learned Additional Sessions Judge cum Special Judge Kendrapada. The petitioner herein is the accused in connection with alleged commission of offences punishable under Sections 341 294 506 354 B read with Section 34 of I.P.C. and Section 12 of the POCSO Act 2012. 2. The case of the prosecution is that on 18.08.2020 at about 7:00 P.M. the petitioner caught hold of the hand of the victimwhile the latter was attending the call of nature. The petitioner dragged her to an under construction house where he inappropriately touched the private parts of the victim. The cousin of the victim witnessed the whole incident and she was threatened by the petitioner of committing a similar misconduct with her if she raises protest. Thereafter the matter was reported to local Sarpanch and on advice of the said Sarpanch the FIR was lodged by the mother of the victim before the IIC Nikirai P.S. 3. Heard Mr. Dharanidhar Nayak learned Senior Counsel appearing for the petitioner and Mr. S. S. Kanungo learned Additional Government Advocate for the State and perused the case 4. Learned Senior Counsel for the petitioner Mr. Nayak has submitted that the petitioner is an innocent person and has been falsely implicated in this case by the Police. The petitioner has never committed the alleged offences and has no role to play in it. Learned Court below has rejected the bail application of the petitioner without taking into consideration the materials available on record and without applying its judicial mind. Further the medical examination has been conducted on the victim and the said report reflects no sign of forceful sexual misconduct and the wearing apparels do not suggest any sign of forceful sexual act. Hence the petitioner should be granted bail. 5. Medical Officer Dr. Nirmalya Mohapatra who examined the victim has reported that on examination of genital organ and the clothing of the victim there were no recent signs or symptoms or bodily injuries suggestive any kind of sexual intercourse. Further the police official has reported the birth proof from her School stating that the victim was 11 years and 7 months old at the time of It is well settled that the victim of a sexual assault is not an accomplice. Nor is it an immutable rule of law that the testimony of a survivor cannot be acted without corroboration in material particulars. The injury suffered by the minor victim of a sexual abuse is deeply physical psychological and emotional. In a given case if the Court finds it difficult to accept the version of the victim on its own the Court would be justified in searching for evidence direct or circumstantial which lends assurance to her testimony. Such assurance short of corroboration is sufficient. The Bombay High Court in the case of Fazal Mehmud Jilani Dafedar vs State of Masharashtra1 relied on the judgment of the Supreme Court in the case of Mohd. Imran Khan v. State Government10 SCC 192 “22. It is a trite law that a woman who is the victim of sexual assault is not an accomplice to the crime but is a victim of another person s lust. The prosecutrix stands at a higher pedestal than an injured witness as she suffers from emotional injury. Therefore her evidence need not be tested with the same amount of suspicion as that of an accomplice. The Evidence Act 1872nowhere says that her evidence cannot be accepted unless it is corroborated in material particulars. She is undoubtedly a competent witness under Section 118 of the Evidence Act and her evidence must receive the same weight as is attached to an injured in cases of physical violence. The same degree of care and caution must attach in the evaluation of her evidence as in the case of an injured complainant or witness and no more. If the court keeps this in mind and feels satisfied that it can act on the evidence of the prosecutrix there is no rule of law or practice incorporated in the Evidence Act similar to Illustration to Section 114 which requires it to look for corroboration. If for some reason the court is hesitant to place implicit reliance on the testimony of the prosecutrix it may look for evidence which may lend assurance to her testimony short of corroboration required in the case of an accomplice. If the totality of the circumstances appearing on the record of the case disclose that the prosecutrix does not have a strong motive to falsely involve the person charged the court should ordinarily have no hesitation in accepting her evidence. 23. The court must be alive to its responsibility and be sensitive while dealing with cases involving sexual molestations. Rape is not merely a physical assault rather it often distracts the whole personality of the victim. The rapist degrades the very soul of the helpless female and therefore the testimony of the prosecutrix must be appreciated in the background of the entire case and in such cases non examination even of other witnesses may not be a serious in the prosecution case particularly where the witnesses had not seen the commission of the offence.” 24. Thus the law that emerges on the issue is to the effect that statement of prosecutrix if found to be worthy of credence and reliable requires no corroboration. The court may convict the accused on the sole testimony of the prosecutrix.” 7. Further it is also a well settled principle of law that the testimony of child witness can be relied upon along with other circumstances and corroborative evidence to convict the accused. Undoubtedly the settled proposition of law that the evidence of a child witness is required to be scrutinised and appreciated with great caution. In this regard reference can be made to the dicta of the Apex Court in the case of Yogesh Singh Vs. Mahabeer Singh3 wherein the Apex Court has held that: 22. It is well settled that the evidence of a child witness must find adequate corroboration before it is relied upon as the rule of corroboration is of practical wisdom than of law. 23. However it is not the law that if a witness is a child his evidence shall be rejected even if it is found reliable. The law is that evidence of a child witness must be evaluated more carefully and with greater circumspection 3 AIR 2016 SC 5160. because a child is susceptible to be swayed by what others tell him and thus a child witness is an easy prey to tutoring.” 8. The Supreme Court in the case of Radhakrishna Nagesh vs. State of Andhra Pradesh4 has iterated that even if there is no penetration it does not necessarily mean that there is no rape. It further stated that “29. The penetration itself proves the offence of rape but the contrary is not true i.e. even if there is no penetration it does not necessarily mean that there is no rape. The Explanation to Section 375 IPC has been worded by the legislature so as to presume that if there was penetration it would be sufficient to constitute sexual intercourse necessary for the offence of rape. The penetration may not always result in tearing of the hymen and the same will always depend upon the facts and circumstances of a given case. The Court must examine the evidence of the prosecution in its entirety and then see its cumulative effect to determine whether the offence of rape has been committed or it is a case of criminal sexual assault or criminal assault outraging the modesty of a girl.” 9. The Delhi High Court while relying on Supreme Court cases in the case of Lokesh vs State5 has opined on the importance of the statement of the prosecutrix: “54. The legal position therefore is quite unambiguous that the evidence of the prosecutrix in a case of rape is 5CRL.A. 487 2016 Delhi HC. ordinarily to be believed and may form the sole basis for conviction unless cogent reasons for the court to be hesitant in believing the statement at its face value and to seek corroboration thereof exist. 55. In Moti Lal v. State of M.P.6 the Supreme Court held thus: It is settled law that the victim of sexual assault is not treated as accomplice and as such her evidence does not require corroboration from any other evidence including the evidence of a doctor. In a given case even if the doctor who examined the victim does not find sign of rape it is no ground to disbelieve the sole testimony of the prosecutrix.56. In a similar vein it was held in B. C. Deva @ Dyava v. State of Karnataka7 as under: ―The plea that no marks of injuries were found either on the person of the accused or the person of the prosecutrix does not lead to any inference that the accused has not committed forcible sexual intercourse on the prosecutrix. Though the report of the gynaecologist pertaining to the medical examination of the prosecutrix does not disclose any evidence of sexual intercourse yet even in the absence of any corroboration of medical evidence the oral testimony of the prosecutrix which is found to be cogent reliable convincing and trustworthy has to be 10. The Bombay High Court denied to grant bail to a person accused under the POCSO Act in the case of Amit Raoso Patil vs State of Maharashtra8 stating that 6(2008) 11 SCC 20. 7(2007) 12 SCC 122. “12. “Rape” is just not a forcible intercourse it means to inhabit and destroy everything. The applicant is seeking release on bail awaiting the trial. Considering the gravity of the accusation levelled against him and the testimony of the victim which would be unfurled at the time of trial and in view of the aforesaid position emerging from the submission of the learned counsel for the applicant based on the material on record I am not inclined to release the applicant on bail. The observations made in the order are prima facie in nature based on the material placed for consideration for a limited purpose of consideration of bail application and should not be considered as an expression opinion on the merits of the matter at the time of trial.” 11. In the instant case the investigation is still in progress. From perusal of the FIR it appears that offences under the Indian Penal Code are definitely made out though it needs to be further investigated as the investigation is still inconclusive. A perusal of the FIR and charge sheet filed in the present case shows that there are very specific allegations against the Petitioner who is arrayed as accused. It is not as if the allegations are casual and sweeping against the accused generally. The possibility of coercion of victim’s family repetition of similar type of offence and flee from justice cannot be ruled out and therefore the petitioner should not be granted bail at least until the investigation is complete. 12. There are numerous other allegations as well in the charge sheet which are very detailed and need not be reproduced since the 8Bail Application No.18120 Bombay HC. 9 above extracts are sufficient to indicate that the allegations are specific and not of a general nature. Upon a 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. Moreover 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 conscience. Therefore I am not inclined to enlarge the petitioner on bail. 13. 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 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 observations. S.K. PANIGRAHI J.] Orissa High Court Cuttack The 16th March 2021 AKK LNB AKP

Anticipatory bail may be granted subject to the conditions which will take care of the interest of the prosecution: Karnataka High Court

The petitioner was granted anticipatory bail, considering all the facts and circumstances and in light of the allegations made against him, however he is directed to appear before investigating officer within fifteen days of receipt of order. Karnataka High Court held in Nagaraja R. v. State of Karnataka (Crl. Petition No. 5780/2020) Facts of the case are, the statement of the injured was recorded by the police on 09.10.2020 while he was admitted in McGann Hospital, Shimoga stating that there was dispute between him and the petitioner in the matter of an agricultural land and there used to be frequent quarrels. On 09.10.2020 at about 8.00 a.m. when the informant was in front of the shop near his house, the petitioner/accused armed with club came from behind and assaulted on his hand, leg and other parts of the body, with an intention to cause his death. As a result of which, the complainant sustained bleeding injuries. Immediately, the relatives of the complainant came and shifted him to the hospital. Therefore, he requests for registering the case and accordingly, the police have registered the case and took up investigation. Counsel for the petitioner submitted that a false complaint is came to be lodged against the petitioner, as a counter blast for the earlier complaint lodged by his wife against the informant. Also, stating that petitioner is not required for custodial interrogation. However, he is ready and willing to abide by the law. And, the counsel for respondent while opposing the petition, submitted that serious allegations are made against the petitioner for having committed the offences. The counsel also stated that, the petitioner is absconding since the date of the registration of the case. And therefore the petition shall be dismissed. However, the court was of the view that, “Crime No. 195/2020 was registered against the first information in the present case in Kumsi Police Station for the offences punishable under Sections 341, 354, 354(A), 354(B) of IPC. The said complaint was came to be lodged on 09.10.2020 between 6.00-6.45 p.m. The present complaint was registered on the very same day at 9.00 pm on the basis of the statement of the complainant recorded while he was taking treatment in the hospital. The medical records are not made available. But however, it is admitted that the first informant is already discharged from the hospital.”

1 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 04TH DAY OF DECEMBER 2020 THE HON’BLE MR.JUSTICE M.G.UMA CRIMINAL PETITION NO.5870 2020 BETWEEN : Nagaraja R. S o V.Ramachandra Shetty Aged about 42 years R o Kuramballi Suduru Mandagatta Post Shivamogga 577 211. …Petitioner By Sri.Prasad B.S. Advocate) AND : State of Karnataka By Kumsi P.S. Rep by SPP High Court Building Bangalore 560 001. … Respondent By Sri.Vinayaka V.S. HCGP) This Criminal Petition is filed under Section 438 of Cr.P.C praying to enlarge the petitioner on bail in the event of his arrest in Crime No.196 2020 of Kumsi P.S. Shivamogga for the offence P U S 326 307 of IPC. 2 This Criminal Petition coming on for orders this day the Court made the following: O R D E R The petitioner is before this Court seeking grant of anticipatory bail under Section 438 of Cr.P.C. and to release him on bail in the event of his arrest in Crime No.196 2020 of Kumsi Police Station Shimoga registered on basis of the first information alleged by the injured Thimmappa against the present petitioner for the offences punishable under Sections 326 and 307 of IPC. The brief facts of the case are that the statement of the injured was recorded by the police on 09.10.2020 while he was admitted in Mc.Gann Hospital Shimoga stating that there was dispute between him and the petitioner in the matter of an agricultural land and there used to be frequent quarrels. On 09.10.2020 at about 8.00 a.m. when the informant was in front of the shop near his house the petitioner accused armed with club came from behind and assaulted on his hand leg 3 and other parts of the body with an intention to cause his death. As a result of which the complainant sustained bleeding injuries. Immediately the relatives of the complainant came and shifted him to the hospital. Therefore he requests for registering the case and accordingly the police have registered the case and took up investigation. Learned counsel for the petitioner submitted that a false complaint is came to be lodged against the petitioner as a counter blast for the earlier complaint lodged by his wife against the informant. The Learned counsel submitted that the wife of the petitioner lodged a complaint against the informant in Crime No.195 2020 at Kumsi Police Station for the offences punishable under Sections 341 354 354(A) 354(B) of IPC. It is alleged that the complainant tried to outrage the modesty of the wife of the present petitioner. In order to escape from his criminal liabilities the complainant got himself admitted to the hospital and gave a statement falsely implicating 4 the present petitioner. The complainant is already discharged from the hospital and he has not sustained any injuries. The petitioner is not required for custodial interrogation. His permanent residential address mentioned in the petition. The petitioner is ready and willing to abide by any of the conditions that may be imposed by this Court and he prays to allow the petition. Per contra learned HCGP opposing petition submitted that serious allegations are made against the petitioner for having committed the offences. Earlier complaint lodged by the wife of the petitioner has to do with the present complaint. The investigation is at the initial stage. The petitioner is absconding since the date of the registration of the case. Hence he prayed for dismissal of the petition. Perused the material on record in the light of the rival submissions. 5 Crime No. 195 2020 was registered against the first information in the present case in Kumsi Police Station for the offences punishable under Sections 341 354 354(A) 354(B) of IPC. The said complaint was came to be lodged on 09.10.2020 between 6.00 6.45 p.m. The present complaint was registered on the very same day at 9.00 p.m. on the basis of the statement of the complainant recorded while he was taking treatment in the hospital. The medical records are not made available. But however it is admitted that the first informant is already discharged from the hospital. Considering all these facts and circumstances and in the light of the allegations made against the petitioner I am of the considered opinion that the petitioner may be granted anticipatory bail subject to the conditions which will take care of the interest of the prosecution. Hence I proceed to pass the following: The petition is allowed. 6 The petitioner is ordered to be enlarged on bail in the event of his arrest in Crime No.196 2020 of Kumsi Police Station. The petitioner is directed to appear before the Investigating Officer within 15 days from the date of receipt of this order and on his appearance the Investigating Officer shall enlarge him on bail subject to the following conditions: i) The petitioner shall execute a bond in a sum of Rs.2 00 000 with two sureties for the likesum to the satisfaction of the jurisdictional Court subject to the following conditions: ii) He shall not commit similar offence. iii) He shall appear before the Investigating Officer iv) He shall not threatened or tamper with the as and when required. prosecution witnesses. Sd JUDGE

If a mistake is committed by the authority, the same should be corrected when it is discovered: Orissa High Court

The meaning attached to the word mistake, that it is a misconception or error, which is unilateral or mutual, but it is always unintentional, and when it has been candidly stated that due to hearing. In the present case, it is the supervisor who inadvertently mentioned the wrong name which later corrected by bringing it to the notice. The judgement was passed by the High Court of Orissa in the case of Smt. Kaberi Behera v. State of Orissa and others [W.P.(C) NO. 7021 OF 2011] by Single Bench consisting of Hon’ble Justice B.R.Sarangi. The petitioner participated in the process of selection for the post of Anganwadi Helper. Among candidates, the educational qualification of the petitioner being highest, majority of women selected the petitioner to be engaged as Anganwadi Helper. Since the petitioner was selected, she submitted an independent representation before District Magistrate, requesting to look into the matter, which was marked to the CDPO for doing the needful, but no action was taken. Due to non-consideration of the grievance made by the petitioner, she approached this Court. Learned counsel for the petitioner argued with a vehemence that the petitioner, who sought for engagement as Anganwadi Helper, has got a higher qualification in comparison to other candidates whosoever were in the field and also belonged to SC community and, therefore, non-selection of the petitioner as Anganwadi Helper is arbitrary unreasonable and contrary to the provisions of law. It is further contended that a pre-planned and well-prepared resolution was passed to show favour to Smt. Gitanjali Swain, who has been selected as Anganwadi Helper in respect to Torabanga Anganwadi Centre. Thereby, the entire selection process has to be quashed. Learned counsel for the respondent contended that no candidate named Gitanjali Swain had ever participated in the Mahila Sabha held for selection of Anganwadi Helper in respect to Torabanga Anganwadi Centre. But, due to mishearing by the supervisor, the name of Mintanjali Swain was wrongly written as Gitanjali Swain and, accordingly, the appointment order was issued in the name of Gitanjali Swain. But, when the said mistake was realized, it was rectified subsequently.

ORISSA HIGH COURT: CUTTACK W.P.(C) NO. 7021 OF 2011 In the matter of an application under Articles 226 and 227 of the Constitution of India. AFR Smt. Kaberi Behera … Petitioner Versus State of Orissa and others ….. Opp. Parties For Petitioner M s. Srikanta Ku. Sahoo A.K. Sahoo B.B. Biswal & M. Mahapatra Advocates For Opp. Parties : Mr. B.P. Tripathy Addl. Government Advocate. O.Ps. No. 1 to 4] M s. P.K. Samantaray & R.N. Parija Advocates O.P. No. 5] P R E S E N T: THE HONOURABLE DR. JUSTICE B.R.SARANGI DECIDED ON : 09 .03.2021 DR. B.R. SARANGI J. Kaberi Behera who was a candidate for selection of Anganwadi Helper has filed this writ petition to quash the order dated 21.09.2010 passed by the Additional District Magistrate Puri in Anganwadi Misc. Case No. 2 of 2010 as well as the engagement order issued in favour of opposite party no.5 Mitanjali Swain and further seeks for a direction to opposite parties no. 1 to 4 to give her engagement in the post of Anganwadi Helper of Torabanga Anganwadi Centre. The factual matrix of the case in hand is that opposite party no.4 Child Development Project Officer Nimapara issued an advertisement on 18.01.2010 under Annexure 2 regarding selection of Anganwadi Helper in different Anganwadi Centers of Nimapara Gram Panchayat. In the said advertisement it was indicated to hold Mahila Sabha in all the centers intending women candidates were to remain present. It was also indicated therein that the candidate who intends to apply for the post of Anganwadi Helper should be a permanent resident of the Anganwadi Centre area her age should not be less than 18 years as on 01.01.2020 she should have competency to manage the center she should be liked by the villagers should be able In compliance of notice dated 18.01.2010 to read and write and should have shown her interest to work for the women and children of the locality. So far as Torabanga Anganwadi Centre is concerned the date time and place were fixed for Mahaila Sabha as 25.01.2010 at 10.00 a.m. in the premises of Torabanga Nilakantheswar Temple of Badasiribula G.P. under Annexure 2 the petitioner along with three other candidates participated in the process of selection for the post of Anganwadi Helper of Torabanga Anganwadi Centre. Out of four candidates educational qualification of the petitioner being highest majority of women selected the petitioner to be engaged as Anganwadi Helper. On the scheduled date time and place though Mahila Sabha was held result of such meeting was published later on selecting opposite party no.5 Mitanjali Swain and engaging her Anganwadi Worker. Her selection was objected to by local women who submitted application on 08.03.2010 to the CDPO requesting to stick to the decision arrived at in the meeting. Since the petitioner was selected she submitted an independent representation on 10.03.2010 before the Collector & District Magistrate Puri requesting to look into the matter which was marked to the CDPO for doing the needful but no action was taken. Due to non consideration of the grievance made by the petitioner she approached this Court by filing W.P.(C) No. 6970 of 2010 which was disposed of vide order dated 19.04.2010 with a direction that if the petitioner filed a fresh representation along with a copy of the order within two weeks from that day before the Addl. District Magistrate Puri the same would be disposed of by the ADM in accordance with law within a period of four weeks from the date of filing of the representation by giving opportunity of personal hearing to the petitioner and the affected parties. In compliance of the same the petitioner filed a representation before the ADM Puri which was registered as Anganwadi Misc. Case No. 2 of 2010. Therein the ADM issued notice to opposite party no.5 and by affording opportunity of hearing passed order impugned dated 21.09.2010 by holding that the petitioner was not diligent enough to find out the real candidate in whose favour appointment order was issued. On the contrary she moved the High Court impleading Gitanjali Swain as opposite party no.6 in W.P.(C) No. 6970 of 2010 who was not the real candidate. As such the petitioner was not sincere to implead Mitanjali Swain as an opposite party after the fact came to her notice to adduce evidence in support of her appointment as Anganwadi Helper in Torabanga Anganwadi Centre under ICDS Project Nimapara. Thus the appeal filed by the petitioner having no merit was rejected. Hence this Mr. B.B. Biswal learned counsel for the petitioner argued with vehemence that the petitioner who sought for engagement as Anganwadi Helper has got higher qualification in comparison to other candidates whosoever were in the field and also belonged to SC community and therefore non selection of the petitioner as Anganwadi Helper is arbitrary unreasonable and contrary to the provisions of law. It is further contended that a pre planned and well prepared resolution was passed on 25.01.2010 to show favour to Smt. Gitanjali Swain who has been selected as Anganwadi Helper in respect to Torabanga Ananwadi Centre. Thereby the process has Consequentially rejection of the representation of the petitioner vide impugned order dated 21.09.2010 passed in Anganwadi Misc. Case No. 2 of 2010 which has been passed in pursuance of order dated 19.04.2010 passed by this Court in W.P.(C) No.6970 of 2010 cannot sustain in the eye of law and also engagement order issued in favour of opposite party no.5 should be quashed. Tripathy Government Advocate appearing for the State opposite parties contended that no candidate named Gitanjali Swain had ever participated in the Mahila Sabha held for selection of Anganwadi Helper in respect to Torabanga Ananwadi Centre. But due to mishearing by the supervisor the name of Mintanjali Swain was wrongly written as Gitanjali Swain and accordingly appointment order was issued in the name of Gitanjali Swain. But when the said mistake was realized it was rectified subsequently. As such said supervisor has also filed an affidavit stating that due to her heard of hearing the name of Mitanjali Swai was written by her as Gitanjali Swain in the proceeding meeting and that as soon as this fact came to her knowledge she rectified the same giving correct name as Mitanjali Swain in place of Gitanjali Swain. Thereby no illegality or irregularity has been committed by indicating correct name of the opposite party no.5. Consequentially the grievance made by the petitioner cannot sustain in the eye of law and as such the ADM has rightly rejected the representation of the petitioner in due application of mind. Therefore the writ petition should be dismissed. Mr. R.N. Parija learned counsel appearing for opposite party no.5 contended that no candidate named Gitanjali Swain had ever participated in the process of selection. Rather opposite party no.5 Mitanjali Swain participated in the process of selection and she having been supported by a large number of women in the Mahila Sabha was declared to be engaged as Anganwadi Helper of Torabanga Ananwadi Centre. If a wrong was committed by the supervisor in recording the name of “Gitanjali Swain” in place of “Mitanjali Swain” that itself cannot disentitle her to continue as Anganwadi Helper and the petitioner cannot take advantage of such mistake and claim that she should be engaged as Anganwadi Helper in place of opposite party no.5. More so the petitioner had not impleaded Mitanjali Swain as a party in her earlier writ petition rather she had impleaded therein Gitanjali Swain as opposite party no.6 even though she knew that a mistake was committed on the part of the supervisor who had heard of hearing and when the same was brought to her notice she rectified the same This Court heard Mr. B.B. Biswal learned indicating Mitanjali Swain in place of Gitanjali Swain. Thereby no illegality or irregularity was committed in the process of selection of Anganwadi Helper in respect of Torabanga Ananwadi Centre. More so there is no such allegation made in the writ petition with regard to illegality or irregularity committed in the process of selection of Anganwadi Helper of the Torabanga Ananwadi Centre. Thereby he seeks for dismissal of the writ petition. counsel for the petitioner Mr. B.P. Tripathy learned Addl. Government Advocate appearing for opposite parties no.1 to 4 and Mr. R.N. Parija learned counsel for opposite party no.5. The opposite parties have not filed their counter affidavit in this case. It is contended that since it is a certiorari proceeding on the basis of the pleadings available it can be heard and disposed of at the stage of admission. Therefore with the consent of the parties the matter is being disposed of finally at the stage of The factual matrix as delineated above as well as the contentions raised by learned counsel respective parties as recorded hereinbefore if summed up would emerge challenging the selection of opposite party no.5 the petitioner raised an objection before the authority but the same having not been acceded to she approached this Court by filing W.P.(C) No. 6970 of 2010 which was disposed of vide order dated 19.04.2010 directing the petitioner to file a fresh representation to be considered by the ADM in accordance with law by affording opportunity of hearing to the affected parties. In compliance of the same the ADM passed the impugned order dated 21.09.2010. As is evident from the said order the ADM on receipt of the application filed by the petitioner registered the same as Anganwadi Misc. Case No.10 and issued notice to all the parties to adduce evidence. But notice as against Gitanjali Swain who was opposite party no.6 in the said writ petition could not be made sufficient and on the other hand a report was received from the police station that there was no such person in the village as Gitanjali Swain. Therefore Mitanjali Swain opposite party no.5 appeared and submitted that there was no such person as Gitanjali Swain in the village and she herself is Mitanjali Swain who had been engaged as Anganwadi Helper of Torabanga Anganwadi Centre under Nimapara Block. The CDPO Nimapara on being called for also submitted a report indicating therein that on verification of bio data of the candidates and obtaining the majority views of the village Mahila Sabha one Mitanjali Swain was selected as Anganwadi Helper of Torabanga Ananwadi Centre but while recording by the supervisor the name of Mitanjali Swain had been wrongly written as Gitanjali Swain as the said supervisor was suffering from heard of hearing. But consequentially when this fact was brought to her notice she rectified her mistake and corrected the name of Gitanjali Swain as Mitanjali Swain opposite party no.5 herein. Though it is urged that the petitioner was selected in the proceeding held on 25.01.2010 for engagement as Anganwadi Helper of Torabanga Ananwadi Centre but nothing has been placed on record to justify the same and prove that Mahila Sabha had selected her to be engaged as Anganwadi Helper. In the above premises one thing is clear that wrong mentioning of the name of opposite party no.5 as Gitanjali Swain in place of Mitanjali Swain by the supervisor concerned which was subsequently corrected on being noticed has created such a confusing situation. Be that as it may it is well settled in law that if a mistake is committed by the authority the same can be corrected when it is brought to the notice. “MISTAKE” is not mere forgetfulness it is a slip “made not by design but by mischance”. Otherwise also the “mistake” includes an error in conduct consisting of an unintended failure to perform correctly and effectively a task intended to be duly performed. In West Bengal Electricity Board v. Patel Engg. Co. Ltd. AIR 2001 SC 682 :2 SCC 451 the apex Court held that a mistake may be unilateral or mutual but it is always unintentional. If it is intentional it ceases to be a mistake. In Deva Metal PowdersLtd. v. Commr. Trade Tax U.P. 2 SCC 439 the word mistake means to take or understand wrongly or inaccurately to make an error in interpreting it is an error a fault a misunderstanding a misconception. Taking into consideration the meaning attached to the word “mistake” as mentioned above that it is a misconception or error which is unilateral or mutual but it is always unintentional and when it has been candidly stated that due to heard of hearing it is the supervisor who inadvertently mentioned the name of Gitanjali Swain in place of Mitanjali Swain and as such there is no such person Gitanjali Swain available in the village consequentially correct name has been indicated as Mitanjali Swain thereby no illegality or irregularity can be said to have been committed by the authority by issuing engagement order in favour of Mitanjali Swain who had secured highest support in the Mahila Sabha to be engaged as Anganwadi Helper in respect of Torabanga Anganwadi Centre. In view of such position this Court does not find any illegality or irregularity in the impugned order dated 21.09.2010 passed by the ADM Puri in Anganwadi Misc. Case No. 2 of 2010 vide Annexure 9 series particularly when the selection and engagement of opposite party no.5 has been done in consonance with the guidelines issued by the government. The writ thus merits no consideration and the same stands dismissed. There shall be no order as to costs. JUDGE Orissa High Court Cuttack The 9th March 2021 Ajaya GDS DR. B.R.SARANGI

Challenging the impugned judgment for the offense committed under the Section 376 of Indian Penal Code: Cuttack High Court

The settled principle of law that an accused can be convicted for an offence of rape based on the sole testimony of the prosecutrix if it is found to be natural, trustworthy, and corroborated by the medical evidence and other circumstantial evidence held by Hon’ble Mr. Justice S. K. Sahoo in the matters of Madhusudan Naik v. the State of Orissa. [JCRLA No. 74 of 2016]. The case arises from the fact that the victim went to excrete at the same time appellant from the backside, caught hold of the victim, and forcibly committed sexual intercourse. On hearing the shout of the victim, other persons grazing cattle nearby came to rescue the victim by the meantime the appellant flew away from the spot. On the same day victim lodged F.I.R under Section 376 of the Indian Penal Code registered against the appellant. Upon the investigation, the appellant was arrested on the send request for medical examination of the appellant as well as the victim. Collected the record of Seized Vaginal Swab and pubic hair of the victim and blood sample, pubic hair, his nail clippings, semen from the appellant during the medical examination. Investigated the spot of the intercourse took place and prepared the spot map. On completion of the investigation, the charge sheet was charged against the appellant under Section 376 of the Indian Penal Code.  During the trial, the prosecution examined thirteen witnesses and several material objects. The Trail court relied on the evidence and found guilty of the offence under Section 376 of the Indian Penal Code. The defence plea of the appellant is “denial and stated that due to the previous enmity falsely implicated in this case”. The learned counsel advocate appointed as an advocate for the appellant contended that “Evidence of victim is full of contradictions and independent witness are not supporting the prosecution case, therefore, it would not be proper to accept the evidence of the victim and convict the appellant for the commission of an offence under Section 376 of Indian Penal Code”. The learned additional government advocate appearing for the state stated, “no infirmity in the impugned judgment whereas the appeal should be dismissed”. While the court deals with the case of rape, the court must deal with utmost sensitivity by examining the broader probabilities and should not be swayed by minor contradictions and discrepancies in appreciation of the evidence of the victim should be treated as an unsustainable character. The evidence of a victim of a sex offence is entitled to great weight absence of corroboration. No self-respecting woman will put her honour at stake by falsely alleging the commission of rape on her. A victim of a sex crime would not blame anyone but the real culprit.   The Hon’ble court held “Appellant is guilty of the offence and sentenced to undergo Rigorous imprisonment for seven years and to pay fine of Rs. 10,000/- “. No illegality or infirmity in the impugned judgment and order of conviction of the appellant under section 376 of the Indian Penal Code passed by the Trial court. The nature and gravity of the accusation and how the crime is committed in the victim and the punishment imposed on the appellant by the Trial court cannot be excessive under any circumstance. Therefore, the order passed by the Trial court is Upheld. 

IN THE HIGH COURT OF ORISSA CUTTACK JCRLA No. 74 Of 2016 From the judgment and order dated 09.10.2015 passed by the learned Addl. Sessions Judge Kuchinda in S.T. Case No.37 of Madhusudan Naik …..… Appellant Versus State of Orissa .. Respondent For Appellant: Mr. Ajit Kumar Sahoo For State: P R E S E N T: Mr. Sibani Sankar Pradhan Addl. Govt. Advocate THE HONOURABLE MR. JUSTICE S.K. SAHOO Date of Hearing and Judgment: 15.07.2021 S.K. SAHOO J. The appellant Madhusudan Naik faced trial in the Court of the Addl. Sessions Judge Kuchinda in S.T. Case No.37 of 2012 for commission of offence punishable under section 376 of the Indian Penal Code and vide impugned judgment and order dated 09.10.2015 he was found guilty of the offence charged and sentenced to undergo R.I. for seven years and to pay a fine 2 of Rs.10 000 in default to undergo R.I. for one year. The prosecution case in short is that on 12.07.2012 at about 2.30 p.m. the victim had been to attend the call of nature to a nearby Nala of her village Jurapali Gorposh under Govindpur police station in the district of Sambalpur and while she was attending the call of nature the appellant came from her back side caught hold of her and forcibly committed sexual intercourse. On hearing hullah of the victim his brother Manohar Naik and other persons grazing cattle nearby came there to rescue the victim and seeing them the appellant fled away from the spot. On the same day the victim lodged F.I.R. before the A.S.I. of Garposh Outpost and it was drafted by P.W.2 as per the instruction of the victim and the report was sent to Govindpur police station and accordingly Govindpur P.S. Case No.49 dated 12.07.2012 under section 376 of the Indian Penal Code was registered against the appellant. P.W.13 Keshab Chandra Behera I.I.C. of Govindpur police station after registration of the case took up investigation of the case and during course of investigation he examined the victim and other witnesses arrested the appellant on 3 13.07.2012 sent requisition for medical examination of the appellant as well as the victim and he also seized the wearing apparels of the appellant under seizure list and forwarded him to Court. He also seized vaginal swab and pubic hair of the victim collected by the Medical Officer. He also seized blood sample of the appellant pubic hair of the appellant his nail clippings semen of the appellant etc. which were collected by the Medical Officer during his medical examination. On the same day he also seized the wearing apparels of the victim such as a synthetic saree one maroon colour petty coat and one orange colour blouse on production by the victim at Govindpur police station and prepared the seizure list marked as Ext.2. He also visited the spot and prepared the spot map marked as Ext.10 and made a prayer to the learned S.D.J.M. Kuchinda to the exhibits to R.F.S.L. Sambalpur for chemical examination and on completion of investigation charge sheet was submitted by the I.O. on 17.08.2012 against the appellant under section 376 of the Indian Penal Code. During course of trial in order to prove its case the prosecution examined thirteen witnesses out of which the relevant witnesses are P.W.1 the informant who is also the victim P.W.2 Manohar Naik the younger brother of the victim 4 who is the scribe of the F.I.R. P.W.12 Hari Sankar Dehury the doctor who examined both the appellant as well as the victim and P.W.13 Keshab Chandra Behera the Investigating Officer. The prosecution exhibited eleven documents. Ext.1 is the written F.I.R. Ext.2 is the seizure list of clothes of the victim Ext.3 is the sketch map Exts.4 and 5 are the seizure lists Ext.6 is the report of P.W.12 regarding blood group Ext.7 is the opinion of P.W.12 Ext.8 is the medical requisition of the victim Ext.9 is the medical requisition of the appellant Ext.10 is the spot map and Ext.11 is the forwarding report on M.O. and C.E. The prosecution also proved seven material objects. M.O.I is the synthetic saree M.O.II is the petty coat M.O.III is the blouse M.O.IV is the Chadi M.O.V is the vial containing vaginal swab M.O.VI is the vial containing blood sample M.O.VII is the vial containing semen. The defence plea of the appellant is one of denial and it is stated that due to previous enmity he has been falsely implicated in this case. The learned trial Court relying on the evidence of P.W.1 which is corroborated by the evidence of P.W.2 and the medical evidence of P.W.12 found the appellant guilty of the offence under section 376 of the Indian Penal Code. 5 Since Mr. Priyabrata Sinha learned counsel engaged by the Legal Aid was not present when the matter was called for hearing Mr. Ajit Kumar Sahu Advocate who is having twenty years of practice in the criminal side was appointed as Amicus Curiae. He was supplied with the paper book and given time to prepare the case. He placed the evidence of the witnesses and also the impugned judgment. While assailing the impugned judgment and order of conviction he contended that the evidence of the victim is full of contradictions and the independent witnesses who were named in the F.I.R. i.e. P.W.4 Kashimir Kulu and P.W.5 is Kishore Kulu have not supported the prosecution case and therefore it would not be proper to accept the evidence of the victim and convict the appellant for commission of offence under section 376 of the Indian Penal Code. Mr. Sibani Sankar Pradhan learned Addl. Govt. Advocate appearing for the State on the other hand placed the F.I.R. the evidence of the witnesses as well as the impugned judgment and contended that the evidence of the victimis getting corroboration from none else than P.W.2 who is her brother and also medical evidence adduced by P.W.12. He argued that even though the independent witnesses have not 6 supported the prosecution case but the same cannot be a ground to disbelieve the version of the prosecutrix and since there is no infirmity in the impugned judgment the appeal should be dismissed. The victim being examined as P.W.1 has stated that on the date of occurrence at about 2.00 p.m. while she had been nearby Nala to attend the call of nature and sitting there the appellant came there and caught hold her neck and made her lie on the ground and when she shouted for help the appellant committed rape on her. She sustained injuries on her front throat right hand and waist. She further stated that her brother was grazing cattle nearer to the spot and hearing her hulla he came to the spot and protested but the appellant did not leave her and P.W.2 separated her from the appellant and took her to the house of Gountia of her village namely Brundaban Naik. The victim further stated that she accompanied P.W.2 to Garposh outpost where P.W.2 drafted the F.I.R. as per her instruction and accordingly the F.I.R. was presented in the outpost. In the cross examination of the victim certain confrontations have been made by the defence counsel with reference to her previous statement before police and it has been proved through the I.O. that she had not stated 7 before the I.O. that the appellant pressed her neck and that her younger brother separated her from the appellant and that she was taken to the house of Brundaban Naik Gountia of her village and that she sustained injuries on her neck waist and hand. In my humble view on the basis of such contradictions the evidence of the victim cannot be disbelieved. It is the settled principle of law that an accused can be convicted for an offence of rape basing on the sole testimony of the prosecutrix if the same is found to be natural and trustworthy and corroborated by the medical evidence and other circumstantial evidence. Even the conviction in the case of sex crime may be based on the sole testimony of the prosecutrix. While trying an accused on the charge of rape the Court must deal with the case with utmost sensitivity by examining the broader probabilities of the case and it should not be swayed by minor contradictions and discrepancies in appreciation of evidence of the victim which are not of a substantial character. The evidence of a victim of sexual assault stands on par with evidence of an injured witness. She is the best witness in the sense that she is least likely to exculpate the real offender. The evidence of a victim of a sex offence is entitled to great weight absence of corroboration notwithstanding. Corroboration to the 8 evidence of the victim cannot be expected always in sex offences in view of the very nature of the offence. No self respecting woman would put her honour at stake by falsely alleging commission of rape on her and therefore ordinarily a look for corroboration of her testimony is unnecessary and uncalled for. A victim of sex crime would not blame anyone but the real culprit. The evidence of the victim gets corroboration from the evidence of her younger brotherwho has stated that while he was grazing cattle on hearing hullah of P.W.1 he came to the spot and found the appellant committing rape on the victim inside the Nala and P.W.2 came to her rescue but the appellant did not leave her and P.W.2 separated her by holding her hand and when he asked about the occurrence the victim disclosed before him how the appellant committed rape on her. P.W.2 further stated that he went to the house of village Gountia namely Brundaban Naik with P.W.1 and as per instruction of P.W.1 he drafted the F.I.R. Nothing has been brought out in the cross examination either from the mouth of P.W.1 or P.W.2 to discard their evidence. No doubt it is mentioned in the F.I.R. that two other persons namely Kashmir Kuluand Kishore Kuluarrived at the scene of occurrence along with P.W.2 and those 9 two witnesses have not supported the prosecution case and they have been declared hostile by the prosecution but when the evidence of the victim is getting corroboration from the evidence of P.W.2 it would not be proper to discard such evidence merely because P.W.4 and P.W.5 did not support the prosecution case. The doctor examined the victim on 13.07.2012 and he stated to have found presence of crescentic nail marks over the front side of the neck on the both side of thyroid cartilage and posterior aspect of left forearm 6” proximal to left wrist joint. The doctor found presence of smegma over the labia majora of the victim. The blood group of the victim was found to be ‘B’ positive and his report was marked as Ext.6. P.W.12 also examined the appellant and found presence of nail marks on his left thigh and absence of smegma in his glans penis. Thus the evidence of the victim and her brother P.W.2) coupled with the evidence of the doctor in my humble view is sufficient to establish the charge under section 376 of the Indian Penal Code against the appellant. In view of the foregoing discussions I find no illegality or infirmity in the impugned judgment and order of conviction of the appellant under section 376 of the Indian Penal Code passed by the 10 learned trial Court. Keeping in view the nature and gravity of the accusation and the manner in which the crime was committed on the victim the punishment which has been imposed on the appellant by the learned trial Court cannot be said to be excessive under any circumstances. Therefore the impugned judgment and order of conviction and sentence passed by the learned trial Court is upheld. It appears that the appellant was taken into custody in connection with this case since 13.07.2012 and he was forwarded to the Court on the very day and he was never released on bail either during course of trial or during pendency of the appeal before this Court. Therefore he has already undergone not only the substantive sentence imposed by the learned trial Court but also the default sentence for non payment of fine as awarded by the learned trial Court. Therefore if the appellant has not been released from custody in the meantime in connection with this case he shall be released forthwith if his detention is not otherwise required in any other case. In view of the enactment of the Odisha Victim Compensation Scheme 2017 and the nature and gravity of the offence committed and the family background of the victim I feel it necessary to recommend the case of the victim to District 11 Legal Services Authority Sambalpur to examine the case of the victim after conducting the necessary enquiry in accordance with law for grant of compensation. Let a copy of the judgment be sent to the District Legal Services Authority Sambalpur for compliance. Lower Court s record with a copy of this judgment be communicated to the learned trial Court forthwith for information and necessary action. dismissed. Accordingly Jail Criminal Appeal stands Before parting with the case I would like to put on record my appreciation to Mr. Ajit Kumar Sahoo the learned Amicus Curiae for rendering his valuable help and assistance towards arriving at the decision above mentioned. The learned Amicus Curiae shall be entitled to his professional fees which is fixed at Rs.5 000 (rupees five thousand only). Orissa High Court Cuttack The 15th July 2021 Pravakar ... …. S.K. Sahoo J.

Ex-parte judgment cannot be set aside if ‘sufficient cause’ is not provided for absence during summons: Delhi High Court

In matter pertaining to the Civil Procedure Code (CPC), if sufficient cause is not provided for the absence during the hearing summons then the court shall not impugn the ex-parte judgment which stood challenged. It was thus observed in the matter of M/S Hira Sweets &amp; Confectionary Pvt. Ltd. v Hira Confectioners CS(COMM) 17/2018 before the bench of Manoj Kumar Ohri J. that the court shall not condone any delay in filing application and further shall not set aside any judgment rendered through it if sufficient cause is not produced for being absent during trial. The plaintiffs’ predecessor had started the business of selling sweets in the year 1912 and the trademark/label ‘HIRA SWEETS’ was conceived and adopted by the plaintiffs’ predecessor in the year 1960. It was also averred that plaintiff No.1 was the registered proprietor of the original artistic work ‘HIRA SWEETS’ and it became the registered proprietor of the mark and device ‘HIRA SWEETS’ under Classes 29, 30, 32 and 43 of the Trade Marks Act, 1999 in 2016. The defendant was served with the summons in suit and after availing various opportunities, filed the written statement however, thereafter, stopped appearing before the Court. Later, on the defendant’s continued absence, his right to file the affidavit of admission/denial of documents was closed. Insofar as the scope of an application under Order IX Rule 13 CPC is concerned, the Court had to see whether the summons in the suit were duly served or not and/or whether the defendant was prevented by any “sufficient cause” from appearing when the suit was called for hearing. In the present case, the defendant was duly served with the summons in the suit and had appeared however failed to justify the reasons for the inordinate absence from hearing in the previous instances. The court was of the opinion that “sufficient cause” is an elastic expression and no hard and fast guidelines are prescribed. The Court, in its discretion, has to consider the “sufficient cause” in the facts and circumstances of every individual case. Although in interpreting the words “sufficient cause”, the Court has wide discretion but the same has to be exercised in the particular facts of the case. Article 123 of The Limitation Act prescribes that the application for setting aside an ex-parte decree should be filed within thirty days of passing of the decree. The court referred the Supreme Court’s judgment in A. Murugesan v. Jamuna Rani (2019) 20 SCC 803 wherein it affirmed its earlier view in G.P.Srivastava v. R.K. Raizada (2000) 3 SCC 54 that under Order 9 Rule 13 CPC an ex-parte decree passed against a defendant can be set aside upon satisfaction of the Court that either the summons were not duly served upon the defendant or he was prevented by any “sufficient cause” from appearing when the suit was called on for hearing and unless “sufficient cause” is shown for non-appearance of the defendant in the case on the date of hearing, the court has no power to set aside an ex-parte decree.

IN THE HIGH COURT OF DELHI AT NEW DELHI CS(COMM) 17 2018 Reserved on : 12.04.2021 Date of Decision : 27.04.2021 IN THE MATTER OF: M S. HIRA SWEETS & CONFECTIONARY PVT. LTD. AND ..... Plaintiffs Through: Mr. Satish Kumar Advocate HIRA CONFECTIONERS ..... Defendant Through: Mr. B.K. Pandey Advocate HON BLE MR. JUSTICE MANOJ KUMAR OHRI I.A. 9702 2020& I.A. 9703 2020 The present applications have been preferred by the defendant through its proprietor Pooja Sharma seeking setting aside of the ex parte judgment and decree dated 01.02.2019 as well as for seeking condonation of delay of 582 days in filing the application. Briefly the present suit was filed for permanent injunction restraining infringement and passing off of trademark copyright damages delivery up etc. In the plaint it was averred that the plaintiffs’ predecessor had started the business of selling sweets in the year 1912 and the trademark label ‘HIRA SWEETS’ was conceived and adopted by the plaintiffs’ predecessor in the year 1960. It was also averred that the CS(COMM) 17 2018 plaintiff No.1 was the registered proprietor of the original artistic work ‘HIRA SWEETS’ and it became the registered proprietor of the mark and device ‘HIRA SWEETS’ under Classes 29 30 32 and 43 of the Trade Marks Act 1999 in 2016. The defendant was served with the summons in suit and after availing various opportunities filed the written statement however thereafter stopped appearing before the Court. Later on the defendant’s continued absence his right to file the affidavit of admission denial of documents was closed. On 01.02.2019 while directing that the defendant be proceeded ex parte this Court while relying on the decision in Satya Infrastructure Ltd. and Ors. v. Satya Infra & Estates Pvt. Ltd. reported as 2013 SCC OnLine Del 508 and after considering the averments in the plaint as well as in the written statement came to the conclusion that the defendant had no real prospect of defending the claim. The suit was decreed in favour of the plaintiffs. The defendant filed the present applications on 19.10.2020. It is claimed that the defendant came to know of the ex parte decree only on 18.07.2019 when it received certified copies of the judgment. It is claimed that after becoming aware of the ex parte judgment the defendant approached the plaintiffs and keeping in view their long standing relations the plaintiffs assured the defendant of an amicable settlement. It is averred that the settlement talks continued till February 2020. However on account of financial hardship the defendant’s shop was closed from March 2020 onwards. Insofar as its non appearance before the Court is concerned it has been averred that the defendant’s counsel who was engaged to pursue CS(COMM) 17 2018 the matter despite assuring of his regular appearance before the Court rather failed to appear resulting into passing of the decree against the defendant. It is averred that the defendant has also filed a complaint against its counsel before the Delhi High Court Bar Association. In support of the applications the defendant has also placed reliance on the medical documents of the son of the defendant’s proprietor namely Master Sparsh Sharma. It is stated that Master Sparsh Sharma aged about 10 years underwent a heart surgery on 04.07.2018. Reliance is also placed on the medical documents of the mother of the defendant’s proprietor namely Smt. Savita Pandit. It is stated that Smt. Savita Pandit used to have dialysis and expired on 20.04.2019. It is averred that for the said reasons the defendant could not appear before the Court and also could not file the captioned applications within time. In support of his submissions learned counsel defendant applicant has placed reliance on the decisions in Rafiq and Another v. Munshilal and Another reported as 2 SCC 788 Smt Lachi Tewari and Others v. Director of Land Records and Others reported as 1984 Supp SCC 431 M s N.K. Electronics v. Narinder Kumar reported as 2013RCR143. The applications are contested by learned counsel for the plaintiffs. He submits that the ‘case history’ as available on the website of the Delhi High Court shows that the defendant through its proprietor Pooja Sharma had applied for a certified copy of the decree on 29.05.2019 which admittedly was received by her on 18.07.2019. On 11.09.2020 the plaintiffs filed an Execution Petition bearing No. 568 2020. He submits CS(COMM) 17 2018 that only after notice in the aforesaid execution petition was issued the defendant has preferred the captioned applications. Learned counsel for the plaintiffs has placed reliance on the decisions in Sudarshan Sareen v. National Small Industries Corporation Ltd. And Anr. reported as 2013 SCC OnLine Del 4412 Indian Sewing Machines Co Pvt Ltd. v. Sansar Machine Ltd. and Another reported as 1994 SCC OnLine Del 573 M. Paul Babuta v. Union of India and Another reported as 1998 SCC OnLine Del 601 & Baldev Raj Arora v. Modex International Securities Ltd. reported as 2009 SCC OnLine Del 3573. I have heard learned counsels for the parties and gone through the averments made in the applications as well as the case laws relied upon by the learned counsels for the parties. Insofar as the scope of an application under Order IX Rule 13 CPC is concerned the Court has to see whether the summons in the suit were duly served or not and or whether the defendant was prevented by any “sufficient cause” from appearing when the suit was called for hearing. In the present case the defendant was duly served with the summons in the suit and had appeared. “Sufficient Cause” is an elastic expression and no hard and fast guidelines are prescribed. The Court in its discretion has to consider the “sufficient cause” in the facts and circumstances of every individual case. Although in interpreting the words “sufficient cause” the Court has wide discretion but the same has to be exercised in the particular facts of the case. CS(COMM) 17 2018 13. Article 123 of The Limitation Act prescribes that the application for setting aside an ex parte decree should be filed within thirty days of passing of the decree. In Sudarshan Sareena Division Bench of this Court while holding that the appellant therein was wilfully negligent in not appearing and thus rejecting his prayer for setting aside of an ex parte decree relied on the following passage in the case of Parimal v. Veena reported as 2011) 3 SCC 545 where the expression “sufficient cause” was interpreted as under: “13. “Sufficient cause” is an expression which has been used in a large number of statutes. The meaning of the word “sufficient” is “adequate” or “enough” inasmuch as may be necessary to answer the purpose intended. Therefore word “sufficient” embraces no more than that which provides a platitude which when the act done suffices to accomplish the purpose intended in the facts and circumstances existing in a case and duly examined from the viewpoint of a reasonable standard of a cautious man. In this context “sufficient cause” means that the party had not acted in a negligent manner or there was a want of bona fide on its part in view of the facts and circumstances of a case or the party cannot be alleged to have been “not acting diligently” or “remaining inactive”. However the facts and circumstances of each case must afford sufficient ground to enable the court concerned to exercise discretion for the reason that whenever the court exercises discretion it has to be exercised judiciously. Lonand Grampanchayat v. Ramgiri GosaviSurinder Singh Sibia v. Vijay Kumar Sood1 SCC 70] and Oriental Aroma Chemical Industries Ltd. v. Gujarat Industrial Development Corpn.5 SCC 459].) 15. While deciding whether there is sufficient cause or not the court must bear in mind the object of doing substantial justice to all the parties concerned and that the technicalities of the law should not prevent the court from doing substantial justice and CS(COMM) 17 2018 doing away the illegality perpetuated on the basis of the judgment impugned before it. 9 SCC 94] Madanlal v. Shyamlal1 SCC 535] Davinder Pal Sehgal v. Partap Steel Rolling Mills Ltd.3 SCC 156] Ram Nath Sao v. Gobardhan Sao3 SCC 195] Kaushalya Devi v. Prem Chand10 SCC 127] Srei International Finance Ltd.v. Fairgrowth Financial Services Ltd.13 SCC 95] and Reena Sadh v. Aniana Enterprises12 SCC 589].) 16. In order to determine the application under Order 9 Rule 13 CPC the test that has to be applied is whether the defendant honestly and sincerely intended to remain present when the suit was called on for hearing and did his best to do so. Sufficient cause is thus the cause for which the defendant could not be blamed for his absence. Therefore the applicant must approach the court with a reasonable defence. Sufficient cause is a question of fact and the court has to exercise its discretion in the varied and special circumstances in the case at hand. There cannot be a straitjacket formula of universal application.” 15. Recently the Supreme Court in A. Murugesan v. Jamuna Rani reported as 20 SCC 803 affirmed its earlier view in G.P. Srivastava v. R.K. Raizada and Others reported as 3 SCC 54 which is reproduced as under: “7. Under Order 9 Rule 13 CPC an ex parte decree passed against a defendant can be set aside upon satisfaction of the Court that either the summons were not duly served upon the defendant or he was prevented by any “sufficient cause” from appearing when the suit was called on for hearing. Unless “sufficient cause” is shown for non appearance of the defendant in the case on the date of hearing the court has no power to set aside an ex parte decree. The words “was prevented by any sufficient cause from appearing” must be liberally construed to enable the court to do complete justice between the parties particularly when no negligence or inaction is imputable to the erring party. Sufficient cause for the purpose of Order 9 Rule 13 CS(COMM) 17 2018 has to be construed as an elastic expression for which no hard and fast guidelines can be prescribed. The courts have a wide discretion in deciding the sufficient cause keeping in view the peculiar facts and circumstances of each case. The “sufficient cause” for non appearance refers to the date on which the absence was made a ground for proceeding ex parte and cannot be stretched to rely upon other circumstances anterior in time. If “sufficient cause” is made out for non appearance of the defendant on the date fixed for hearing when ex pate proceedings were initiated against him he cannot be penalised for his previous negligence which had been overlooked and thereby condoned earlier. In a case where the defendant approaches the court immediately and within the statutory time specified the discretion is normally exercised in his favour provided the absence was not mala fide or intentional. For the absence of a party in the case the other side can be compensated by adequate costs and the lis decided on merits.” In the present case although the defendant has blamed her counsel for his non appearance which resulted in passing of the decree however a perusal of the judgment dated 01.02.2019 would show that the same was passed after considering the merits of the case. 17. A perusal of the case record would show that the defendant had applied for a certified copy of the decree on 29.05.2019 which admittedly was received by her on 18.07.2019. The defendant has failed to state that after becoming aware of the passing of the ex parte decree on 18.07.2019 what steps were taken by it to seek setting aside of the same. It appears that the defendant rather preferred to sit over it. The captioned applications came to be filed on 19.10.2020 only after the plaintiffs filed the execution petition. CS(COMM) 17 2018 18. The Apex Court in decisions relied by learned counsel for the defendant has held that a party should not suffer from the inaction deliberate omission or misdemeanour of his agent. However the facts in present case show that after becoming aware of the ex parte decree on 18.07.2019 the defendant took no steps against its counsel for more than 14½ months i.e. till 06.10.2020 when a complaint was stated to be filed and that too two weeks prior to the filing of the captioned applications. In the opinion of this Court the action taken seems to be only an afterthought with the aim of filing the present application. Insofar as the delay of 582 days in filing the application is concerned the defendant has sought to explain the same by claiming that some settlement talks were going on between the parties. The defendant has also relied upon certain medical documents of the son and mother of the defendant’s proprietor. 20. During the course of arguments learned counsel for the plaintiffs strongly denied the claim of any settlement talks. The defendant failed to put any supporting document in this regard. The defendant’s reliance on the medical documents of the son of the defendant’s proprietor is of no use as the same pertained to the year 2018 i.e. before passing of the decree. The mother of the defendant’s proprietor is also stated to have expired on 20.04.2019. It is noted that the abovementioned events occurred prior to 29.05.2019 and as such do not provide any justifiable explanation to the delay of 582 days in filing the application or at least the delay from 18.07.2019 when the defendant admittedly became aware of passing of the ex parte decree. CS(COMM) 17 2018 In the opinion of this Court the defendant has failed to show any “sufficient cause” for its absence in the Court on the material dates. The defendant has also failed to satisfactorily explain the delay of 582 days in filing the captioned application. The explanation given by the defendant is only an eye wash. 22. Accordingly this Court is not inclined to accept the explanation provided by the defendant. Consequently the captioned applications are dismissed. I.A. 2403 2021In view of the aforesaid order passed today there is no need to go into the captioned application. The application is dismissed as infructuous. JUDGE APRIL 27 2021 CS(COMM) 17 2018

Defamatory statements made during judicial proceedings not free from criminal liability under IPC: High Court of Kerala

Any defamatory statement during the judicial proceedings, does not fall under the exceptions listed in section 499 of IPC and cannot be excluded from criminal liability. This was decided in the case of Joy Anto vs. the State Of Kerala [Crl.MC.No.534 OF 2016(F)] in the High Court Of Kerala by single bench consisting of Hon’ble Justice Narayana Pisharadi. This is a defamation case which arose after a series of events. The petitioner, who was a professor in a college was also the chairman of a company, got into a rift with the legal advisor (complainant in this case) of the same company. The company had engaged the complainant to institute suits for realisation of money due from the subscribers and there was an allegation that he did not institute the suits after receiving money from the company towards the expenses and thereafter he resigned from the post. Later, a writ petition was filed for conducting domestic enquiry against the petitioner on the allegation that while working as a Senior Lecturer, he had also engaged in the business activities of the company. As a response to this in the affidavit, the petitioner in this case replied that writ petitioner was an associate of the complainant who was removed from the company for proved misappropriation of the funds of the company. This statement made is the reason for the FIR of defamation case under Section 500 of the IPC against the petitioner by the complainant. Counsel for petitioner made the following contentions: (1) The statements made about the complainant in counter affidavit are not defamatory in nature. (2) it does not amount to publication. (3) No criminal liability would arise on making any defamatory statement in a judicial proceeding before a court of law With respect to the contention of judicial proceedings was concerned, the court said there is no merit in the contention that the statement made by the petitioner in the counter affidavit filed before this Court in the writ petition enjoys absolute privilege and it excludes criminal liability. After a survey of the decisions on the point, in Varghese Cor Episcopa v. State of Kerala 2020 (1) KHC 390, this Court said “that the privilege defined by the exceptions to Section 499 of the Indian Penal Code must be regarded as exhaustive as to the cases which they purport to cover and recourse cannot be had to the English Common Law to add new grounds of exception to those contained in the statute”. The court observed that the statement that the complainant was removed from the company on proved misconduct and on misappropriation of the funds of the company, is prima facie, defamatory to him. It further went on to say that as the complainant is a lawyer, this would harm his reputation as a lawyer. The petitioner has got no plea that any competent authority had found the complainant guilty of misconduct. Also, the court asserted that once a statement is filed in a Court of law, it can be considered as published after relying upon the case of Google India Private Limited v. M/s Visakha Industries [AIR 2020 SC 350) where it was held that “The essence of publication in the context of Section 499 of the Indian Penal Code is the communication of the defamatory imputation to persons other than the person against whom the imputation is made”

IN THE HIGH COURT OF KERALA AT ERNAKULAM THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI WEDNESDAY THE 10TH DAY OF MARCH 2021 19TH PHALGUNA 1942 Crl.MC.No.534 OF 2016(F AGAINST THE ORDER IN ST 1877 2015 OF CHIEF JUDICIAL MAGISTRATE THRISSUR AGED 57 YEARS S O.ANTONY THARAKAN HOUSE AYYANTHOLE THRISSUR S O.RAPPAI CHALAKKAL HOUSE OLARIKKARA PULLAZHY P.O. THRISSUR 680012 THE STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR HIGH COURT OF KERALA ERNAKULAM 682031 R1 BY ADV. SMT.MITHA SUDHINDRAN R1 BY ADV. SRI.V.C.SARATH R1 BY ADV. SRI.P.VIJAYA BHANU SR R2 BY SRI S SREEKUMAR SR ADV SRI B JAYASURYA SR THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 03.03.2021 THE COURT ON 10.03.2021 PASSED THE FOLLOWING Crl.MC.No.534 OF 2016(F R. NARAYANA PISHARADI J Crl.M.C.No.5316 Dated this the 10th day of March 2021 O R D E R The petitioner is the sole accused in the case S.T.No.1877 2015 pending in the Court of the Chief Judicial Magistrate Thrissur The aforesaid case is one instituted upon the complaintfiled by the first respondentNo. 5239 2013) before this Court against the University of Calicut and the petitioner and some other persons. Suffice it to state here that the writ petition was filed for issuing directions with regard to the domestic enquiry conducted against the petitioner on the allegation that while working as a Senior Lecturer in the St.Thomas College he had also engaged in the business activities of the company The allegation in Annexure K complaint is that in the counter affidavit filed by the petitioner in W.P.(C) No 5239 2013 he had stated that the writ petitioner was an associate of Adv.C.R.Jaison who was the former Director and Legal Advisor of the company and he Adv.C.R.Jaison) was removed from the company on proved misconduct and misappropriation of the funds of the company It is also alleged in Annexure K complaint that in the Directors Report contained in the 30th annual report of the company it was Crl.MC.No.534 OF 2016(F mentioned that the complainant resigned from the company on account of dereliction of duty in conducting the cases for and on behalf of the company This petition is filed under Section 482 Cr.P.C by the accused for quashing Annexure K complaint and all proceedings against him pending in the Court of the Chief Judicial Magistrate Thrissur based on the complaint 8. Heard learned senior counsel who appeared for the petitioner and also the first respondent and the learned Public Learned senior counsel for the petitioner has raised the following contentions:The statements made about the complainant in the annual report of the company and the counter affidavit filed by the petitioner in the writ petition are not defamatory in nature.Making a statement in the counter affidavit filed in a writ petition before this Court does not amount to publication. No criminal liability would arise on making any defamatory statement in a judicial proceeding before a court of law.(4) The petitioner is entitled to the benefit of the fifth and the eighth exceptions provided to Section 499 of Crl.MC.No.534 OF 2016(F the Indian Penal Code 10. The offence of defamation is defined under Section 499 and it is made punishable under Section 500 of the Indian 11. Section 499 of the Indian Penal Code provides that whoever by words either spoken or intended to be read or by signs or by visible representations makes or publishes any imputation concerning any person intending to harm or knowing or having reason to believe that such imputation will harm the reputation of such person is said except in cases where the exceptions are provided to defame that person Under Section 499 of the Indian Penal Code in order that an offence of defamation may be committed there must be making or publication of any imputation concerning any person by words either spoken or intended to be read or by signs or by visible representations intending to harm or knowing or having reason to believe that such imputation will harm the reputation of such person. To constitute the offence of defamation there must be making or publication of an imputation concerning any person and the making or publication must be with intent to harm or knowing or having reason to Crl.MC.No.534 OF 2016(F believe that such imputation will harm the reputation of such 13. As per Annexure K complaint two statements made about the complainant are alleged to be defamatory to him. The first statement is the one made in the annual report of the company that the complainant resigned from the company on account of dereliction of duty. The second one is the statement made by the petitioner in the counter affidavit filed in the writ petition that the complainant is a person against whom misconduct was proved and that he is a person who has misappropriated the funds of the company 14. As far as the first statement is concerned the averments in the complaint by themselves would show that the complainant had omitted to file suits on behalf of the company Further there is no specific allegation that it was the petitioner who made the statement in the annual report of the company and that he was the person who published it. In such circumstances as far as the first statement is concerned it is doubtful whether it would attract the ingredients of the offence defined under Section 499 of the Indian Penal Code as against Crl.MC.No.534 OF 2016(F 15. However the statement that the complainant was removed from the company on proved misconduct and on misappropriation of the funds of the company is prima facie defamatory to him. The complainant is a lawyer. The statement that he is a person against whom misconduct has been proved would definitely harm his reputation as a lawyer. The petitioner has got no plea that any competent authority had found the complainant guilty of misconduct 16. There is no basis for the plea raised by the learned senior counsel for the petitioner that making a statement in the counter affidavit filed before this Court in the writ petition does not amount to publication 17. The essence of publication in the context of Section 499 of the Indian Penal Code is the communication of the defamatory imputation to persons other than the person against whom the imputation is made KLT 19. There is also no merit in the contention of the learned senior counsel for the petitioner that the statement made by the petitioner in the counter affidavit filed before this Court in the writ petition enjoys absolute privilege and it excludes criminal liability. 20. After a survey of the decisions on the point in Varghese Cor Episcopa v. State of Kerala : 2020KHC 390 this Court had occasion to hold that the privilege defined by the exceptions to Section 499 of the Indian Penal Code must be regarded as exhaustive as to the cases which they purport to cover and recourse cannot be had to the English Common Law to add new grounds of exception to those contained in the statute and in determining the criminality of an act under the Indian Penal Code the Courts will not extend the scope of special exceptions by resorting to the rule peculiar to English 21. Freedom of speech and expression is a fundamental right under the Constitution. But all fundamental rights are subject to reasonable restrictions. Section 499 of the Indian Penal Code does not give absolute privilege to statements made Crl.MC.No.534 OF 2016(F in a Court of law in the judicial proceedings. The privileges recognised under Section 499 of the Indian Penal Code are qualified. However in a civil action for defamation plea of absolute privilege is a valid defence. 22. Yet another plea raised by the petitioner is that he is entitled to the fifth and eighth exceptions provided to Section 499 of the Indian Penal Code. Whether the petitioner is entitled to get the benefit of any of the exceptions provided to Section 499 of the Indian Penal Code whether he had made the statement in the counter affidavit filed in the writ petition in good faith for protection of his interest etc. are matters which cannot be decided by this Court in this petition filed under Section 482 Cr.P.C. 23. Ordinarily the question as to whether the statement in a given case falls under any of the ten exceptions to Section 499 of the Indian Penal Code will have to be decided only after trial. They are matters of evidence.6 SCC 263 Balraj Khanna v. Moti Ram : AIR 1971 SC 1389 and Jeffrey J. Diermeier v. State of West Bengal 2010) 6 SCC 243 24. The result of the discussion above is that the prayer Crl.MC.No.534 OF 2016(F made by the petitioner for quashing Annexure K complaint and the criminal proceedings initiated against him by the complainant cannot be allowed Consequently the petition is dismissed Sd R. NARAYANA PISHARADI JUDGE Crl.MC.No.534 OF 2016(F PETITIONER S S EXHIBITS TRUE COPY OF LETTER DATED 03.10.2009 ISSUED BY THE 1ST RESPONDENT TRUE COPY OF UNDERTAKING DATED 23.03.2000 ISSUED BY THE 1ST RESPONDENT IN O.S.NO.1515 2009 OF MUNSIFF S COURT TRUE COPY OF UNDERTAKING DATED 23.03.2000 ISSUED BY THE 1ST RESPONDENT IN O.S.NO.1539 2009 OF MUNSIFF S COURT TRUE COPY OF UNDERTAKING DATED 23.03.2000 ISSUED BY THE 1ST RESPONDENT IN O.S.NO.1540 2009 OF MUNSIFF S COURT TRUE COPY OF LETTER DATED 24.10.2011 ISSUED BY THE COMPANY TO THE 1ST TRUE COPY OF C.C.NO.140 OF 2012 FILED BY THE COMPANY BEFORE THE CONSUMER DISPUTES REDRESSAL FORUM THRISSUR AGAINST THE 1ST RESPONDENT ON TRUE COPY OF C.P.NO.45 2012 FILED BY THE COMPANY BEFORE THE BAR COUNCIL OF KERALA AGAINST THE 1ST RESPONDENT TRUE COPY OF WRIT PETITION NO.5239 OF 2013 FILED BY THE 1ST RESPONDENT BEFORE THIS HON BLE COURT TRUE COPY OF COUNTER AFFIDAVIT IN W.P C) NO.5239 2013 FILED BY THE PETITIONER BEFORE THIS HON BLE COURT TRUE COPY OF JUDGMENT IN W.P.(C) NO.5239 2013 DATED 10.06.2013 OF THIS HON BLE COURT TRUE COPY OF COMPLAINT AS Crl.MC.No.534 OF 2016(F M.P.NO.2850 2015 FILED BY THE 1ST RESPONDENT BEFORE THE CHIEF JUDICIAL MAGISTRATE COURT THRISSUR RESPONDENTS EXHIBITS: NIL P.A TO JUDGE

The court ordered all investigating agencies to take drafted amendments to the police manuals within 6 months: Supreme Court of India.

The High Court, state governments, as well as the Union of India (in relation to investigating agencies in its control) would take drafted consequential amendments to their police and other manuals, within six months from the order. This honorable judgement was passed by Supreme Court of India in the case of In Re: To Issue Certain Guidlines Regarding Inadequacies and Deficiencies in Criminal Trial Vs. The State of ANDHRA Pradesh &amp; Ors. [SUO MOTO WRIT (CRL) NO.(S) 1/2017] by The Hon’ble Chief Justice. This suo motu proceeding under Article 32 was initiated during the course of hearing of a criminal appeal. The Court noticed common deficiencies which occurred in the course of criminal trials and certain practices adopted by trial courts in criminal proceedings as well as in the disposal of criminal cases and causes. These related, to the manner in which documents (i.e., list of witnesses, list of exhibits, list of material objects) referred to were presented and exhibited in the judgment, and the lack of uniform practices in regard to preparation of injury reports, deposition of witnesses, translation of statements, numbering and nomenclature of witnesses, labelling of material objects, etc. These very often lead to asymmetries and hamper appreciation of evidence, which in turn had a tendency of prolonging proceedings, especially at the appellate stages. The Court had noticed that on these prominent aspects, rules appeared to had been formulated by certain High Courts, whereas many other High Courts had not framed such rules. This had led to a lack of clarity and uniformity in regard to the presentation of trial court proceedings and records, for the purpose of appreciation at the High Court level and eventually, before this court. By an elaborated order dated 30.03.2017, this Court noted various salient aspects and flagged inadequacies in the practices and rules of High Courts by taking a cue from existing rules in some High Courts. After noticing about 13 issues, the Court felt the desirability of a uniform approach.   The court opinioned that, “the state and police authorities have to carry out necessary and consequential amendments to the police manuals, and other related instructions, to be followed by each state. Counsel appearing for states and union territories have assured that suitable steps to incorporate the Draft Rules – relating to Body sketch to accompany medico-legal certificate, post-mortem report and inquest report, Photographs and Video graphs of post mortem in certain cases and Scene Mahazar/ Spot Panchanama would be taken at the earliest.”

IN THE ORIGINAL JURISDICTION SUO MOTO WRITNO.(S) 1 2017 IN RE: TO ISSUE CERTAIN GUIDELINES REGARDING INADEQUACIES AND DEFICIENCIES IN CRIMINAL TRIALS THE STATE OF ANDHRA PRADESH & ORS This suo motu proceeding under Article 32 was initiated during the course of hearing of a criminal appeal1. The Court noticed common deficiencies which occur in the course of criminal trials and certain practices adopted by trial courts in criminal proceedings as well as in the disposal of criminal cases and causes. These related amongst others to the manner in which documentsreferred to are presented and exhibited in the judgment and the lack of uniform practices in regard to preparation of injury reports deposition of witnesses translation of statements numbering and nomenclature of witnesses labeling of material objects etc. These very often lead to asymmetries and hamper appreciation of evidence which in turn has a tendency of prolonging proceedings especially at the appellate stages. The Court had noticed that on these prominent aspects rules appeared to have been formulated by certain High Courts whereas many other High Courts have not framed such rules. This has led to a lack of clarity and uniformity in regard to the 1Crl.A.400 2006 & connected matters presentation of trial court proceedings and records for the purpose of appreciation at the High Court level and eventually before this court By an elaborate order dated 30.03.2017 this Court noted various salient aspects and flagged inadequacies in the practices and rules of High Courts by taking a cue from existing rules in some High Courts2. After noticing about 13 issues the Court felt the desirability of a uniform approach in description of exhibits manner and description of recording of statements of witnesses labeling of material objects and so on. The Court therefore issued notice to the Registrar Generals of all High Courts Chief Secretaries and Administrators of States and Union Territories as well as Advocates General Additional Advocates Generals and Senior Standing Counsel of all states and Union Territories. By a later order dated 07.11.2017 the Court appointed Mr. Sidharth Luthra and Mr. R. Basanth Senior Advocates as amici curiae. On 20.02.2018 Mr. K Parameshwar learned counsel was also appointed as amicus curiae to assist the senior counsel who were earlier appointed as amici curiae. All concerned State Governments and Union Territories as well as High Courts through their Registrar Generals were called upon to submit their responses along with suggestions By January 2019 15 States Union Territories and 21 High Courts had filed responses before this court. Based upon these responses the amici curiae evolved a consultation paper which inter alia contained draft rules. The draft rules were circulated to all parties by a letter dated 18.02.2019. Written responses were invited from stakeholders and a colloquium was convened for this purpose in New Delhi at the India International Centre on 30.03.2019. The colloquium was attended by representatives of different States Union Territories and their respective High Courts After considering the suggestions made during the colloquium the amici curiae submitted the “Draft Rules of Criminal Practice 2020” for the consideration of this court. While framing Draft Rules due care was taken to ensure uniformity and at the same time to recognize the diverse practices among the various state authorities and 2Kerala Criminal Rules of Practice 1982 Andhra Pradesh Criminal Rules of Practices and Circular Orders 1990 etc High Courts in the country. The draft rules are compliant and not in any way repugnant to the Code of Criminal Procedure 1973. Many suggestions made as practice directions reflect the mandatory provisions of the Code of Criminal Procedure 1973 By later orders dated 27.10.2020 and 19.01.2021 the High Courts were once again directed to file their responses to the Draft Rules of Criminal Practice 2020 Pursuant to that order all High Courts filed their responses and the summaries of the During the hearing this court noticed that most of the suggestions had been agreed except in regard to a few aspects. Some High Courts while accepting the Draft Rules also sought to elaborate and supplement them which is a welcome step The High Courts unanimously welcomed the suggestion of separating the prosecution from the investigation which provides that a separate team of lawyers distinct from Public Prosecutors must advise the police during the investigation. However as pointed out by many High Courts this is a step that should be actively pursued by the State Governments. Similarly the High Courts welcomed the uniform manner in which body sketches spot panchnamas etc are to be brought on recordtranslations of deposition High Court of Madhya Pradesh Kerala Tamil Nadu 2) references to accused witnesses material objectsAllahabad MP Tripura Kerala Calcutta The High Courts have suggested that along with the numbers assigned to the witness accused etc. names may also be 3) The rule requiring day to day trialMadhya Pradesh Manipur used to avoid confusion 10. During the hearing of these proceedings the court took into consideration the viewpoints on behalf of High Courts where there was either a divergence in the opinion about the practice to be adopted or some reservation. The amici pointed out that at the commencement of trial accused are only furnished with list of documents and statements which the prosecution relies on and are kept in the dark about other material which the police or the prosecution may have in their possession which may be exculpatory in nature or absolve or help the accused This court is of the opinion that while furnishing the list of statements documents and material objects under Sections 207 208 Cr. PC the magistrate should also ensure that a list of other materials should be furnished to the accused. This is to ensure that in case the accused is of the view that such materials are necessary to be produced for a proper and just trial she or he may seek appropriate orders under the Cr. PC.3 for their production during the trial in the interests of justice. It is directed accordingly the draft rules have been accordingly modified.Whenever any Court or any officer in charge of a police station considers that the production of any document or other thing is necessary or desirable for the purposes of any investigation inquiry trial or other proceeding under this Code by or before such Court or officer such Court may issue a summons or such officer a written order to the person in whose possession or power such document or thing is believed to be requiring him to attend and produce it or to produce it at the time and place stated in the summons or order 2) Any person required under this section merely to produce a document or other thing shall be deemed to have complied with the requisition if he causes such document or thing to be produced instead of attending personally to produce the same 3) Nothing in this section shall be deemed a) to affect sections 123 and 124 of the Indian Evidence Act 1872or the Bankers Books Evidence c)to apply to a letter postcard telegram or other document or any parcel or thing in the custody of the postal or Act 1891or Gujarat4 with respect to objections regarding questions to be put to witnesses. This court had termed the practice of deciding the objections immediately as “archaic” and indicated what it felt was an appropriate course “It is an archaic practice that during the evidence collecting stage whenever any objection is raised regarding admissibility of any material in evidence the court does not proceed further without passing order on such objection. But the fall out of the above practice is this: Suppose the trial court in a case upholds a particular objection and excludes the material from being admitted in evidence and then proceeds with the trial and disposes of the case finally. If the appellate or revisional court when the same question is re canvassed could take a different view on the admissibility of that material in such cases the appellate court would be deprived of the benefit of that evidence because that was not put on record by the trial court. In such a situation the higher court may have to send the case back to the trial court for recording that evidence and then to dispose of the case afresh. Why should the trial prolong like that unnecessarily on account of practices created by ourselves. Such practices when realised through the course of long period to be hindrances which impede steady and swift progress of trial proceedings must be recast or re moulded to give way for better substitutes which would help acceleration of trial When so recast the practice which can be a better substitute is this Whenever an objection is raised during evidence taking stage regarding the admissibility of any material or item of oral evidence the trial court can make a note of such objection and mark the objected document tentatively as an exhibit in the caseThe above procedure if followed will have two advantages. First is that the time in the trial court during evidence taking stage would not be wasted on account of raising such objections and the court can continue to examine the witnesses. The witnesses need not wait 4(2001) 3 SCC 1 for long hours if not days. Second is that the superior court when the same objection is re canvassed and reconsidered in appeal or revision against the final judgment of the trial court can determine the correctness of the view taken by the trial court regarding that objection without bothering to remit the case to the trial court again for fresh disposal. We may also point out that this measure would not cause any prejudice to the parties to the litigation and would not add to their misery or expenses.” It was argued by amici that the procedure whereby the courts record answers to all questions regardless of objections leads to prolonged and lengthy cross examination and more often than not irrelevant facts having no bearing on the charge or the role of the accused are brought on record which often result in great prejudice. It is pointed out that due to the practice mandated in Bipin Shantilal Panchalsuch material not only enters the record but even causes prejudice which is greatly multiplied when the appellate court has to decide the issue. Frequently given that trials are prolonged the trial courts do not decide upon these objections at the final stage as neither counsel addresses arguments. Therefore it is submitted that the rule in Bipin Shantilal Panchalrequires reconsideration. 14. During a trial in terms of Section 132 every witness is bound to answer the questions she or he is asked however that is subject to the caveat that he or she is entitled to claim silence if the answers incriminate him or her by virtue of Article 20 3) of the Constitution. Every judge who presides over a criminal trial has the authority and duty to decide on the validity or relevance of questions asked of witnesses. This is to be found in Section 148 Cr. PC which reads as follows “148. Court to decide when question shall be asked and when witness compelled to answer. If any such question relates to a matter not relevant to the suit or proceeding except in so far as it affects the credit of the witness by injuring his character the Court shall decide whether or not the witness shall be compelled to answer it and may if it thinks fit warn the witness that he is not obliged to answer it. In exercising its discretion the Court shall have regard to the following considerations: 1) such questions are proper if they are of such a nature that the truth of the imputation conveyed by them would seriously affect the opinion of the Court as to the credibility of the witness on the matter to which he testifies 2) such questions are improper if the imputation which they convey relates to matters so remote in time or of such a character that the truth of the imputation would not affect or would affect in a slight degree the opinion of the Court as to the credibility of the witness on the matter to which he testifies 3) such questions are improper if there is a great disproportion between the importance of the imputation made against the witness’s character and the importance of his evidence 4) the Court may if it sees fit draw from the witness’s refusal to answer the inference that the answer if given would be unfavourable” 15. Apart from Section 148 there are other provisions of the Evidence Actwhich define the ground rules for cross examination. During questioning no doubt the counsel for the party seeking cross examination has considerable leeway cross examination is not confined to matters in issue but extends to all relevant facts However if the court is not empowered to rule during the proceeding whether a line of questioning is relevant the danger lies in irrelevant vague and speculative answers entering the record. Further based on the answers to whatmore questions might be asked and answered. If this process were to be repeated in case of most witnesses the record would be cluttered with a jumble of irrelevant details which at best can be distracting and at worst prejudicial to the accused. Therefore this court is of opinion that the view in Bipin Shantilal Panchal should not be considered as binding. The presiding officer therefore should decide objections to questions during the course of the proceeding or failing it at the end of the deposition of the concerned witness. This will result in de cluttering the record and what is more also have a salutary effect of preventing frivolous objections. In given cases if the court is of the opinion that repeated objections have been taken the remedy of costs depending on the nature of obstruction and the proclivity of the line of questioning may be resorted to. Accordingly the practice mandated in Bipin Shantilal Panchal shall stand modified in the above terms 16. Counsel appearing for the states and High Courts submitted that the provision in the draft rules requiring that trials should be conducted on a day to day manner cannot be complied with. It was argued that courts have to more often than not postpone or adjourn cases due to non availability of witnesses or on account of absence of defense counsel or the prosecutor. The learned amici submitted that given that trial begins after charges have been framed the prosecution witnesses should be available on the dates of trial for the simple reason that they are relied on for proving the charges. It was submitted that this court should indicate that as far as practicable the trial court should carry out before hand sequencing of witness deposition in terms of eyewitnesses other material witnesses formal witnesses expert witnesses etc. and also factor in some specific date or dates so that effective depositions are recorded on every date of hearing This court is of the opinion that the courts in all criminal trials should at the beginning of the trial i.e. after summoning of the accused and framing of charges hold a preliminary case management hearing. This hearing may take place immediately after the framing of the charge. In this hearing the court should consider the total number of witnesses and classify them as eyewitness material witness formal witness and experts. At that stage the court should consider whether the parties are in a position to admit any documentBody sketch to accompany medico legal certificate post mortem report and inquest report(2) Photographs and Video graphs of post mortem in certain casesandScene Mahazar Spot Panchanamawould be taken at the earliest. The court is of the opinion that the Draft Rules of Criminal Practice 2021 which are annexed to the present order and shall be read as part of it) should be hereby finalized in terms of the above discussion. The following directions are hereby issued a) All High Courts shall take expeditious steps to incorporate the said Draft Rules 2021 as part of the rules governing criminal trials and ensure that the existing rules notifications orders and practice directions are suitably modified and promulgatedwithin 6 months from today. If the state government’s co operation is necessary in this regard the approval of the concerned department or departments and the formal notification of the said Draft Rules shall be made within the said period of six months b) The state governments as well as the Union of Indiashall carry out consequential amendments to their police and other manuals within six months from today. This direction applies specifically in respect of Draft Rules 1 3. The appropriate forms and guidelines shall be brought into force and all agencies instructed accordingly within six months from today. The court hereby places its appreciation and gratitude to the contributions and effort of the three amici Shri Siddharth Luthra Shri R. Basanthand Shri K. Parameshwar Advocate they gave valuable inputs and innumerable suggestions considered all suggestions given by various stakeholders reported to the court and made extremely useful submissions. The court also places on record its appreciation of Shri A. Karthik Ms. Mehak Jaggi and Shri M.V. Mukunda Advocate who rendered valuable assistance to the amici. The suo motu proceeding is disposed of in terms of the above directions. or Sections 129 to 131 Cr.PC] or death while in police custody the magistrate or the Investigating Officer as the case may be shall inform the hospital or doctor in charge to arrange for photographs or videography for conducting the post mortem examination of the deceased The photographs of the deceased shall also be arranged to be taken in all cases ii. Such photograph and video graphs shall be taken either by arranging a police photographer or a nominated photographer of the State Government and where neither of the above are available an independent or private photographer shall iii. Such photographs or video graphs shall be seized under a panchnama or seizure memo and all steps taken to ensure proper proof of such photographs video graphs during Trial iv. The Investigating Officer shall ensure that such photographs and videographs if taken electronically are seized under a panchnama or seizure memo and steps are taken to preserve the original and ensure that certificate under Section 65B Indian Evidence Act 1872 is obtained and taken to be proved v. The video or photographs shall be stored on a separate memory card accompanied by a duly certified certificate under Section 65B Indian Evidence Act 1872. vi. Where post mortems are recorded in electronic form the file containing the post mortem proceedings duly certified should be placed with the memory card as an attachment unless individual memory cards are not capable of being produced before Court 3. SCENE MAHAZAR SPOT PANCHANAMA i. A site plan of the place of occurrence of an incident shall be appended by the Investigating Officer to the scene mahazar or spot panchnama ii. The site plan shall be prepared by the Investigating Officer by hand and shall the place of occurrence b. the place where the bodywas were found the place where material exhibits and or weapons d. blood stains and or body fluids had fallen the place where bullet shells if any were found or have caused impact the source of light if any and g. adjoining natural and man made structures or features such as walls pits fences trees bushes if any and h. elevation of structures and their location iii. The preparation of this sketch by the Investigating Officer shall be followed by a scaled site plan prepared by police draftsman if available or such other authorized or nominated draftsman by the State Government who shall prepare the scaled site plan after visiting the spot iv. The relevant details in the mahazar or panchnama shall be marked and correlated in the said site plan 4. SUPPLY OF DOCUMENTS UNDER SECTIONS 173 207 AND 208 CR.PC Every Accused shall be supplied with statements of witness recorded under Sections 161 and 164 Cr.PC and a list of documents material objects and exhibits seized during investigation and relied upon by the Investigating Officerin accordance with Sections 207 and 208 Cr. PC Explanation: The list of statements documents material objects and exhibits shall specify statements documents material objects and exhibits that are not relied upon by the Investigating Officer Chapter II: 5. The order framing charge shall be accompanied by a formal charge in Form 32 Schedule II Cr.P.C. to be prepared personally by the Presiding Officer after complete and total application of mind 6. RECORDING OF EVIDENCE: PROCEDURE The depositions of witnesses shall be recorded in typed format if possible The record of evidence shall be prepared on computers if available in the Court on the dictation of the Presiding Officer Provided that in case the language of deposition is to be recorded in a language other than English or the language of the State the Presiding Officer shall simultaneously translate the deposition either himself or through a competent translator into English. The deposition shall be recorded in the language of the witness and in English when translated as provided in Clause 6introduces a document in evidence that document shall be marked as Exhibit P 1 PW1. If proper proof is not offered for that document at the time when it is marked it shall be marked as Exhibit P 1 PW1 if any shall be furnished to the accused and to the accused on the date of pronouncement of the order itself. ii. The Presiding Officer may in an appropriate case in its discretion insist on a statement to be filed by the prosecutor in charge of the case. 18.SEPARATION OF PROSECUTORS AND INVESTIGATORS The State Governments shall appoint advocates other than Public Prosecutors to advise the Investigating Officer during investigation 19.DIRECTIONS FOR EXPEDITIOUS TRIAL In every enquiry or trial the proceedings shall be held as expeditiously as possible and in particular when the examination of witnesses has once begun the same shall be continued from day to day until all the witnesses in attendance have been examined unless the court finds the adjournment of the same beyond the following day to be necessary for reasons to be recorded section 309 Cr.PC.). For this purpose at the commencement and immediately after framing charge the court shall hold a scheduling hearing to ascertain and fix consecutive dates for recording of evidence regard being had to whether the witnesses are material or eyewitnesses or formal witnesses or are experts. The court then shall draw up a schedule indicating the consecutive dates when witnesses would be examined it is open to schedule recording of a set of witness’ depositions on one date and on the next date other sets and so on. The court shall also before commencement of trial ascertain if the parties wish to carry out admission of any document under Section 294 and permit them to do so after which such consecutive dates for trial shall be fixed. ii. After the commencement of the trial if the court finds it necessary or advisable to postpone the commencement of or adjourn any inquiry or trial it may from time to time for reasons to be recorded postpone or adjourn the same on such terms as it thinks fit for such time as it considers reasonable. If witnesses are in attendance no adjournment or postponement shall be granted without examining them except for special reasons to be recorded in writing. Cr.PC Sessions cases may be given precedence over all other work and no other work should be taken up on sessions days until the sessions work for the day is completed. A Sessions case once posted should not be postponed unless that is unavoidable and once the trial has begun it should proceed continuously from day today till it is completed. If for any reason a case has to be adjourned or postponed intimation should be given forthwith to both sides and immediate steps be taken to stop the witnesses and secure their presence on the adjourned IN THE COURT OF Present: …. Sessions Judge Date of the Judgement Details of FIR Crime and Police Station NAME OF THE COMPLAINANT NAME OF THE ADVOCATE 1. NAME WITH ALL PARTICULARS (A1 2. NAME WITH ALL PARTICULARS (A2 NAME OF THE ADVOCATES Date of Offence Date of FIR Date of Chargesheet Date of Framing of Charges Date of commencement of Date on which judgment is Date of the Judgment Date of the Sentencing Order if Accused Details d Period of for purpose of 428 Cr.PC LIST OF PROSECUTION DEFENCE COURT WITNESSES NATURE OF EVIDENCE EYE WITNESS POLICE WITNESS EXPERT WITNESS MEDICAL WITNESS PANCH WITNESS OTHER WITNESS B. Defence Witnesses if any NATURE OF EVIDENCE EYE WITNESS POLICE WITNESS EXPERT WITNESS MEDICAL WITNESS PANCH WITNESS OTHER WITNESS C. Court Witnesses if any NATURE OF EVIDENCE EYE WITNESS POLICE WITNESS EXPERT WITNESS MEDICAL WITNESS PANCH WITNESS OTHER WITNESS LIST OF PROSECUTION DEFENCE COURT EXHIBITS Exhibit P 1 PW1 Exhibit P 2 PW2 Exhibit D 1 DW1 Exhibit D 2 DW2 C. Court Exhibits Exhibit C 1 CW1 Exhibit C 2 CW2 D. Material Objects Object

Once the Financial Commissioner had deemed it appropriate to entertain the revision petition, it is incumbent upon the said Authority to consider the application moved for interim directions.: Delhi High Court

Even if the Financial Commissioner came to conclude that reasons would not justify the grant of any interim relief to the petitioner revisionist ex parte, the law did require and oblige him to record reasons even if they be elementary in character as held by the Hon’ble High Court of Delhi through the learned bench led by Hon’ble Mr. Justice Yashwant Varma in the case of Smt. Kamlesh &amp; Anr. v. Govt. Of NCT of Delhi &amp; Ors. (W.P.(C) 11989/2021, CM APPL. 37033/2021) The brief facts of the case are that this petition impugns the order dated 14th September, 2021 passed by the Financial Commissioner. By the aforesaid order while entertaining a revision petition, the Financial Commissioner issued notice to the respondents therein. The Authority, however, after having heard counsel for the revisionist refused to grant interim relief.  When the matter was entertained initially, this Court on 25th October, 2021 had noticed that the Financial Commissioner had failed to record even rudimentary reasons for refusing the prayer for interim stay. The Court had also taken notice of the submission of learned counsel for the petitioner who contended that since proceedings on remand pursuant to the order dated 26th July, 2021 were likely to commence and proceed, it was incumbent upon the Financial Commissioner to consider the application for stay on merits. Mr. Naushad Ahmed Khan as well as Mr. Zahid, learned counsels, who have appeared for the State respondents, however, submitted that the Financial Commissioner has not refused or rejected the application for stay in toto. According to learned counsels, a careful reading of the impugned order would clearly establish that the Financial Commissioner has merely refused to grant stay ex-parte and in the absence of the respondents. The Court is informed by learned counsel for the petitioner that although the private respondents have been placed on advance notice, none has chosen to appear on their behalf to oppose this writ petition. After perusal of the facts and arguments by the learned counsels, the Hon’ble Court held that, “ It was clearly incumbent upon the Financial Commissioner to accord due consideration to the submission of the revisionist that if the order of remand were permitted to operate, the proceedings itself may come to a conclusion during the pendency of the revision. The authority was obliged to consider whether the continued operation of the order impugned in the revision would result in prejudice and harm to the petitioner. In any case, the facts required the Financial Commissioner to consider at least prima facie whether the apprehension as expressed merited the impugned order being placed in abeyance during the pendency of the revision. In view of the above, the Court is of the considered opinion that the impugned order cannot be sustained and the matter would consequently merit being remanded to the Financial Commissioner for considering the application for stay afresh. Accordingly, the writ petition is allowed.”

IN THE HIGH COURT OF DELHI AT NEW DELHI Date of decision: 17th November 2021 W.P.(C) 11989 2021 CM APPL. 37033 2021 SMT. KAMLESH & ANR. Petitioners Through: Mr.V.P. Rana Adv. GOVT. OF NCT OF DELHI & ORS. Through: Mr.Naushad Respondents Khan Additional Standing Counsel Civil GNCTD for respondent Nos. 1 2 3 7 with Mr.Zahid Mr.Manisha Chauhan Advs. HON BLE MR. JUSTICE YASHWANT VARMA YASHWANT VARMA J.Heard learned counsel for parties. This petition impugns the order dated 14th September 2021 passed by the Financial Commissioner. By the aforesaid order while entertaining a revision petition the Financial Commissioner issued notice to the respondents therein. The Authority however after having heard counsel for the revisionist refused to grant interim relief. The order passed and impugned herein reads thus: “Mentioned today by Shri V. P. Rana Counsel for Petitioners Revision Petition under Section 187 of the Delhi Land Reforms Act against the impugned order dated 26.07.2021 passed by Additional District Magistrate11989 2021 Digitally SignedBy:BHAWNASigning Date:18.11.202115:04:05Signature Not Verified 1. Counsel for Petitioner requested for stay of the impugned order dated 26.07.2021 as the order is without following established procedure of law. 2. Heard Counsel for Petitioner. Interim relief prayed for is not granted. NO STAY. 3. Issue Dasti notice to Respondents on filing of PF through Counsel for Petitioner along with copy of petition. 4. List for 20.01.2022.” 3. When the matter was entertained initially this Court on 25th October 2021 had noticed that the Financial Commissioner had failed to record even rudimentary reasons for refusing the prayer for interim stay. The Court had also taken notice of the submission of learned counsel for the petitioner who contended that since proceedings on remand pursuant to the order dated 26th July 2021 were likely to commence and proceed it was incumbent upon the Financial Commissioner to consider the application for stay on merits. 4. Mr.Naushad Ahmed Khan as well as Mr.Zahid learned counsels who have appeared for the State respondents however submit that the Financial Commissioner has not refused or rejected the application for stay in toto. According to learned counsels a careful reading of the impugned order would clearly establish that the Financial Commissioner has merely refused to grant stay ex parte and in the absence of the respondents. The Court is informed by learned counsel for the petitioner that although the private respondents have been placed on advance notice none has chosen to appear on their behalf to oppose this writ petition. W.P.(C) 11989 2021 Digitally SignedBy:BHAWNASigning Date:18.11.202115:04:05Signature Not Verified The Court notes that once the Financial Commissioner had deemed it appropriate to entertain the revision petition it was incumbent upon the said Authority to consider the application moved for interim directions. Even if the Financial Commissioner came to conclude that reasons would not justify the grant of any interim relief to the petitioner revisionist ex parte the law did require and oblige him to record reasons even if they be elementary in character. The Court in the aforesaid backdrop also bears in mind the principles enunciated by the Supreme Court in Mool Chand Yadav and Anr. vs Raza Buland Sugar Company 3 SCC 484 where their Lordships held thus: “4. We heard Mr S.N. Kacker learned counsel for the appellants and the respondents appeared by Caveat through Mr Manoj Swarup Advocate. We are not inclined to examine any contention on merits at present but we would like to take notice of the emerging situation if the operation of the order under appeal is not suspended during the pendency of the appeal. If the FAFO is allowed obviously Mool Chand Yadav would be entitled to continue in possession. Now if the order is not suspended in order to avoid any action in contempt pending the appeal Mool Chand Yadav would have to vacate the room and hand over the possession to the respondents in obedience to the Court s order. We are in full agreement with Mr Manoj Swarup learned Advocate for respondents that the Court s order cannot be flouted and even a covert disrespect to Court s order cannot be tolerated. But if orders are challenged and the appeals are pending one cannot permit a swinging pendulum continuously taking place during the pendency of the appeal. Mr Manoj Swarup may be wholly right in submitting that there is intentional flouting of the Court s order. We are not interdicting that finding. But judicial approach requires that during the pendency of the appeal the operation of an order having serious civil consequences must be suspended. More so when appeal is admitted. Previous history of litigation cannot be overlooked. And it is not seriously disputed that the whole of the building Hari Bhawan except one room in dispute is in possession of the Corporation. We accordingly suspend the operation of the Order dated August 6 1982 directing the appellants to hand over the possession of the W.P.(C) 11989 2021 Digitally SignedBy:BHAWNASigning Date:18.11.202115:04:05Signature Not Verified room to the respondents till the disposal of the first appeal against that order pending in the High Court of Allahabad. ” It was clearly incumbent upon the Financial Commissioner to accord due consideration to the submission of the revisionist that if the order of remand were permitted to operate the proceedings itself may come to a conclusion during the pendency of the revision. The authority was obliged to consider whether the continued operation of the order impugned in the revision would result in prejudice and harm to the petitioner. In any case the facts required the Financial Commissioner to consider at least prima facie whether the apprehension as expressed merited the impugned order being placed in abeyance during the pendency of the revision. In view of the above the Court is of the considered opinion that the impugned order cannot be sustained and the matter would consequently merit being remanded to the Financial Commissioner for considering the application for stay afresh. Accordingly the writ petition is allowed. The impugned order dated 26th July 2021 insofar as it proceeds to refuse the grant of stay on the revision shall stand set aside. The Court leaves it open to the Financial Commissioner to consider the application for stay afresh in accordance with law and with due notice to all concerned parties. 10. The Court further provides that the contesting parties as well as the petitioner herein shall maintain status quo as existing today till such time as the Financial Commissioner decides the application for stay in accordance with the directions issued hereinabove. Though needless to state it is further observed that the Financial Commissioner shall proceed in the W.P.(C) 11989 2021 Digitally SignedBy:BHAWNASigning Date:18.11.202115:04:05Signature Not Verified matter independently and without being influenced in any manner with the interim arrangement which has been made by the Court which is prompted solely to ensure that the interests of respective parties are not jeopardized till such time as the Financial Commissioner considers the prayer for stay on merits. The Court further provides that the contesting parties shall not take any unnecessary adjournments before the Financial Commissioner and shall co operate in the expeditious disposal of the proceedings in question. YASHWANT VARMA J. NOVEMBER 17 2021 W.P.(C) 11989 2021 Digitally SignedBy:BHAWNASigning Date:18.11.202115:04:05Signature Not Verified

Appellate Court can consider suspension of a sentence of a convicted person if he files an appeal under any statutory right: Sikkim High Court

There should be strong compelling reasons for grant of bail, notwithstanding an order of conviction, by suspension of sentence, and this must be recorded in the order granting bail, as mandated in section 389(1) Cr.P.C. 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 Pema Tshering Bhutia Vs. State of Sikkim [I.A. No. 1 of 2021 in Crl. Appeal No. 13 of 2021]. The facts of the case were associated with an application for suspension of sentence and grant of bail pending disposal of the appeal under section 389(1) of the Code of Criminal Procedure, 1973 (Cr.P.C.). The PP for the state submitted that the appellant was convicted by the learned Trial Court and therefore the sentence must not be suspended. The counsel representing the appellant stated that according to the order, the appellant was sentenced to one year each under sections 354 and 506 of the Indian Penal Code, 1860 (IPC). A previous case in Preet Pal Singh vs. State of Uttar Pradesh1 was referred wherein The Hon’ble Supreme Court held that assumption of innocence was a significant postulate of criminal jurisprudence, and courts may be liberal, depending on the facts and circumstances of the case, on the principle that bail was the rule and jail was an exception. It was also stated that during post-conviction bail if guilt was found and the question of presumption of innocence did not rise, then suspension of operation of the sentence could be considered. It was also submitted that the court considered the prima-facie merits of the appeal with other factors. The Hon’ble Court opined that the Appellate Court must examine if there was an order of conviction that rendered the order of conviction prima facie being erroneous.  Considering all the facts The Hon’ble Court ruled that “… Considering the rival submissions and examining the impugned judgment and order on sentence along with the depositions of the prosecution witnesses, this court is of the view that it is a fit case in which the appellant ought to be granted bail pending the final disposal of the appeal… The application for suspension of sentence and bail is accordingly allowed and disposed of. This order in addition to the regular mode shall also be communicated electronically to all concerned.”

THE HIGH COURT OF SIKKIM : GANGTOK Criminal Appeal Jurisdiction) SINGLE BENCH: THE HON’BLE MR. JUSTICE BHASKAR RAJ PRADHAN JUDGE I.A. No. 21 Crl. Appeal No. 121 Pema Tshering Bhutia S o Pempa Bhutia Permanent Resident of Phensong P.S. Mangan North Sikkim. ….. Appellant State of Sikkim Application under Section 389(1) of the Code of Criminal Procedure Code 1973. Ms. Zola Megi Advocate for the Appellant. Mr. S.K. Chettri Additional Public Prosecutor and Ms. Pema Bhutia Assistant Public Prosecutor for the State respondent. Date of hearing : O R D E RBhaskar Raj Pradhan J. This is an application under section 389(1) of the Code of Criminal Procedure 1973 for suspension of sentence and grant of bail pending disposal of the appeal. 2 I.A. No. 021 IN Crl. Appeal No. 121 Pema Tshering Bhutia vs. State of Sikkim Ms. Zola Megi learned counsel for the appellant submits that the order on sentence was passed on 31.08.2021 by which the appellant has been sentenced to one year each under section 354 and 506 of the Indian Penal Code 1860 Cr.P.C. is not applicable. 3 I.A. No. 021 IN Crl. Appeal No. 121 Pema Tshering Bhutia vs. State of Sikkim In Preet Pal Singh vs. State of Uttar Pradesh1 the Supreme Court held that there is a difference between grant of bail under section 439 Cr.P.C. and grant of bail post conviction. the earlier case there may be presumption of innocence which is a postulate of criminal jurisprudence and courts may be liberal depending on the facts and circumstances of the case on the principle that bail is the rule and jail is an exception. However in case of post conviction bail by suspension of operation of the sentence there is a finding of guilt and the question of presumption of innocence does not arise. Nor is the principle of bail being the rule and jail an exception attracted once there is conviction upon trial. Rather the court considering an application for suspension of sentence and grant of bail is to consider the prima facie merits of the appeal coupled with other factors. There should be strong compelling reasons for grant of bail notwithstanding an order of conviction by suspension of sentence and this strong and compelling reason must be recorded in the order granting bail as mandated in section 389(1) Cr.P.C. It was further held that in considering an application for suspension of sentence the Appellate Court is only to examine if there is such patent infirmity in the 18 SCC 645 4 I.A. No. 021 IN Crl. Appeal No. 121 Pema Tshering Bhutia vs. State of Sikkim order of conviction that renders the order of conviction prima facie erroneous. In Kiran Kumar vs. State of M.P.2 the Supreme Court noted its opinion in Bhagwan Rama Shinde Gosai vs. State of Gujarat3 in which it was held when a convicted person is sentenced to a fixed period of sentence and when he files an appeal under any statutory right suspension of sentence can be considered by the Appellate Court liberally unless there are exceptional circumstances. If the short term sentence is allowed to run during the pending of the appeal the appeal itself will become for all practical purposes infructuous so far as the appellant is concerned. A note of caution was given by the Supreme Court that it did not mean that the Appellate Court should suspend the sentence if its consequence would be a danger to the society or any other similar difficulties. Considering the rival submissions and examining the impugned judgment and order on sentence along with the depositions of the prosecution witnesses this court is of the view that it is a fit case in which the appellant ought to be granted bail pending the final disposal of the appeal. The judgment rendered by the learned Special Judge POCSO Act) North Sikkim at Mangan9 SCC 211 34 SCC 421 5 I.A. No. 021 IN Crl. Appeal No. 121 Pema Tshering Bhutia vs. State of Sikkim Judge) dated 28.08.2021 has acquitted the appellant for the charge under section 7 of the POCSO Act holding that the prosecution is unable to prove it. The conviction under section 354 IPC and 506 IPC is for a year each and it has been directed to run concurrently. The appellant having already served more than seven months there is less than three months further for the appellant to complete the sentence awarded. The appeal having been admitted is unlikely to be heard within the period of three months as the lower court records must be called for paper books prepared and matter heard finally. If the appeal is not heard within the three months next it would be rendered infructuous. This court therefore deems it appropriate to suspend the sentence passed on the appellant during the pendency of the appeal and direct him to be released on bail on his executing a bond with two solvent sureties to the satisfaction of the learned Special Judge. Additionally he shall appear personally on every date of hearing before this court stay away from the victim and not leave Sikkim without the permission from the learned Special Judge. He shall also provide his active mobile number as well as his active email addressto the registry of this court as well as the court of the learned Special Judge before whom he shall be produced on Monday 15.11.2021. 6 I.A. No. 021 IN Crl. Appeal No. 121 Pema Tshering Bhutia vs. State of Sikkim The application for suspension of sentence and bail is accordingly allowed and disposed. This order in addition the regular mode shall also be communicated electronically to all concerned. Bhaskar Raj Pradhan ) Judge Approved for reporting : Yes : Yes Internet

Executing non-genuine trade creates a false misleading appearance of trades and are manipulative and deceptive – THE SECURITY AND EXCHANGE BOARD OF INDIA

Executing non-genuine trade creates a false misleading appearance of trades and are manipulative and deceptive – THE SECURITY AND EXCHANGE BOARD OF INDIA The SEBI observed some large-scale trades reversals in the stock options segment and an investigation was conducted in this matter and the Sourabh Goenka (NOTICEE) was alleged for violating the provisions of Regulations3(a), (b), (c), (d) and Regulation 4(1), 4(2)(a) of the SEBI regulations,2003 which deals with the matter of illiquid stock options .The  adjudication proceedings were conducted in the matter by the appointed ADJUDICATING OFFICER AMITESH KUMAR in [ADJUDICATION ORDER NO. Order/AK/DK/2021-22/14893] The investigation results show that a total of 2,91,744 trades comprising 81.4% of all the trades executed in Stock Options Segment were considered as non-genuine trades and these trades were observed in illiquid stock options the noticee was found to be indulged in the execution of alleged non-genuine trades and it was alleged that noticee has created a false and misleading appearance of trades and creation of artificial volumes in stock options and for violating the SEBI rules and regulations. A show-cause notice was sent to noticee Rule 4(1) of the Adjudication Rules to inquire as to why an inquiry should not be held against the noticee and why penalty should not be imposed on noticee under Section 15HA of the SEBI Act, 1992. The administrative representative on behalf of the noticee in response to the show-cause notice requested for a delay and another date for a personal hearing. the adjudication proceedings were initiated in the matter on the abovementioned issues In the proceedings, the trades patterns of noticee were taken into consideration and the trade patterns of noticee show that the non-genuineness of the trades is evident from that there is a substantial difference in prices and the dealing patterns are different from the normal patterns and this, it is clear that noticee trades were non-genuine and created a false and misleading appearance of trades and are manipulative and deceptive. The authority places its reliance on the case of SEBI vs. Rakhi Trading Private Ltd (2018) 13 SCC 753 and SEBI vs. Kishore R Ajmera (AIR 2016 SC 1079). The non-genuineness is also evident from the fact that there was no commercial basis for the buying and selling of trades within a short period. this a clear indication that there was pre-determination in the prices by the counterparties while executing the trades. The non-genuine trades come under the definition of ‘fraud’ and are considered fraudulent under Regulation 2(1)(c) of the PFUTP Regulations and prohibited under the provisions of Regulations 3(a), 3(b), 3(c), and 3(d) and 4(1) and 4(2)(a) of the PFUTP Regulation. Considering the above-mentioned factor, it is concluded that the trading behavior of the Noticee has resulted in the creation of artificial trading volumes in the Stock Options contract.  the allegation of violation of Regulations 3(a), (b), (c), (d), 4(1), and 4(2)(a) of PFUTP Regulations, 2003 are clear, and penalty of Rs. 5,00,000 imposed under Section 15HA of the Securities and Exchange Board of India Act, 1992. The order and direction in the matter were issued to the noticee. Click here to read the Order

BEFORE THE ADJUDICATING OFFICER SECURITIES AND EXCHANGE BOARD OF INDIA ADJUDICATION ORDER NO. Order AK DK 2021 22 14893] UNDER SECTION 15 I OF SECURITIES AND EXCHANGE BOARD OF INDIA ACT 1992 READ WITH RULE 5 OF SEBIRULES 1995. In respect of Sourabh Goenka PAN: BFLPG5924C] In the matter of trading in Illiquid Stock Options at BSE Ltd. BACKGROUND 1. Securities and Exchange Board of Indiaobserved large scale reversal of trades in Stock Options segment of Bombay Stock Exchange Ltd. hereinafter referred to as “BSE”). SEBI observed that such large scale reversal of trades in Stock Options led to creation of artificial volume at BSE. In view of the same SEBI conducted an investigation into the trading activities of certain entities in illiquid Stock Options at BSE for the period April 1 2014 to September 30 2015(hereinafter referred to as “Noticee”) was one of the various entities who indulged in the execution of alleged non genuine trades in the Stock Options segment at BSE during the Investigation Period. It was observed that the Noticee had entered into reversal trades with his counterparty which involved squaring off transactions with significant difference in the value of buy order and sell order. Therefore it is alleged that Noticee had executed the reversal trades which were non genuine in nature and has created false and misleading appearance of trading in terms of creation of artificial volume in the Stock Options segment at BSE and thus it is alleged that the Noticee has violated the provisions of Regulations3(a) (c) d) and Regulation 4(1) 4(2)(a) of the SEBIRegulations 2003 of the SEBI Act and Rule 3 of the Securities and Exchange Board of IndiaRules 1995 to conduct adjudication proceedings in the manner specified under Rule 4 of Adjudication Rules read with Section 15Iandof SEBI Act and if satisfied that the Noticee is liable for penalty may impose such penalty as deemed fit in terms of Rule 5 of Adjudication Rules 1995 and Section 15HA of SEBI Act. SHOW CAUSE NOTICE REPLY AND HEARING 5. A Show Cause Notice bearing Reference No. SEBI HO LAD2 LAD2_DRAII P OW 2021 0000023395 1 dated September 09 2021was issued to the Noticee under Rule 4(1) of the Adjudication Rules to show cause as to why an inquiry be not held against him and why penalty should not be imposed under Section 15HA of the SEBI Act 1992 for the violations alleged to have been committed by him. The SCN was sent to the Noticee vide Speed Post AD and was duly served on the Noticee. The SCN issued to the Noticee inter alia mentioned the following: i. During the Investigation Period in the Stock Options segment it was observed that the Noticee had traded in 1unique contract wherein he had allegedly executed 2non genuine trades each for 10 000 units on July 28 2015 which resulted in artificial volume of total 20 000 units. Summary of dealings of the Noticee in the Stock Options contract in which he allegedly executed non genuine trades during the Investigation Period is as follows: NAME E TIME ATE Goenka N M Ltd 28 07 2015 13:06:17 10 000 Adjudication Order in respect of Sourabh Goenka in the matter of trading in Illiquid Stock Options at BSE Ltd Sourabh Goenka N M Ltd 28 07 2015 13:16:19 47.15 10 000 From the above table the following is observed as regards the dealings of the Noticee: a. While dealing in the said contract on July 28 2015 at 13:06:18.27 hrs the Noticee entered into a buy trade with counterparty N M Impex Private Ltd for 10 000 units at Rs. 27 per unit. At 13:16:19.24 hrs the Noticee entered into a sell trade with the same counterparty for the same quantity i.e. 10 000 units at Rs. 47.15 per unit. b. The Noticee’s 2 trades while dealing in the above said contract during the Investigation Period allegedly generated artificial volume of 20 000 units which made up 4.2% of total market volume in the said contract during this period. Such trades were observed to be non genuine in nature and also created false and misleading appearance of trading in Stock Options and therefore were alleged to be manipulative and deceptive in nature. In view of the same SEBI initiated adjudication proceedings against the Noticee for violation of the provisions of Regulations 3(a) (c) d) 4(1) and 4(2)(a) of PFUTP Regulations. 6. In response to the Show Cause Notice Noticee vide Reply submitted through email dated October 14 2021 stated as under: “… We would like to admit that at the time we were told this was the right way and we had no knowledge of the consequences. We would like to admit my mistake and would like to request you to please consider the penalty amount as it is too high in these adverse times of CORONA. It is my humble request to please consider the penalty as we have learnt our lesson and would be more alert in the future” 7. Thereafter vide Hearing Notice bearing Ref. No. SEBI HO LAD2 LAD2_DRAII P OW 2021 0000033616 1 dated November 22 2021 in the interest of natural justice and in terms of Rule 4(3) of Adjudication Rules the Noticee was provided an opportunity of personal hearing on December 17 2021 through WebEx platform. 8. Subsequently Chartered Accountant Mohit Agarwal who appeared on behalf of the Noticee made brief submissions similar to those made vide aforesaid email dated October 14 2021 and requested that another opportunity of hearing may be given wherein the Noticee shall appear personally for the hearing. However vide further reply submitted vide email dated January 31 2022 the Noticee stated as under: Adjudication Order in respect of Sourabh Goenka in the matter of trading in Illiquid Stock Options at BSE Ltd “We would like to state that we have no further submissions to make in this case. You are hereby requested to further proceed with the Proceedings and humbly request you to consider the Profit made while finalising the Penalty amount since the profit made is very low as compared to the minimum penalty amount.” CONSIDERATION OF ISSUES: 9. After perusal of the material available on record the issues that arise for consideration are as under: I. Whether the Noticee has violated the provisions of Regulations 33(b) 3(c) 34 1) and 4(a) of PFUTP Regulations II. If yes whether the Noticee is liable for monetary penalty under Section 15HA of the SEBI Act III. If so what quantum of monetary penalty should be imposed on the Noticee FINDINGS 10. The relevant provisions of PFUTP Regulations which are alleged to have been violated are as under: Regulation 3: Prohibition of certain dealings in securities 3. No person shall directly or indirectly— a) buy sell or otherwise deal in securities in a fraudulent manner b) use or employ in connection with issue purchase or sale of any security listed or proposed to be listed in a recognized stock exchange any manipulative or deceptive device or contrivance in contravention of the provisions of the Act or the rules or the regulations made there under c) employ any device scheme or artifice to defraud in connection with dealing in or issue of securities which are listed or proposed to be listed on a recognized stock exchange d) engage in any act practice course of business which operates or would operate as fraud or deceit upon any person in connection with any dealing in or issue of securities which are listed or proposed to be listed on a recognized stock exchange in contravention of the provisions of the Act or the rules and the regulations made there under. Regulation 4: Prohibition of manipulative fraudulent and unfair trade practices 1) Without prejudice to the provisions of regulation 3 no person shall indulge in a fraudulent or an unfair trade practice in securities. Adjudication Order in respect of Sourabh Goenka in the matter of trading in Illiquid Stock Options at BSE Ltd Dealing in securities shall be deemed to be a fraudulent or an unfair trade practice if it involves fraud and may include all or any of the following namely: a) indulging in an act which creates false or misleading appearance of trading in the securities market 11. It has been alleged that the Noticee had indulged in execution of reversal of trades in Stock Options with same entity on the same day. Such trades were non genuine in nature and had created false and misleading appearance of trading in terms of artificial volume in Stock Options and therefore are alleged to be manipulative and deceptive in nature. 12. I note that vide Reply dated October 14 2021 Noticee admitted his mistake and requested to consider the penalty amount as it is too high in these adverse times of CORONA. 13. I note that reversal trades are those trades in which a party reverses its buy or sell positions in a contract with subsequent sell or buy positions with the same counterparty during the same day. The said reversal trades are non genuine trades as they are not executed in normal course of trading lack basic trading rationale and lead to false or misleading appearance of trading in terms of generation of artificial volume hence are deceptive and manipulative. Artificial volume is considered to be the volumereversed in both legs of said reversal trades while keeping out the volume if any which is not reversed. 14. I note that the Noticee had executed 2non genuine trades in 1contract on July 28 2015. The details of non genuine trades executed by the Noticee are mentioned hereunder: Rate Total Sell No of age Buy Total Buy in the ct er of ted by in the No of ted by in the of e trades in the t to in the ct of d by in the s Total in the Contract of e trades e in the t to in the ct of ed by e in the t to e in the ct 10 000 47.15 10 000 2 4 76 000 100% 5.13% 100% 15. From the above mentioned table and table mentioned at Para 5 it is noted as under: Adjudication Order in respect of Sourabh Goenka in the matter of trading in Illiquid Stock Options at BSE Ltd I note that during the Investigation Period total 2trades for a total of 20 000 units were executed in the “BHRT15JUL460.00PE” contract on July 28 2015 wherein the Noticee was party to both the said trades. b) The Noticee placed a buy order for 10 000 units at a price of Rs. 27 per unit and the said order matched with the sell orderof counterparty N M Impex Private Ltd. I note that the said buy order by the Noticee was placed at 13:06:17.771671 almost at the same time as that of the entry of the sell order by the Counterparty. Subsequently within 10 minutes at 13:16:19.243324 the Noticee placed a sell order for 10 000 units at a price of Rs 47.15 per unit and the said order matched with the same counterpartywho placed a buy order for the same quantityand same price i.e. Rs. 47.15) c) From the above it is noted that while dealing in the said contract during the Investigation Period the Noticee indulged in reversal trades by executing 1buy trade and 1sell trade with the same counterparty viz N M Impex Private Ltd on the same day for the same quantity. d) Thus the Noticee through his dealings in the contract viz “BHRT15JUL460.00PE” during the Investigation Period executed 2non genuine trades which is 100% of the total trades executed by the Noticee in the said contract which led to generation of artificial volume of 20 000 units amounting to 4.2% of the total volume generated in the said contract during the Investigation Period. 16. From the above pattern of trades I note that the Noticee had bought and sold option contracts with the same counter party and also reversed him trade within 10minutes from his earlier buy trade and that too at a substantial price difference. The non genuineness of these transactions executed by the Noticee is evident from the fact that such pattern of dealing appears to be not driven by market factors as none of the parametersfor option pricing have undergone any change during the period of trades. Therefore I am inclined to find that the aforesaid trades of Noticee were non genuine and have created false or misleading appearance of trading in terms of artificial volume in Stock Options and thus the same are manipulative and deceptive in nature. 17. In this regard I place reliance on the judgement of the Hon’ble Supreme Court in the matter of SEBI vs. Rakhi Trading Private Ltd13 SCC 753 in which the Hon’ble Supreme Court held as under: “46. Considering the reversal transactions quantity price and time and sale parties being persistent in number of such trade transactions with huge price variations it will be too naive to hold that the transactions are through screen based trading and hence anonymous. Such conclusion would be over looking the prior meeting of minds involving synchronization of buy and sell order and not negotiated deals as per the board s Adjudication Order in respect of Sourabh Goenka in the matter of trading in Illiquid Stock Options at BSE Ltd circular. The impugned transactions are manipulative deceptive device to create a desired loss and or profit. Such synchronized trading is violative of transparent norms of trading in securities...” 18. I would further like to note that in the matter of SEBI vs. Kishore R Ajmeravide Order dated February 23 2016 the Supreme Court observed as under: “26...While the screen based trading system keeps the identity of the parties anonymous it will be too naive to rest the final conclusions on said basis which overlooks a meeting of minds elsewhere. Direct proof of such meeting of minds elsewhere would rarely be forthcoming. The test in our considered view is one of preponderance of probabilities so far as adjudication of civil liability arising out of violation of the Act or the provisions of the Regulations framed thereunder is concerned...” 19. In line with the principle of ‘preponderance of probabilities’ test which has been held as the appropriate test for adjudication of civil liability arising out of violation of the SEBI Act or Regulations framed thereunder by the Hon’ble Supreme Court in the aforesaid Order in the matter of Kishore R Ajmera the factors to be considered in the present matter are as under: a. The isolated trade and reversal in the same option contract b. The same counter party being involved in both the trades c. The gap between the trade and the reversal trade being 10minutes d. The substantial difference in the buy and sell rate within a span of 10minutes e. The high volume of trade in turn creating an artificial volume of 20 000 units. 20. The non genuineness of the aforesaid trades executed by the Noticee is evident from the fact that there was no commercial basis as to why within a short span of timeminutes) the Noticee reversed the position with the same counterparty but with a significant price difference. Such short span of time in reversing the trades in the contract suggests the non genuineness of these trades executed by the Noticee. The fact that the orders of the Noticee and his counterparty matched with such precisionminutes) indicates a prior meeting of minds with a view to execute the reversal trades at a predetermined price. These trades were done in illiquid option contracts and consequently there was no price discovery in the strictest terms. The wide variation in prices of the said contracts within a short span of time is a clear indication that there was pre determination in the prices by the counterparties while executing the trades. Therefore it is observed that the Noticee had indulged in reversal trades with his counterparty in the Stock Options segment of BSE and the same were non genuine trades. 21. The non genuine and deceptive transactions of the Noticee are covered under the definition of fraud and the dealings of the Noticee as discussed herein above were “fraudulent” as defined under Regulation 2(1)(c) of the PFUTP Regulations and prohibited under the provisions of Regulations 3(a) 3(b) 3(c) and 3(d) and 4(1) and 4(2)(a) of the PFUTP Regulations. Adjudication Order in respect of Sourabh Goenka in the matter of trading in Illiquid Stock Options at BSE Ltd 22. In this context I deem it appropriate to refer to the Hon’ble Securities Appellate Tribunal Order dated July 14 2006 in the case of Ketan Parekh vs. SEBIwherein it held as under: 20. ...The nature of the transaction executed the frequency with which such transactions are undertaken the value of the transactions whether they involve circular trading and whether there is real change of beneficial ownership the conditions then prevailing in the market are some of the factors which go to show the intention of the parties. This list of factors in the very nature of things cannot be exhaustive. Any one factor may or may not be decisive and it is from the cumulative effect of these that an inference will have to be drawn." 23. Further the Hon’ble Securities Appellate Tribunal while dealing with the issue of reversal trades done in illiquid Stock Option contracts in its judgement dated September 14 2020 in the matter of Global Earth Properties and Developers Pvt Ltdheld as under: “20. ... It is not a mere coincidence that the Appellants could match the trades with the counter party with whom he had undertaken the first leg of respective trade. In our opinion the trades were non genuine and even though direct evidence is not available in the instant case but in the peculiar facts and circumstances of the present case there is an irresistible inference that can be drawn that there was meeting of minds between the Appellants and the counter parties and collusion with a view to trade at a predetermined price.” 24. It is further noted that in Radha Malani vs. SEBIvide Order dated November 24 2021 SAT relying upon its aforesaid Order in the matter of Global Earth Properties and Developers Ltd dismissed an appeal filed against an Order wherein monetary penalty was imposed against a person who had executed 1buy and 1sell trade in 1Option Contract with the same counterparty within a very short span of time but with a substantial price difference between the buy order and sell order. These trades were also executed in the illiquid Stock Options listed at BSE. 25. It is further noted that in Radha Malani vs. SEBIvide Order dated November 24 2021 SAT relying upon its aforesaid Order in the matter of Global Earth Properties and Developers Ltd dismissed an appeal filed against an Order wherein monetary penalty was imposed against a person who had executed 1buy and 1sell trade in 1Option Contract with the same counterparty within a very short span of time but with a substantial price difference between the buy order and sell order. These trades were also executed in the illiquid Stock Options listed at BSE. Thereafter SAT in Shruti Saraogi vs. SEBIvide order dated January 13 2022 while dealing with similar facts in an Illiquid Stock Options matter again relied upon its aforesaid Order in the matter of Global Earth Properties and Developers Ltd to dismiss an appeal filed by a person who was imposed with a monetary penalty in the impugned Order for the dealings in illiquid Stock Options which were in the nature of reversal trades. The facts involved in the said matters are similar to the facts involved in the present matter and therefore these orders of SAT are squarely applicable to the present matter also. Adjudication Order in respect of Sourabh Goenka in the matter of trading in Illiquid Stock Options at BSE Ltd 26. Considering the aforesaid factors I conclude that the trading behaviour of the Noticee has resulted in creation of artificial trading volumes in the Stock Options contract. In view of the same I find that the allegation of violation of Regulations 3(a) (c) 4(1) and 4(2)(a) of PFUTP Regulations 2003 by the Noticee stands established. 27. The Hon’ble Supreme Court of India in the matter of The Chairman SEBI vs. Shriram Mutual Fund and Ors5 SCC 361 decided on May 23 2006 held as under: “20. In our considered opinion penalty is attracted as soon as the contravention of the statutory obligation as contemplated by the Act and the Regulations is established and hence the intention of the parties committing such violation becomes wholly irrelevant…” 28. In view of the same I am convinced that it is a fit case for imposition of monetary penalty on the Noticee under the provisions of Section 15HA of the SEBI Act 1992 which reads as under: Penalty for Fraudulent and unfair trade practices 15HA. If any person indulges in fraudulent and unfair trade practices relating to securities he shall be liable to a penalty which shall not be less than five lakh rupees but which may extend to twenty five crore rupees or three times the amount of profits made out of such practices whichever is higher. 29. While determining the quantum of penalty under Section 15HA of the SEBI Act it is important to consider the factors relevantly as stipulated in Section 15J of the SEBI Act which reads as under: Factors to be taken into account while adjudging quantum of penalty 15J. … a) the amount of disproportionate gain or unfair advantage wherever quantifiable made as a result of the default b) the amount of loss caused to an investor or group of investors as a result of the default c) the repetitive nature of the default…. 30. I observe that the material available on record does not quantify any disproportionate gains or unfair advantage if any made by the Noticee and the losses if any suffered by the investors due to such violations on part of the said Noticee. However I note that in terms of Sec. 15HA the penalty cannot be less than Rs. 5 Lakhs. In this regard I note that Hon’ble SAT in its aforesaid Order in the matter of Shruti Saraogi observed that the minimum penalty that can be imposed under Sec. 15HA is Rs. 5 Lakhs. Therefore I do not find any reason to impose a lesser amount of penalty on the Noticee. 31. After taking into consideration the nature and gravity of the violations established in the preceding paragraphs and in exercise of the powers conferred upon me under Section 15 I of the Securities and Exchange Board of India Act 1992 read with Rule 5 of the Securities and Exchange Board of India Adjudication Order in respect of Sourabh Goenka in the matter of trading in Illiquid Stock Options at BSE Ltd Rules 1995 I hereby impose a penalty of Rs. 5 00 000on the Noticee i.e. Mr. Sourabh Goenka under Section 15HA of the Securities and Exchange Board of India Act 1992. 32. The Noticee shall remit pay the aforesaid amount of penalty within 45 days of receipt of this Order either by way of Demand Draft in favour of “SEBI Penalties Remittable to Government of India” payable at Mumbai OR through online payment facility available on the SEBI website www.sebi.gov.in on the following path by clicking on the payment ENFORCEMENT → Orders → Orders of AO → PAY NOW 33. The Noticee shall forward said Demand Draft or the details confirmation of penalty so paid to “Securities and Exchange Board of India” SEBI Bhavan Plot No. C 4 A “G” Block Bandra Kurla Complex BandraMumbai 400 051”. The Noticee shall also provide the following details while forwarding DD payment information: • Name and PAN of the Noticee • Name of the case matter • Purpose of Payment Payment of penalty under AO proceedings • Bank Name and Account Number • Transaction Number 34. In the event of failure to pay the aforesaid amount of penalty within 45 days of the receipt of this Order SEBI may initiate consequential actions including but not limited to recovery proceedings under Section 28A of the SEBI Act 1992 for realization of the said amount of penalty along with interest thereon inter alia by attachment and sale of movable and immovable properties. 35. In terms of the provisions of Rule 6 of the Adjudication Rules a copy of this order is being sent to the Noticee and also to the Securities and Exchange Board of India. Date: February 02 2022 AMITESH KUMAR Place: Mumbai ADJUDICATING OFFICER Adjudication Order in respect of Sourabh Goenka in the matter of trading in Illiquid Stock Options at BSE Ltd

Under the RTI Act, the citizen…is not supposed to seek any opinion or comments or clarifications or interpretations from the CPIO.: Appellate Authority, SEBI.

The appellate authority under the RTI (Right to Information) Act of the Securities and Exchange Board of India comprising of Mr. Anand Baiwar adjudicated in the matter of P L N Rao v CPIO, SEBI, Mumbai (Appeal No. 4284 of 2021) dealt with an issue in connection with Section 2 (f) of the Right to Information Act. The appellant, Mr P L N Rao had filed an application via RTI MIS Portal on the 9th of April, 2021 under the Right to Information Act, 2005. The respondent responded to the application by a letter on the 6th of May, 2021, filed by the appellate. After receiving a letter from the respondent on 6th of May, 2021 on his application, the appellate decided to file an appeal on the 27th of May, 2021, which the Office of Appellate authority had received on the 2nd of June. In his application, the appellate was seeking the following information: “1. Information furnished by Divis Labs before SEBI for the years 2019-2020 and 2020-21. 2. Based on which issues SEBI is promoting the Divis Labs Share, kindly furnish the complete related information before SEBI by Divis Labs management regarding its expansion activities- Xerox copies may be furnished. 3. Whether Divis Labs management has informed SEBI about the pending cases against this industry before the Hon’ble Supreme Court, National Human Rights Commission, Telangana State High Court, during the period 2019-20 and 2020-21 and these cases were filed by victimized farmers, toddy tappers and other farmers which are pending. Kindly furnish xerox copy of the intimation given by Divis Labs management to SEBI and also other related copies. 5. Information available with SEBI regarding the Divis Labs for the period 2010 -2021 March. Xerox copies may be furnished. The respondent to this replied by saying that the information sought in query numbers 1, 2, 3, 5 and 7, are not available with the SEBI. To this, the appellant requested re-verification. On perusal of query numbers 1, 2, 5 and 7, it was noted that the appellant has sought information available with SEBI regarding Divis Labs. It is observed that the respondent, vide his response dated May 06, 2021, informed about the various orders passed by SEBI in the matter of Divi’s Laboratories Limited, pursuant to the completion of the investigation. Therefore, the respondent shall reconsider the queries and provide an appropriate response under the RTI Act, 2005. For query number 3, the appellate authority, Mr Anand Baiwar, made reference to the matter of Central Board of Secondary Education &amp; Anr. vs. Aditya Bandopadhyay &amp; Ors (Judgment dated August 9, 2011) held that “The RTI Act provides access to all information that is available and existing. This is clear from a combined reading of section 3 and the definitions of `information’ and `right to information’ under clauses (f) and (j) of section 2 of the Act. If a public authority has any information in the form of data or analysed data, or abstracts, or statistics, an applicant may access such information, subject to the exemptions in section 8 of the Act. But where the information sought is not a part of the record of a public authority, and where such information is not required to be maintained under any law or the rules or regulations of the public authority, the Act does not cast an obligation upon the public authority, to collect or collate such non-available information and then furnish it to an applicant.” Further, he noted that the Hon’ble CIC in the matter of Sh. Pattipati Rama Murthy vs. CPIO, SEBI (Decision dated July 8, 2013), held: “… if it (SEBI) does not have any such information in its possession, the CPIO cannot obviously invent one for the benefit of the Appellant. There is simply no information to be given.” In view of these observations, Mr Baiwar found that the respondent cannot be obliged to provide such non– available information.

Appeal No. 42821 BEFORE THE APPELLATE AUTHORITY Under the Right to Information Act 2005) SECURITIES AND EXCHANGE BOARD OF INDIA Appeal No. 42821 P L N Rao CPIO SEBI Mumbai The appellant had filed an application dated April 09 2021under the Right to Information Act 2005 against the said response dated May 06 2021. I have carefully considered the application the response and the appeal and find that the matter can be decided based on the material available on record. 2. Ground of appeal On perusal of the appeal it appears that the appellant is not satisfied with the response provided by the respondent. in the following paragraphs. The queries raised by the appellant the response and the submissions made in the appeal are discussed 4. Query numbers 1 2 3 5 and 7 The appellant vide said queries sought the following information: “1. Information furnished by Divis Labs before SEBI for the years 2019 2020 and 2020 21. 2. Based on which issues SEBI is promoting the Divis Labs Share kindly furnish the complete related information before SEBI by Divis Labs management regarding its expansion activities Xerox copies may be furnished. 3. Whether Divis Labs management has informed SEBI about the pending cases against this industry before the Hon’ble Supreme Court National Human Rights Commission Telangana State High Court during the period 2019 20 and 2020 21 and these cases were filed by victimized farmers toddy tappers and other farmers which are pending. Kindly furnish xerox copy of the intimation given by Divis Labs management to SEBI and also other related copies. 5. Information available with SEBI regarding the Divis Labs for the period 2010 2021 March. Xerox copies may be furnished. Appeal No. 42821 7. Xerox copy of complete information relating to Divis Labs readily available with SEBI as on date kindly furnish the same.” The respondent in response to query numbers 1 2 3 5 and 7 informed that the information sought is not available with SEBI. The appellant in his appeal has requested that the same may be verified again. 6. On perusal of query numbers 1 2 5 and 7 I note that the appellant has sought information available with SEBI regarding Divis Labs. It is observed that the respondent vide his response dated May 06 2021 informed about the various orders passed by SEBI in the matter of Divi’s Laboratories Limited pursuant to completion of the investigation. Therefore the respondent shall reconsider the queries and provide an appropriate response under the RTI Act. 7. With respect to query number 3 I do not find any reason to disbelieve the observation of the respondent that the requested information is not available with SEBI. In this context I note that the Hon’ble Supreme Court of India in Central Board of Secondary Education & Anr. vs. Aditya Bandopadhyay & Ors Judgment dated August 9 2011) held that “The RTI Act provides access to all information that is available and existing. This is clear from a combined reading of section 3 and the definitions of `information and `right to information under clausesandof section 2 of the Act. If a public authority has any information in the form of data or analysed data or abstracts or statistics an applicant may access such information subject to the exemptions in section 8 of the Act. But where the information sought is not a part of the record of a public authority and where such information is not required to be maintained under any law or the rules or regulations of the public authority the Act does not cast an obligation upon the public authority to collect or collate such non available information and then furnish it to an applicant.” Emphasis supplied). Further I note that the Hon’ble CIC in the matter of Sh. Pattipati Rama Murthy vs. CPIO SEBI held: “… if it does not have any such information in its possession the CPIO cannot obviously invent one for the benefit of the Appellant. There is simply no information to be given.” In view of these observations I find that the respondent cannot be obliged to provide such non available information. 8. Query numbers 4 and 8 The appellant vide query numbers 4 and 8 sought the following information “4. Since there are number of cases pending against Divis Labs before different competent Courts. If the Hon’ble Courts delivers their judgement against Divis Labs and if the value of the shares of this Divis Labs fall down who will pay the thousands of crore rupees SEBI NSE BSE to 48% share holders Kindly furnish us the clarification and detailed information. Appeal No. 42821 8. Whether authorities have thoroughly scrutinized checked the Annual Report Sustainable journey report Some lapses have been put forth before SEBI by the public. Whether the officials have identified these lapses Whether it is Divis Report or also furnished before SEBI complete details.” The respondent in response to the above queries observed that the queries are in the nature of seeking clarification opinion and accordingly cannot be construed as seeking “information” as defined under section 2(f) of the RTI Act. I have perused the queries and the response provided thereto. On consideration I agree with the observation of the respondent that the queries are in the nature of seeking clarification opinion from the respondent. Further query number 4 appears to be hypothetical in nature. It is understood that the respondent is not supposed to create information or to interpret information or to furnish clarification to the appellant under the ambit of the RTI Act. I find that the said queries cannot be construed as seeking ‘information’ as defined under section 2of the RTI Act. Consequently the respondent did not have an obligation to provide such clarification opinion 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 11. Query number 6 The appellant vide query number 6 sought the following information “6. The Divis Labs Chief Financial Officer son and 6 others have made insider trading why SEBI could not identify recognize this earlier After knowing what steps action SEBI has initiated In future if such incident is repeated what will be the fate of 48% share holders Kindly furnish the complete information with relevant xerox copies.” 12. The respondent in response to the query informed that SEBI had conducted an investigation in the trading by certain entities in the scrip of Divi’s Laboratories Ltd. The respondent also provided details of the orders passed by SEBI pursuant to the completion of the investigation. Further the appellant was informed that the said orders were available on the SEBI website. 13. On consideration I find that the first part of the query i.e. “why SEBI could not identify recognize this earlier ” is in the nature of seeking clarification opinion of the respondent. Further the last part of the Appeal No. 42821 query i.e. In future if such incident is repeated what will be the fate of 48% share holders ” appears to be hypothetical in nature. I am of the view that the same cannot be construed as seeking “information” as defined under section 2(f) of the RTI Act. Accordingly the respondent did not have any obligation to provide response to such queries. 14. Without prejudice to the same I note that the respondent has provided information regarding the orders passed by SEBI in the matter of Divi’s Laboratories Limited. The respondent also guided the appellant to access the orders on the SEBI website. I find that the respondent has adequately addressed the query regarding steps action initiated by SEBI by providing the information available with him. Accordingly I do not find any deficiency in the response. I note that the appellant in his appeal inter alia sought certified copy of documents which are available on the SEBI website for submitting them before Court of Law. On perusal of the application dated April 09 2021 I find that the said request was raised by the appellant for the first time in this appeal. As held by the Hon’ble CIC in Harish Prasad Divedi vs. Bharat Petroleum Corporation Limitedan information seeker cannot be allowed to expand the scope of his RTI enquiry at appeal stage. Accordingly I find that this request does not warrant consideration at this stage. In view of the above observations I remit the matter to the respondent for de novo consideration of query numbers 1 2 5 and 7 of the appellant’s application dated April 09 2021 and to send appropriate response to the appellant in terms of RTI Act within 15 working days from the date of receipt of this AMARJEET SINGH APPELLATE AUTHORITY UNDER THE RTI ACT SECURITIES AND EXCHANGE BOARD OF INDIA order. Place: Mumbai Date: July 02 2021

When there is even no recorded confession of the co-accused except the disclosure statement the criminal proceedings cannot be continued against him: High Court of Jammu and Kashmir and Ladakh

It is of the considered opinion that there is no material on record that necessitates the continuance of the criminal proceedings against the petitioner when there is even no recorded confession of the co-accused except the disclosure statement as upheld by the High Court of Jammu and Kashmir and Ladakh through the learned bench led by Justice Rajnesh Oswal in the case of Sandeep Kumar Vs State of J&amp;K (Bail App No. 253/2021 [CrlM No. 1515/2021]) The brief facts of the case are that the petitioner through the medium of the present petition under section 561-A Cr.P.C. (now 482 Cr.P.C.) has prayed for quashing of the criminal proceedings titled “State versus Ghulam Mohammed &amp; Anr”, those are pending against him before the Court of learned Principal Sessions Judge, Kishtwar (hereinafter to be referred as trial court) arising out of FIR bearing No. 13 of 2013 for commission of offences under sections 295, 457, 380, RPC. The petitioner has sought the quashing of the criminal proceedings primarily on the grounds that the evidence relied upon by the prosecution is legally inadmissible because as per the prosecution case the accused No. 1 in the case i.e., Ghulam Mohd made an admission/confession of the guilt before them, where he stated that the petitioner herein was also an accomplice in that act and in law, no confession is admissible, if the same is made not only to Police Officer but even if it is made in presence of Police Officer. Further the proceedings those are pending against him do not disclose commission of any offence by the petitioner, as such, the proceedings are nothing but an abuse of process of law. After the perusal of facts and arguments, the Hon’ble Court held, “ In the instant case, there is even no recorded confession of the co-accused except the disclosure statement as mentioned above. So, this Court is of the considered opinion that there is no material on record that necessitates the continuance of the criminal proceedings against the petitioner. In view of this, the present petition is allowed and the criminal proceedings titled “State versus Ghulam Mohammed &amp; Anr” pending before the court of learned Principal Sessions Judge, Kishtwar are quashed qua the petitioner only and the proceedings against the Ghulam Mohd shall continue. Since the petition has been allowed and the charge-sheet filed against the petitioner before the trial court has been quashed, therefore, the application has been rendered infructuous.”

HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT JAMMU Reserved on : 13.10.2021 Pronounced on: 29.10.2021 APPCR No. 23 2014 in CRMC No. 232 2014(O&M) IA No. 262 2014 Bail App No. 253 2021 CrlM No. 1515 2021 …..Appellant(s) Petitioner(s) …. Respondent(s) Through: Mr. P. N. Raina Sr. Advocate with Mr. J. A. Hamal Advocate. Sandeep Kumar State of J&K Through: Mr. Suneel Malhotra GA. Coram: HON’BLE MR. JUSTICE RAJNESH OSWAL JUDGE The petitioner through the medium of the present petition under section 561 A Cr.P.C. has prayed for quashing of the criminal proceedings titled “State versus Ghulam Mohammed & Anr” those are pending against him before the Court of learned Principal Sessions Judge Kishtwar arising out of FIR bearing No. 113 for commission of offences under sections 295 457 380 RPC. The petitioner has sought the quashing of the criminal proceedings primarily on the grounds that the evidence relied upon by the prosecution is legally inadmissible because as per the prosecution case the accused No. 1 in the case i.e. Ghulam Mohd made an 2 CRMC No. 232 2014 a w connected matters admission confession of the guilt before them where he stated that the petitioner herein was also an accomplice in that act and in law no confession is admissible if the same is made not only to Police Officer but even if it is made in presence of Police Officer. Further the proceedings those are pending against him do not disclose commission of any offence by the petitioner as such the proceedings are nothing but an abuse of process of law. The response stands filed by the respondent in which it is stated that a report was received at Police Station Marwah District Kishtwar from the reliable sources that on 17th of December 2013 certain unknown persons entered the Shiv Mandir Chanjer Marwah and broke open the windows of the Mandir with a common intention of looting essentials cause damage and hurt the religious sentiments. On this information FIR bearing No. 13 of 2013 under sections 295 457 380 RPC was registered and during the course of the investigation Investigating Officer visited the site and prepared the site plan and recorded the statements of witnesses etc. and on the basis of evidence collected offence was proved against Ghulam Mohd. S o Gani Malik and the petitioner Sandeep Kumar S o Narayyana Dass. The accused Ghulam Mohd was arrested however Sandeep Kumar absconded. After completion of the investigation the charge sheet against the accused Ghulam Mohd and the petitioner Sandeep Kumar was filed in the competent court of law. 3 CRMC No. 232 2014 a w connected matters Mr. P. N. Raina Sr. Advocate appearing for the petitioner vehemently argued that there is no evidence against the petitioner and the charge sheet has been filed against the petitioner only on the ground that during interrogation the co accused stated that petitioner was also accompanying him. Mr Raina further laid emphasis that even in the disclosure statement made by the accused Ghulam Mohammed name of petitioner has not been mentioned. He further relied upon the judgment of Apex Court in Dipakbhai Jagdishchandra Patel v. State of Gujarat 16 SCC 547. Per contra Mr. Suneel Malhotra vehemently submitted that the co accused has specifically named the petitioner regarding his involvement in the commission of the offence and as such the proceedings cannot be Heard and perused the record. A perusal of record challan reveals that on 17th of December 2013 at about 00.05 a.m. information was received from the reliable source at the Police Station Marwah that at around 07.00 to 07.30 p.m. some unknown person(s) broke open the window of Shiv Temple Chanjer Marwah and entered inside the temple damaged the articles lying in the temple and dispersed them here and there and has have also taken some articles with them. On this information FIR bearing No. 13 of 2013 was registered. During the course of investigation Ghulam Mohd. was arrested and he made disclosure statement with regard to the stolen articles and got them recovered. Further during his interrogation he 4 CRMC No. 232 2014 a w connected matters revealed that petitioner Sandeep Kumar was also involved with him in the occurrence. The perusal of the challan reveals that none of the witness has been cited as an eye witness to the occurrence. The only incriminating material against the petitioner is that the co accused during the course of his interrogation disclosed that the petitioner was also involved in the occurrence with him. The witnesses namely PWs Constable Khalid Mustafa Constable Bahar Ahmed and Constable Mohd. Shafi were examined by the Investigating Officer and they have also stated that Ghulam Mohd. disclosed during investigation that the petitioner was also involved with him. Except this there is nothing against the petitioner and even in the disclosure memo the name of the petitioner is nowhere figuring. The contents of disclosure memo are reproduced as under: “I have kept one iron hammer one damaged lamp in the bushes near Shalimar Morh. The information with respect to the same was known to me alone and I can get the same recovered.” Now the only issue arises for consideration is as to whether on the basis of this evidence the accused can be proceeded against or not. In Dipakbhai Jagdishchandra Patel v. State of Gujarat 16 SCC 547 the Apex Court has held as under: “54. Proceeding on the basis that it is a confession by a co accused and still proceeding further that there is a joint trial of the accused and that they are accused of the same offencesand having found that there is no recovery from the residence of the appellant of the counterfeit notes and that there is no other material on the basis of 5 CRMC No. 232 2014 a w connected matters which even a strong suspicion could be aroused we would find that the mandate of the law requires us to free the appellant from being proceeded against.” In the instant case there is even no recorded confession of the co accused except the disclosure statement as mentioned above. So this Court is of the considered opinion that there is no material on record that necessitates the continuance of the criminal proceedings against the petitioner. In view of this the present petition is allowed and the criminal proceedings titled “State versus Ghulam Mohammed & Anr” pending before the court of learned Principal Sessions Judge Kishtwar are quashed qua the petitioner only and the proceedings against the Ghulam Mohd shall continue. Bail App No. 253 2021 11. Since the petition has been allowed and the charge sheet filed against the petitioner before the trial court has been quashed therefore the application has been rendered infructuous. Hence dismissed. JUDGE Sahil Padha

Bhagwan Jagannath Markad&Ors Vs State of Maharashtra

“The principle of criminal jurisprudence that the burden of proof is always on the prosecution and the accused is presumed to be innocent unless proven guilty.” In the present case, according to the prosecution, one Bibhishan Vithoba Khadle has been murdered and six persons have been injured being Indubai, PW11 Dagadu Gopinath Koyale, PW18 Chaturbhuj Khade, PW15 Bibhishan Kshirsagar, Gopinath Mahadev Koyale and PW12 Kernath Koyale in the attack by the accused. As per the FIR lodged by PW10 Satyabhama, the deceased and all the injured people along with others were present in their house on the date of 13.11.1988 at 12 noon when all the accused came there to attack her husband.Accused No.3 put the house on fire on account of which everyone came out. Then, all the accused persons attacked the victims family with knives, sticks, barchis, iron rods, axes, swords etc. PW11 fell down on the account of beating and became unconscious. Accused no. 3-7 then caused beating to the deceased Bibhishan Vithoba Khade. The occurrence was a result of the enmity of party faction in Panchayat and Co-operative Society elections. It was also mentioned that one of the injured and the deceased person were carried on a bullock cart to the main road and thereafter they were carried in the jeep. The procedural history is:After the registration of FIR, investigation was carried out and charge-sheet was submitted before the court. The accused denied the charge. However, accused no.5 stated that PW11 Dagadu told him that he should not contest the election to which he replied that PW11 had been Sarpanch for 10-12 years and thus, accused should be allowed to become Sarpanch which caused the assault.The prosecution relied upon the eyes witness account rendered by several PWs also, it relied on the findings of PW4 and PW5 who were doctors who conducted the post-mortem and the treatment respectively. However, the trial court rejected the prosecution version for reasons being that recovery was not admissible as the location of the articles recovered was already known, the prosecution did not examine Indubai and Gopinath, motive was not established and that all the material witnesses are either related or otherwise interested and their testimony could not be accepted in absence of corroboration in material particulars.PROCEDURAL HISTORY:The High Court observed that acquital by the trial court was based on omissions and contradictions which were not material and did not affect the veracity of the prosecution case. Learned counsel on behalf of the appellants argued that judgment of acquittal rendered by the trial court was certainly a possible view on appreciation of evidence and the High Court could not reverse the same as there was no perversity.It was also submitted that since the incident was 28 years old, some of the appellants have become very old and ought not to be convicted at this stage.ISSUE BEFORE THE COURT:Whether the trial court’s acquittal of the accused people justified?Whether the High court was justified in convicting some of the accused?Whether a cryptic message can be treated as an FIR? RATIO OF THE COURT:The court found that it is accepted principle of criminal jurisprudence that the burden of proof is always on the prosecution and the accused is presumed to be innocent unless proven guilty. The prosecution has to prove its case beyond reasonable doubt and the accused is entitled to the benefit of the reasonable doubt. The doubt which the law contemplates is not of a confused mind but of prudent man who is assumed to possess the capacity to “separate the chaff from the grain”. The degree of proof need not reach certainty but must carry a high degree of probability.While appreciating the evidence of a witness, the court has to assess whether read as a whole, it is truthful. In doing so, the court has to keep in mind the deficiencies, drawbacks and infirmities to find out whether such discrepancies shake the truthfulness. Section 155 of the Evidence Act enables the doubt to impeach the credibility of the version of a witness by proof of former inconsistent statement. Section 145 of the Evidence Act lays down the procedure for contradicting a witness by drawing his attention to the part of previous statement which is to be used for contradiction.The court found that a relation may not conceal the actual culprit.  The evidence may be closely scrutinized to assess whether an innocent person is falsely implicated Mechanical rejection of evidence even of a ‘partisan’ or ‘interested’ witness may lead to failure of justice. It is well known that principle “falsus in uno, falsus in omnibus” has no general acceptability. A judge presides over the trial not only to ensure that no innocent is punished but also to see that guilty does not escape.In Anand Mohan versus State of Bihar while referring to Section 154 Cr.P.C., this Court observed that every cryptic information, even if not signed by the person giving the information, cannot be treated as FIR. The information should sufficiently disclose the nature of the offence and the manner in which the offence was committed.In Sk. Ishaque v. State of Bihar [(1995) 3 SCC 392] Gulabi Paswan gave a cryptic information at the police station to the effect that there was a commotion at the village as firing and brickbatting was going on and this Court held that this cryptic information did not even disclose the commission of a cognizable offence nor did it disclose who were the assailants and such a cryptic statement of Gulabi Paswan cannot be treated to be an FIR within the meaning of Section 154 CrPC.The court referred to the above settled principles as the trial court has adopted perverse approach in rejecting the entire evidence comprising of injured eye witnesses when one person has been killed and six others have been injured. The said accused himself is injured which proves that he was present at the scene of occurrence. Except for some contradictions, the version of eye witness PWs 10,11,15,12 and 18 is consistent. There is no reason to reject the said version. Of course, the court has to be cautious in appreciating evidence and rule out exaggeration.Applying the above principles to the present case, it is clear that all the five eye witnesses have named A1 to A7. Other accused have not been named by PW11 and PW18. By way of abundant caution, we give benefit of doubt to A10 and A11 for the reason that PW10 has attributed specific role only to A1 to A7. DECISION HELD BY COURT:In view of the above facts, the court partly allowed to the extent that appellant no.7 and 8 are given benefit of doubt and are acquitted. They be released from custody, if not required in any other case. Appeal of other appellants is dismissed.However, appellant no.5 and 6 will continue to remain on bail for one month and if they make an application for remission of the remaining sentence on the ground of advanced age within one month, they will continue to remain on bail thereafter till the decision of the said application by the appropriate authority.If their application for remission is not accepted, they will surrender to serve out the remaining sentence.

Bhagwan Jagannath Markad & Ors vs State Of Maharashtra on 4 October 2016 Supreme Court of India Bhagwan Jagannath Markad & Ors vs State Of Maharashtra on 4 October 2016 Author: A K Goel Bench: V. Gopala Gowda Adarsh Kumar Goel REPORTABLE IN THE criminal APPELLATE JURISDICTION criminal APPEAL NO.1516 OF 2011 bhagwan jagannath markad ors. APPELLANTs VERSUS state of maharashtra ... RESPONDENT JUDGMENT ADARSH KUMAR GOEL J 1. The appellants are aggrieved by the judgment and order dated 20th April 2007 passed by the High Court of Judicature at Bombay in Criminal Appeal No.5390 whereby they have been convicted under Sections 147 149 302 read with Sections 149 324 and 326 of the Indian Penal Code and sentenced to undergo imprisonment for life apart from other lesser sentences which are to run concurrently and payment of fine setting aside their acquittal by the trial court 2. Originally there were 16 accused namely: 1) Bhagwan Jagannath Markad 2) Janardhan Rambhau Tate 3) Dada Sayyednoor Mulani 4) Sayyed Sayyadnoor Mulani 5) Sandipan Sakhara Koyale 6) Nivrutti Sakharam Koyale 7) Krishna Sakharam Koyale 8) Shailendra Sandipan Koyale 9) Chandrakant Shankar Markad 10) Babu Rama Berad 11) Balu Naradeo Berad 12) Manik Rama Berad 13) Pandurang Babu Arade 14) Sadashiv Shahu Arade 15) Kisan Rama Berad and 16) Appa Shabu Arade Indian Kanoon Bhagwan Jagannath Markad & Ors vs State Of Maharashtra on 4 October 2016 3. The trial court acquitted all the accused. The High Court upheld acquittal of accused Nos. 8 9 12 13 14 15 and 16 4. Accused No.2 is reported to have died. Thus eight appellants are before this Court. They are A1 Bhagwan Jagannath Markad A3 Dada Sayyednoor Mulani A4 Sayyed Sayyadnoor Mulani A5 Sandipan Sakhara Koyale A6 Nivrutti Sakharam Koyale A7 Krishna Sakharam Koyale A10 Babu Rama Berad and A11 Balu Naradeo Berad respectively 5. According to the prosecution one Bibhishan Vithoba Khadle has been murdered and six persons have been injured being Indubai PW11 Dagadu Gopinath Koyale PW18 Chaturbhuj Khade PW15 Bibhishan Kshirsagar Gopinath Mahadev Koyale and PW12 Kernath Koyale in the attack by the 6. As per the prosecution version recorded in the FIR lodged by PW10 Satyabhama her husband PW11 Dagadu Gopinath Koyale father in law Gopinath Koyale deceased Bibhishan Vithoba Khadle PW18 Chaturbhuj Khade PW15 Bibhishan Kshirsagar along with others were present in their house on the date of the occurrence on 13th November 1988 at 12.00 noon when all the accused came there to attack her husband. Accused No.3 Dada Sayyednoor Mulani put the house on fire on account of which everyone came out. Accused Nos.1 and 2 Bhagwan Jagannath Markad and Janardhan Rambhau Tate attacked Dagadu with swords on hands legs and knees. Accused No.3 Dada Sayyednoor had barchi. Accused No.4 Sayyed Sayyadnoor Mulani had knife. Accused No.5 Sandipan Sakharam Koyale had iron rods. Accused No.6 Nivrutti Sakharam Koyale had barchi Accused No.7 Krishna Sakharam Koyale had axe. Accused No.10 and 11 Babu Rama Berad and Balu Naradeo Berad had axe. Accused No.8 Shailendra Sandipan Koyale had sticks. PW11 Dagadu fell down on account of beating and became unconscious. Accused No.3 Dada Sayyednoor accused No.4 Sayyed Sayyadnoor Mulani accused No.5 Sandipan Sakharam Koyale accused No.6 Nivrutti Sakharam Koyale accused No.7 Krishna Sakharam Koyale caused beating to the deceased Bibhishan Vithoba Khade. Accused Nos.1 and 2 Bhagwan Jagannath Markad and Janardhan Rambhau Tate also attacked deceased Bibhishan Vithoba Khadle. The accused then beat PW11 Dagadu Gopinath Koyale and PW18 Chaturbhuj Khade with sticks and swords. The occurrence was a result of the enmity on account of party faction in Panchayat and Co operative Society elections 7. In the statement before the court apart from repeating above version PW10 Satyabhama further stated that a bullock cart was arranged to carry injured Dagadu and the deceased Bibhishan Vithoba Khade upto the main road and thereafter they were carried in a jeep. On the way the FIR was lodged at 5.30 p.m. and thereafter the injured and the deceased were taken to the PHC and then to the civil hospital. PW11 Dagadu remained in the hospital for three to four months and thereafter in private hospital for two to three months 8. After registering the FIR investigation was carried out and charge sheet was submitted before the Court. The accused denied the charge. Accused No.5 Sandipan Sakharam however stated that he was called by Dagadu through deceased Bibhishan Vithoba Khade to his place where PW18 Chaturbhuj Khade and PW12 Kernath Koyale were also present. PW11 Dagadu told him that he should not contest the election. The said accused however replied that PW11 Dagadu had been Indian Kanoon Bhagwan Jagannath Markad & Ors vs State Of Maharashtra on 4 October 2016 Sarpanch for 10 12 years and thus accused should be allowed to become Sarpanch. This led to inter se assault between PW11 Dagadu and deceased Bibhishan Vithoba Khade and the said accused was also assaulted by PW11 Dagadu 9. The prosecution led evidence comprising of medical evidence recovery of material objects eye witnesses and the investigation. We will make reference only to the relevant evidence on record PW4 Dr. Shravan Gavhane conducted the post mortem on the body of the deceased and found seven injuries. Injury No.1 was on the head which was found to be fatal. Injuries Nos. 2 to 7 were said to be with hard and blunt object like sticks or swords. PW5 Dr. Dinesh Kumar examined the injured PW11 Dagadu and found 10 injuries which included eight incised wounds two injuries on Gopinath Mahadev Koyale one contused wound on PW18 Chaturbhuj Khade three injuries on Murlidhar Yeshu Kshirsagar. He also found one incised wound on the right forearm of accused No.5 Sandipan Sakharam. He found two injuries on Bibhishan PW15 10. The prosecution relied upon the eye witness account rendered by PW10 Satyabhama PW11 Dagadu PW15 Bibhishan Kshirsagar PW18 Chaturbhuj Khade PW12 Kernath Koyale. PW2 Shivaji Fuge PW3 Yuvraj Koyale PW7 Bhimrao and PW9 Bhimrao Dhavale are witnesses to the recovery in pursuance of the statements under Section 27 of the Evidence Act. The Chemical Analysers report was also produced about the blood group on some of the recovered articles 11. The trial Court rejected the prosecution version inter alia for following reasons i) Recovery was not admissible as the location of the articles recovered was already known ii) There was inordinate delay in sending the case property to the Chemical Analyser and possibility of tempering was not ruled out iii) There was inconsistency in the evidence of PWs Kernath Koyale Bibhishan Vithoba Khadle and Chaturbhuj Khade in the manner of assault and the weapon used iv) The prosecution did not examine Indubai and Gopinath v) Motive was not established as there was no immediate election of the Panchayat or of the Cooperative Society vi) There was improvement in the version initially given to the police and the version put forward before the Court and vii) All the material witnesses are either related or otherwise interested and their testimony could not be accepted in absence of corroboration in material particulars 12. The High Court observed that acquittal by the trial court was based on omissions and contradictions which were not material and did not affect the veracity of the prosecution case. Thus the trial Court adopted a totally perverse approach. It was observed Indian Kanoon Bhagwan Jagannath Markad & Ors vs State Of Maharashtra on 4 October 2016 32. It is true that there are contradictions and omissions but none of them according to us is vital or material. They are regarding the particulars. When 7 8 persons are injured and assailants are about 16 then these omissions are bound to be there. They are natural omissions and contradictions and the most important fact that wipes out the effect of these contradictions and omissions is that many persons from the side of complainant had received injuries so also accused No.5 33. This is not a case of exercising the right of self defence of the accused. No such plea was raised before us nor from the case of the prosecution any such plea can be permitted to be raised directly or indirectly by the accused. The accused are aggressors. They have launched attack while persons from the complainants side had assembled to celebrate their Diwali. Vasti was set to fire. Bibhishan Khade died in the said attack and many persons from the side of complainant had received injuries The assault was by deadly weapons like sword barchi knife gupti and sticks. This was therefore not a case of clear cut acquittal of all the 16 accused. No further corroboration is necessary Investigation is prompt and swift and even if other evidence regarding recovery of incriminating articles is not considered the oral evidence and ocular evidence of the aforesaid witnesses i.e P.W.10 11 12 13 15 and 18 and others discussed by us including those two doctors fully prove the prosecution case. The findings of the trial Court are totally perverse and therefore this appeal is required to be allowed but to what extent and against which of the accused is the question. The close scrutiny of the evidence of eye witnesses particularly P.W.10 11 15 and 18 shows that P.W.10 has implicated accused Nos.1 2 3 5 6 7 10 and 11. P.W.11 has implicated accused Nos.1 2 3 4 5 6 7 and according to P.W.11 accused No.3 set fire to the Vasti. P.W.15 has implicated accused Nos.1 2 3 4 5 6 10 and 11. P.W. 18 has implicated accused Nos.1 2 3 5 6 7 and according to him accused No.3 set fire to the Vasti. Presence of accused No.5 Sandipan at the spot is fully proved apart from other evidence because of the injuries suffered by him. There are in all 16 accused Considering the aforesaid evidence this appeal against acquittal has to be allowed in respect of accused Nos.1 2 3 4 5 6 7 10 and 11 and their acquittal is required to be set aside. So far as accused Nos.8 9 12 13 14 15 and 16 are concerned their acquittal is required to be upheld. Undoubtedly the accused Nos.1 to 7 and 10 and 11 had formed an unlawful assembly with a common object of launching an assault. The house or vasti of Dagadu was set to fire. In the attack Bibhishan Khade died and P.W.11 15 and 18 and others received injuries by deadly weapons. Therefore for causing death of Bibhishan Khade the accused are required to be held guilty under Section 302 read with Section 149 of the Indian Penal Code and for causing severe injuries to the aforesaid prosecution witnesses and others they are required to be held guilty under Sections 324 and 326 r w 149 of the Indian Penal Code. So far as offence under Section 436 of the Indian Penal Code is concerned the evidence of the prosecution witnesses is not consistent and therefore nobody can be convicted under that section 13. We have heard learned counsel for the appellants on the one hand as also learned counsel for the State and the complainant on the other and with their assistance gone through the material on 14. Main contention raised on behalf of the appellants is that the judgment of acquittal rendered by the trial Court was certainly a possible view on appreciation of evidence and the High Court could not reverse the same as there was no perversity. The High Court has not fully discussed the evidence Indian Kanoon Bhagwan Jagannath Markad & Ors vs State Of Maharashtra on 4 October 2016 nor dealt with the reasons recorded by the trial Court for rejecting the prosecution version. There was no explanation for the injury suffered by accused No.5. There are omissions and contradictions in the version of the prosecution witnesses. In the first version given by PW 12 the accused have not been named and instead of recording the said version as FIR it was on belated statement of PW 10 which was an improved version that the FIR was registered. The omissions in the statement made to the police amount to contradictions as per explanation to Section 162 Cr.P.C. Thus the evidence of eye witnesses PWs10 11 12 15 and 18 has been rightly rejected by the trial court and could not be relied upon by the High Court. Since there was enmity between the parties there was possibility of exaggeration and false implication and it was not safe to convict the appellants. It was also submitted that since the incident was 28 years old some of the appellants have become very old and ought not to be convicted at this stage. Reliance has been placed on the judgments of this Court in Padam Singh versus State of U.P.[1] Devatha Venkataswamy versus Public Prosecutor High Court of A.P.[2] Narendra Singh versus State of M.P.[3] Prasanna Das versus State of Orissa[4] Majjal versus State of Haryana[5] Lalita Kumari versus Govt. of U.P.[6] and Baby alias Sebastian versus Central Inspector of Police[7 15. On the other hand learned counsel for the State and the complainant supported the judgment of the High Court and pointed out that the reasons for acquittal by the trial court were perverse and the High Court has duly dealt with the said reasons and found them to be perverse. There is consistent evidence of injured eye witnesses which could not be altogether brushed aside Contradictions and omissions which are not vital or material are bound to be there in every case The same did not affect the credibility of the main version that the accused caused the death of the deceased and injuries to six persons on the complainant side. The accused formed unlawful assembly and action of even one accused in prosecution of common object of the unlawful assembly or which was known to likely to be so committed was action of all the accused in law. It was not necessary to prove individual role of different accused. The information by PW12 on telephone was cryptic and could not be treated as FIR. Therein though name of accused No.5 was mentioned and it was further stated that he was accompanied by others also other details were not mentioned. This was not at par with the statement to be recorded by the officer in charge of the Police Station under Section 154 CrPC which can be treated as FIR. Thus the telephonic message could not be treated as FIR. The statement of PW 10 made in the Police Station has rightly been treated as FIR. The said statement was prompt and could not be treated as an improved version. The statement was corroborated by sworn testimony of the author of the FIR before the Court which has been corroborated in all material particulars by four other injured witnesses. Thus the evidence on record fully warranted conviction of the appellants and no interference was called for by this Court Reliance has been placed on the judgments of this Court in Damodar versus State of Rajasthan[8] Mano Dutt & Anr. Versus State of Uttar Pradesh[9] Sanjeev versus State of Haryana[10] A Shankar versus State of Karnataka[11] State of Karnataka versus Suvarnamma & Anr.[12] Bava Hajee Hamsa versus State of Kerala[13] Patai Alias Krishna Kumar versus State U.P.[14] Ravishwar Manjhi versus State of Jharkhand[15] T.T. Antony versus State of Kerala[16 16. We have given due consideration to the rival submissions. The question for consideration is whether the High Court was justified in reversing the acquittal of the appellants on the basis of evidence available on record Indian Kanoon Bhagwan Jagannath Markad & Ors vs State Of Maharashtra on 4 October 2016 17. Before considering this aspect with reference to the evidence on record we may advert to the settled principles of law dealing with the issues arising in the present case. The approach to be adopted by the court generally in appreciating the evidence in a criminal case as also the approach of the appellate court is discussed in several decisions of this Court some of which have been cited by learned counsel for the parties 18. It is accepted principle of criminal jurisprudence that the burden of proof is always on the prosecution and the accused is presumed to be innocent unless proved guilty. The prosecution has to prove its case beyond reasonable doubt and the accused is entitled to the benefit of the reasonable doubt. The reasonable doubt is one which occurs to a prudent and reasonable man. Section 3 of the Evidence Act refers to two conditionswhen a person feels absolutely certain of a fact believe it to exist andwhen he is not absolutely certain and thinks it so extremely probable that a prudent man would under the circumstances act on the assumption of its existence. The doubt which the law contemplates is not of a confused mind but of prudent man who is assumed to possess the capacity to separate the chaff from the grain. The degree of proof need not reach certainty but must carry a high degree of probability[17 19. While appreciating the evidence of a witness the court has to assess whether read as a whole it is truthful. In doing so the court has to keep in mind the deficiencies drawbacks and infirmities to find out whether such discrepancies shake the truthfulness. Some discrepancies not touching the core of the case are not enough to reject the evidence as a whole. No true witness can escape from giving some discrepant details. Only when discrepancies are so incompatible as to affect the credibility of the version of a witness the court may reject the evidence. Section 155 of the Evidence Act enables the doubt to impeach the credibility of the witness by proof of former inconsistent statement. Section 145 of the Evidence Act lays down the procedure for contradicting a witness by drawing his attention to the part of the previous statement which is to be used for contradiction. The former statement should have the effect of discrediting the present statement but merely because the latter statement is at variance to the former to some extent it is not enough to be treated as a contradiction. It is not every discrepancy which affects creditworthiness and trustworthiness of a witness. There may at times be exaggeration or embellishment not affecting credibility. The court has to sift the chaff from the grain and find out the truth. A statement may be partly rejected or partly accepted[18]. Want of independent witnesses or unusual behavior of witnesses of a crime is not enough to reject evidence. A witness being a close relative is not enough to reject his testimony if it is otherwise credible. A relation may not conceal the actual culprit. The evidence may be closely scrutinized to assess whether an innocent person is falsely implicated. Mechanical rejection of evidence even of a partisan or interested witness may lead to failure of justice. It is well known that principle falsus in uno falsus in omnibus has no general acceptability[19]. On the same evidence some accused persons may be acquitted while others may be convicted depending upon the nature of the offence. The court can differentiate the accused who is acquitted from those who are convicted. A witness may be untruthful in some aspects but the other part of the evidence may be worthy of acceptance. Discrepancies may arise due to error of observations loss of memory due to lapse of time mental disposition such as shock at the time of occurrence and as such the normal discrepancy does not affect the credibility of a witness Indian Kanoon Bhagwan Jagannath Markad & Ors vs State Of Maharashtra on 4 October 2016 20. Exaggerated to the rule of benefit of doubt can result in miscarriage of justice. Letting the guilty escape is not doing justice. A Judge presides over the trial not only to ensure that no innocent is punished but also to see that guilty does not escape.[20 21. An offence committed in prosecution of common object of an unlawful assembly by one person renders members of unlawful assembly sharing the common object vicariously liable for the offence The common object has to be ascertained from the acts and language of the members of the assembly and all the surrounding circumstances. It can be gathered from the course of conduct of the members. It is to be assessed keeping in view the nature of the assembly arms carried by the members and the behavior of the members at or near the scene of incident. Sharing of common object is a mental attitude which is to be gathered from the act of a person and result thereof. No hard and fast rule can be laid down as to when common object can be inferred. When a crowd of assailants are members of an unlawful assembly it may not be possible for witnesses to accurately describe the part played by each one of the assailants. It may not be necessary that all members take part in the actual assault[21]. In Gangadhar Beherathis Court observed 25. The other plea that definite roles have not been ascribed to the accused and therefore Section 149 is not applicable is untenable. A four Judge Bench of this Court in Masalti caseobserved as follows 15. Then it is urged that the evidence given by the witnesses conforms to the same uniform pattern and since no specific part is assigned to all the assailants that evidence should not have been accepted. This criticism again is not well founded. Where a crowd of assailants who are members of an unlawful assembly proceeds to commit an offence of murder in pursuance of the common object of the unlawful assembly it is often not possible for witnesses to describe accurately the part played by each one of the assailants. Besides if a large crowd of persons armed with weapons assaults the intended victims it may not be necessary that all of them have to take part in the actual assault. In the present case for instance several weapons were carried by different members of the unlawful assembly but it appears that the guns were used and that was enough to kill 5 persons. In such a case it would be unreasonable to contend that because the other weapons carried by the members of the unlawful assembly were not used the story in regard to the said weapons itself should be rejected. Appreciation of evidence in such a complex case is no doubt a difficult task but criminal courts have to do their best in dealing with such cases and it is their duty to sift the evidence carefully and decide which part of it is true and which is not 22. We have referred to the above settled principles as the trial court has adopted perverse approach in rejecting the entire evidence comprising of injured eye witnesses when one person has been killed and six others have been injured. The trial court ignored the above principles by mechanically rejecting the evidence of all the witnesses by finding one or the other contradiction. The occurrence has taken place in broad day light. One of the accused himself mentioned about the enmity on account of the panchayat election. The said accused himself is injured which proves his presence at the scene of the occurrence. This version further shows the presence of deceased and the injured But his version fails to explain as to why the deceased would have been killed by PW11 when the deceased was the messenger of PW11 himself. Except for some contradictions the version of eye Indian Kanoon Bhagwan Jagannath Markad & Ors vs State Of Maharashtra on 4 October 2016 witnesses PWs 10 11 15 12 and 18 is consistent. There is no reason to reject the said version. Of course the court has to be cautious in appreciating evidence and rule out exaggeration 23. We may also note that version of A5 is not probable and mere fact that injury on him is not explained is not enough to reject the prosecution version. In such a case the Court is to examine whether evidence is trustworthy. This aspect has been repeatedly examined by this Court and settled law is that non explanation of injuries on accused is an important circumstance which requires the court to satisfy itself that true version is not suppressed and whether defence version is probable[22][24]. This by itself is not enough to reject the prosecution case 24. To demonstrate that the approach of the trial court is outrightly perverse some of the observations are put in But in general terms she has stated that accused came with weapons. Similarly it is admitted by her during the cross examination that she has not stated assault by particular accused on the person of Bibhishan Khade. But she has stated in general terms that Bibhishan was assaulted by the accused Moreover it is to be noted that she has admitted that Dagadu and Bibhishan were assaulted by said weapons like cutting a wood by an axe sword and barchi. But there is no piercing wound or cut injury on the person of deceased Bibhishan as well as Dagadu Moreover it is in her complaint that she had been to the vasti of Murlidhar and Bibhishan Kshirsagar to hand over the break fast to Dagadu. But the evidence of PWs and Dagadu and other eye witnesses disclose that they all had been to the house of Murlidhar Kshirsagar for Diwali snacks and there Dagadu invited for meals in the noon time. Hence all the eye witnesses mentioned above had been to the vasti of Dagadu. But P.W. Dagadu Kernath P.W. Bibhishan Kshirsagar and P.W Chaturbhuj disclose that they were called for the Diwali snacks and not for meals in the house of Dagadu. It is to noted that if Dagadu was invited for Diwali snacks in the house of Murlidhar kshirsagar then there was no necessity to take breakfast for Dagadu to the house of Murlidhar Kshirsagar. Considering all the aspects the evidence of the complaint cannot be accepted 25. Similar is the appreciation by the trial court of other witnesses. Since rejection of eye witness account is uncalled for other reasons given by trial court are not sufficient to reject the prosecution case. Even if recoveries or Chemical Analyzers report are disregardedly the same have only corroborative value prosecution case is established by credible eye witness account. Mere fact that some of the witnesses have not been examined is also of no consequence when credible evidence to prove the case has been produced. We thus find that the High Court rightly reversed the trial Court 26. One of the submission of learned counsel for the appellants is that telephonic message by PW12 recorded at the police station should have been treated as FIR. We have been taken through the said message which is to the effect that A5 and other accused assaulted the complainant party. Learned counsel relied upon the observation in Lalita Kumarito the effect that a GD Entry can also be treated as FIR in an appropriate case. From the said observation it cannot be laid down that Indian Kanoon Bhagwan Jagannath Markad & Ors vs State Of Maharashtra on 4 October 2016 every GD Entry or every cryptic information must be treated as FIR. In Anand Mohan versus State of Bihar[25] while referring to Section 154 Cr.P.C. this Court observed that every cryptic information even if not signed by the person giving the information cannot be treated as FIR. The information should sufficiently disclose the nature of the offence and the manner in which the offence was committed. It was observed 50. In Sk. Ishaque v. State of Bihar3 SCC 392] Gulabi Paswan gave a cryptic information at the police station to the effect that there was a commotion at the village as firing and brickbatting was going on and this Court held that this cryptic information did not even disclose the commission of a cognizable offence nor did it disclose who were the assailants and such a cryptic statement of Gulabi Paswan cannot be treated to be an FIR within the meaning of Section 154 CrPC 51. Similarly in Binay Kumar Singh v. State of Bihar1 SCC 283] information was furnished to the police in Ext. 10 3 by Rabindra Bhagat that the sons of late Ram Niranjan Sharma along with large number of persons in his village had set fire to the houses and piles of straws and had also resorted to firing. This Court held that Ext. 10 3 is evidently a cryptic information and is hardly sufficient to discern the commission of any cognizable offence therefrom 27. Similar view has been taken by this Court in DamodarT.T. AntonyPatai Alias Krishna Kumarand Ravishwar ManjhiDevatha VenkataswamyNarendra SinghPrasanna DasMajjalLalita Kumariand Baby supra) for exercise of appellate jurisdiction have not been followed. The appellate court should deal with reasons for acquittal and interfere only if acquittal is perverse. There is no doubt about the proposition that the appellate court has to arrive at an independent conclusion about the credibility of the evidence and to re appreciate the evidence to arrive at a just conclusion. If the appellate court is to reverse the judgment of the trial court the reasoning of the trial court has to be adverted to and reversal of acquittal is permissible only if the view of the trial court is not only erroneous but also unreasonable and perverse. At the same time the appellate court has full power to review the evidence and to reach at its own conclusion. The appellate court can set aside the acquittal if the acquittal is not justified. Of course the appellate court has to consider the fact that the trial court has the benefit of seeing the witnesses in the witness box and the presumption of innocence is not weakened by the acquittal. If two reasonable conclusions can be reached the appellate court should not disturb the finding of the trial court. In the present case the High Court has followed the above 29. In Bava Hajee Hamsawhile approving the reversal of acquittal by the High Court it was held that erroneous approach of the trial Court led to misdirection in appraising the evidence and the High Court was justified in rejecting the approach of the trial court and in analyzing the evidence in its own way. This Court observed : 30. We agree with the High Court that the very scheme of approach adopted by the trial Judge was faulty and misleading. It led to aberration and misdirection in appraising evidence and vitiated his conclusions. The learned trial Judge started correctly when Indian Kanoon Bhagwan Jagannath Markad & Ors vs State Of Maharashtra on 4 October 2016 on a broad look of the evidence he found the evidence of PWs 1 8 and 9 prima facie acceptable. But after the second lap of discussion he became sceptical and reversed his mind at the end of the third round of circumgyratory discussion. In such cases where large number of persons are involved and in the commotion some persons cause injuries to others and the evidence is of a partisan character it is often safer for the Judge of fact to be guided by the compass of probabilities along the rock ribbed contours of the case converging on the heart of the matter. Once the court goes astray from the basic features of the case it is apt to lose itself in the labyrinths of immaterial details desultory discussion and vacillation arising from unfounded suspicions. This is exactly what has happened in the instant case. Despite the pains taken and the conscentious effort put in to write an elaborate judgment the trial Judge had as it were missed the wood for the trees. The learned Judges of the High Court were therefore right in discarding altogether the basically wrong scheme of approach adopted by the trial court and in analysing the evidence in their own way 30. As already observed the discrepancies of trivial nature could not be the basis of rejecting the evidence of injured eye witnesses nor non examination of some of the witnesses be a ground to reject the prosecution case when injured eye witnesses were examined 31. We may also refer to the judgment of this Court in Masalti versus State of U.P.[26] to the effect that the evidence of interested partisan witnesses though required to be carefully weighed the same could not be discredited mechanically. When a crowd of unlawful assembly commits an offence it is often not possible to accurately describe the part played by each of the assailants. Though the appreciation of evidence in such cases may be a difficult task the court has to perform its duty of sifting the evidence carefully 32. Applying the above principles to the present case it is clear that all the five eye witnesses have named A1 to A7. Other accused have not been named by PW11 and PW18. By way of abundant caution we give benefit of doubt to A10 and A11 for the reason that they have not been named by PW11 and PW18 and also for the reason that PW10 has attributed specific role only to A1 to A7. But as far as A1 to A7 are concernedall the five witnesses have consistently named them. A1 to A7 have been assigned specific role in assaulting the deceased. Their conviction and sentence under Section 302 149 of the IPC has to be upheld 33. For the above reasons this appeal is partly allowed to the extent that appellant Nos.7 and 8 Babu Rama Berad and Balu Naradeo Berad) are given benefit of doubt and are acquitted. They be released from custody if not required in any other case. Appeal of other appellants is dismissed However appellant Nos.5 and 6will continue to remain on bail for one month and if they make an application for remission of the remaining sentence on the ground of advanced age within one month they will continue to remain on bail thereafter till the decision of the said application by the appropriate authority. If their application for remission is not accepted they will surrender to serve out the remaining sentence V. GOPALA GOWDA ) J Indian Kanoon Bhagwan Jagannath Markad & Ors vs State Of Maharashtra on 4 October 2016 ADARSH KUMAR GOEL ) New Delhi october 04 2016 1](2000) 1 SCC 621[4]10 SCC 700[6]10 SCC 699[8]13 SCC 30[10]6 SCC 798[12]2 SCC 1[14]7 Scale 444[16]12 SCC 336[18]4 SCC 79[20]4 SCC 387[22]6 SSC 279[24 2015) 1 SCC 323[26]4 SCC 479[28]4 SCC 429[30]16 SCC 561[32]6 SCC 181[34]Vijayee Singh vs. State of U.P. 3 SCC 190 Paras18 28 30[36] Leela Ram vs. State of Haryana9 SCC 525 paras 9 13[38] Gangadhar Behera vs. State of Orissa8 SCC 381 para 15[40] Gangadhar Beherapara 17 41]Gangadhar Beheraparas 22 24[44] Vijayee Singhpara 9[46 2001) 6 SCC 145 Takhaji Hiraji vs. Thakore Kubersing Chamansing[48]4 SCC 79 Mano Dutt vs. State of U.P 49](2012) 7 SCC 225[52]8 SCR 133 Indian Kanoon

Inquest report not substantive evidence for ascertaining cause of death : Supreme Court

In a criminal case, inquest report by the police cannot be considered as a substantive evidence when a person dies under suspicious circumstances and object of court is to ascertain apparent cause of death was upheld in the Supreme Court of India through the learned division bench led by HONOURABLE MR. JUSTICE SANJAY KISHAN KAUL and HONOURABLE MR. JUSTICE MM SUNDRESH in the case of Pappu Tiwari v. State of Jharkhand (Criminal Appeal No. 1492 of 2021). Brief facts of the case are that the accused Pappu Tiwari allegedly shot at the late Vikas Kumar Singh, who was on his way for the same reason. The other accused then allegedly injured Singh using a knife and he died. The defendants were charged with murder. The inquest report failed to identify the gunshot injury but post mortem depicted that the cause of death was from shock and bleeding caused by vital and multiple injuries. Injuries were defined as one and two firm arm injuries. The counsel for appellant contended that There were great differences between the investigation report and the autopsy report. An attempt was made to relate this issue to the claim that the FIR was pre-timed. It was stated that there were differences in the version, showing that Fardbeyan was admitted only after the autopsy report. In addition, six injuries were mentioned without a gunshot wound in the investigation report, while the autopsy report stated that there were 26 injuries including gunshot wounds. The counsel for respondent contended that the investigation report cannot be considered as the main evidence, but it can be used to oppose the investigation witness. He argued that the investigation report was not in itself evidence and that the testimony of the medical witness in court could not be challenged. The Supreme Court of India held the investigation report is not substantive evidence as its purpose is to reveal only the apparent cause of death of the suspiciously deceased person, the differences between the investigation report and the autopsy report, even if these differences are large, are not fatal to the prosecution case. The court said that since the expert was the doctor who performed the autopsy and he was a forensic expert, he did not suspect that it was a murder case.Two gunshot wounds were clearly identified by detecting wounds at entry and exit. Therefore, the Court dismissed the appeal. Click here to read the judgement

IN THE CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.1492 OF 2021 …Appellant Versus STATE OF JHARKHAND …Respondent CRIMINAL APPEAL NO.1202 1203 OF 2014 LAW TIWARI @ UPENDRA KUMAR TIWARI … Appellant THE STATE OF JHARKHAND …Respondent JUDGMENT SANJAY KISHAN KAUL J On 07.03.2000 at about 1:00 p.m. Vikas Kumar Singh aged about 22 years was going from his house towards Bhandar for performing physical exercise. It is the case of the prosecution that based on the fardbeyan of his younger brother Pankaj Kumar Singh which was recorded at Sadar Hospital Garhwa at 2:00 p.m. when Vikas Kumar Singh reached in front of the house of Ramadhar Ram all of a sudden six person who were sitting on the road surrounded him namely Pappu TiwariSanjay Ram Uday Pal Ajay Pal Pintu Tiwari and Law Tiwari and Section 27 of the Arms Act 1959against the six named accused persons Assistance Sub Inspector Rajnikant Jha prepared an inquest report but failed to identify the fire arm injury. The post mortem was conducted by Dr. Mahesh Prasad Singh Medical Officer Sub Divisional Hospital Garhwa and the cause of death was opined due to shock and haemorrhage caused by vital and multiple injuries. Injuries one and two were identified as firm arm injuries. The Maruti van was subsequently recovered on 09.03.2000. All the accused were arrested albeit Law @ Upendra Tiwari was arrested on 16.03.2000 On investigation being completed the chargesheet was submitted on 02.06.2000 against all the six persons under Sections 302 and 34 of the IPC and Section 27 of the Arms Act and cognizance of the offence was taken on the same date. The case was committed to the court of Sessions Judge on 26.07.2000 where all six accused persons were charged under Section 302 read with Section 34 of the IPC and Pappu Tiwari was additionally charged under Section 27 of the Arms Act In the course of Sessions Trial No.159 2001 the prosecution examined 22 witnesses and the defence examined two witnesses. In terms of the judgment dated 27.05.2002 all the accused persons were convicted as charged and in terms of order dated 28.05.2002 they were sentenced to undergo imprisonment for life. Pappu Tiwari was additionally sentenced to undergo rigorous imprisonment for three years under Section 27 of the Arms Act The challenge to the judgment of the trial court was laid by two separate appeals. Law Tiwari and Pintu Tiwari jointly filed Criminal Appeal No.242 2002 while the remaining four convicts filed Criminal Appeal No.398 2002. The High Court of Jharkhand vide a common judgment dated 07.05.2012 affirmed the judgment of conviction of the trial court against all the six convicts. However in pursuance of an inquiry conducted by the learned Chief Judicial Magistrate on the aspect of juvenility the High Court opined that since Pintu Tiwari was a minor on the date of the incident and had already remained in jail for more than three years no further order of detention could be passed in view of the provisions of Sections 15 & 16 of the Juvenile Justice Act 2000. Insofar as Sanjay Ram and Uday Pal are concerned both of them accepted the High Court judgment. That left three appellants who took up the matter further to this Court Pappu Tiwari filed a Special Leave Petitionwith an application seeking exemption from surrendering. That application was dismissed by this Court on 09.11.2012 granting four weeks time to Pappu Tiwari to surrender. On a prayer being made a further extension of four weeks was granted to Pappu Tiwari on 18.02.2013 to surrender failing which the SLP would be dismissed without reference to the Court Pappu Tiwari did not surrender and thus the SLP came to be dismissed in terms of the order dated 18.02.2013. Law @ Upendra Tiwari and Ajay Pal chose to jointly prefer an SLP along with an application for condonation of delay. The appeals came up for consideration on 19.11.2013 before this Court when the appeal qua Ajay Palwas dismissed while issuing notice qua the appeal filed by Law Tiwari. On 07.05.2014 leave was granted qua the said appeal which came to be registered as Criminal Appeal Pappu Tiwari was finally apprehended on 25.06.2015. Thereafter he filed an application seeking restoration of his SLP and condonation of delay in filing the restoration application but after issuing notice the same was dismissed on 07.03.2017 on the ground of failure to explain the delay of 862 days appropriately. Pappu Tiwari filed a review petition along with an application seeking bail on 22.01.2021. The review petition was considered and allowed on 27.01.2021. The appeals were thereafter directed to be listed In the mean time Law Tiwari was released on 28.09.2016 after having served out his sentence and thus on 01.09.2021 it was inquired whether he was still interested in prosecuting the appeal to which the answer was in the affirmative as Law Tiwari wanted to argue the aspect of his conviction As far as Pappu Tiwari is concerned his bail application was dismissed on 04.10.2021 but with a direction for the appeal itself to be taken up for hearing. Leave was also granted in the said SLP on listed before us for hearing The aforesaid is the background on which these two appeals were Crl.A. Nos.1202 1203 2014and Ajay Pal and appeal of Ajay Pal having been dismissed the evidence being common the role being common i.e. five people collectively inflicting knife injuries on the deceased after he was shot what could be the defence which would be available to Law Tiwari Learned counsel fairly stated that his appeal is within a limited scope and this Court also admitted the appeal on his plea of alibi Learned counsel drew our attention to the judgment of the trial court as according to him there was hardly any discussion in the appellate court judgment on the particular aspect. The trial court referred to the depositions of the two defence witnesses Rajendra Yadavand Samsuddin Ansariand stated that he had x rayed the knee on the advise of Dr. M.P. Singh. DW 2 stated that he knew Law Upendra Tiwari and on 24.01.2000 he had come to Garhwa from Silliya Donger by bus. He saw Law Tiwari after falling from motorcycle who was reeling in pain. He saw another man holding him. A rickshaw was called and Law Tiwari was put on rickshaw and brought to Garhwa Hospital to Dr. M.P. Singh who advised an x ray. The x ray was done in Janta Clinic and the doctor had opined that his leg had broken near the knee. The man who is stated to have helped Law Tiwari was identified as Kanchan Yadav. After handing over Law Tiwari to him DW 2 went Two witnesses were also examined as court witnesses on the prayer of the defence Almuddin Khan who proved the certificate of Dr. M.P. Singhand receipt of medicineas well as Akshay Kumar Mahto who stated that he knew Law Tiwari that Law Tiwari had come to Garhwa for marketing and had gone to see the ailing son of his cousin Mohan Prasad Mahto in hospital He claimed to be a witness to the treatment and that Law @ Upendra Tiwari was on bed with his leg plastered though he did not talk to him In view of the said testimony the argument which was advanced before the trial court as recorded as also before us was that since on the date of the occurrence his leg was fractured it was not possible for Law Tiwari to have taken part in the crime and he was falsely implicated in the case The trial court noted that neither the x ray plate nor the advise of Dr M.P. Singh had been produced in court. The doctor had also not been produced by the defence. No papers of admission or treatment at the Garhwa Hospital have been produced in support of the case of admission or treatment of his fractured leg in hospital and the certificate did not support such a case 15. On the other hand the case of the prosecution was and is that inter alia as per the fardbeyan a formal FIR was registered in PS case No.6 2000 under Section 364 365 and 120B of the IPC. The date of occurrence was 26.01.2000 and the allegation was of kidnapping for purposes of murder in that case. Law Tiwari was named as an accused in that case too. The occurrence was of 26.01.2000 and the defence is that the leg of Law Tiwari was fractured on 24.01.2000. Law Tiwari was convicted under Section 365 of the IPC vide judgment dated 28.02.2000 We may however note that as per learned counsel for the appellant in the appeal filed against that conviction Law Tiwari was acquitted on Learned counsel for the State also submitted that there are three eye witnesses Pankaj Kumar SinghSubodh Kumar Singhand Chandraman Singhand their testimonies have broadly been consistent which assign the role to Law Tiwari. The endeavour to apprehend him on 07.03.2000 was not successful as he was found absconding by the IO on six different occasions when his premises were visited. He was only subsequently arrested and taken on remand on 04.04.2000. The contention of learned counsel for the State was that neither the advise of Dr. M.P. Singh nor the x ray having been produced and Dr. M.P. Singh not having been produced as a defence witness or summoned there was not a piece of paper evidencing the admission and treatment of Law Tiwari in the hospital which could be produced in support of his plea of alibi. He also drew our attention to the fardbeyan to indicate that Law Tiwari and other accused had demanded a motorcycle of the deceased to go to Meral in connection with a case which was declined. Learned counsel for the State also submitted that the conduct of Law Tiwari even during custody was not proper as he had extended a threat to the informant and the informant had suffered fire arm injury on 13.06.2001. Consequently case No.107 2001 was registered at the Garhwa Police Station. In the end it was contended that there was no attempt made to distinguish the appellant’s role from that of Ajay Pal and the appeal of Ajay Pal being dismissed the only aspect which had to be examined was whether the concurrent findings of the two courts below rejecting the plea of alibi was required to be interfered with by this Court when the burden lay heavy on the appellant as when such a plea is raised the accused must discharge that burden. We may refer to the judicial view in this behalf in Vijay Pal v. Statewhich he failed to discharge. It was not a case where opportunity was not granted to him. In fact two witnesses were produced in defence by Law Tiwari and two court witnesses were also summoned. However the relevant evidence was not led It has been rightly pointed out that the most material witness would have been Dr. M.P. Singh who was not produced as a defence witness nor summoned 19. We may note that there is some identity confusion in the judgment of the trial court as a reference has been made to one Dr. M.P. Singh PW 1) who is not the same doctor. The advise stated to be given by Dr M.P. Singh was also not proved nor was the x ray plate produced. DW 2 stated that he took Law Tiwari to Garhwa Hospital but no papers of admission or treatment at the hospital were produced in support of the treatment of a fractured leg in the hospital. Thus on all these aspects Law Tiwari failed to discharge the burden to establish the plea of alibi and thus the trial court and the High Court cannot be said to have fallen into any error in rejecting the plea of alibi. This was the only aspect to be examined by us 20. We may note that there is discussion in the trial court judgment on the aspect of another case registered against Law Tiwari and his conviction in the said case. The incident was contemporaneous to his alleged fracture and thus the plea based on the fracture was found to be unsustainable as Law Tiwari was convicted in the said case. He has however filed the order of acquittal in appeal. This is the reason we have not delved on this aspect but in view of our finding aforesaid this The result of the aforesaid is that we find no merit in the criminal aspect does not remain crucial appeal of Law @ Upendra Tiwari Crl.A. No.1492 2021and the post mortem report (Ex.1). This aspect was actually sought to be linked to the plea of the FIR being ante timed. There are stated to be differences in the version which would indicate that the fardbeyan was lodged only after the post mortem report. The factual basis for the same is stated to be that in the inquest report six injuries are mentioned with no mention of gunshot injury while the post mortem report shows that there are 26 injuries including the gunshot injury. The pistol was not recovered from him nor any cartridge found and A.S.I. Rajnikant Jha who recorded both the fardbeyan as well as the inquest report was not examined by the prosecution. On this aspect learned counsel relied upon the observations in Maula Bux & Ors. v. State of Rajasthan6 30. On the other hand learned counsel for the State sought to submit that inquest report cannot be treated as substantive evidence but may be utilised for contradicting the witness of inquest (Suresh Roy v. State of Bihar7). He submitted that the inquest report is not really an evidence by itself and cannot be pitted against the evidence of the medical witness in court (Surjan & Ors. v. State of Rajasthan8). Learned counsel drew our attention to the observations in Pedda Narayana & Ors v. State of Andhra Pradesh9 opining that the object of proceedings under Section 174 Cr.P.C. is merely to ascertain that whether the person has died under suspicious circumstances or an unnatural death and if so what is the apparent cause of death. The details however as to how the deceased was assaulted or who assaulted him would be foreign to the scope of proceedings under Section 174 of the Cr.P.C. nor are such details required to be mentioned in the inquest report (Yogesh Singh v Mahabeer Singh & Ors.10 Learned counsel next turned to the more recent judgment of this Court in Tehseen Poonawalla v. Union of India11 opining that the purpose of holding an inquest is limited and the inquest report does not constitute substantive evidence. As compared to an inquest report the doctor who conducts the post mortem examination examines the body from a medico legal perspective. It is thus the post mortem report that is expected to contain the details of injuries through a scientific examination. In that context he submitted that Maula Bux & Ors.12 case did not help the appellant as a police officer who prepared the inquest panchnama is not an expert in medical jurisprudence 32. On examination of the aforesaid pleas insofar as the factual context is concerned there is little doubt that there is not a minor but a major difference in recording the number of injuries suffered by the deceased in the inquest report and the post mortem report. However this will not be fatal in our view. We say so keeping in mind the purpose of an inquest report which is not a substantive evidence. The objective is to find out whether a person who has died under suspicious circumstances what may be the apparent cause of his death. In the present case the death was unnatural. There were wounds. There is no doubt that it is a homicide case. The expert is the doctor who carries out the post mortem and has been medico legal expert. The two fire arm injuries have been clearly identified with the wounds at the entry and at the exit being identified. We have already discussed the proximity of the time period between the intimation and the police proceeding with it right up to the stage when the post mortem commenced. We do not find any substance in this plea The third aspect emphasised by learned counsel for the appellant was the alleged discrepancy between the medical evidence and ocular evidence. PW 1 found 26 injuries on carrying out the post mortem on the deceased. Learned counsel pointed out that on being asked about the distance from which the fire arm was used he did not express any opinion. Learned counsel also points out that the case of prosecution is that after the fire arm injury by Pappu Tiwari the deceased fell down and the other accused persons assaulted him with knives. No explanation is forthcoming on the backside of the deceased. As per the story of the prosecution the witness was going towards the gym at around 1:00 p.m but the post mortem report reveals that the stomach was empty and the rectum and the bladder full which would show that the person had not eased himself and had also not taken his breakfast. This should be a position in the morning hours and not in day time 34. On the other hand learned counsel for the State referred to the testimony of the eye witnesses as also of the medical officer PW 1. On the issues such as what fire arm was used whether the injuries were caused by bullet or pellet and the distance from which the fire arm was used it was submitted that where the weapon and ammunition is of uncertain make and quality the normal pellet pattern based on standard weapon and ammunition cannot be applied with accuracy (Prahlad Singh & Ors. v. State of M.P.13 35. On consideration of this plea we find that really there is no discrepancy between the medical and ocular evidence but too much is sought to be made out by learned counsel for the appellant on the doctor not opining about the distance from which the fire arm injury was caused. Further the eye witnesses are categorical that the other accused attacked the deceased with knives. In such a process of five persons attacking the deceased it cannot be said that the deceased would be lying in the same position and thus there is every possibility of injuries both at the back and front. In the nature of the incident and the testimony of the eye witnesses a doubt must be cast on the story and not merely some aspect of the food consumption pointed out. We cannot really see any such infirmity which would cause us to reverse the concurrent findings of the courts below The remaining arguments of learned counsel for the appellant are based on plea of defective investigation absence of independent witnesses but then there is no reason why the eye witnesses story which is believable should not be given full credence. The test which is applied of proving the case beyond reasonable doubt does not mean that the endeavour should be to nick pick and somehow find some excuse to The last aspect urged by learned counsel for the appellant was that the IO has referred to the antecedents of the appellant and other accused which has been erroneously taken into account by the High Court contrary to the statutory provisions of Section 53 of the Indian Evidence Act 1872. The said provision stipulates that the previous bad character is not relevant except in reply i.e. unless evidence has been given of a good character in which case it becomes relevant. However what has happened in the present case is that the part of the testimony of the IO that the accused persons were dangerous was not supported by any evidence being led nor has it weighed with the courts below. PW 13 was able to identify the appellants because they used to pass through the road and are stated to have been known to be “boss of the area”. We are thus of the view that despite best endeavour learned counsel for the appellant has not been able to cast any doubt on the impugned judgment of the trial court and the High Court In the conspectus of the discussion aforesaid we are of the view that the story put forth by the prosecution has been established and has not been dented by the appellant accused so as to cast a doubt and entitle them to benefit of doubt. The result is that both the appeals are dismissed leaving the parties to bear their own costs January 31 2022 Sanjay Kishan Kaul

Medical insurance and health insurance services are essential services: High Court of Delhi

Medical insurance and health insurance services are essential services during the COVID-19 pandemic situation. Thus, the employees of the Petitioner company, who are dealing with medical and health insurance services, ought to be permitted to move freely between hospitals and their own offices, in order to expedite the processing of medical insurance claims.. This was held in MAX BUPA HEALTH INSURANCE CO LIMITED v. GOVERNMENT OF NCT DELHI &amp; ANR. [W.P.(C) 5179/2021] in the High Court of Delhi by a single bench consisting of JUSTICE PRATHIBA M. SINGH. Facts are that the Petitioner is that the company has approximately 35 personnel for the purposes of clearance of claims, and processing of cashless claims, etc., relating to health insurance and medi claim policies, the outbreak of the COVID-19 pandemic has seen an upsurge in claims being filed which are being handled at its various branch offices. Lockdown was declared by the GNCTD and only some essential services have been exempted from the lockdown in terms of the order issued. The petition has been necessitated due to the rejection of e-pass by the Delhi Government, to the employees of the Petitioner, who are required to move from place to place for clearance of the insurance claims, etc. The counsel appearing for the petitioner, submits that the Govt. of NCT of Delhi through the Delhi Disaster Management Authority (`DDMA’) in its order dated 19th April 2021 has classified insurance companies under category 4 (l) and persons in the said categories require an e-pass in order to be able to move freely during the lockdown. The employees of the company, pursuant to the said requirement, applied to the GNCTD for an e-pass. However, all their applications have been ‘rejected’ without any reason. The Counsel, appearing for GNCTD, submits that there are various discrepancies in the documents which have been submitted by these employees. For example, the employee is residing in one district, and he has applied for an e-pass in a different district, and such other discrepancies, due to which the issuance of e-passes is still pending. The court made reference to the case of Vinay Jaidka v. Chief Secretary, wherein the following observations were made,“Court had directed that all insurance companies ought to process the insurance claims within a period of 30 to 60 minutes so that the discharge of patients is not delayed and hospitals beds are not blocked due to the said delay in processing the claims.” The court also made reference to the notification/order dated 19th April 2021, imposing a curfew, as extended vide order dated 1st May 2021, issued by the DDMA- GNCTD. Considering which the court made the following observation, “The first category of individuals are those who are rendering services as specified in categories 4(a) to 4(k). Persons falling in these categories are exempted from the movement restrictions upon producing a valid Identity card/ photo entry pass/permission letters. The second category of individuals is those who fall under categories 4(l) and 4(m) for whom movement is permitted only after applying and obtaining an e-pass. Insofar as the present case is concerned, category nos. 4(d) and 4(l)(ii)”

IN THE HIGH COURT OF DELHI AT NEW DELHI Date of Decision: 06th May 2021 W.P.(C) 5179 2021 MAX BUPA HEALTH INSURANCE CO LIMITED ..... Petitioner Through Ms. Gurmeet Bindra Advocate. GOVERNMENT OF NCT DELHI & ANR. ..... Respondents Through Mr. Santosh Kumar Tripathi Standing Counsel GNCTD with Mr. Aditya P Khanna Advocate. JUSTICE PRATHIBA M. SINGH Prathiba M. Singh J.This hearing has been done through video conferencing. CM APPL. 15898 2021 5179 2021 & CM APPL. 15897 2021The Petitioner in the present petition is a leading insurance company which is engaged in the business of health insurance plans and mediclaim policies. As part of its everyday operations the employees of the Petitioner deal with issuance of medical healthcare policies cashless claims requests and claims from policy holders. These claims are filed through online W.P.(C) 5179 2021 platforms as also through courier post by hand and are stated to be submitted by policy holders their family members or their agents even at hospitals & like establishments as also at the Petitioner’s branch offices. It is pleaded that in Delhi the Petitioner has various branch offices from where the receipt processing and approval of claims is carried out after collating the documents. The case of the Petitioner is that the company has approximately 35 personnel for the purposes of clearance of claims and processing of cashless claims etc. relating to health insurance and mediclaim policies for various patients who are primarily suffering from COVID 19 and are admitted in various hospitals. The Petitioner has branches all over Delhi with approximately 256 employees however only around 30 to 35 officials are required to attend offices in order to process the claim documents of these It is the case of the Petitioner that the outbreak of the COVID 19 pandemic has seen an upsurge in claims being filed which are being handled at its various branch offices. Lockdown was declared by the GNCTD on 19th April 2021 and only some essential services have been exempted from the lockdown in terms of the order issued. The present petition has been necessitated due to the rejection of e pass by the Delhi Government to the employees of the Petitioner who are required to move from place to place for clearance of the insurance claims etc. Reference is also made to the order dated 28th April 2021 in WP(C) 5026 2021 titled Vinay Jaidka v. Chief Secretary wherein this Court had directed that all insurance companies ought to process the insurance claims within a period of 30 to 60 minutes so that the discharge of patients is not W.P.(C) 5179 2021 delayed and hospitals beds are not blocked due to the said delay in processing the claims. It is stated that the IRDAI has also issued directions vide circular dated 29th April 2021 which reads as under: “1. Reference is invited to Order dated 28.4.2021 passed by Hon’ble High Court of New Delhi in WP(C) No. 5026 2021 wherein IRDAI was directed to advise Insurers to communicate their cashless approvals to the concerned hospitals establishments within a maximum time period of 30 to 60 minutes so that there shall not be any delay in discharge of patients and hospital beds do not 2. In this regard attention is invited to circular IRDAI HLT MISC CIR 95 04 2020 dated 18.4.2020 wherein a fixed turnaround timeof two hours for granting both cashless pre authorization and for final discharge of the insured patient was specified. 3. In the wake of prevailing conditions of COVID 19 cases in the form of second wave and in line with aforesaid directions of the Hon’ble High Court the following directions are issued to all insurers: a. Decision on authorization for cashless treatment for COVID 19 claims shall be communicated to the network provider within a period of 60 minutes from the time of receipt of authorization request along with all necessary requirements from the hospital. b. Decision on final discharge of patients covered in COVID 19 claims shall be communicated to the network provider within a period of ONE hour from the time of receipt of final bill along with all necessary requirements from the hospital. 4. Notwithstanding limits of timelines specified the insurers are advised to the above outer W.P.(C) 5179 2021 process such requests promptly so that both authorization for cashless treatment and discharge of the patient can be hastened to the maximum 115 1 Financial District Nanakramguda 8. Ms. Bindra ld. counsel appearing for the Petitioner submits that the Govt. of NCT of Delhi through the Delhi Disaster Management Authority DDMA’) in its order dated 19th April 2021 has classified insurance companies under category 4and persons in the said categories require an e pass in order to be able to move freely during the lockdown. The employees of the company pursuant to the said requirement applied to the GNCTD for an e pass. However all their applications have been ‘rejected’ without any reasons. 9. Mr. Tripathi ld. Counsel appearing for GNCTD submits that there are various discrepancies in the documents which have been submitted by these employees. For example the employee is residing in one district and he has applied for an e pass in a different district and such other discrepancies due to which the issuance of e passes is still pending. As per his submission the same have not been rejected. 10. Heard ld. Counsels for the parties and perused the record. 11. A perusal of the notification order dated 19th April 2021 imposing curfew as extended vide order dated 1st May 2021 issued by the DDMA GNCTD there are two classes of individuals who are granted exemption from the curfew restrictions. The first category of individuals are those who are rendering services as specified in categories 4(a) to 4(k). Persons falling in these categories are exempted from the movement restrictions upon producing a valid Identity card photo entry pass permission letters. The W.P.(C) 5179 2021 second category of individuals are those who fall under categories 4(l) and 4(m) for whom movement is permitted only after applying and obtaining an e pass. Insofar as the present case is concerned category nos. 4(d) and 4(l)(ii) are relevant and are set out below: “4. Now therefore in exercise of powers conferred under section 22 of the Disaster Management Act 2005 the undersigned in his capacity as Chairperson State Executive Committee DDMA GNCTD hereby directs that there shall be curfew on movement of individuals except for exemptions given below in this order) in the territory of NCT of Delhi with effect from 10:00 pm on to 5:00 am on 26.04.2021 19.04.2021 Monday). Following categories of individuals are however exempted the above restriction of movement during curfew: d): All private medical personnel such as Doctors nursing staff paramedical etc and other hospital services on production of valid I l) Movement of persons related to commercial and private establishments offices providing the following services commodities shall only be allowed: …... ii. Banks Insurance offices and ATMs SEBI Stock related offices.” 12. The Respondent GNCTD is treating all the employees of the Petitioner under clause 4(l)(ii). 13. However this Court is of the opinion that to the extent that the W.P.(C) 5179 2021 employees of the Petitioner are dealing with processing and clearing of claims relating to health insurance policies or Mediclaim policies and like policies the said services would be incidental to the other services as mentioned in clause 4(d) and ought not to be treated as equivalent to general insurance services which are being given. 14. Medical insurance and health insurance services are essential services during the COVID 19 pandemic situation. Thus the employees of the Petitioner company who are dealing with medical and health insurance services ought to be permitted to move freely between hospitals and their own offices in order to expedite the processing of medical insurance claims. 15. Moreover a perusal of the screenshot of the Respondent’s website which has been placed on record shows that the information with respect to the Petitioner s application for e pass has been rejected. The message in the said screenshot of the Respondent’s website states as under: “ePass for NGLS7BW NOT Generated Approved yet Current Status: Rejected” 16. The above message is extremely ambiguous as it does not reflect the stand taken before the court today i.e. that there were deficiencies in the documents. During the pandemic if issuance of e pass can be made a complex process for persons dealing with health insurance policies and claims thereunder it would result in enormous delays. Employees of insurance companies cannot be restrained in this manner from free movement as their movement is essential during the situation of a pandemic where many are dependent on the clearance of health insurance claims for discharge from the hospitals. Accordingly the following directions are W.P.(C) 5179 2021 i) The employees of the Petitioner who are dealing with health insurance claims as also mediclaims etc. and are processing the claims of patients who are admitted in hospitals or otherwise shall be considered as rendering essential services and shall be deemed to be covered under Entry No. 4(d) of the order passed by the DDMA GNCTD dated 19th April 2021. ii) However in order to ensure that there is a proper record of the said employees the Petitioner shall today itself give a complete list of the employees along with their Aadhar Card ID numbers and one common certificate certifying that all the said employees would be dealing with processing and clearance of claims relating to health insurance or mediclaim policies. The said letter and certificate along with the Aadhar card of the concerned employees shall be emailed to dcse.rev.delhi@nic.in. iii) By return email the official concerned of the GNCTD shall acknowledge the receipt of the said documents. In accordance with this order the said employees after the documents having been submitted to the official concerned shall be exempted from the curfew restrictions as they would be deemed to be covered under entry no.4(d) of the order dated 19th April 2021 passed by the GNCTD. 18. With these observations the present petition and all pending application are disposed of. PRATHIBA M. SINGH MAY 6 2021 W.P.(C) 5179 2021

No moral policing allowed when two adults decide to stay together : Madhya Pradesh High Court

Moral policing cannot be allowed in a case where married major couples were forcibly separated by parents was considered by the bench of High Court of Madhya Pradesh consisting of JUSTICE NANDITA DUBEY in the matters between Guljar Khan v. State of Madhya Pradesh and Others (WP No. 1714 of 2022). Brief facts of the case are the plaintiff-husband married his wife with her consent after voluntarily choosing Islam. State’s alleged that the marriage violated the Madhya Pradesh Religious Freedom (MPFR) Act 2021 and therefore the woman should be sent to Nari Niketan. Presently, Guljar Khan, moved a Habeas Corpus petition to the court seeking orders for release of his wife, who was forcibly taken to Banaras by her parents and detained there illegally. The counsel for petitioner contended that the woman had voluntarily married the petitioner and had never been forced to convert and that whatever she did was according to her wishes. His family and grandparents forcibly took him to Banaras, where he was beaten and repeatedly threatened with statements against her husband and  she wanted to go with him as she had married her husband willingly. The counsel for respondent objected that their marriage would be considered null and void as the marriage took place in violation of the Madhya Pradesh Religious Freedom (MPFR) Act 2021, as per section 3 of which, no one may convert for the purpose of marriage and any conversion contrary to this provision will be deemed null and void, so the petitioner’s marriage must be declared null and void. The Madhya Pradesh High Court held that the Constitution gives every adult citizen of this country the right to live his life as he wishes. No moral policing can be done in matters where two great individuals are willing to stay together. whether by marriage or in an ongoing relationship, the party to this arrangement does so willingly and without coercion. The court found that both the applicant and her husband were older, and that the age of the woman in the case was not disputed by either party. Therefore, the court ordered the relevant authorities to hand over his wife to the plaintiff and ensure that the plaintiff-husband and wife reached their home safely and instructed the police to make sure they are not threatened by the spouse’s parents.

The High Court Of Madhya Pradesh The High Court Of Madhya Pradesh WP No. 17122 GULJAR KHAN Vs THE STATE OF MADHYA PRADESH AND OTHERS Jabalpur Dated : 28 01 2022 Heard through Video Conferencing Shri S.K. Raghuwanshi learned counsel for the petitioner Smt. Priyanka Mishra learned Government Advocate for Corpus Arti Sahu present through video conferencing Petitioner Guljar Khan is present in the Court premises This petition by way of habeas corpus has been filed by petitioner Gulzar Khan who is alleging that he has married the corpus at BMA Maharashtraand the corpus had willingly converted to Islam. It is alleged that the parents of the corpus i.e. respondents No.6 and 7 have forcibly taken her to Banaras and have illegally detained her there As per the direction of this Court the corpus has been produced before this Court through video conferencing through the Office of the Advocates General. The corpus who is 19 years old has stated before the Court that she had willingly married the present petitioner and converted to Islam. She has made a categorical statement that she was never forced into conversion and whatever she has done was as per her own wishes. She has further stated that her parents and her grand parents have forcibly taken her to Banaras where she was beaten up and threatened constantly to give statement against the petitioner. She has further stated that she wants to go with the petitioner as she has willingly married him. Learned counsel for the State has raised an objection in view of the Madhya Pradesh Freedom of Religion Act 2021 (in short for the Act of 2021 ). It is vehemently argued that any marriage performed in contravention of Section 3 of the Act of 2021 shall be deemed null and void. It is pointed out that Section 3 of the Act of 2021 provides that no person shall convert for the purpose of marriage and any conversion in contravention of this provision shall be deemed null and void. It is stated that in view of Section 3 read with Section 6 of the Act of 2021 the marriage of the petitioner with the corpus is null and void Be that as it may the petitioner and corpus both are major. No moral policing can be allowed in such matters where the two major persons are willing to stay together whether by way of marriage or in a live in relationship when the party to that arrangement is doing it willingly and not forced into it. The corpus before this Court has clearly stated that she had married the petitioner and wants to stay with him. The corpus is major person. Her age is not disputed by any of the parties. The Constitution gives a right to every major citizen of this country to live her or his life as per her or his own wishes. Under the circumstances the objection raised by the counsel for the State and her prayer to send the corpus to Nari Niketan is rejected Under the circumstances counsel for the State and the police authorities who have produced the corpus are directed to handover the corpus to the petitioner and to see that the petitioner and the corpus reached their house safely. The police authorities are also directed to see that in future also the corpus and the petitioner are not threatened by the parents of the With the aforesaid directions the petition stands disposed of Certified copy e copy as per rules directions

The Court declined to reconsider the prayer for bail as the petitioner was arrested under Sections 25(1-B)(a)/26/35 of the Arms Act,1959.: High court of Patna

The petitioner was held in custody under Sections 25(1-B) (a) Arms Act, 1959, “acquires, has in his possession or carries any firearm or ammunition in contravention of section 3”, section 26, “Secret contraventions,”, section 35 of the Arms Act, 1959, “Criminal responsibility of persons in occupation of premises in certain cases.” This is in connection with Malahi (Govindganj) PS Case No. 362 of 2018 dated 07.12.2018. The petitioner is attempting bail the second time as it was earlier rejected by an order passed in Cr. Misc. No. 14287 of 2020. This judgment was given in the high court of Judicature at Patna by honorable Mr. Justice Ahsanuddin Amanullah on the 4th of August 2021 in the case of Sheikh Wajid Hussain @ S.K. Wazid Hussain versus the state of Bihar criminal miscellaneous No.22330 of 2021, Mr. Dilip Kumar Represented as the advocate for the petitioner and Mr. Lakshmi Kant represented the state of Bihar as the additional Public Prosecutor, Mr. Prafull Represented as the advocate for the informant the proceedings of the court were held via video conference. The following are the facts of the case, the counsel for the petitioners held that the petitioner was accused of possessing one loaded country-made pistol and four live cartridges were recovered from the petitioners’ bed. However, he was not caught whilst using the firearms. Further, the counsel submitted that the petitioner is facing trial in another case currently i.e., Malahi (Govindganj) PS Case No. 361 of 2018, where he was accused of shooting the informant’s son, but under this case, he is only accused of possession of firearms. The four other family members were also held accused of the same and have been released on bail but only the petitioner was declined bail more than once and has been held in custody since 12th February 2019. The Additional Public Prosecutor held that the court has already rejected this plea according to the order passed on the 8th of July 2020 and since there is no new evidence to prove his innocence the accused is accountable in accordance with the law. The counsel representing the informant held that the petitioner is also a veteran criminal and has two criminal cases against him which are serious in nature under grave sections of the Indian Penal Code and the Arms Act, including 307,302 and 395 of the Indian Penal Code. And according to the other case Malahi (Govindganj) PS Case No. 361 of 2018, the petitioner was the one who shot and killed the son of the informant, and the petitioner was caught in about one hour by the police and upon raid, they recovered the firearms and pistols and live cartridges, the petitioner has used these weapons to injure and harm lives. Regarding bail for the other four family members was because no recovery of firearms was made from them and hence was granted bail. The court concluded that “Having considered the facts and circumstances of the case and submissions of learned counsel for the parties, the Court is not inclined to reconsider the prayer for bail to the petitioner as no mitigating circumstances have been shown to warrant the same. Accordingly, the petition stands dismissed.”

IN THE HIGH COURT OF JUDICATURE AT PATNA CRIMINAL MISCELLANEOUS No.223321 Arising Out of PS. Case No. 362 Year 2018 Thana GOVINDGANJ District East Sheikh Wajid Hussain @ S.K. Wazid Hussain aged about 37 years Male Son of Sheikh Shakil Resident of Village Chintamanpur P.S. Malahi District East Champaran. The State of Bihar ... Petitioner s ... Opposite Party s Appearance : For the Petitioner s For the State For the Informant Mr. Dilip Kumar Tandon Advocate Mr. Lakshmi Kant Sharma APP Mr. Prafull Chandra Jha Advocate CORAM: HONOURABLE MR. JUSTICE AHSANUDDIN AMANULLAH ORAL JUDGMENT Date : 04 08 2021 The matter has been heard via video conferencing. 2. Heard Mr. Dilip Kumar Tandon learned counsel the petitioner Mr. Lakshmi Kant Sharma Additional Public Prosecutor for the State and Mr. Prafull Chandra Jha learned counsel for the informant. 3. The petitioner is in custody in connection with Malahi PS Case No. 362 of 2018 dated 07.12.2018 instituted under Sections 25(1 B)(a) 26 35 of the Arms Act 1959. 4. This is the second attempt for bail by the Patna High Court CR. MISC. No.223321 dt.04 08 2021 2 4 petitioner as earlier such prayer was rejected by order dated 08.06.2020 passed in Cr. Misc. No. 142820. 5. Learned counsel for the petitioner submitted that in the present case the allegation is that from the possession of the petitioner one loaded country made pistol and four live cartridges have been recovered and further recovery is from his bed. It was submitted that the petitioner was not caught while using the fire arms. Learned counsel submitted that another case i.e. Malahi PS Case No. 361 of 2018 had been filed on the same day in which the son of the informant of the said case is alleged to have shot dead by the petitioner in which the petitioner is facing trial. However learned counsel submitted that this is a case only under the Arms Act for recovery of the said fire arms. It was submitted that four other family members of the petitioner have been made accused in the present case and all others have been released on bail except for the petitioner. It was submitted that the petitioner is in custody since 13.02.2019. 6. Learned APP submitted that the Court has already considered the matter on merits while rejecting the prayer for bail on 08.06.2020 and there is nothing new to consider afresh such prayer. Patna High Court CR. MISC. No.223321 dt.04 08 2021 3 4 7. Learned counsel for the informant submitted that the petitioner is a veteran criminal having two other criminal cases against him under grave sections of the Indian Penal Code and the Arms Act including 307 302 and 395 of the Indian Penal Code. It was submitted that the present case cannot be seen in isolation for the reason that in MalahiPS Case No. 361 of 2018 the petitioner was the person who had shot and killed the son of the informant of the said case and within one hour the police upon raid had caught the petitioner along with the pistol and live cartridges and the said pistol has been found to have been used for firing in the other case which has resulted in the death of the victim. It was submitted that the other four family members of the petitioner have been granted bail in the present case since there was no recovery from their personal possession whereas in the present case the recovery is from the personal possession of the petitioner and the other firearms have been recovered from the bed in his room. It was further submitted that in the other case trial is in an advanced stage. 8. Having considered the facts and circumstances of the case and submissions of learned counsel for the parties the Court is not inclined to re consider the prayer for bail to the Patna High Court CR. MISC. No.223321 dt.04 08 2021 4 4 petitioner as no mitigating circumstances have been shown to warrant the same. 9. Accordingly the petition stands dismissed. Anjani

Alternative Forums doesn’t create legal bar on High Court to exercise jurisdiction. : Patna High Court

The mere existence of alternate forums where the aggrieved party may secure relief does not create a legal bar on a High Court to exercise its writ jurisdiction. It is a factor to be taken into consideration by the High Court amongst several factors. Thus, the mere fact that the High Court at Madras is capable of grant- ing adequate relief to the appellant does not create a legal bar on the Bombay High Court exercising its writ jurisdiction in the present matter, was referred by Justice Ahsanuddin Amanullah of the Patna High Court in the matter of Saurav Kumar Sharma versus State of Bihar [Civil Writ Jurisdiction Case No. 10543 of 2021] The following order was passed when the petitioner requested relief from RERA,Bihar (hereafter after authority), which took over part in the operating order of 29.04.2021, decided on the question of the title of the applicant’s land for which the family of the petitioner has had an exclusive title and peaceful uninterrupted possession from 1970. The video authority order dated 29/04/2021 directed that, although the builder/ developer had stated that the property belongs to the landowner and that the developer cannot interfere with the title of the land, the hotel should not be demolished and the possession transferred to the developer/builder.But, the Petitioner could not obtain certified copy of the impugned order as the authority is not functioning since 24.04.2021 and will not function till 16 May 2021 due to Covid-19 pandemic restrictions.  A preliminary objection was raised by the learned RERA Counsel. He submitted that the Court of Appeal could not present the present written petition because the Bihar Real Estate Appeal Tribunal is functional and an appeal against the contested order lies.  The learned petitioner counsel submitted that the Appellate Tribunal was not fully functional at the time the written petition was filed and that due to its urgency it preferred this written petition. However, the Appellate Tribunal has been submitted that the petitioner may be allowed to go before the Appellate Tribunal in view of the status of the learned RERA Counsel that now worked. High Court of Appeal. — (1)A person aggrieved by an Appeals Tribunal decision or order may, within 60 days of the date of the Appellate Tribunal’s decision or order, appeal to the High Court on one or more of the grounds specified in Article 100 of the Code of Civil Proceedings, 1908 (5 of 1908. (2) Any decision or order made with the agreement of the parties shall not be appealed by the Appellate Tribunal. The reasoning in Lalit Narain Mithila University (supra) has been followed by this Court in Judgement dated 04.03.2021 in Sonalika Rani v The Central Board of Secondary Education, New Delhi &amp; Ors., CWJC No. 8887 of 2020. That apart, Maharashtra Chess Association (supra) has been noticed in Lalit Narain Mithila University (supra). The second respondent’s argument is misunderstood. The existence, adequate or not, of an alternative remedy does not change the fundamental, ally-discretionary nature of the jurisdiction of the High Court of Justice, and therefore does not create an absolute legal bar for a High Court to exercise its written jurisdiction. The High Court’s decision to examine the facts and circumstances of a specific case shall remain the decision whether or not to take the action of a person in his written jurisdiction.

Saurav Kumar Sharma vs The State Of Bihar on 17 June 2021 Patna High Court Saurav Kumar Sharma vs The State Of Bihar on 17 June 2021 IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No. 105421 Saurav Kumar Sharma age about 49 yearsSon of Late Bipin Bihari Das Resident of Salona Kunj Near Paani Tanki Kidwaipuri Buddha Colony PS Kotwali District Patna 800001 presently residing at Flat no.604 Mani Orchid Apartment Above Amway Office Near Neelkanth Sweets RPS More Bailey Road Patna 801503 ... Petitioner s Versus 1. The State of Bihar through the Principal Secretary Urban Development Department Government of Bihar Patna 2. The Adjudicating Officer Real Estate Regulatory AuthorityBihar Patna 3. Om Prakash Son of unknown Resident of 306 SS Vihar ApartmentKarbigahia Patna 800001 4. Prashant Kumar Son of Unknown Resident of 201 SS Vihar ApartmentKarbigahia Patna 800001 5. Rani Kumari Wife of Amarendra Kumar Srivastava Resident of 406 SS Vihar ApartmentKarbigahia Patna 800001 6. Raghwendra Kumar Singh Son of Unknown Resident of 304 SS Vihar ApartmentKarbigahia Patna 800001 7. M s Meridian Construction India Ltd. through its Chairman Cum Managing Director Mr. Abu Dojana having its registered office at Haroon Nagar Sector II PS Phulwari Sharif District Patna ... Respondent s For the Petitioner s : Ms. Shama Sinha Advocate For the State R1 : Mr. Raj Kishore Roy Advocate) GP 18 with Ms. Prerana Anand AC to GP 18 For the RERA R2 : Mr. Vikash Kumar Advocate CORAM: HONOURABLE MR. JUSTICE AHSANUDDIN AMANULLAH ORAL JUDGMENT Date 17 06 2021 The matter has been heard via video conferencing 2. Heard Ms. Shama Sinha learned counsel for the petitioner Mr. Raj Kishore Roy learned Government Pleader 18 Patna High Court CWJC No.105421 dt.17 06 2021 along with Ms Prerana Anand learned Assistant Counsel to Government Pleader 18 for the State Respondent No Indian Kanoon Saurav Kumar Sharma vs The State Of Bihar on 17 June 2021 1 and Mr. Vikash Kumar learned counsel for the Bihar Real Estate Regulatory Authority hereinafter referred to as RERA ) Respondent No. 2 3. The petitioner has moved the Court for the following reliefs i) For quashing of the part of the second direction passed in operating part of the order dated 29.04.2021by Real Estate Regulatory Authority Biharwhereby it has decided the question of title of landof the petitioner over which the Petitioner s family had exclusive title and peaceful uninterrupted possession since the year 1970. The authority vide order dated 29.04.2021 has directed to demolish the Petitioner s hotel and to handover the possession to the developer builder inspite of the statement made by the builder developer that the land belongs to the landowner and the developer cannot interfere with regard to the title of the said land. The Petitioner could not obtain certified copy of the impugned order as the authority is not functioning since 24.04.2021 and will not function till 16 May 2021 due to Covid 19 pandemic ii) For protection from the demolition order dated 29.04.2021 passed by Real Estate Regulatory Authority Bihar against the landowner during the period when neither the authority nor the appellate Tribunals are functioning and COVID 19 pandemic restrictions are enforced iii) For any other relief(s) which this Hon ble Court may deem fit and proper in the facts and circumstances of the case Patna High Court CWJC No.105421 dt.17 06 2021 4. At the outset learned counsel for the RERA raised a preliminary objection. He submitted that in view of the Bihar Real Estate Appellate Tribunalby the petitioner Indian Kanoon Saurav Kumar Sharma vs The State Of Bihar on 17 June 2021 8. It is not out of place to note Sections 44 and 58 of the Real EstateThe appropriate Government or the competent authority or any person aggrieved by any direction or order or decision of the Authority or the adjudicating officer may prefer an appeal to the Appellate Tribunal 2) Every appeal made under sub sectionshall be preferred within a period of sixty days from the date on which a copy of the direction or order or decision made by the Authority or the adjudicating officer is received by the appropriate Government or the competent authority or the aggrieved person and it shall be in such form and accompanied by such fee as may be prescribed Provided that the Appellate Tribunal may entertain any appeal after the expiry of sixty days if it is satisfied that there was sufficient cause for not filling it within that period 3) On receipt of an appeal under sub sectionthe Appellate Tribunal may after giving the parties an opportunity of being heard pass such orders including interim orders as it thinks fit 4) The Appellate Tribunal shall send a copy of every order made by it to the parties and to the Authority or the adjudicating officer as the case may be 5) The appeal preferred under sub sectionshall be dealt with by it as expeditiously as possible and endeavour shall be made by it to dispose of the appeal within a period of sixty days from the date of receipt of appeal Provided that where any such appeal could not be disposed of within the said period of sixty days the Appellate Tribunal shall record its reasons in writing for not disposing of the appeal within that 6) The Appellate Tribunal may for the purpose of examining the legality or propriety or correctness of any order or decision of the Authority or the adjudicating officer on its own motion or otherwise Patna High Court CWJC No.105421 dt.17 06 2021 call for the records relevant to deposing of such appeal and make such orders as it thinks fit 58. Appeal to High Court. Any person aggrieved by any decision or order of the Appellate Tribunal may file an appeal to the High Court within a period of sixty days from the date of communication of the decision or order of the Appellate Tribunal to him on any one or more of the grounds specified in Section 100 of the Code of Civil Procedure 1908No appeal shall lie against any decision or order made by the Appellate Tribunal with the consent of the parties. 9. Thus a bare perusal of the afore extracted provisions of the Act make clear the Scheme of the Act that an appeal from an order of the RERA or the Adjudicating Officer as the case may be would lie to the Appellate Tribunal under Section 44 and an appeal from the Appellate Tribunal would lie to the High Court under Section 58 10. There is no cavil with the proposition that when a statutory remedy of appeal is provided under any enactment ordinarily the High Court ought to be circumspect in interfering under Article 226 of the Constitution of India. However it is no Patna High Court CWJC No.105421 dt.17 06 2021 longer res integra that any such circumspection and or restraint is merely self imposed and is not nor can it be construed as a total bar to exercise of powers in extraordinary 11. In M. P. State Agro Industries Development Corpn Ltd. v Jahan Khan 10 SCC 88 the Hon ble Supreme Court opined 12. Before parting with the case we may also deal with the submission of learned counsel for the appellants that a remedy by way of an appeal being available to the respondent the High Court ought not to have entertained his petition filed under Articles 226 227 of the Constitution. There is no gainsaying that in a given case the High Court may not entertain a writ petition under Article 226 of the Constitution on the ground of availability of an alternative remedy but the said rule cannot be said to be of universal application. The rule of exclusion of writ jurisdiction due to availability of an alternative remedy is a rule of discretion and not one of compulsion In an appropriate case in spite of the availability of an alternative remedy a writ court may still exercise its discretionary jurisdiction of judicial review in at least three contingencies namely where the writ petition seeks enforcement of any of the fundamental rights ii) where there is failure of principles of natural justice or iii) where the orders or proceedings are wholly without jurisdiction or the vires of an Act is challenged. In these circumstances an alternative remedy does not operate as a bar.8 SCC 1] Harbanslal Sahnia v. Indian Oil Corpn. Ltd.2 SCC 107] State of H.P. v. Gujarat Ambuja Cement Ltd.6 SCC 499] and Sanjana M Indian Kanoon Saurav Kumar Sharma vs The State Of Bihar on 17 June 2021 Wig v. Hindustan Petroleum Corpn. Ltd.8 SCC 242]) Patna High Court CWJC No.105421 dt.17 06 2021 12. The principles governing exercise of writ jurisdiction under Article 226 even in the face of other or alternative remedies have been considered by the Hon ble Supreme Court inter alia in State of Uttar Pradesh v Mohammad Nooh 1958 SCR 595 and Maharashtra Chess Association v Union of India 13 SCC 285 13. This Court had the occasion to consider the said issue and following the dicta in Mohammad Noohand Maharashtra Chess Associationin Order dated 22.12.2020 in Lalit Narain Mithila University & Anr. v National Council for Teacher Education & Ors. CWJC No.94220 since reported as MANU BH 0888 2020) opined 16.1. In this context it is appropriate to refer to the Constitution Bench judgment in State of Uttar Pradesh v. Mohammad Nooh MANU SC 0125 1957: 1958 SCR 595 the relevant paragraph reading 10. In the next place it must be borne in mind that there is no rule with regard to certiorari as there is with mandamus that it will lie only where there is no other equally effective remedy. It is well established that provided the requisite grounds exist certiorari will lie although a right of appeal has been conferred by statute Halsbury s Laws of England 3rd Edn. Vol. 11 p. 130 and the cases cited there). The fact that the aggrieved party has another and adequate remedy may be taken into consideration by the superior court in arriving at a conclusion as to whether it should in exercise of its discretion issue a writ of certiorari to quash the proceedings and decisions of inferior courts subordinate to it and ordinarily the superior court will decline to Patna High Court CWJC No.105421 dt.17 06 2021 interfere until the aggrieved party has exhausted his other statutory remedies if any. But this rule requiring the exhaustion of statutory remedies before the writ will be granted is a rule of policy convenience and discretion rather than a rule of law and instances are numerous where a writ of certiorari has been issued in spite of the fact that the aggrieved party had other adequate legal remedies... 16.2. The aforesaid paragraph from Mohammad Noohhas been approvingly referred to by the Hon ble Supreme Court in Maharashtra Chess Association v. Union of India 2019 SCC OnLine SC 932 in the following words 24. The principle that the writ jurisdiction of a High Court can be exercised where no adequate alternative remedies exist can be traced even further back to the decision of the Constitution Bench of this Court in State of Uttar Pradesh v. Mohammad Nooh... 17. It is not required in present to cite further authorities of the Hon ble Supreme Court on this subject Indian Kanoon Suffice it will to state the following settled principles of law Saurav Kumar Sharma vs The State Of Bihar on 17 June 2021 i) Powers under Article 226 being discretionary may not be exercised if there exists an alternative efficacious remedy. However this is merely a self imposed restraint ii) In appropriate situations the High Court in its writ jurisdiction can entertain writ petitions even if there exists an alternative efficacious remedy. There is no nor can there be an absolute bar to such exercise of power iii) A fortiori in the absence of an alternative efficacious remedy or where no remedy lies recourse to writ jurisdiction of the High Court would always be available to an aggrieved party. Patna High Court CWJC No.105421 dt.17 06 2021has been followed by this Court in Judgement dated 04.03.2021 in Sonalika Rani v The Central Board of Secondary Education New Delhi & Ors. CWJC No. 88820BLJ 699]. That apart while paragraph 21 of Maharashtra Chess Associationhas been noticed in Lalit Narain Mithila Universitythe following paragraphs additionally from Maharashtra Chess Associationare instructive 11. Article 226(1) of the Constitution confers on High Courts the power to issue writs and consequently the jurisdiction to entertain actions for the issuance of writs. 226. Power of High Courts to issue certain writs. Notwithstanding anything in Article 32 every High Court shall have power throughout the ter ritories in relation to which it exercises jurisdiction to issue to any person or authority including in appropri ate cases any Government within those territories dir ections orders or writs including writs in the nature of habeas corpus mandamus prohibition quo war ranto and certiorari or any of them for the enforcement of any of the rights conferred by Part III and for any other purpose."] The text of Article 226(1) provides that a High Court may issue writs for the enforcement of the fundamental rights in Part III of the Constitution or "for any other purpose". A citizen may seek out the writ jurisdiction of the High Court not only in cases where her fundamental right may be infringed but a much wider array of situations. Lord Coke comment ing on the use of writs by courts in England stated Patna High Court CWJC No.105421 dt.17 06 2021 "The Court of King s Bench hath not only the authority to correct errors in judicial proceedings but other errors and misdemeanours tending to the breach of peace or oppression of the subjects or raising of faction controversy debate or any other manner of misgovernment so that no wrong or in jury public or private can be done but that this shall be reformed or punished by due course of law. ..."11 Co Rep 93b : 77 ER 1271 12. Echoing the sentiments of Lord Coke this Court in U.P. State Sugar Corpn. Ltd. v. Kamal Swaroop Ton don2 SCC 41 Indian Kanoon Saurav Kumar Sharma vs The State Of Bihar on 17 June 2021 2008) 1 SCC352] observed that:"35. ... It is well settled that the jurisdiction of the High Court under Article 226 of the Constitu tion is equitable and discretionary The power un der that Article can be exercised by the High Court "to reach injustice wherever it is 13. The role of the High Court under the Constitu tion is crucial to ensuring the rule of law throughout its territorial jurisdiction. In order to achieve these transcendental goals the powers of the High Court un der its writ jurisdiction are necessarily broad. They are conferred in aid of justice. This Court has repeatedly held that no limitation can be placed on the powers of the High Court in exercise of its writ jurisdiction. In A.V. Venkateswaran v. Ramchand Sobhraj Wadh wani A.V. Venkateswaran v. Ramchand Sobhraj Wadh wani 1 SCR 753 : AIR 1961 SC 1506] a Consti tution Bench of this Court held that the nature of power exercised by the High Court under its writ jurisdiction is inherently dependent on the threat to the rule of law arising in the case before it:"10. ... We need only add that the broad lines of the general principles on which the court should act having been clearly laid down their application to Patna High Court CWJC No.105421 dt.17 06 2021 the facts of each particular case must necessarily be dependent on a variety of individual facts which must govern the proper exercise of the discretion of the Court and that in a matter which is thus pre eminently one of discretion it is not possible or even if it were it would not be desirable to lay down inflexible rules which should be applied with rigid ity in every case which comes up before the court." The powers of the High Court in exercise of its writ jurisdiction cannot be circumscribed by strict legal principles so as to hobble the High Court in fulfilling its mandate to uphold the rule of law 14. While the powers the High Court may exercise under its writ jurisdiction are not subject to strict legal principles two clear principles emerge with respect to when a High Court s writ jurisdiction may be engaged. First the decision of the High Court to entertain or not entertain a particular action under its writ jurisdiction is fundamentally discretionary. Secondly limitations placed on the court s decision to exercise or refuse to exercise its writ jurisdiction are self imposed. It is a well settled principle that the writ jurisdiction of a High Court cannot be completely excluded by statute. If a High Court is tasked with being the final recourse to upholding the rule of law within its territorial juris diction it must necessarily have the power to examine any case before it and make a determination of whether or not its writ jurisdiction is engaged. Judicial review under Article 226 is an intrinsic feature of the basic structure of the Constitution.3 SCC 625 L. Chandra Kumar v. Union of India 3 SCC 261 : 1997 SCC577 15. These principles are set out in the decisions of this Court in numerous cases and we need only mention a few to demonstrate the consistent manner in which they have been reiterated. In State of U.P. v. Indian Hume Pipe Co. Ltd.2 SCC 724 : 1977 SCC335] this Court observed that the High Court s decision to exer cise its writ jurisdiction is essentially discretionary SCC p. 728 para 4) "4. ... It is always a matter of discretion with the Court and if the discretion has been exercised by the High Court not unreasonably or perversely it is the settled practice of this Court not to interfere with the exercise of discretion by the High Court." xxx Indian Kanoon Saurav Kumar Sharma vs The State Of Bihar on 17 June 2021 19. This argument of the second respondent is mis conceived. The existence of an alternate remedy whether adequate or not does not alter the fundament ally discretionary nature of the High Court s writ juris diction and therefore does not create an absolute legal bar on the exercise of the writ jurisdiction by a High Court. The decision whether or not to entertain an ac tion under its writ jurisdiction remains a decision to be taken by the High Court on an examination of the facts and circumstances of a particular case 20. This understanding has been laid down in several decisions of this Court. In U.P. State Spg. Co Ltd. v. R.S. Pandey8 SCC 264 : 2006 SCC78 this Court held:"11. Except for a period when Article 226 was amended by the ConstitutionAct 1976 the power relating to alternative remedy has been considered to be a rule of self im posed limitation. It is essentially a rule of policy convenience and discretion and never a rule of law. Despite the existence of an alternative remedy it is within the jurisdiction or discretion of the High Court to grant relief under Article 226 of the Con stitution. At the same time it cannot be lost sight of that though the matter relating to an alternative rem edy has nothing to do with the jurisdiction of the Patna High Court CWJC No.105421 dt.17 06 2021 case normally the High Court should not interfere if there is an adequate efficacious alternative remedy." xxx 22. The mere existence of alternate forums where the aggrieved party may secure relief does not create a legal bar on a High Court to exercise its writ jurisdic tion. It is a factor to be taken into consideration by the High Court amongst several factors. Thus the mere fact that the High Court at Madras is capable of grant ing adequate relief to the appellant does not create a legal bar on the Bombay High Court exercising its writ jurisdiction in the present matter. are in consonance with the law as expounded by the Hon ble Supreme Court. As such it would be in the discretion of the Writ Court to entertain a petition even when there exists an alternative remedy regard being had to all relevant facts and circumstances peculiar to the concerned case. The position in law stands clarified 16. The present writ petition was filed when as per the petitioner the Appellate Tribunal was not fully functional. Further the impugned order insofar as it relates to demolition was one which could have caused the petitioner an irreparable injury. Such being the nature and facts of the case at the time of filing of this Patna High Court CWJC No.105421 dt.17 06 2021 writ petition the inescapable conclusion is that the present writ petition would be entertainable by this Court in its 17. However in view of the position of learned counsel for RERA which is agreeable to the petitioner the writ petition is disposed off granting liberty to the petitioner to move the Appellate Tribunal under Section 44 of the Act. Learned counsel for the petitioner undertakes that the same will be done within a week from today. Thereafter the Appellate Tribunal will take up the matter within a week from the date of filing of the statutory appeal and consider the prayer for interim protection if raised by the petitioner Indian Kanoon 18. It is clarified that the Court has neither delved into nor examined the merits of the matter Saurav Kumar Sharma vs The State Of Bihar on 17 June 2021 (Ahsanuddin Amanullah J AFR NAFR AFR U T Indian Kanoon

Mere possession in the property how long it be, does not ipso facto establish a right into a person allowed to continue in possession by a title holder: Calcutta High Court

In factual matrices involving property transfer, it has been observed in the instant second appeal that a mere possession of property does not equate with actual ownership. Arising from a judgment and decree dated 28th February, 2019, passed by the learned Additional District and Sessions Judge, the present appeal was before the quorum of Harish Tandon J.and Kausik Chanda J. in the matter of Manik Lal Jaiswara v Manju Devi [S.A.T. 250 OF 2019]. The parties were related to each other which was discernible from the facts pleaded in the plaint. The plaintiff no. 1 is the father of the defendant no.1 and father-in-law of the defendant no. 2 whereas the remaining plaintiffs are the sons and daughters of the plaintiff no. 1. The plaintiffs jointly filed a suit for declaration that the deed of conveyance being no. 1774 for the year 2009 registered with Additional Registrar of Assurances III in favour of the first defendant is fraudulent, invalid and inoperative. The second relief claimed in the plaint further relates to a declaration that the defendants did not acquire any right, title and interest on the basis of the purported deed of conveyance. In the instant case, the plaintiffs admitted to have executed the purported deed of conveyance voluntarily but sought for declaration of such deed to be void on the ground of fraud and misrepresentation The misrepresentation appears to have taken a front seat and the fraud ancillary thereto. It is not in dispute that the consideration mentioned in the purported deed of conveyance was received by the plaintiffs and a logical inference can be drawn that the same was duly appropriated in due course. The evidence was lacking on the alleged fraud or misrepresentation which could be deciphered from the findings recorded. The Apex Court in case of Maria Margarida Sequeria Fernandes and Others Vs Erasmo Jack de Sequeria (Dead) through L.Rs. reported in 2012 (5) SCC 370 was referred to by the bench wherein it is held that in an action for recovery of possession of immovable property the possession or occupation of the property by a person other than the holder of the legal title will be presumed to have been under and in subordination to the legal title, and it will be for the person resisting a claim for recovery of possession or claiming a right to continue in possession, to establish that he has such a right. The possession is an incident of the ownership and is capable of being transferred to any person and such possession does not create a right but the constructive possession remains with the owner. Mere possession in the property how long it be, does not ipso facto establish a right into a person allowed to continue in possession by a title holder except a case of adverse possession is claimed and proved by cogent evidence. The relationship of the plaintiff with the defendant/appellant is also one of the relevant factor when the permission to continue in possession is evident and the moment such permission is revoked no impediment can be seen against the title holder to recover the possession.

IN THE HIGH COURT AT CALCUTTA CIVIL APPELLATE JURISDICTION APPELLATE SIDE Present: THE HON’BLE JUSTICE HARISH TANDON THE HON’BLE JUSTICE KAUSIK CHANDA S.A.T. 250 OF 2019 C.A.N. 2 OF 2020 C.A.N. 3 OF 2020 Manik Lal Jaiswara and others. Smt. Monju Devi @ Manju Devi and another. Vs. Mr.Samiran Giri Adv. Mr.Abhijit Laik Adv. For the Appellants… Mr.Subhasish Pachhal Adv. For the respondents… Judgment On: 08.04.2021 Harish Tandon J.: The instant second appeal arises from a judgment and decree dated 28th February 2019 passed by the learned Additional District and Sessions Judge 1st Court Serampore Hooghly in Title Apeal No. 90 of 2016 reversing the judgment and decree dated 7th May 2016 passed by the learned Civil Judge Junior Division 1st Court Serampore in Title Suit No. The parties are related to each other which is discernible from the facts pleaded in the plaint. The plaintiff no. 1 is the father of the defendant no.1 and father in law of the defendant no. 2 whereas the remaining plaintiffs are the sons and daughters of the plaintiff no. 1. The plaintiffs jointly filed a suit for declaration that the deed of conveyance being no. 1774 for the year 2009 registered with Additional Registrar of Assurances III in favour of the first defendant is fraudulent invalid and inoperative. The second relief claimed in the plaint further relates to a declaration that the defendants did not acquire any right title and interest on the basis of the purported deed of The facts pleaded in the plaint are that the plaintiffs along with one Ramrati Devi were the owner of the property being the subject matter of the suit. The defendant no. 1 being the daughter of the plaintiff no. 1 is all along residing in her matrimonial house. There was no intention on the part of the plaintiffs to transfer and or alienate the property as they were all along residing therein but a proposal was made from the defendants where the defendant no. 2 intended to secure a loan from the bank and requested the plaintiffs along with the Ramrati Devi to execute the deed of sale with clear stipulation that after such crisis is over they would revert the said property by executing a deed of gift. Since the relation between the parties were cordial and they never sensed any foul intention executed a purported deed of sale in favour of the defendant no.1. Subsequently the plaintiffs wanted the execution and registration of the deed of gift by the defendant no. 1 who refused to honour such stipulation and tried to sell the property to the third The moment the refusal to execute and register the deed of gift was sensed and realised the plaintiffs filed a suit for declaration that the purported deed of sale was obtained by practising fraud and misrepresentation and therefore does not convey any right title and interest in defendant no. 1. The defendants entered appearance and contested the suit by filing the written statement along with the counter claim. All the facts pleaded in the plaint have been denied. It is specifically contended that the plaintiffs wanted to sell the property to a third party and the moment such intention was made known to the defendants the defendant no. 1 offered to purchase the said property at the market price upon consensus agreement having arrived in this regard the plaintiffs along with Ramrati Devi voluntarily executed the said deed of conveyance and got the same registered with the registering authority. Since the relation between the parties were cordial they were permitted to stay in the property as a licensee and on being asked to vacate the premises they flatly refused to do so and thereafter the defendants revoked the licence and seek for a decree for recovery of possession by way of counter claim. The Trial Court though returned the finding on the issues but the main focus was made on the jurisdiction of the Court to entertain the suit. Ultimately the Court held that the suit is not maintainable for want of pecuniary jurisdiction and dismissed the suit. So far as the finding on the counter claim is concerned the Trial Court held that despite having no doubt over the ownership of the defendants in respect of the suit property it does not instil any confidence pertaining to the revocation of licence after a gap of nearly five years. The Trial Court proceeded to dismiss the counter claim as well. Curiously enough the plaintiffs did not prefer an immediately after the passing of judgment decree dismissing the suit but the appeal was preferred by the defendants against the judgment and decree dismissing the counter claim. The reason is obvious that a person who emerged successful in getting the suit dismissed shall not be considered to be an aggrieved person entitling them to file an appeal. The First Appellate Court reversed the judgment finding made on the counter claim on the that once the person has established the title over the suit property and the plaintiff was unsuccessful in getting away with the deed of conveyance executed and registered by him it was inconsequential that the revocation of license was made after a gap of five years. The plaintiff appellants have filed the instant second appeal before this Court and urged a point that the Court of Appeal below failed to consider that the purported execution of deed of conveyance was a conditional one in the sense that it was agreed to execute a deed of reconveyance and therefore not an absolute sale. further submitted that the purported deed of conveyance was managed to be executed as the defendant no. 2 intended to secure a loan from the bank and therefore the deed is illegal inoperative and void on the ground of fraud and misrepresentation. It is thus submitted that in fact it was not an absolute sale but the plaintiffs accommodated the defendant no. 2 to secure the loan on the promise that a deed of gift would be executed the moment the said defendant overcome with the financial crisis. Though the respondents have no right of audience at the stage of admission of an appeal under Order 41 Rule 11 of the Code but considering the gamut of the controversy we digress from such proposition of law and invited the respondents to address us as we feel that it is required for ends of justice. The facts as enumerated herein above are the reflection of the respective stands of the parties projected in the pleadings filed before the Court. What can be deduced therefrom is that there was the execution of the deed of conveyance by the plaintiffs along with Ramrati Devi divesting of right title and interest in respect of the suit property in favour of the defendant no. 1 for the considerations mentioned therein. Both the Courts have recorded the evidence of the first witness of the plaintiff that the transaction was fixed at a consideration of Rs. 4 00 000 and such consideration was in fact the highest market value of the suit property at that relevant point of time. The admitted position is thus that the deed of conveyance was executed in favour of the defendant no. 1 upon receipt of the consideration money and the challenges thrown over the same on the ground of fraud and misrepresentation. The deposition of the first witness of the plaintiff is categorical that the consideration mentioned in the purported deed of conveyance was received through an account payee cheque and it is nobody’s case that the said cheque was dishonoured or the money did not pass on to the It is a mandate under Order 6 Rule 4 of the Code of Civil Procedure to plead the particulars of fraud and or misrepresentation. It is thus axiomatic to exclude the unnecessary details and the facts which are essential to clearly make out the case of fraud and or misrepresentation must be pleaded to prevent the surprise and to make the adversary aware of the real point of dispute. All misrepresentation must be averred and pleaded in details so as to enable the defendants to raise the defense on the basis thereof. The aforesaid provision does not invite mere user of the expression “fraud or misrepresentation” but the averments must be set up in the plaint with clear precision and what constitutes the fraud and or misrepresentation must be apparently discernible It is no gain saying that the fraud unravels all act and a perpetrator of fraud should not be allowed to reap the benefit therefrom. Although “fraud” and “misrepresentation” are cognate vices and sometimes may overlap but they are still considered to be of distinct categories and therefore the separate incidents of fraud and misrepresentation should be pleaded with all precision. The misrepresentation are two distinct concepts and therefore the onus lies heavily upon the person seeking a particular act to have founded thereupon must adduce a strong evidence and should not be permitted to take advantage of the weakness of the defense case. In the instant case the plaintiffs admitted to have executed the purported deed of conveyance voluntarily but sought for declaration of such deed to be void on the ground of fraud and misrepresentation. Both appears to have been interlined when they pleaded that such execution and registration of the purported deed of conveyance was on the promise assurance to secure a loan from the bank with further stipulation that it would be returned by executing a deed of gift. The misrepresentation appears to have taken a front seat and the fraud ancillary thereto. It is not in dispute that the consideration mentioned in the purported deed of conveyance was received by the plaintiffs and a logical inference can be drawn that the same was duly appropriated in due course. Neither of the witnesses cited by the plaintiffs could depose that they offered the return of the money rather it came at the bar at the time of hearing of the instant appeal for admission that they are agreed to return the consideration price. The evidence is lacking on the alleged fraud or misrepresentation which can be deciphered from the findings recorded by both the Courts below. However the facts which swayed the mind of the Trial Judge appears to be misplaced when the entire focus was laid on the jurisdiction of the Court taking shelter under the Bengal Agra and Assam Civil Courts Act 1887. The Trial Court held that the relief claimed in the plaint seeking declaration that the purported deed of conveyance is void on the ground of fraud and misrepresentation should be valued on the basis of the consideration price mentioned therein. The Trial Court further proceeded to hover around the pecuniary jurisdiction of the Court enshrined in the said Act and ultimately held that a suit with such relief is not No doubt the said Act defines and limits the jurisdiction of the Court both on a territorial and pecuniary aspect. The distinction is sought to be made by the Trial Court that once the said Act limits the pecuniary jurisdiction the provision contained in the Code of Civil Procedure cannot override the same as it does not contain any provision limiting the jurisdiction of the Court both on pecuniary and territorial. There is no quarrel to the proposition of law that the aforesaid Act not only defines and limits the jurisdiction of the Court on pecuniary and territorial aspect but the moot question which appears to us is whether it impinges upon the root of the jurisdiction and under no circumstances the Court can entertain the proceeding exceeding pecuniary or territorial jurisdiction. It is one thing to say that by an advent of the statute defining and limiting the pecuniary and territorial jurisdiction it is absolutely different when the Court proceeds to decide the dispute without having any objection from the defendant relating to pecuniary or territorial jurisdiction and inviting the court to decide the matter on merit. The pecuniary and territorial jurisdiction can be waived by the defendant and therefore there is no fetter on the part of the Court to proceed and decide the matter on merit. Ordinarily the jurisdiction of Court is divided into three categories namely I) Territorial II) Pecuniary and III) plenary. Section 21 of the Code of Civil Procedure laid down the exposition of law pertaining to waiver of the territorial and pecuniary jurisdiction by the defendant. The matter decided by a Court even lacking territorial and pecuniary jurisdiction cannot be assailed on the ground of such jurisdiction unless the parameters laid down therein are satisfied. It is ardent duty of the defendant to take the plea of territorial and pecuniary jurisdiction at an earliest preferably before the settlement of issue and not at the latter stage. More particularly the restrictions are envisaged at the stage of appeal or revision under the said Section. However the jurisdiction relating to subject dispute which strikes at the root of the competence or the jurisdiction of the Court can neither be waived nor acquiesced by the defendant. Even the plenary jurisdiction cannot be conferred upon a Court lacking it by an agreement or the consent of the parties. If the Court is competent to decide a subject dispute had it been within its pecuniary or territorial limits it cannot refuse to decide the same in absence of any objection raised by the defendant at an earlier stage or before the settlement of issue of its own. There is no hesitation in our mind had the consideration money reserved in the purported deed of conveyance is below the pecuniary limit the Trial Court was competent to decide the matter on its merit and therefore it does not fall within the third category of jurisdiction i.e. the plenary jurisdiction. The Apex Court in case of Koopilan Uneen’s Daughter Pathumma Vs Coopilans uneen’s Son Kuntala reported in 1981 SC 1683 propounded the exposition of law on the applicability of Section 21 of the Act. It is held that there are three essential conditions namely I) the objection must be taken at the first instance II) it must be taken at an earliest opportunity and in all cases at or before the settlement of issues and III) there has been a consequent failure of justice. It is further held that all three conditions must co exists in order to attract Section 21 of the Code. In the present case the plaintiffs themselves approached the Court claiming a relief which was otherwise within the competence of the said Court thought ought to have been valued beyond the pecuniary limits but if there is no consequent failure of justice it ought not to have been decided in such way. At any rate the aforesaid observations have been made to clarify applicability of the provisions contained in the Bengal Agra and Assam Civil Court Act vis à vis the Code of Civil Procedure. The Trial Court dismissed the counter claim solely on the ground that it is improbable that a prudent man would wait more than five years and then revoke the license. As indicated above the parties are related to each other and it is not unusual that the permission was given for such occupation. However the Appellate Court reversed the finding on the counter claim solely on the ground that the moment the Court finds the transaction i.e. the deed of conveyance is legal proper and valid the plaintiffs cannot be said to have acquired any title or right to remain in possession except under the permissive occupation. There is a vast distinction between an occupation as licensee and the occupation on the basis of some other rights. The permissive occupation does not create any right in the property and runs counter to the concept of exclusive possession. Furthermore Section 5 of the Specific Relief Act entitles the title holder of the property to recover the possession from a person in wrongful occupation. The counter claim was based on title being conferred by virtue of the deed of conveyance executed by the plaintiffs along with Ramrati Devi which has not been denied nor any cogent evidence was adduced by the plaintiffs appellants to declare such deed to be void or inoperative. The moment the title to the property is established without conceivable doubts the title holder enjoys all the incidents of ownership including the power to recover possession. There is no absolute rule for serving a notice revoking the license. The suit itself is a notice and the intention to revoke is manifested therein. The possession is an incident of the ownership and is capable of being transferred to any person and such possession does not create a right but the constructive possession remains with the owner. In case of a license the occupation in the property is on behalf of the owner. The possession is relevant if there is no title in support thereof but once the title is established which is to be given a due weightage and therefore the possession cannot be considered in vogue. There may be cases where the presumption of possession of a person other than the owner is found but such possession remains permissive in absence of any document and is regarded as permissive. The possession in the past is one thing and the possession if continued in future is another. The real trouble starts when the possession is continued in future without any support of title. A suit for recovery of possession based on title has two distinct facets. Firstly adjudication on the title and secondly adjudication on possession. Once the cloud over the title is removed the possession of a person is regarded as a possession on behalf of the title holder. The aforesaid observation shall get impetus from the observations of the Apex Court in case of Maria Margarida Sequeria Fernandes and Others Vs Erasmo Jack de Sequeria through L.Rs. reported in 2012SCC 370 wherein it is held “67. In an action for recovery of possession of immovable property or for protecting possession thereof upon the legal title to the property being established the possession or occupation of the property by a person other than the holder of the legal title will be presumed to have been under and in subordination to the legal title and it will be for the person resisting a claim for recovery of possession or claiming a right to continue in possession to establish that he has such a right. To put it differently wherever pleadings and documents establish title to a particular property and possession is in question it will for the person in possession to give sufficiently detailed pleadings particulars and documents to support his claim in order to continue in possession.” Mere possession in the property how long it may be does not ipso facto establish a right into a person allowed to continue in possession by a title holder except a case of adverse possession is claimed and proved by cogent evidence. The relationship of the plaintiff with the defendant appellant is also one of the relevant factor when the permission to continue in is evident and the moment such permission is revoked no impediment can be seen against the title holder to recover the possession. 18 It is beyond cavil of further discussion that the title over the property has been established and proved by production of the sale deed which the appellant could not get away therewith as they claim that the same was to secure the loan and it was intended that the title holder would revert the title by executing a deed of gift in future is failed. We thus do not find that the findings of the Appellate Court can be faulted with warranting interference by us in the instant second appeal. The appeal is thus dismissed having not involved any substantial question of law. No order as to costs. Urgent certified website copies of this judgment if applied for be supplied to the parties upon compliance with all requisite formalities. I agree Kausik Chanda J.)

Extramarital affair no ground to conclude woman wouldn’t be a good mother & deny her child custody: Punjab & Haryana High Court

Noting that in a patriarchal society, it is common to cast aspersions on the moral character of a woman. Even assuming a woman is or has been in an extramarital relationship, the same by itself cannot lead to the conclusion that she would not be a good mother to deny her the custody of her child. This Judgment was held by P&amp;H High Court in the case of Mandeep Kaur v. State of Punjab and Ors. [CRWP No.8319 of 2020] by Hon’ble Single Judge Bench Justice Anupinder Singh Grewal. The Court noticed that the parties had gone to Australia in furtherance of their career prospects and they were working in Australia. The child was born in Australia and in her initial years, she was brought up there. The Court observed that the Mother had permanent residency in Australia and she is earning 70,000/- Australian dollars per annum and a handsome sum would be payable to her for the maintenance of the child as well by the Australian authorities. The Mother and Father developed matrimonial differences which led to their separation and the woman filed a petition for divorce in the year 2019, in the Federal Circuit Court (Australia), however, before the divorce could be finalized, her Husband promised that he would improve his behaviour in future and thus, they, started living together. Further, while they were living together, they arrived in India in January 2020, and thereafter, the Husband allegedly kept the passport of the child and took away the child and started threatening her wife. Thus, fearing her safety, she fled back to Australia wherein she filed a petition for the custody of the minor child in the Federal Circuit Court, Australia, and the court passed an interim order in April 2020 directing her husband to return the minor child to Australia. Meanwhile, she also moved to the Punjab &amp; Haryana High Court seeking custody of the Child. The court further noted that that “when there is an order of the Australian Court, the child is under five years of age, she is an Australian citizen and the petitioner is fairly well settled in Australia, the Court was of the view that it would be in the best interest and welfare of the child if her custody is handed to the petitioner-mother.”

on 30 05 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CRWP No.83120 DATE OF DECISION: 10.05.2021 Mandeep Kaur ... Petitioner Versus State of Punjab and others ... Respondents CORAM: HON BLE MR.JUSTICE ANUPINDER SINGH GREWAL Argued by: Mr. Divjyot Singh Sandhu Advocate for the petitioner. Mr. Dhruv Dayal Senior DAG Punjab for respondents No.1 to 3. Mr. Inderpal S. Parmar Advocate for respondents No.4 to 6. ANUPINDER SINGH GREWAL J. The petitioner has sought issuance of a writ in the nature of habeas corpus for the release of her minor daughter who is alleged to be in the custody of respondent No.4 and to handover the custody to her. It is stated in the petition that the marriage of the petitioner and respondent No.4 was solemnized on 20.11.2013. The respondent No.4 was an Australian citizen and the petitioner later joined him in Australia. Out of the wedlock a girl child Jasreen Kaur Garcha was born on 27.06.2017. The petitioner and respondent No.4 developed matrimonial differences which led to their separation. The petitioner is stated to have filed a petition for divorce on 14.10.2019 in the Federal Circuit Court wherein respondent No.4 is alleged to have been served. However before the divorce could be finalized respondent No.4 promised that he will improve his behavior in future and thus they started living together. The petitioner withdrew the divorce proceedings on 09.12.2019. The parties WWW.LIVELAW.IN on 30 05 CRWP No.83120 2 while they were living together arrived in India on 24.01.2020. The respondent No.4 kept the passport of the child and in a deep rooted conspiracy the child was taken away by respondent No.4 on 02.02.2020 when the petitioner had gone to her parental village Naulakha District Fatehgarh Sahib. It is stated in the petition that respondent No.4 instead of acceding to the request of the petitioner to handover the child started threatening her and the petitioner fearing her safety fled back to Australia on 05.02.2020. She filed a petition for the custody of the minor child in the Federal Circuit Court Australia and the court passed an interim order on 01.04.2020directing the respondent No.4 to return the minor child to Australia. It is also stated that the Family Court of Australia issued warrant of arrest against respondent No.4 on 13.10.2020577 that a petition for writ of habeas corpus for the custody of the child would be maintainable. In support of his submissions he has also cited judgment of the Supreme Court in the case of Mrs. Elizabeth Dinshaw vs. Arvand M. Dinshaw and another reported as 1987(1) SCC 42 and judgments of this Court in the case of Amita Chhabra vs. State of Haryana and others 2015RCR43 Gippy Arora vs. State of Punjab and others 2012RCR397 Neha vs. State of Haryana and others 2020RCR643 and Mandeep Kaur vs. State of Punjab and others 2021RCR152. Per contra learned counsel for respondent No.4 submitted that the petitioner was involved in a relationship with the brother in law of respondent No.4. This relationship led to a marital discord between the parties. The respondent No.4 was not aware of this relationship earlier and had called the petitioner to Australia initially on a tourist visa for 3 months and thereafter on permanent residency documents. Respondent No.4 did not want the matrimonial life of his sister to be destroyed and WWW.LIVELAW.IN on 30 05 CRWP No.83120 4 therefore persuaded the petitioner to withdraw her divorce petition as he wanted to sort out the matter. Thereafter the parties landed in India with the minor child on 24.01.2020. The petitioner on her return straightaway went to her parental house along with the minor. Respondent No.4 even at that time wanted to settle the differences to protect his as well as the matrimonial life of his sister. The Panchayat was convened on 04.02.2020 and it was agreed that as the petitioner has permanent residency in Australia the custody of the child would be handed over to respondent No.4. The petitioner did not have any grouse otherwise instead of leaving for Australia she would have filed proceedings for the custody of the child in India. The petitioner thereafter returned to Australia and filed a case for divorce which was granted by the Australian court. He also contends that while the order of divorce was passed the court had also recorded that proper arrangements have been made for the care welfare and development of the child children. The respondent No.4 had filed a petition under Section 5 and 25 of the Guardians and Wards Act 1890 read with Section 6 of the Hindu Minority and Guardianship Act 1956 before the Family Court at Ludhiana on 19.03.2020 which is pending adjudication. He has placed reliance on the judgment of the Supreme Court in the case of Sumedha Nagpal Vs. State of Delhi 2000SCC 745 to submit that as disputed questions of fact are involved the same cannot be decided under its jurisdiction and the family court would be an appropriate forum to adjudicate the matter. He further contended that the minor child is residing with the father and grandparents in a cordial family environment for almost a year and the change of the custody at this stage would not be in the interest of WWW.LIVELAW.IN on 30 05 CRWP No.83120 5 the child especially when the petitioner is living alone and thus would not be in a position to take care of the child. He also submits that respondent No.4 had obtained diploma in Hospitality Management in 2009 from Holmes Institute of Australia. The respondent No.4 owns about 2½ acres of agricultural land and besides income from the agricultural land he has 6 flats and is getting rental income of Rs.24 000 per month. The gross income of respondent No.4 is about Rs.47 000 per month. The father of respondent No.4 also has agricultural land and is drawing pension as he is a retired employee of the Electricity Board. The mother of respondent No.4 owns 155 square yards plot in village Kohara District Ludhiana. Learned counsel further submitted that the petitioner has not completed the Bachelor degree of Physiotherapy and has studied up to 10+2 class. The averment in the petition that she had completed Bachelor degree of Physiotherapy is incorrect. He further submitted that after her return to Australia the petitioner had preferred an application for the custody of the child and in the application the Australian address of respondent No.4 had been mentioned although she knew that respondent No.4 along with their child was in India. He has cited the judgment of this Court in the case of Ranbir Singh vs. Satinder Kaur Mann and others 2006(3) RCR628 to submit that a decree which has been obtained from a foreign court on the basis of a fraud would not be enforceable in India. He has also submitted that the interest and welfare of the minor child would be of paramount consideration and merely an order of a foreign court would not be determinative. The interest and the welfare of the child would be question of fact and should be adjudicated in a family court on the basis of evidence led before it. He has cited the judgment of WWW.LIVELAW.IN on 30 05 CRWP No.83120 6 the Supreme Court of India in the case of Ruchi Majoo vs. Sanjeev Majoo 2011RCR122. In response to the averment of the counsel for respondent No.4 that she has not obtained a degree of Bachelor in Physiotherapy but she is only 10+2 it has been clarified by counsel for the petitioner that she had cleared the Part I examination of Bachelor of Physiotherapy and a copy of the mark sheet had also been filed. Heard through video conferencing. The issue with regard to the maintainability of a petition in issuance of a writ of habeas corpus for the custody of a child to a parent has been dealt with by the Supreme Court in the case of Yashita Sahu vs. State of Rajasthanwherein it was held that it is well settled that the writ jurisdiction could be invoked in the best interest of the child. Paragraph 9 of the judgment is reproduced hereunder: “It is too late in the day to urge that a writ of habeas corpus is not maintainable if the child is in the custody of another parent. The law in this regard has developed a lot over a period of time but now it is a settled position that the court can invoke its extraordinary writ jurisdiction for the best interest of the child. This has been done in Elizabeth Dinshaw v. Arvand M. Dinshaw and Ors. 1 SCC 42 Nithya Anand Raghavan v. State& Anr. 8 SCC 454 and Lahari Sakhamuri v. SobhanKodali 7 SCC 311 among others. In all these cases the writ petitions were entertained. Therefore we reject the contention of the appellant wife that the writ petition before the High Court of Rajasthan was not maintainable.” WWW.LIVELAW.IN on 30 05 CRWP No.83120 7 Therefore I do not find any merit in the contention of the learned counsel for respondent No.4 to assail the maintainability of the petition. The petitioner who is the mother is seeking the custody of four year old girl child. The child would require love care and affection of the mother for her development in the formative years. The support and guidance of the mother would also be imperative during adolescence. The mother is the natural guardian of the child till the age of five years in terms of Section 6 of the Hindu Minority and Guardianship Act 1956 which is reproduced hereunder: “Natural guardians of a Hindu minor. — The natural guardian of a Hindu minor in respect of the minor’s person as well as in respect of the minor’s propertyare —in the case of a boy or an unmarried girl — the father and after him the mother: provided that the custody of a minor who has not completed the age of five years shall ordinarily be with the mother in case of an illegitimate boy or an illegitimate unmarried girl — the mother and after her the father in the case of a married girl—the husband: Provided that no person shall be entitled to act as the natural guardian of a minor under the provisions of this section —if he has ceased to be a Hindu orif he has completely and finally renounced the world by becoming a hermitor an asceticwherein the WWW.LIVELAW.IN on 30 05 CRWP No.83120 8 custody of 3½ year old daughter was granted to the mother Neha vs. State of Haryana and otherswherein custody of four year old girl child was also handed over to the mother. A Division Bench of this Court in the case of Rajat Agarwal vs. Sonal Agarwal FAO No.45417 decided on 25.02.2021 had upheld the order of the Family Court granting custody of 13 year old child to the mother. The relevant extract of the judgment is reproduced hereunder: “17. Keeping in view the totality of facts and circumstances of the present case we are of the considered opinion that respondent mother is the best person to educate and bring up her minor daughter and to effectively take care of her interest and welfare. The role of the mother in the development of a child s personality can never be doubted. Mother shapes child’s world from the cradle by rocking nurturing and instructing her child. Particularly the company of a mother is more valuable to a growing up female child unless there are compelling and justifiable reasons a child should not be deprived of the company of the mother. 18. Apart from that Mother is a priceless gift a real treasure and an earnest heartfelt power for a child especially for a growing girl of the age of 13 years which is her crucial phase of life being the major shift in thinking biologically which may help her to understand more effectively with the help of her mother and at this crucial teen age her custody with the mother is necessary for her growth. At this growing age daughter looks for mother a female companion with whom she can share and discuss certain issues comfortably. There would be so many things which a daughter could not discuss with her father and as such mother shall be the best person to take care of her daughter at this growing age.” Furthermore the petitioner has permanent residency in Australia. She is earning 70 000 Australian dollars per annum and a WWW.LIVELAW.IN on 30 05 CRWP No.83120 9 handsome sum would be payable to her for the maintenance of child as well by the Australian authorities. She has bought a house in Australia. Although the petitioner should have been more forthcoming and categoric in disclosing her educational qualification yet the lapse is not significant enough to oust her from writ jurisdiction for issuance of a writ of habeas corpus for the custody of a child as what is of paramount consideration for this Court is the interest and welfare of the child. The petitioner can avail opportunities for further studies in Australia and enhance her qualification. She is nonetheless employed in Australia and is commanding a financial status which would enable her to bring up the child by imparting her good education. The father is an Australian citizen. He has also obtained a diploma in Hospitality Management and is employed in Australia and only recently had come to India. He owns a small piece of agricultural land and is stated to have some rental income as well. It is apt to notice that the parties had gone to Australia in furtherance of their career prospects. They were working in Australia. The child was born in Australia and in initial years was brought up there. Ideally it would in the best interest and welfare of the child if she would have the love affection and company of both the parents especially in the formative years. This court had mooted the idea of reconciliation but there was no headway as petitioner wants to live in Australia while respondent No.4 wants to settle in India although he has a professional degree in Australia and his prospects there appear to be bright. This however is not WWW.LIVELAW.IN 1 on 30 05 CRWP No.83120 10 to suggest that the child raised by the single parent would be at a disadvantage. Modern times are replete with the instances of children raised by the single parent having grown as responsible adults contributing to nation building in various fields. The principle of comity of courts has been followed by the courts in India to honour and to show due respect to the judgments obtained by the courts abroad. It is equally true that the judgment of a foreign court would not be the only factor while considering the issue of custody of a child to a parent. It would only be one of the factors for consideration and would be subservient to the paramount consideration of the interest and welfare of the child. Reference may be made to the judgments of the Supreme Court in the cases of Yashita Sahu vs. State of Rajasthan and othersand Mrs. Elizabeth Dinshaw vs. Arvand M. Dinshaw and anotheris reproduced hereunder: “13. In the fast shrinking world where adults marry and shift from one jurisdiction to another there are increasing issues of jurisdiction as to which country’s courts will have jurisdiction. In many cases the jurisdiction may vest in two countries. The issue is important and needs to be dealt with care and sensitivity. Though the interest of the child is extremely important and is in fact of paramount importance the courts of one jurisdiction should respect the orders of a court of competent jurisdiction even if it is beyond its territories. When a child is removed by one parent from one country to another especially in violation of the orders passed by a court the country to which the child is removed must consider the question of custody and decide whether the court should conduct an elaborate enquiry on the question of WWW.LIVELAW.IN 1 on 30 05 CRWP No.83120 11 child’s custody or deal with the matter summarily ordering the parent to return the custody of the child to the jurisdiction from which the child was removed and all aspects relating to the child’s welfare be investigated in a court in his her own country.” The order had been passed by the Federal court in Australia directing the respondent No.4 to return the child to Australia. The Family court at Australia has also issued warrant of arrest against respondent No.4 on 13.10.2020the parents were in Malaysia and the father knew that the mother had left Malaysia for India but he had intentionally mentioned her Malaysian address in the divorce proceedings initiated by him in Malaysia. The mother who was not aware of the proceedings did not appear and the father obtained an ex parte decree for the custody of the child. In the instant case although the Australian address of the respondent No.4 had been mentioned but a perusal of the record indicates that respondent No.4 had not only engaged a counsel to defend himself but he had also himself put in appearance. The order of the Australian Court does indicate his presence. The petitioner has also placed on record a copy of the correspondence between respondent No.4 and his lawyer at Annexure P 18. The respondent No.4 was thus aware of the proceedings. He had participated therein and only at a later stage he chose not to participate. Thus it cannot be said that the order was passed by the Australian court behind the back of respondent No.4 or was not in conformity with the principles of natural justice. The judgment in Sumedha Nagpal vs. State of Delhipertained to the custody of a 2 year child. The mother had sought custody while the father had pleaded that the mother had left the matrimonial house and abandoned the child to live with her parents. The child in that case was brought up in the house of the father or the matrimonial home in India. There were allegations and counter allegations involving disputed questions of fact and it was under such circumstances that the Supreme WWW.LIVELAW.IN 1 on 30 05 CRWP No.83120 13 Court held that such disputed questions of fact would be best decided by the family court. In the instant case the child was born in Australia and is an Australian citizen. He was also brought up in Australia and only at the age of about 4 years he was brought to India by both the parents. In the case of Ruchi Majoo vs. Sanjeev Majoothe mother had brought the child to Delhi while the father who was in America had preferred a petition there and the American court had ruled in favour of the father. The child had been living with her mother for 3 years and the custody of the child was directed to be handed over to the mother and one of the factors which weighed with court was that the father had contracted second marriage. The interest of the child was held to be paramount and it was also observed that nothing prevents the High Court from embarking a detailed enquiry if the cause of action is within its jurisdiction. In the aforenoted facts and circumstances especially when there is an order of the Australian Court the child is under five years of age she is an Australian citizen and the petitioner is fairly well settled in Australia I am of the considered view that it would be in the best interest and welfare of the child if her custody is handed to the petitioner mother. Consequently the petition is allowed. The custody of the girl child would be handed over to the petitioner. The petitioner is stated to be residing in Australia. Till the petitioner arrives in India to take the custody of the child respondent No. 4 shall ensure that the child interacts with the petitioner through video conferencing on every Tuesday Friday and Sunday at 01:00 p.m.or as mutually agreed by them. In the event of the petitioner facing any difficulty with regard to the interaction WWW.LIVELAW.IN 1 on 30 05 CRWP No.83120 14 she would be at liberty to approach the Member Secretary District Legal Services Authority Ludhiana who shall arrange the video conferencing of the child with the petitioner. On the arrival of the petitioner in India and after observing Covid 19 protocol the custody of the child shall be handed over to her by respondent No.4. The petitioner would be at liberty to approach the Station House Officer of the area who would ensure that the custody of the child is handed over to her. After the custody of the child is handed over to the petitioner she shall arrange interaction of the child with respondent No.4 through video conferencing on every Sunday at 11:00 a.m.or as mutually agreed by them. The parties shall henceforth abide by the ordersof the Federal Family Court in Australia. I would also like to place on record the valuable assistance rendered by the counsel for the parties especially by Mr. Divjyot Singh Sandhu Advocate who unfortunately expired due to Covid 19 pandemic after the judgment was reserved. JUDGE 10.05.2021 SwarnjitS Ramesh Whether speaking reasoned : Yes No Whether reportable : Yes No WWW.LIVELAW.IN

Fresh assessment to be made to replace a retrospectively calculated assessment in the absence of property owner : Delhi High Court

The order for assessment of property is required to respect certain rights to the property holder which includes his/her right to be present when the assessment is made. It is exercised along with right to raise objections regarding the assessment made. This was held in the judgment passed by a single bench judge comprising HON’BLE MR JUSTICE SANJEEV SACHDEVA, in the matter of M/S AMRAPALI STEELS PVT. LTD. V. NORTH DELHI MUNICIPAL CORPORATION dealt with an issue where the petitioner impugned the assessment order of a property as the property was measured in the absence of the petitioner and the assessment order had been passed retrospectively in respect of portions of the property which were not even constructed in the year considered. The respondent-Corporation had assessed the property of the petitioner retrospectively with effect from 01.04.2004 and demanded an amount of Rs. 21,60,425/- as arrears of property tax including interest and penalty as on 08.06.2021. The Petitioner questioned this assessment order dated 10.06.2021 stating that the property was measured in the absence of the petitioner and assessment order has been passed retrospectively in respect of portions of the property which were not even constructed in the year 2004 and were constructed in the year 2013. The counsel for the petitioner also submits that the petitioner was not given a personal hearing and the respondent-Corporation has not given credit for the amounts already deposited. He submits that approximately a sum of Rs. 3 lakhs have been paid which has not been accounted for by the Corporation. The counsel for the respondent disputed that and submitted that warrants of distress has been issued to the ICICI Bank, Model Town to attach the bank account of the petitioner to an extent of Rs. 18,86,291/- and as per his instructions the said amount has been attached by the bank. The counsel also stated that the respondent-Corporation is willing to give a fresh hearing to the petitioner and  He prays that the amount attached by the bank be directed to be remitted to the Corporation.

IN THE HIGH COURT OF DELHI AT NEW DELHI Judgment delivered on: 29th July 2021 W.P.(C) 7059 2021& CM APPLN. 22293 2021 M S AMRAPALI STEELS PVT. LTD. Petitioner NORTH DELHI MUNICIPAL CORPORATION..... Respondent Advocates who appeared in this case: For the Petitioner : For the Respondents: Mr. Anand Prakash Standing Counsel with Ms. Varsha Arya Mr. Ayush Gupta Advocate Advocate for North DMC CORAM: HON’BLE MR JUSTICE SANJEEV SACHDEVA SANJEEV SACHDEVA J. The hearing was conducted through video conferencing. Petitioner impugns assessment order dated 10.06.2021 whereby the respondent Corporation has assessed the property of the petitioner retrospectively with effect from 01.04.2004 and demanded an amount of Rs. 21 60 425 as arrears of property tax including interest and penalty as Learned counsel for the petitioner submits that the petitioner was not given a personal hearing. He submits that the respondent Corporation has on 08.06.2021. W.P.7059 2021 not given credit for the amounts already deposited. He submits that approximately a sum of Rs. 3 lakhs have been paid which has not been accounted for by the Corporation. He submits that the property was measured in the absence of the petitioner and assessment order has been passed retrospectively in respect of portions of the property which were not even constructed in the year 2004 and were constructed in the year 2013. This is disputed by learned counsel for the respondent. Learned counsel submits that warrants of distress has been issued to the ICICI Bank Model Town to attach the bank account of the petitioner to an extent of Rs. 18 86 291 and as per his instructions the said amount has been attached by the bank. He however submits that without prejudice to the rights and contentions of the parties respondent Corporation is willing to give a fresh hearing to the petitioner. He prays that the amount attached by the bank be directed to be remitted to the Corporation. In view of the facts and circumstances of the case and the above submissions this petition is disposed of with the following directions: The impugned assessment order dated 10.06.2021 is set aside. The matter is remitted to the Deputy Assessor & Collector for fresh assessment. Petitioner shall appear before the Deputy Assessor & Collector on 09.08.2021 at 11.00 a.m. along with W.P.7059 2021 documents in support of his assessment. Petitioner would be at liberty to file further objections if any on the said date. The officers of the Corporation shall measure the the petitioner and thereafter after giving an opportunity of a personal hearing pass fresh assessment order. the presence of ICICI Bank Model Town is directed to remit a sum of Rs. 9 50 000 to the respondent Corporation out of the attached amount and the remaining attached amount shall be retained by the bank which shall be subject to the fresh assessment order to be passed by the respondent Corporation. On remittance of the said amount of Rs. 9 50 000 and remaining attached amount retention of attachment on the bank account of the petitioner shall be lifted. The Deputy Assessor & Collector shall pass a fresh assessment order within a period of two months from The petition is disposed of in the above terms. Copy of the order be uploaded on the High Court website and be also forwarded to learned counsels through email by the Court Master. SANJEEV SACHDEVA J JULY 29 2021 W.P.7059 2021

IPC Section 304B- Statements with regards to involvement of a person in a crime, however justified, is not acceptable in the absence of proper evidence: Supreme Court of India

Wherever this aspect has been referred to, a sweeping statement has been made that the husband and in-laws of the deceased had inflicted cruelty or it has been stated that the husband and his mother had done so, without specifying their roles. However, the said evidence would only be sufficient to hold the husband guilty but same would be insufficient to hold the mother-in-law guilty. This was observed by Hon’ble A. S. Bopanna, J while deciding the matter of Kuljit Singh &amp; Anr. v. The State of Punjab – [Criminal Appeal No. 572 of 2012]. This case is an appeal directed against a passed by the High Court of Punjab and Haryana, Chandigarh. By the said judgement the High Court dismissed the appeal filed by the appellants herein and upheld the conviction of the appellants ordered by the learned Sessions Judge, Amritsar registered for the offence under Section 304¬B of the IPC.  The   sentence   of   rigorous imprisonment for 8 years imposed on both the appellants by the learned Sessions Judge was however modified. In that regard, the period of imprisonment to be undergone by the appellant No.2 alone was reduced to 7 years. The appellants thus being aggrieved by   their   conviction   and sentence are before this Court in this appeal. The undisputed facts are that the appellant No.1 and the deceased were married. The incident in question leading to the death of Manju occurred on 02.03.1999 i.e., in a short span of about 2 years from the date of marriage. The death of Manju, the wife of the appellant No.1 was an unnatural death. The cause of death as spoken to by the expert witnesses was due to consumption of insecticide. The circumstances provided under Section 304-B IPC to the extent of  death of the woman being caused otherwise than under normal circumstances and such death having occurred within 7 years of her marriage, would stand established. In that background, since the appellants were charged of having committed the offence under Section 304-B IPC, the factual aspects which were required to be established by the prosecution in the course of trial is about the deceased being subjected to cruelty or harassment by her husband or any of his relatives and that such cruelty or harassment was for or in connection with demand for dowry. In the instant facts, to establish this aspect of the matter, the father and mother of the deceased along with another witness, were examined. From the evidence of the said witnesses, the trial court as well as the High Court noted that the demand for a television set and Rs. 10,000/- (Rupees ten thousand) was being put forth ever since the marriage of the deceased with the husband. The evidence tendered by the said witnesses has stood the test of cross-examination and has been rightly accepted by both the courts.  In that background, the evidence would establish that the death had occurred due to organo-phosphorous poisoning. Hence, as noted, the death was unnatural and there was demand for dowry. In that background, the evidence would establish that the death had occurred due to organo-phosphorous poisoning. Hence, as noted, the death was unnatural and there   was   demand   for   dowry. In those circumstances, and the further   evidence, the parents of the deceased would also refer to the circumstances when the deceased had been sent back to the parental home to secure fulfilment of the said demand, but the parents being unable to fulfil the demand, had counselled and sent her back. The question before the court was whether such evidence was be sufficient to hold both appellants guilty of committing the offence. Supreme court after perusing the facts and evidences, held that- “Considering the fact that on all these aspects of the matter, the trial court has referred to the evidence in detail and the High Court has reappreciated the same, to the extent of both the courts holding the husband guilty, convicting him and imposing the sentence in the manner as done, is justified and does not call for interference. The only aspect which requires consideration herein is as to whether the conviction and sentence handed down to the mother-in-law is justified or not? The mother-in-law has denied any role and had also contended that she was not present in the house when death of her daughter-in-law had occurred. The presence of the husband was established through the statement of a witness, but the presence of the mother-in-law was not spoken about. There is no specific evidence with regard to dowry demands being made by the mother-in-law or cruelty being inflicted by her pursuant to such demand. Hence, the said evidence would be sufficient to hold the husband guilty   but   same   would   be insufficient to hold the mother-in-law guilty. Hence, we are of the opinion that the mother-in-law is entitled to be acquitted.” Click here to read the Judgement

This appeal is directed against the judgment dated Chandigarh in CRA­S­307­SB of 2002. By the said judgment Penal Code was examined as PW1 and the mother of the deceased was examined as PW8 while another witness Bidhi Chand was appellant No.1. The evidence tendered by the said witnesses accepted by both the courts. In that background the evidence to organo phosphorous poisoning. Hence as noted the death was unnatural and there was demand for dowry. In those circumstances the further evidence of PW1 and PW8 the secure fulfilment of the said demand but the parents being It was also stated by them that during such visit she had mentioned about the ill­treatment meted out to her. But the Considering the fact that on all these aspects of the the High Court has reappreciated the same in its correct perspective to the extent of both the courts holding the appellant No.1 guilty convicting him and to whether the conviction and sentence handed down to the appellant No.2 is justified or not The learned counsel for the appellant in that regard has strenuously No.2 namely the mother­in­law of the deceased had been cruelty. As noted from the statement recorded under Section rightly noted by the trial court it had come in the evidence through the deposition of Bittu that he and appellant No.1 had taken the deceased to Dr. Kalsi and thereafter to Shri Guru Ram Dass Hospital Amritsar though the version given by the said witness was because she was pregnant. However it has been established that such shifting to poisonous substance being consumed. Therefore though the presence of the appellant No.1(Kuljit Singh) was established being inflicted by her pursuant to such demand. From the made that the husband and in­laws of the deceased had mother had done so without specifying their roles. However as appellant No.1 guilty but same would be we are of the opinion that the appellant No.2 is For the reasons stated above the conviction and sentence imposed on the appellant No.1 is affirmed while the conviction and sentence imposed on the appellant No.2 is set aside. The judgment dated 08.01.2002 in Sessions Case No.74 1999 and the judgment The appellant No.1 who is on bail shall 11. Pending applications if any shall stand disposed of

The basic ingredients of the offence under Section 498A and 304B/34 IPC were held by the trial Court was not fulfilled: High Court of Orissa

This was a case based on circumstantial evidence. Such an opinion was held by The Hon’ble High Court of Orissa before The Hon’ble Mr. Chief Justice S. Muralidhar and The Hon’ble Mr. Justice Biswajit Mohanty in the matter of Sarathi Mahananda Vs. State of Odisha [CRLA No.445 of 2014].  The facts of the case were associated with an appeal under Section 374(2) of the Code of Criminal Procedure, 1973 which was directed against the judgment and order passed by the learned Additional Sessions Judge, Titilagarh in Sessions Case No.15 of 2011 dated 12th November 2013. It was stated that under Sections 302 IPC, the appellant was convicted and sentenced him to rigorous imprisonment for life. Moreover, the present appellant and his parents faced a trial on offences under Sections 498A, 304B, 302 and 34 IPC. The appellant was convicted under Section 302 while he was acquitted from the offences under Section 498A, 304B/34.  It was submitted that the appellant married his deceased wife  Harabati Besra in 2005 but soon after, he and his family member ill-treated and tortured the deceased. After staying in her paternal home for 1 year , the deceased returned back to her husband’s home. On July 2010 Padu Mahananda informed the deceased’s father about her critical condition. The deceased’s father with his family upon reaching the house found the dead body of his daughter. Accordingly he lodged an FIR against the in-laws. Likewise, the appellant was arrested. The appellant admitted that the tools used for killing was concealed in his house. The post mortem report of the dead body revealed that cause of death was asphyxia which normally happens when strangulated which was homicidal in nature.  After going through all the reports, submissions and the facts, The Hon’ble Court held that “… On an analysis of the evidence the Court is satisfied that each of the above links form a continuous chain of circumstances and each of them has been sufficiently proved, beyond reasonable doubt by the prosecution. Taken together, they unerringly point to the guilt of the Appellant and are inconsistent with his innocence… The Court finds no grounds made out for interfering with the impugned judgment and order of the trial Court. The appeal is accordingly dismissed.”

IN THE HIGH COURT OF ORISSA AT CUTTACK CRLA No.4414 An appeal under Section 374(2) of the Code of Criminal Procedure 1973) Sarathi Mahananda versus Appellant State of Odisha Advocates appeared in this case: For Appellant For Respondent Mr. Nityananda Mohapatra Mrs. S. Patnaik Addl. Government Advocate THE CHIEF JUSTICE JUSTICE BISWAJIT MOHANTY 1. This appeal is directed against the judgment and order dated 12th November 2013 passed by the learned Additional Sessions Judge Titilagarh in Sessions Case No.15 of 2011 convicting the Appellant for the offence under Sections 302 IPC and sentencing him to rigorous imprisonment RI) for life and to pay a fine of Rs.25 000 and in default of payment of fine to further undergo RI for one year. CRLA No.4414 Dr. S. Muralidhar CJ 2. At the outset it must be noted that the present Appellant along with his parents faced trial having been charged for the offence under Sections 498A 304B 302 and 34 IPC. By the same impugned judgment of the trial Court Accused Nos.2 and 3 were acquitted from the charges. The present Appellant was acquitted of the offence under Section 498A 304B 34 IPC but was convicted for the offence under Section 302 IPC. 3. The case of the prosecution was that the Appellant was married to the deceased Harabati Besra in 2005 and soon thereafter the family members of the Appellant commenced ill treating and torturing the deceased. The deceased then came to her father s house and remained there for a period of one year. Thereafter the mother of the deceased left her in the house of the accused persons requesting them not to ill treat her in future. 4. Six seven months later on 22nd July 2010 one Padu Mahananda informed Lakhpati Besra father of the deceased over phone that his daughter was in a serious condition. On getting the said information Lakhpati Besra along with his other family members went to the house of the accused persons and found that his daughter was lying dead. The broken bangles and Mangal Sutra of the deceased were lying near her dead body. Accordingly Lakhpati Besra lodged an F.I.R. at Sindhekala Police Station where P.S. Case No.84 was registered for the offences under Section 498A 302 34 IPC. CRLA No.4414 5. After completion of the investigation a charge sheet was submitted against three accused persons for the offences under Sections 498A 304B 302 406 and 34 IPC read with Section 4 of Dowry Prohibition Act. The accused persons faced trial having been charged under Sections 498A 304B 302 and 34 IPC. 21 witnesses were examined by the prosecution whereas the defence adduced no evidence. Several witnesses turned hostile including PWs 1 and 2 who were supposed to have called the Police to the house of the accused and are supposed to have found the dead body of the deceased lying in the verandah of their house. Likewise PWs 3 4 5 6 10 and 18 were declared hostile and were cross examined by the prosecution. 6. Sri Satyanarayan Behera the then Officer in Charge of Sindhekala PS seized two plastic ropes after visiting the spot and prepared an inquest report. On 24th July 2010 he arrested the present Appellant. According to the prosecution the Appellant made a disclosure in the presence of the witnesses that the plastic ropes and kendu stick used in the killing had been kept concealed in his house and he offered to get them recovered. The aforementioned relevant portion of the disclosure statement of the Appellant was marked as Ext. 2 2. The Appellant led the I.O. and the witnesses to the place of concealment of the aforementioned objects which were then seized under Seizure List Ext. 3 2. The wearing apparels of the deceased were seized. 7. On 25th July 2010 PW 21 received the post mortem examination report and on 7th November 2010 he sent the seized CRLA No.4414 articles to the Regional Forensic Science Laboratory Sambalpur. Thereafter the charge sheet was submitted in the trial Court. 8. The medical officer who conducted the post mortem on 23rd July 2010 found inter alia one ligature mark in the neck which was transverse continuous low down in the neck below the thyroid extending from left side of the neck into right side of the neck. There were injuries found on larynx and trachea. Fracture of hyoid bone was present. The cause of death was opined to be asphyxia resulting from strangulation. The death was opined to be homicidal in nature. 9. On an analysis of the evidence the learned trial Court came to the conclusion that although PW 16 father of the deceased reported that the accused had subjected to his daughter torture PW 16 was completely silent regarding any demand of dowry by the accused at any point in time. Likewise mother of the deceased PW 15) and maternal unclespoke of the deceased being subjected to cruelty. However they were silent on cruelty or harassment by the accused persons soon before her death. It was held that the PWs 15 16 and 19 did not inspire confidence to prove that the deceased was subjected to cruelty and harassment by the accused in connection with any demand for dowry soon prior to her death. 10. The evidence of PW 11 regarding the death being homicidal went unchallenged. Although the prosecution successfully proved CRLA No.4414 that the death of the deceased had occurred in otherwise than normal circumstances and was homicidal in nature and within seven years of marriage yet the basic ingredients of the offence under Section 498A and 304B 34 IPC were held by the trial Court to be not fulfilled. Accordingly it was held that the prosecution had failed to prove the charge under the aforementioned provisions against the accused beyond all reasonable doubt. 11. As far as the charge under Section 302 34 IPC was concerned the trial Court held that although there were minor discrepancies in the evidence of the PWs 15 16 17 and 19 and they were related to each other their evidence could not be completely ignored. The credibility of their evidence regarding the death of the deceased inside the house of the accused persons could not be shaken. Apart from this the Appellant admitted in his examination under Section 313 Cr PC that the I.O. had conducted inquest on the dead body of the deceased. Accordingly it was proved that the death of the deceased took place in the house of the accused. From the evidence of PWs 1 4 6 7 and 18 it was held by the trial Court to be proved that the Appellant was alone present in the house where the death took place therefore the cause of the death of the deceased was within the special knowledge of the Appellant. 12. The trial Court held that the evidence regarding recovery of the weapon of offence was also proved. When it was put to the accused during his examination under Section 313 Cr PC except denying the seizure itself he had no satisfactory explanation as to CRLA No.4414 how the seized weapons came into his possession. That apart the chemical examination report of the Appellant contained faded patches of human blood. The explanation of the Appellant even in this regard in his statement under Section 313 Cr.P.C. was not found convincing. 13. In terms of Section 106 of the Evidence Act the fact of the death of the deceased which occurred in his house was within the knowledge of the Appellant and he was unable to offer a satisfactory explanation except a vague denial. For all of the aforesaid reasons the trial Court held the circumstances proved formed a continuous chain and pointed unerringly to the guilt of the Appellant and his innocence was inconsistent with the 14. This Court has heard the submissions of Mr. Nityananda Mohapatra learned counsel for the Appellant and Mrs. S. Patnaik learned Additional Government Advocate the State Respondent). 15. This was a case based on circumstantial evidence. The following circumstances have been convincingly proved by the 17 and 19. i) That the accused and his wife were not living a happy conjugal life. This stood proved from the evidence of PWs 15 16 CRLA No.4414 ii) That the death of the deceased took place in the dwelling house of the accused and he alone was present with the deceased. This stands proved by the evidence of PWs 1 4 6 7 and 18. iii) Prior to death of the deceased she was residing separately from her parents. iv) The death of the deceased was homicidal in nature and resulted from strangulation. This is proved by evidence of PW 11 the medical officer. v) The disclosures made by the Appellant while in custody about knowledge of the weapons of offence and their seizure pursuant to the statement made by him under Section 27 of the Evidence Act stood proved beyond reasonable doubt. vi) The accused could offer no satisfactory explanation as to how he came into possession of the weapon of offence and therefore an adverse inference could be drawn. The explanation offered while making statement under Section 313 Cr PC as to the human blood in his pant was unconvincing. vii) There was no evidence to indicate that other than the Appellant anyone else entered into the house at the relevant point in time. The Appellant also could not offer a satisfactory explanation as regards any of the incriminating circumstances against him. CRLA No.4414 16. As regards the deceased being found dead in the dwelling house of the Appellant and his not offering any convincing explanation as to the cause of the death the following observations in Trimukh Maroti Kirtan v. State of Maharashtra 2006) 10 SCC 681 are relevant: in such circumstances where If an offence takes place inside the privacy of a house and assailants have all the opportunity to plan and commit the offence at the time and in circumstances of their choice it will be extremely difficult for the prosecution to lead evidence to establish the guilt of the accused if the strict principle of circumstantial evidence as noticed above is insisted upon by the Courts. A Judge does not preside over a criminal trial merely to see that no innocent man is punished. A Judge also presides to see that a guilty man does not escape. Both are public duties." 17. On an analysis of the evidence the Court is satisfied that each of the above links form a continuous chain of circumstances and each of them has been sufficiently proved beyond reasonable doubt by the prosecution. Taken together they unerringly point to the guilt of the Appellant and are inconsistent with his innocence. 18. The Court finds no grounds made out for interfering with the impugned judgment and order of the trial Court. The appeal is accordingly dismissed. Chief Justice Judge CRLA No.4414

No evidence adduced by the defence to prove false implication of the appellants, hence conviction stands justified: Chhattisgarh High Court

It stands proved beyond all reasonable doubt that it is the accused/appellants who, quarreled with the complainant, abused him filthily in the name of his caste in public place, assaulted upon him and injured Mohit by club and caused damage to the vehicle of the complainant by assaulting with a club, resulting in loss of Rs.10,000/- (approx.) to the complainant.  This was said in the case of Prabhakar Yadav vs State Of Chhattisgarh [CRA No. 125 of 2021] by Shri Justice Gautam Chourdiya in the High Court of Chattisgarh  The facts of the case are that in an appeal filed under Section 374(2) Cr.P.C., the appellants have challenged the legality, validity and propriety of the judgment of conviction and order of sentence dated 09.12.2020 passed by the Special Judge in Special Criminal Case under the SC/ST Act No.20/2018, whereby and whereunder the appellants stand convicted and sentenced as under Section 294 and 427of IPC, Section 323/34 of IPC read with Section 3(2)(v)(a) of SC/ST Act and Section 3(1)(s) of SC/ST Act Learned counsel for the appellants submits that the trial Court has not properly appreciated the overall evidence available on record for holding the appellants guilty. He submits that due to previous enmity between the appellants and the complainant, they have been falsely implicated in this case by the complainant party. There are material contradictions and omissions in the statements of the complainant and other witnesses. No cogent evidence is available on record against the appellants. Therefore, the impugned judgment of conviction and order of sentence deserves to be set aside and the appellants be acquitted of the aforesaid charges. Learned counsel for the State submits that conviction and sentence of the accused/appellants are strictly in accordance with law and there is no illegality or infirmity in the same warranting interference by this Court The Court opined that “considering the facts and circumstances of the case and the manner in which the offence took place as stated by the complainant- Rishi which is duly corroborated by the evidence of the witnesses; the prompt FIR; the medical reports proved by treating doctor and further considering the fact that there is no major contradiction or omission in the complainant’s statement as well as in the statements of supporting witnesses affecting the credibility of his version, no any evidence was adduced by the defence to prove false implication of the appellants, the entire evidence available on record, oral and documentary, adduced by the prosecution, the nature of injuries suffered by the complainant and injured Mohit Gupta and proved by the prosecution, it stands proved beyond all reasonable doubt that it is the accused/appellants who on 11 26.02.2018, quarreled with the complainant, abused him filthily in the name of his caste in public place, assaulted upon him and injured Mohit by club and caused damage to the vehicle (motorcycle) of the complainant by assaulting with a club, resulting in loss of Rs.10,000/- (approx.) to the complainant”.

1NAFRHIGH COURT OF CHHATTISGARH BILASPUR Judgment Reserved on 17.03.2021Judgment Delivered on 10.05.2021CRA No. 12211.Prabhakar Yadav S o Shri Dhanurjai Yadav aged 40 years 2.Sandeep Yadav S o Shri Prabhat Yadav @ Prabha @ Prabhakar Yadav aged 20 years Both are resident of Jhagarpur P.S. Bagecha District Jashpur C.G. Civil and Revenue District Jashpur C.G. AppellantsVersus State of Chhattisgarh Through Police Station Bagecha District Jashpur C.G. Respondent For Appellants Shri Ajay Mishra Advocate. For State Shri Sameer Uraon Government Advocate. Hon’ble Shri Justice Gautam ChourdiyaC A V Judgment1.In this appeal filed under Section 374(2) Cr.P.C. the appellants have challenged the legality validity and propriety of the judgment of conviction and order of sentence dated 09.12.2020 passed by the Special Judge {constituted under Scheduled Castes and Scheduled TribesAct 1989} Jashpur District Jashpur C.G. in Special Criminal Case under the SC ST Act No.20 2018 whereby and whereunder the appellants stand convicted and sentenced as under: 2Conviction SentenceUnder Section 294 of Indian Penal CodeSimple Imprisonment for one month and fine of Rs.100 in default of payment of fine to further undergo simple imprisonment for one weekUnder Section 323 34 of Indian Penal Code read with Section 3(2)(v)(a) of the Scheduled Castes and Scheduled TribesAct 1989Simple Imprisonment for six months and fine of Rs.500 in default of payment of fine to further undergo simple imprisonment for one monthUnder Section 427 of Indian Penal CodeSimple Imprisonment for three months and fine of Rs.1 000 in default of payment of fine to further undergo simple imprisonment for one monthUnder Section 3(1)(s) of Scheduled Castes and Scheduled TribesAct Simple Imprisonment for six months and fine of Rs.500 in default of payment of fine to further undergo simple imprisonment for one month(All sentences were directed to run concurrently)2.Case of the prosecution in brief is that on the date of incident i.e. 26.02.2018 at about 10:00 am complainant Rishi @ Abhishek Kumar along with Ankur Vishwas Mohit Gupta Shubham Jaiswal and Gautam Bhagat went to meet Ajay Suryawanshi in hotel. At that time accused appellants came there on motorcycle and due to previous enmity with Shubham Jaiswal they started quarrelling with him. When complainant Rishi @ Abhishek Kumar and Mohit Gupta tried to pacify the dispute then accused Sandeep Yadav and Kailash Yadav started quarrelling with the complainant 3abused him filthily in the name of his caste in public place threatened him to kill and went from there. After some time Kailash Yadav Sandeep Yadav and Prabhakar Yadav again came there by Bolero Car and started quarrelling with the complainant assaulted upon him by club abused him filthily in the name of caste in public place and also caused damage to his vehicleand when Mohit Gupta tried to pacify the dispute they also assaulted upon him by club. Thereafter written report Ex.P 6 was submitted by Injured Mohit Gupta informing the police about the incident and on the basis of written report FIR Ex.P 7 was registered against the accused appellants on 27.02.2018. On the same day i.e. 26.02.2018 complainant Rishi @ Abhishek Kumar was sent for medical examination and PW 3 Dr. Jayant Ram Bhagat examined him and gave his MLC report vide Ex.P 8 and found one lacerated wound 4 cm x 2 cm x 1 cm on right scalpon the body of the complainant.According to him injury present on the body of the complainant was simple in nature and caused by hard and blunt object. He opined that the injury was caused within six hours prior to his examination. 3.Injured Mohit Gupta was also medically examined by PW 3 Dr. Jayant Ram Bhagat and he gave his MLC report vide Ex.P 9: ◦Abrasion 1.5 cm x 0.5 cm on right wrist. 4◦Abrasion 5cm x 1 cm on left neck.◦Abrasion 5cm x 0.5 cm on left cheek.◦Linear abrasion 5 cm x 0.1 cm on left forehead.According to him injuries present on the body of the Mohit were simple in nature and caused by friction with rough surface and pointed object. He opined that the injuries were caused within six hours prior to his examination. 4.During investigation Spot Map was prepared vide Ex.P .1. Damaged motorcycle of complainant Rishi Paikara @ Abhishek Kumar Paikara was seized vide Ex.P 2. Caste Certificate of complainant Rishi @ Abhishek Kumar Paikara Ex.P 3 was seized vide Ex.P 4. NuksaniPanchnama was prepared vide Ex.P 5. One club and Bolero car were seized from accused Prabhakar @ Prabha @ Prabhat Yadav vide Ex.P 14. Accused Kailash Yadav and Prabhakar @ Prabha @ Prabhat Yadav were arrested on 16.10.2018 & 05.10.2018 vide Exs.P 13 & 15 respectively and accused Sandeep Yadav was arrested on 21.12.2018. Statements of the witnesses were recorded. After completion of investigation charge sheet was filed against the appellants under Sections 294 506(B) 323 427 34 of Indian Penal Code and Section 3(1)(n)( k) of the Scheduled Castes and Scheduled TribesAct 1989. 55.The trial Court framed the charges under Sections 294 323 read with 34 506(B) and 427 of Indian Penal Code and Section 3(1)(s) of the Scheduled Castes and Scheduled TribesAct 1989 against the appellants which were denied by them and they prayed for trial.6.So as to hold the accused appellants guilty the prosecution examined as many as 10 witnesses i.e. PW 1 Rishi @ Abhishek Kumar Paikara PW 2 Mohit Gupta PW 3 Dr. Jayant Ram Bhagat PW 4 Shubham Jaiswal PW 5 Gautam Bhagat PW 6 Sanjay Goswami PW 7 Prashant Grahi Tigga PW 8 Padamshri Tamwar PW 9 Dinesh Rajwade and PW 10 Ankur Vishwas. Statements of the accused appellants were also recorded under Section 313 of Cr.P.C. in which they denied the incriminating circumstances appearing against them in the prosecution case pleaded innocence and false implication. However no witness was examined by them in their defence.7.The trial Court after hearing counsel for the respective parties and considering the material available on record by the impugned judgment convicted and sentenced the appellants as mentioned in para 1 of this judgment.8.Learned counsel for the appellants submits that the trial Court has not properly appreciated the overall evidence available on record for holding the appellants guilty. He submits that due to previous enmity between the appellants and the complainant 6they have been falsely implicated in this case by the complainant party. There are material contradictions and omissions in the statements of the complainant and other witnesses. No cogent evidence is available on record against the appellants. Therefore the impugned judgment of conviction and order of sentence deserves to be set aside and the appellants be acquitted of the aforesaid charges. 9.On the other hand supporting the impugned judgment learned counsel for the State submits that conviction and sentence of the accused appellants are strictly in accordance with law and there is no illegality or infirmity in the same warranting interference by this Court.10.Heard learned counsel for the parties and perused the material available on record.11.PW 1 Complainant Rishi @ Abhishek Kumar stated in his deposition that on the date of incident i.e. 26.02.2018 at about 10:00 am he along with Ankur Vishwas Mohit Gupta Shubham Jaiswal and Gautam Bhagat went to meet Ajay Suryawanshi in hotel. At that time accused appellants came there on motorcycle and due to previous enmity with Shubham Jaiswal they started quarrelling with him. When he and Mohit tried to pacify the dispute then accused Sandeep Yadav and Kailash Yadav started quarrelling with complainant abused him filthily in the name of his caste in public place threatened him to kill and went from there. 7After some time Kailash Yadav Sandeep Yadav and Prabhakar Yadav again came there by Bolero Car and started quarrelling with the him abused him filthily in the name of caste in public place assaulted upon him by club as a result of which he suffered injury on his body and became unconscious and they also caused damage to his vehicle and when PW 2 Mohit Gupta tried to pacify the dispute they also assaulted upon him by club. Thereafter written report Ex.P 6 was submitted by Injured Mohit Gupta informing the police about the incident and on the basis of written report FIR Ex.P 7 was registered against the accused appellants on 27.02.2018.12.PW 2 Mohit Gupta is also the injured in this case. He has stated the same facts as stated by PW 1 Rishi @ Abhishek Kumar and supported the prosecution case.13.PW 3 Dr. Jayant Ram Bhagat medically examined the PW 1 Rishi @ Abhishek Kumar and PW 2 Mohit vide Exs.P 8 & 9 respectively and gave his reports as mentioned in the preceding paragraphs. He has duly proved the said reports. He has also examined the seized club and opined that the injury suffered by the PW 1 Rishi @ Abhishek Kumar could be caused by seized club. 14.PW 4 Shubham Jaiswal stated in his deposition on the date of incident he along with Rishi Paikara Ankur Vishwas & Gautam Bhagat were discussing about the making of online Aadhar card. 8He stated that prior to the incident accused Kailash Yadav had committed marpeet with him and he informed the police about the same. He stated that for taking revenge of the said incident accused appellants came in the hotel quarreled with him Rishi Paikara and Mohit abused them filthily and went from there. He stated that after some time accused appellants again came there by Bolero car started quarreling with complainantRishi Paikara abused him filthily in the name of his caste and assaulted upon him by club as a result of which complainant sustained injury on his head blood was oozing from there and he became unconscious and accused appellants fled from there. Thereafter he along with his friends took the complainant to hospital for treatment. 15.PW 5 Gautam Bhagat stated in his deposition that on the date of incident appellants quarreled with the complainant abused him filthily in the name of caste in public place committed marpeet with him and also threatened him to kill. 16.PW 6 Sanjay Goswami Assistant Sub Inspector went to the spot and prepared the spot map vide Ex.P 1 seized the motorcycle of complainant vide Ex.P 2 prepared the NuksaniPanchnama of motorcycle vide Ex.P 5 seized the caste certificate of complainant vide Ex.P 3 sent the seized club for examination vide Ex.P 11 arrested the accused Kailash on 16.10.2018 vide Ex.P 13 and recorded the statements of the witnesses. 917.PW 7 Prashant Grahi Tigga and PW 10 Ankur Vishwas also proved this fact that all three accused persons quarreled with the complainant Rishi @ Abhishek abused him filthily in the name of his caste in public place and committed marpeet with him by club. 18.PW 8 Padamshree Tawar SDOP seized the club vide Ex.P 14 arrested the accused Prabhakar Yadav vide Ex.P 15 and also recorded the statements of the witnesses. 19.PW 9 Dinesh Rajwade Assistant Sub Inspector registered the FIR Ex.P 7 and sent the injured Rishi Paikara and Mohit Gupta for medical examination vide Exs. P 17 and P 18 and duly proved the same. 20.On a minute examination of the above evidence it is clear that on the date of incident i.e. 26.02.2018 the appellants had quarreled with the complainant abused him filthily in the name of his caste in public place threatened him of life and committed marpeet with him and injured Mohit Gupta by club. The complainant has remained firm during his cross examination and his statement is also supported by PW 2 Mohit Gupta PW 4 Shubham Jaiswal PW 5 Gautam Bhagat PW 7 Prashant Grahi Tigga and PW 10 Ankur Vishwas.21.The next question which arises for consideration by this Court is whether the finding recorded by the trial Court as to the caste of the complainant is correct or not. 1022.In this case it is not disputed by learned counsel for the parties that complainant Rishi @ Abhishek Kumar Paikara belongs to the Gond Scheduled Tribe Community. PW 1 complainant also stated in his deposition that he belongs to Kawar Caste which comes under the category of Gond Scheduled Tribe Community and that fact is uncontroverted in the cross examination and also proved by the seized caste certificate of complainant vide Ex.P 3. Thus from the material collected by the prosecution I am of the view that the prosecution has succeeded in proving the caste of the complainant as Scheduled Tribe. 23.Thus considering the facts and circumstances of the case and the manner in which the offence took place as stated by the complainant Rishi @ Abhishek Paikara which is duly corroborated by the evidence of PW 2 Mohit Gupta PW 4 Shubham Jaiswal PW 5 Gautam Bhagat PW 7 Prashant Grahi Tigga & PW 10 Ankur Vishwas the prompt FIR the medical reportsproved by treating doctor PW 3 Dr. Jayant Ram Bhagat and further considering the fact that there is no major contradiction or omission in the complainant’s statement as well as in the statements of supporting witnesses affecting the credibility of his version no any evidence was adduced by the defence to prove false implication of the appellants the entire evidence available on record oral and documentary adduced by the prosecution the nature of injuries suffered by the complainant and injured Mohit Gupta and proved by the prosecution it stands proved beyond all reasonable doubt that it is the accused appellants who on 1126.02.2018 quarreled with the complainant abused him filthily in the name of his caste in public place assaulted upon him and injured Mohit by club and caused damage to the vehicleof the complainant by assaulting with a club resulting in loss of Rs.10 000 to the complainant. Therefore this Court is of the opinion that the trial Court was fully justified in convicting and sentencing the appellants by the impugned judgment and as such no interference is called for by this Court. 24.In the result the appeal being without any substance is liable to be dismissed and is accordingly dismissed. As per report dated 01.03.2021 submitted by Jail Superintendent District Jail Jashpur District Jashpur C.G. the appellants having completed the jail sentence have been released from jail on 31.12.2020. Therefore there is no requirement of passing any order in respect of arrest surrender etc. of the appellants. Sd JudgeAkhilesh

Contract revoked on the grounds that no work had been completed and there was no supervision: Patna High Court

There is a provision in the agreement between the petitioner and the Government of Bihar’s Rural Works Department for adjudication of disputes between the parties arising out of the execution of work that binds both parties where contract revoked on the grounds that no work had been completed and there was no supervision, the petitioner free to approach the appropriate forum as agreed between the parties to resolve their dispute in accordance with the agreement is upheld by the High Court of Patna through the learned bench led by HONOURABLE THE CHIEF JUSTICE and HONOURABLE MR. JUSTICE S. KUMAR in the case of Shri Brijesh Kumar Vs. The State of Bihar (Civil Writ Jurisdiction Case No. 14317 of 2022) Brief facts of the case are that the petitioner has requested for the order of the Executive Engineer, Rural Works Department, Works Div., Narkatiyaganj, West Champaran, dated 03.07.2021, rescinding the agreement dated 10.12.2008 executed in favour of the petitioner for the construction of a road under the Prime Minister Rural Road Scheme from Baisakhwa to Sikta in the district of West Champaran and sending a recommendation to the Engineer-in-chief, Bihar, Patna, for blacklisting proprietorship firm of the petitioner. Furthermore, a writ of mandamus be issued directing the Executive Engineer, Rural Works Department, Works Division, Narkatiyaganj, West Champaran, to make payment of approximately Rs. 76,81,000/- to the petitioner firm under Agreement dated 10.12.2008 towards renovation work of the fully constructed road that was severely damaged in the devastating flood of 2010. Additionally, a writ of Mandamus be issued, directing the Executive Engineer to pay the maintenance amount of approximately Rs. 24,85,364/- for the financial years 2017-18 to 2020-21 under the Agreement dated 10.12.2008, as well as directing the Executive Engineer to pay the petitioner approximately 50 lakhs towards permanent restoration costs for repairing works of the project road in 2020-21 as a result of the damage caused by the flood of 2017. In this writ application, the petitioner has challenged the Executive Engineer, Rural Works Department, Works Division, Narkatiyaganj, West Champaran’s order dated 03.07.2021, which revoked the contract between the petitioner and the Rural Works Department on the grounds that no work had been completed and there was no supervision. As the writ petition concerns a contested factual issue, the High Court cannot decide it using its discretionary writ jurisdiction under Article 226 of the Indian Constitution. There is a provision in the agreement between the petitioner and the Government of Bihar’s Rural Works Department for adjudication of disputes between the parties arising out of the execution of work that binds both parties. In light of the terms of the agreement, the writ petition is dismissed, with the petitioner free to approach the appropriate forum as agreed between the parties to resolve their dispute in accordance with the agreement, and the petitioner free to pursue other legal remedies for redress of his grievance. Click here to read the judgment Judgement reviewed by – Pooja Lakshmi

IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.143121 Shri Brijesh Kumar a proprietorship Firm situated at Village Chauriya tola P.O. Dhumnagar P.S. Jagdishpur District West Champaran through its proprietor Brijesh Kumar male aged about 44 years S o Ramashray Prasad having same address ... Petitioner s The State of Bihar through the Principal Secretary Rural Works Department Govt. of Bihar Patna Principal Secretary Rural Works Department Govt. of Bihar Patna Executive Engineer Rural Works Department Works Div. Narkatiyaganj Engineer in Chief Rural Works Department Bihar Patna ... Respondent s The proceedings of the Court are being conducted by Hon’ble the Chief Justice Hon’ble Judges through Video Conferencing from their residential offices residences. Also the Advocates and the Staffs joined the proceedings through Video Conferencing from their residences For the Petitioner s For the Respondent s CORAM: HONOURABLE THE CHIEF JUSTICE and HONOURABLE MR. JUSTICE S. KUMAR Per: HONOURABLE MR. JUSTICE S. KUMAR Mr.Baidya Nath Thakur Adv Mr.P.N. ShahiFor quashing the order dated 03.07.2021 passed by the Executive Engineer Rural Works Department Works Div. Narkatiyaganj West Champaran whereby the Agreement No. 13 2008 09 dated 10.12.2008 executed in favour of the petitioner for construction of road under the Prime Minister Rural Road Scheme from Baisakhwa to Sikta in the district of West Champaran bearing Package No. BR 37R 152 has been rescinded and recommendation sent to the Engineer in chief Bihar Patna for blacklisting the petitioner Patna High Court CWJC No.143121 dt.17 01 2022 proprietorship firm. Further a writ of Mandamus be issued: ii) For direction to the Executive Engineer Rural Works Department Works Division Narkatiyaganj West Champaran to make payment of approximately Rs 76 81 000 to the petitioner firm under the Agreement No 13 2008 09 dated 10.12.2008 towards renovation work of the fully constructed road which was severely damaged in the ravaing flood of 2010 iii) For direction to the Executive Engineer to pay the maintenance amount of approximately Rs. 24 85 364 for the financial years 2017 18 to 2020 21 under the Agreement No. 13 2008 09 dated 10.12.2008 iv) For direction to the Executive Engineer to pay approximately 50 lakhs to the petitioner towards permanent restoration cost for repairing works of the project road in 2020 21 as against the damage caused in the flood of 2017.” Petitioner in this writ application has assailed the order dated 03.07.2021 passed by the Executive Engineer Rural works Department Works Division Narkatiyaganj West Champaran by which the contract entered between the petitioner and Rural works Department has been rescinded on the ground that no work has been done as well as lack of supervision. Since the writ petition raises disputed question of fact same cannot be adjudicated by the High Court under its discretionary writ jurisdiction under Article 226 of the Constitution of India. Under the agreement entered between the petitioner and Rural Works Department Government of Bihar there is provision of adjudication of dispute between the parties Patna High Court CWJC No.143121 dt.17 01 2022 arising out of execution of work which bind both the parties In view of terms of the agreement the writ petition is disposed of with liberty to the petitioner to approach the appropriate forum as agreed between the parties to resolve their dispute in terms of the agreement. Petitioner is at liberty to take other remedial measures as available to him under law for redressal of his grievance The petition stands disposed of in the aforesaid terms Interlocutory Application(s) if any stands disposed of (S. Kumar J

State of Madhya Pradesh V/s Mukesh & Ors.

Doing something for the offender is not abetment. Doing something with knowledge so as to facilitate him to commit the crime or otherwise would constitute abetment.  [Case Brief] State of Madhya Pradesh V/s Mukesh &amp; Ors. Case name: State of Madhya Pradesh V/S Mukesh &amp; Ors. Case number: Criminal Appeal number-1087 of 2006 Court: The Supreme Court of India Bench: JUSTICE S.B SINHA, JUSTICE DALVEER BHANDARI Decided on: OCTOBER 19, 2006 Relevant Act/Sections: Section 143 (1) of the Railway Act, 1989, Section 313 of the Code of Criminal Procedure, Section 30 of the Indian Evidence Act   In the present case, the Hon’ble Supreme Court was approached by the state of Madhya Pradesh under the appellate jurisdiction of the court. The petitioner i.e, State of Madhya Pradesh has approached the Supreme Court against the allowance of the revision application filed by the respondents in the High Court of Madhya Pradesh.The respondents in the present case were working as reservation clerks at Indore Railway Station. The Assistant Sub Inspector of General Railway Station came to the reservation office upon receipt of the information that a person had been illegally purchasing tickets from reservation counters. The Inspector thereof apprehended a person named Suresh Shah, for illegal purchasing the tickets. Upon a search conducted on Suresh, 94 tickets along with filled and non-filled reservation demand forms and cash money of Rs. 33,403/-were also recovered from him.Subsequent to this, an FIR was lodged against Suresh. It was further alleged that he has been carrying business in obtaining reservation tickets illegally. PROCEDURAL HISTORY: The Respondents in the present case have been accused of abetting Suresh in commission of the illegal act. The respondents along with Suresh were prosecuted for offences committed under Section 143 (2) and Section 143(1) of the Railway Act 1989, respectively. Whereas Suresh absconded during the trial itself, the respondents were found guilty of the offences levelled against them and were sentenced to undergo 3 years of rigorous imprisonment with a fine of Rs. 10,000/-in default.However, the respondents were further directed to undergo 6 months additional imprisonment. Against which they preferred appeal to the Sessions Judge, consequently being transferred to the 6th Additional Sessions Judge Indore.The appeal was dismissed by the Judge, resulting in filing of revision application by the respondents before the Madhya Pradesh High Court, which allowed the application.Consequent to the allowance of revision application, the state of Madhya Pradesh moves to the Apex Court against such allowance ISSUE BEFORE THE COURT: Whether doing something for the offender amounts to abetment of an offence? RATIO OF THE COURT: The court while examining the facts of the case observed that reservation forms might have been filled up by the main accused Suresh Shah with the help of his associates. And the Respondents who were working in three different counters on two different occasions might not have any hands therein. While issuing tickets they were not able to examine the person before them due to heavy rush at the counters and less time to issue huge number of tickets. Further the main accused used different handwritings on different reservation forms that could not have been figured out by the respondents while checking them.As far as abetment is concerned, the court after analysing the definition of ‘abetment’ given under section 107 of the IPC said that that it requires three essentials viz., instigation to do the wrongful act, engagement in any conspiracy with one or more persons for commission of the act, intentionally aiding to the commission of the act. The court held that neither of the three conditions given under the section were fulfilled by the acts of the respondents. They merely were fulfilling their duties in issuing the tickets and due to rush of people they were not able to locate the illegal acts committed by the main accused Suresh Shah.On this, the court declared that doing something for the offender does not amount to abetment for an offence. However doing something with knowledge to facilitate the commission of the act for the main offender amounts to abetment.The court observed that the respondents by their acts have not violated any rules or directions contained in any circular issued by the concerned authorities in that behalf and declined to interfere with the proceedings before the High Court. DECISION HELD BY COURT: In this case the judgment was given by JUSTICE S.B SINHA that the Court did not find the respondents guilty of abetment under Section 143 (2) for the offence committed by the main accused Suresh Shah. The court found High Court’s observation as sustainable and declared that the State has not been able to show any illegality in the judgment of the High Court.The court considered not to interfere therewith and dismissed the appeal.    

Appeal10806 State of Madhya Pradesh Mukesh & Ors DATE OF JUDGMENT: 19 10 2006 S.B. Sinha & Dalveer Bhandari JUDGMENT Arising out of S.L.P.No. 6406 S.B. SINHA J Leave granted Respondents were working as reservation clerks. They were posted at Indore Railway Station. The Assistant Sub Inspector of General Railway Police Indore on an information received by him that one person had illegally been purchasing tickets from reservation counters came to the reservation office and in the process apprehended a person named Suresh Shah. He was from Mumbai. From a search conducted 94 tickets of different trains and some filled up as well as some unfilled reservation demand forms were recovered from him. A sum of Rs. 33 403 was also found in his possession. A First Information Report was lodged. Allegedly during investigation of the said case he was found to have been carrying business in procuring reservation tickets illegally. Respondents herein were said to have abetted in commission of the said offence. On the said charge Respondents herein with the aforementioned Suresh Shah were prosecuted. Whereas the said Suresh Shah was charged under Section 143of the Railway Act 1989 Respondents herein were charged under Section 143(2) thereof. When the case was at an advanced stage the said Suresh Shah absconded. The trial however was concluded against Respondents. They were found guilty of commission of the offence charged against them and were sentenced to undergo 3 years’ rigorous imprisonment and to pay a fine of Rs. 10 000 in default whereof they were directed to undergo further 6 months rigorous imprisonment. They preferred an appeal thereagainst before the Sessions Judge which was transferred to the Court of 6th Additional Sessions Judge Indore and registered as Criminal Appeal No. 78 of 1999. The said appeal was dismissed by an order dated 1.05.2002. A revision application was filed before the High Court by them which by reason of the impugned judgment has been allowed. The State of Madhya Pradesh is thus before us Ms. Vibha Datta Makhija learned counsel appearing on behalf of Appellant principally raised two contentions before us. Firstly it was submitted that although there is no direct evidence as against Respondents herein but from the circumstantial evidence adduced by the prosecution it must be held to have been proved that the railway tickets were being clandestinely sold in black market and unless Respondents had abetted the main accused Suresh Shah and could not have been found to be in possession of 80 tickets involving 94 reservations. It was contended that Respondents were found to have issued the tickets and keeping in view the timings of issuance thereof as has been noticed at paragraph 21 of the judgment of the learned Trial Judge it would have been impossible for the said Suresh Shah to book so many tickets within a few hours viz. from 0933 hrs. to 1916 hours. It was also submitted that Respondents did not raise any particular defence. The High Court the learned counsel would submit also committed a serious error in opining that Respondents had not been asked about the circumstantial evidence or evidence appearing against them by the learned Trial Judge while examining them under Section 313 of the Code of Criminal Procedure. Mr. P.N. Misra learned senior counsel appearing on behalf of Respondents on the other hand supported the judgment of the High Court. Before embarking upon the rival contentions of the parties we may briefly notice the admitted facts. At the relevant time 11 reservation counters were functioning at the Indore Railway Station. Reservation offices at the said place function from 0800 hours to 1400 hours and then from 1410 hours to 2000 hours. An employee works only for six hours in one reservation counter. Two of the reservation clerks were absent. The offence is said to have taken place on 2nd October 1995 i.e. just before the ensuing Durga Puja festival. There were long queues. Ordinarily minimum 2 3 minutes’ time was required for issuance of one ticket. Indisputably a circular was issued in terms whereof one reservation form could be given to one person. He however would be entitled to ask for reservation of six seats for passengers. If one person intends to obtain more than one reservation form he is required to take permission from Divisional Commercial Manager. However indisputably a person intending to obtain reservation for more than six persons can make his associates stand in the queue or come again and again demanding reservation forms. During Diwali Dussehera and Summer holidays in view of rush admittedly at least 20 persons remain in queue in each reservation window. Documents maintained in the reservation office had not been seized. No excess amount was found at the cash counter. No extra cash was also found on the person of Respondents In the reservation forms handwriting of the accused Suresh Shah was allegedly found. It stands admitted that the reservation forms were handled in different counters. Out of the six accused persons three were in the morning shift and three were in the evening shift. From the timings of issuance of tickets as noticed by the learned Trial Judge at paragraph 21 of its judgment it appears that two tickets were found to have been issued at the same time from two counters. The learned Trial Judge in his judgment proceeded on the basis that the accused Nos. 2 to 7 had not acted in good faith as envisaged under Section 186 of the Railways Act The fact that more than one ticket had been issued from different counters at the same time is not disputed. The possibility of the said Suresh Shah to have associates with him who presented reservation forms in different counters cannot thus be ruled out. No doubt Respondents while discharging their public duties were required to maintain transparency but admittedly the Investigating Officer did not conduct any investigation as to whether the said Suresh Shah who allegedly had been carrying on systematic business in procuring reservation for passengers had any associate or not. He is a resident of Bombay. According to the prosecution he used to operate from the said place. Nothing has been brought on records to show as to whether he had regularly been operating from Indore or not. The prosecution is silent in regard thereto. Reservation forms might have been filled up by Suresh Shah but then the possibility that Respondents who were working in three different counters on two different occasions might not have any hands therein cannot be ruled out. They were not expected to verify the handwritings of a person while issuing tickets. They as noticed hereinbefore were required to deal with a person standing before them very How the handwriting of one person in different forms could have been checked by Respondents is open to guess. Only for bulk tickets approval was to be taken but as noticed hereinbefore an associate of the same person may stand in the queue and demand reservation forms from the reservation windows on more than one occasion. Once a filled up form is passed over the reservation clerks had admittedly no discretion in the matter but to issue Section 143(1) of the Railways Act reads thus 143. Penalty for unauthorised carrying on of business of procuring and supplying of railway tickets. 1) If any person not being a railway servant or an agent authorised in this behalf. a) carries on the business of procuring and supplying tickets for travel on a railway or for reserved accommodation for journey in a train or b) purchases or sells or attempts to purchase or sell tickets with a view to carrying on any such business either by himself or by any other person he shall be punishable with imprisonment for a term which may extend to three years or with fine which may extend to ten thousand rupees or with both and shall also forfeit the ticket which he so procures supplies purchases sells or attempts to purchase or sell Provided that in the absence of special and adequate reasons to the contrary to be mentioned in the judgment of the court such punishment shall not be less than imprisonment for a term of one month or a fine of five thousand rupees A person in view of the aforementioned provision can be said to have committed an offence if he has been carrying on a business. The expression business" implies continuity. The term ’abetment’ has not been defined in the Railways Act. What would constitute abetment is contained in Section 107 of the Indian Penal Code which reads thus 107. Abetment of a thing.\027A person abets the doing of a thing who\027 First. Instigates any person to do that thing or Secondly.\027Engages with one or more other person or persons in any conspiracy for the doing of that thing if an act or illegal omission lakes place in pursuance of that conspiracy and in order to the doing of that thing or Thirdly. Intentionally aids by any act or illegal omission the doing of that thing A person it is trite abets by aiding when by any act done either prior to or at the time of the commission of an act he intends to facilitate and does in fact facilitate the commission thereof would attract the third clause of Section 107 of the Indian Penal Code. Doing something for the offender is not abetment. Doing something with knowledge so as to facilitate him to commit the crime or otherwise would constitute abetment Admittedly the first and second part of the said provision has no application. No illegal omission on the part of Respondents has been established. Admittedly in issuing the tickets Respondents have not violated any rules. Ex facie they have also not violated any direction contained in any circular issued by an appropriate authority in that behalf. The entire prosecution is based on the purported confession of Suresh Shah. A statement of an accused would be admissible against a co accused only in terms of Section 30 of the Indian Evidence Act. Such a statement of co accused was required to be corroborated by adduction of independent evidence. The prosecution has not adduced any independent evidence to show that Respondents had intentionally aided the said Suresh Shah and thereby abetted him in commission of an offence under Section 143(1) of the Indian Railways Act Ms. Makhija may be correct in contending that the High Court has made a wrong observation that all the circumstances appearing against Respondents had not been put in their examination under Section 313 of the Code of Criminal Procedure but its ultimate conclusion on the said issue is not correct. We have been taken through the questions asked to all Respondents by the learned Magistrate. The circumstances appearing against Suresh Shah and Respondents were concededly different. However one questionnaire common to all was prepared. 90% of the questions in the said questionnaire were to be put to Suresh Shah but strangely the same questions had been put to all Respondents. Except one question viz. "what you want to say in your defence " not only similar questions had been put similar answers had been recorded. Strangely enough even questions required to be put to each of the accused persons separately have been made part of the same questionnaire. Such common questions framed and asked to all the accused persons did not subserve the requirements of Section 313 of the Code of Criminal Procedure. To the said extent the High Court’s observations cannot be said to be unsustainable. Moreover it must be borne in mind that we are dealing with a judgment of acquittal passed by the High Court. If two views are possible ordinarily this Court would not interfere therewith. The State has not been able to show any illegality in the judgment of the High Court. We therefore do not intend to interfere therewith. The appeal is dismissed.

Accused are entitled to a benefit of doubt in a criminal case: Bombay High Court

In any criminal case, the prosecution has to prove under the Indian Penal Code, that the accused are guilty beyond reasonable doubt, held, a bench of Justice VK Jadhav and Justice Shrikant Kulkarni, while adjudicating the matter in Shri Sharad Ashok Thange v. State of Maharashtra; [CRIMINAL APPEAL NO.135 OF 2014]. On 16.9.2012 at about 3.00 a.m. PW 1-Raosaheb Kondiba Dukale-father of the deceased Kalindi has fled F.I.R at Shevgaon Police Station. It has been stated in the FIR that deceased Kalindi was given in marriage to appellant/accused no.1 Sharad Thange and marriage was performed on 29.1.2012. It has been alleged that Kalindi was treated well for a period of one month and, thereafter subjected to cruelty on account of the nonfulfllment of demand of Rs.50,000/- (Rs. Fifty Thousand) for purchasing a motorcycle. It has also alleged that on 13.9.2012 when the complainant has invited all the accused in his house for Dhonde Feast, appellant/accused no.1 Sharad has made a demand of one Tola Gold Ring, however, due to poor economic condition, complainant PW 1 Raosaheb could not fulfll the said demand. However, he has promised that when he will fetch good yield from his land, said ring will be given. All the accused left the house of the complainant alongwith Kalindi, however, while leaving the house deceased Kalindi was crying. On the very next day, i.e. on 15.9.2012 deceased Kalindi informed to her brother. PW 3 Dada Dukle stated on phone that as golden ring was not given to her husband appellant/accused, he has severally assaulted her and subjected her to cruelty. On the same day, at about 3.00 p.m. Sarpanch of village Avane informed to PW 3 Dada Dukle on phone that his sister deceased Kalindi died due to burns in the house of the accused. Accordingly, PW 1 Raosaheb, his wife Prayagbai and other relatives rushed to the house of the accused at Barhanpur, Tq. Shevgaon, District Ahmednagar. They have found that deceased Kalindi was totally in burnt condition and her dead body was lying in the house of the accused. They have carried said dead body to the Civil Hospital, Shevgaon. PW 1 Raosaheb has expressed his suspicion that since demands of Rs.50,000/- for purchasing the motorcycle and one Tola gold ring were not satisfied, his daughter was subjected to cruelty on that count, and accordingly, deceased Kalindi had committed suicide by setting herself on fire.

on 08 07 2021 on 22 03 1 CRI APPEAL 134.2014 &135.2021.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL APPEAL NO.135 OF 20141.Shri Sharad Ashok Thange age 25 years occ. Agril R o. Barhanpur Tq. Shevgaon District Ahmednagar. ..Appellant.. for purchasing a motorcycle. It has alsoalleged that on 13.9.2012 when the complainant hasinvited all the accused in his house for Dhonde Feast appellant accused no.1 Sharad has made a demand ofone Tola Gold Ring however due to poor economicalcondition complainant PW 1 Raosaheb could not fulfllthe said demand. However he has promised that whenhe will fetch good yield from his land said ring will begiven. All the accused left the house of the complainantalongwith Kalindi however while leaving the housedeceased Kalindi was crying. On the very next day i.e.on 15.9.2012 deceased Kalindi informed to her brother on 08 07 2021 on 22 03 4 CRI APPEAL 134.2014 &135.2021.odtPW 3 Dada Dukle on phone that as golden ring was notgiven to her husband appellant accused he hasseverally assaulted her and subjected her to cruelty. Onthe same day at about 3.00 p.m. Sarpanch of villageAvane informed to PW 3 Dada Dukle on phone that hissister deceased Kalindi died due to burns in the houseof the accused. Accordingly PW 1 Raosaheb his wifePrayagbai and other relatives rushed to the house of theaccused at Barhanpur Tq. Shevgaon DistrictAhmednagar. They have found that deceased Kalindiwas totally in burnt condition and her dead body waslying in the house of the accused. They have carriedsaid dead body to the Civil Hospital Shevgaon. PW 1Raosaheb has expressed his suspicion that sincedemands of Rs.50 000 for purchasing the motorcycleand one Tola gold ring were not satisfed his daughterwas subjected to cruelty on that count and accordingly deceased Kalindi had committed suicide by settingherself on fre.c]On the basis of his complaint crime bearingno.2012 was registered under section 304 B on 08 07 2021 on 22 03 5 CRI APPEAL 134.2014 &135.2021.odt498 A 323 504 r w 34 of IPC with the Shevgaon PoliceStation Tq & District Ahmednagar. PW PSI Bhande hasinvestigated the crime. He has taken papers ofaccidental death. The I.O. has recorded statements ofthe witnesses. Appellants accused came to be arrestedin connection with the crime seized articles were sentto the C.A. Thus on completion of the investigation PW5 PSI Bhande submitted the charge sheet againstappellants accused persons.3.The learned Additional Sessions Judge Ahmednagar has framed the charge against appellants accused under section 498 A 304 B 306 323 504 34of IPC. All the accused have pleaded not guilty to thecharges and claimed to be tried. The defence of all theappellants accused is of total denial. According tothem they have not demanded anything and deceasedKalindi was not subjected to cruelty. According to them fnancial condition of deceased Kalindi was sound and as such deceased Kalindi was not in a habit of doingwork on daily wages basis. Appellant accused no.1Sharad is having his own motorcycle and as such there on 08 07 2021 on 22 03 6 CRI APPEAL 134.2014 &135.2021.odtwas no reason for him to make a demand for purchasingthe motorcycle. Appellant accused no.1 Sharad hasnever demanded gold ring. It is further explained thatdeceased Kalindi died due to accidental burns and PW 1Raosaheb and his family members have falselyimplicated them due to anger and vengeance. 4.Prosecution has examined seven witnesses tosubstantiate the charges levelled against accusedpersons. After the prosecution evidence was over incriminating evidence appearing againstappellants accused was put to them in theirexamination under section 313 of Cr.P.C.5.The learned Additional Sessions Judge Ahmednagar by judgment and order dated 26.2.2014 inSessions Case No.3812 convicted theappellant accused no.1 Sharad Thange for the offencepunishable u s 304 B of IPC and sentenced him tosuffer imprisonment for life and to pay a fne ofRs.5 000 in default of payment offne to suffer R.I. for six months. The learned on 08 07 2021 on 22 03 7 CRI APPEAL 134.2014 &135.2021.odtAdditional Sessions Judge Ahmednagar has convictedappellants accused no.2 Ashok Thange andappellant accused no.3 Bhimabai Thange for theoffence punishable under section 304 B of IPC andsentenced them to suffer R.I. for seven years and to paya fne of Rs.5 000 each in default of payment of fne to suffer R.I. for six months. The learned AdditionalSessions Judge Ahmednagar has convicted all theappellants accused for the offence punishable u s 498 A of IPC and sentenced them to suffer R.I. for threeyears and to pay fne of Rs.2 000 each in default ofpayment of fne to suffer R.I. for six months. Both theSentences are directed to be run concurrently. TheAdditional Sessions Judge Ahmednagar has alsodirected that all the accused are entitled for set off asdetailed in the operative part of the order clause no.5and 6 respectively. 6.Being aggrieved by the same theappellant accused Sharad Thangehas preferred appeal no.1314 andappellants accused no.2 Ashok Thange and 3 Bhimabai on 08 07 2021 on 22 03 8 CRI APPEAL 134.2014 &135.2021.odtThangehave preferredcriminal appeal no.1314.7.The learned Senior counsel Mr. Sapkal submitsthat the impugned judgment and order of conviction iserroneous illegal and contrary to the provisions of law.The learned Judge of the trial court has not appreciatedthe prosecution evidence in its proper perspective. Thelearned senior Counsel submits that there was noevidence that soon before the death deceased Kalindiwas subjected to cruelty or harassment for or inconnection with any demand or dowry. The explanationappended to sub sectionof Section 304 B of IPC saysthat “Dowry” shall have the same meaning as in section2 of the Dowry Prohibition Act 1961. In terms ofsection 2 of the Dowry Prohibition Act 1961 “dowry”means ‘any property or valuable security given or agreedto be given either directly or indirectly by one party to amarriage to other party to the marriage at or before orany time after the marriage in connection with themarriage of the said parties. The demand of a propertyor valuable security must have some connection with on 08 07 2021 on 22 03 9 CRI APPEAL 134.2014 &135.2021.odtthe marriage of the parties. This being a penalprovision it has to be strictly construed. 8.Learned senior counsel Mr. Sapkal submits thatPW 1 Raoshaeb DukalePW2 Vishnu Kisan TekulePW 3Dada Raosaheb Dukalearethe material witnesses. These three prosecutionwitnesses have not given any details of the demands.They have not given the details as to when the accusedpersons have made a demand of Rs.50 000 for purchasing the motorcycle. Learnedsenior counsel Mr. Sapkal submits that at the time ofDhonde Feast which is usually come in the month ofSeptember as per the evidence of these three witnesses on 13.9.2012 accused have demanded gold ring of oneTola however there is no reference till the said demandof gold ring was made about the earlier demand ofRs.50 000 for purchasing the motorcycle. Theseprosecution witnesses have not stated anything as towhat happened to the said demand of Rs.50 000 forpurchasing the motorcycle and as to whether said on 08 07 2021 on 22 03 10 CRI APPEAL 134.2014 &135.2021.odtdemand was continued. Learned senior counsel Mr.Sapkal submits that as per the evidence of thesewitnesses deceased Kalindi had made a phone call toPW 3 Dada on 15.9.2012 and informed to him thataccused had beaten and assaulted her for failing topresent him a gold ring. Learned senior counselsubmits that in a Dhonde Feast which is wellrecognized festival in the region gold ring and newclothes are offered to the son in law. Even assumingthat accused persons have demanded gold ring which isa part of the rituals said demand cannot be equatedwith “dowry demand as defned under section 2 of theDowry Prohibition Act 1961”. There are no allegationsof ill treatment on account of non fulfllment of thedemand of Rs.50 000 for purchasing the motorcycle.Learned senior counsel Mr. Sapkal submits thatevidence is lacking to the extent that deceased Kalindiwas subjected to cruelty as defned under section 498 Aof Indian Penal Code on account of demand ofRs.50 000 for purchasing the motorcycle. Learnedsenior counsel Mr. Sapkal further submits that even on 08 07 2021 on 22 03 11 CRI APPEAL 134.2014 &135.2021.odtassuming for the sake of discussion that there was ademand of Rs.50 000 for purchasing a motorcycle said demand cannot be also equated with the dowrydemand as defned under section 2 of the DowryProhibition Act 1961. It has no connection directly orindirectly with the dowry. It is not the prosecution caseand none of the prosecution witness has deposed thatmotorcycle was a part of dowry and since it was notgiven at the time of marriage accused after marriage have demanded Rs.50 000 for purchasing themotorcycle. Learned senior counsel Mr. Sapkal submitsthat there is no evidence that deceased Kalindi hadcommitted suicide due to the ill treatment extended toher on account of the non fulfllment of the saiddemands. Learned senior counsel Mr. Sapkal submitsthat in view of the same the presumption undersection 113 B of the Evidence Act is not attracted.Consequently dowry death cannot be presumed in thefacts and circumstances of the present case. on 08 07 2021 on 22 03 12 CRI APPEAL 134.2014 &135.2021.odt9.Learned senior counsel Mr. Sapkal in order tosubstantiate his contentions placed reliance on thefollowing judgments : 1.Ramu @ Rameshwar s o Ramkishan Aathave Vs.State of Maharashtra reported in 2017 SCC onlineBom.6558.2.Vijay Purushottam Surushe and anr. Vs. State ofMaharashtra reported in 2011Bom.C.R.120.3.Appasaheb and anr. Vs. State of Maharashtrareported in AIR 2007 Supreme Court 763.4.Vipin Jaiswal Vs. State of A.P. reported in 2013Cri.L.J. 2095.5.Modinsab Kasimsab Kanchagar Vs. State ofKarnataka and another reported in AIR 2013Supreme Court 1504.6.Girish Singh Vs. State of Uttarakhand reported in2019 DGLS939.7.Kanchanben Purshottambhai Bhanderi Vs. State ofGujarat reported in AIR 2015 SC315.8.Durga Prasad and anr. Vs. State of M.P. reported in2010 AIR SCW 3673.9.Biswajit Halder alias Babu Halder and ors. Vs.State of W.B. reported in 2007 Cri.L.J. 2300.10.Learned APP Mr. S D Ghayal submits that theprosecution has proved that the death of deceasedKalindi occurred at her matrimonial home otherwise on 08 07 2021 on 22 03 13 CRI APPEAL 134.2014 &135.2021.odtthan under the normal circumstances. Prosecution hasexamined PW 4 Dr. Dipak Pardeshi who has conductedpostmortem examination on the dead body of thedeceased Kalindi. He has noticed 100% burn injurieson all over the dead body of the deceased Kalindi.Moreover while examining the stomach and itscontents doctor Pardeshi has recorded about 500 CC ofSemi digested liquid with smell of poisonous substancepresent. According to him smell of poisonoussubstance was not due to the event of burning of thevictim and injuries all over the body but it wasindependent and may be due to poisonous food. He hasreserved the viscera for the purpose of analysis throughC.A. The C.A report exh.27 28 and 29 indicatesdetection of organophosperous insecticide Dimethoate(Rogar) detected in article no.1. Plastic bottle containingpieces of stomach of small intestine and large intestine.PW 4 Dr. Pardeshi has given fnal cause of death as“shock due to burn associated with poisoning.” LearnedAPP submits that prosecution has proved beyond on 08 07 2021 on 22 03 14 CRI APPEAL 134.2014 &135.2021.odtreasonable doubt that death of Kalindi occurredotherwise than under the normal circumstances. 11.Learned APP submits that the evidence of PW1Raosaheb PW 2 Vishnu Tekule and PW 3 Dada isreliable trust worthy and inspiring the confdence.Learned APP submits that in case of dowry death thecircumstantial evidence also plays an important roleand inference can be drawn on the basis of suchevidence. Learned APP submits that PW 3 Dada whohappened to be the brother of deceased Kalindi hasdeposed that deceased Kalindi was treated well for aperiod of one month after the marriage. Thus inferencecan be drawn that demand of Rs.50 000 forpurchasing the motorcycle was made after said period ofone month. Thus considering the short span ofcohabitation i.e. total period of eight months saiddemand would constitute to be in connection with themarriage and it would be a case of demand of dowrywithin the meaning of section 304 B of IPC. LearnedAPP submits that on the date of the death itself deceased Kalindi had made a phone call to her brother on 08 07 2021 on 22 03 15 CRI APPEAL 134.2014 &135.2021.odtPW 3 Dada and informed to him about ill treatmentbeing extended to her on account of non fulfllment ofthe demand of gold ring. Learned APP submits that theingredients of section 304 B of the Indian Penal Codestand proved by the prosecution. Prosecution hasproved death of deceased Kalindi occurred within eightmonths of her marriage otherwise than under thenormal circumstances at her matrimonial home and also proved the dowry demand so also the cruelty asdefned under section 498 A of the IPC. Learned APPsubmits that the presumption under section 113 B ofthe Evidence Act stands attracted. The Court thus shallpresume that accused had caused dowry death. Thetrial court has correctly appreciated the evidence and byapplying the presumption under section 113 B of theEvidence Act rightly convicted the appellants accusedpersons.12.Learned APP submits that the appellants accusedduring their examination under section 313 of Cr.P.C.have given false information Exhibit 62. According tothe appellants accused persons deceased Kalindi had on 08 07 2021 on 22 03 16 CRI APPEAL 134.2014 &135.2021.odtsustained accidental burns. However considering thecause of death as 100% burns coupled with thepoisonous substance rule out the possibility ofaccidental burns. Learned A.P.P. submits that death ofdeceased Kalindi is a custodial death. In terms ofprovisions of section 106 of the Indian Evidence Act the burden of proving the fact which is especially withinthe knowledge of the accused shifts upon them accusedhave miserably failed to discharge the said burden. Thisis required to be treated as an additional circumstanceagainst appellants accused persons. Learned APPsubmits that there is no substance in these criminalappeals and the criminal appeals are liable to bedismissed.13.Learned APP in order to substantiate hiscontentions placed reliance on a case Pawar Kumar andothers Vs. State of Haryana reported in AIR 1998Supreme Court 958.14.Prosecution has examined PW 4 Dr. PardeshiDipak Harischandra attached to Rural Hospital on 08 07 2021 on 22 03 17 CRI APPEAL 134.2014 &135.2021.odtShevgaon District Ahmednagar. On 15.9.2012 at about09.00 p.m. Dr. Pardeshi has conducted postmortemexamination on the dead body of deceased Kalindi. PWDr. Pardeshi has noticed 100% burn injuries all over thebody of deceased Kalindi. He has further noticedredness over right leg lower half. According to PW 4 Dr.Pardeshi it is antemortem and might be occurred at thetime of event of burning. He has further explained thatsaid injury indicates that at the time of burningdeceased was alive. In addition to the same he hasfound 500 CC of semi digested liquid in the stomachwith smell of poisonous substance. According to PW 4Dr. Pardeshi smell of poisonous substance was not dueto event of burning of the victim but it was independentand might be due to poisonous food. CA report Exh.27 28 and 29 were also shown to him. CA report indicatesdetection of organophosperous insecticide Dimethoate(Rogar) in article no.1. PW 4 Dr. Pardeshi has given fnalopinion of cause of death as ‘Shock due to burnassociated with poisoning’. We fnd it diffcult to acceptthat deceased Kalindi had consumed the poison and on 08 07 2021 on 22 03 18 CRI APPEAL 134.2014 &135.2021.odtthereafter set herself on fre. PW 4 Dr. Pardeshi hasstated in his cross examination that consumption ofpoison may be occurred accidentally or administrationby any other. However according to him so far as burninjuries on the person of the deceased Kalindi areconcerned those are antemortem in nature. PW 4 Dr.Pardeshi has not given clear opinion as to whetherdeath of Kalindi is homicidal or suicidal. However theprosecution has proved beyond doubt that deceasedKalindi died in her matrimonial home due to burns andotherwise than under the normal circumstances. Thelearned senior counsel Mr. Sapkal has also not disputedthe same. 15.It is the specifc case of the prosecution thatdeceased Kalindi ended her life because of theharassment caused to her by the accused for or inconnection with the demand of dowry. It is therefore essential to briefy examine the evidence of theprosecution witnesses. PW 1 Raosaheb PW 2 Vishnuand PW 3 Dada who are the material witnesses on thispoint. PW 1 Raosahebhas on 08 07 2021 on 22 03 19 CRI APPEAL 134.2014 &135.2021.odtdeposed that accused told Kalindi to bring Rs.50 000 for motorcycle. PW 1 Raosaheb has further deposedthat on 13.9.2012 he had called accused and Kalindi forDhonde Feast. Kalindi’s husband Sharad put demand ofgold ring of one Tola. He refused to meet the demanddue to drought. Accused returned with Kalindi to theirhome at Barhanpur. On 15.9.2012 at about 10.30 amKalindi informed on phone that accused started beating assaulting and harassing her for fulflling to meet thedemand. On 15.9.2012 at about 03.00 p.m. SarpanchDada Avhane had informed to Raosaheb on phone thatKalindi died due to burning.16.PW 2 Vishnu Tekulehas deposedthat after marriage for one month there was a peacefulmarried life. Accused then started demand ofRs.50 000 for motorcycle and started pestering in thefulfllment of the said demand. Deceased Kalindi whencame to her maternal home narrated about theharassment by the accused. Accordingly he himself PW 2 Vishnu one Machindra More and PW 1 Raosahebwent to the house of the accused. They had convinced on 08 07 2021 on 22 03 20 CRI APPEAL 134.2014 &135.2021.odtthe accused that they were unable to meet the demanddue to famine. On 13.9.2012 accused were called forDhonde feast. At the time of leaving accused no.1asked the complainant and deceased Kalindi to presentgold ring. They have convinced Kalindi and accused.Kalindi was crying as accused abused her in theirpresence.17.PW 3 Dadahas deposedthat marriage of Kalindi was performed gracefully withthe present of dowry of Rs.1 Lakh and other gadgetsand utensils. Deceased Kalindi started residing withthe accused. For one month after marriage married lifewas peaceful and her harassment started thereafter.PW 3 Dada deposed that on her visit to their homeKalindi was asking to pay Rs.50 000 for her husbandSharad. PW 3 Dadafurtherdeposed that thereafter he alongwith his father PW 2Vishnu Tekule Bhimrao More went to the house of theaccused to give him the understanding. He has deposedabout the incident of 13.9.2012 when they had invitedthe accused for Dhonde feast. He has deposed that PW on 08 07 2021 on 22 03 21 CRI APPEAL 134.2014 &135.2021.odt1 Raosaheb presented clothes to accused and accusedno.1 Sharad asked him to present him a gold ring. Theyhave refused the demand due to their inability.Therefore accused no.1 abused Kalindi and they sentKalindi with the accused while she was weeping. On15.9.2012 at about 10.30 a.m. deceased Kalindi talkedto him on phone and informed that accused beaten andassaulted her for failing to present gold ring. 18.Though prosecution witnesses have not given theexact date time and place as to when the accuseddemanded an amount of Rs.50 000 for purchasing themotorcycle however deceased Kalindi was treated wellfor a period of one month after marriage and that therewas a demand of Rs.50 000 for purchasing motorcycleafter said period of one month. 19.There are four essential ingredients of section 304 B of IPC. i.Where the death of a woman is caused by anyburns or bodily injury or occurs otherwise thanunder the normal circumstances. on 08 07 2021 on 22 03 22 CRI APPEAL 134.2014 &135.2021.odtii.Such death should have occurred within sevenyears of her marriage.iii.She must have been subjected to cruelty orharassment by her husband or any relative of herhusband soon before death.iv.Such cruelty or harassment should be for or inconnection with the demand for dowry.20.In terms of the explanation to section 304 B term“Dowry” shall have the same meaning as in section 2 ofthe Dowry Prohibition Act 1961. Section 2 of the DowryProhibition Act 1961 reads as under : 2. “Dowry” means any property or valuablesecurity given or agreed to be given eitherdirectly or indirectly [ inconnection with the marriage of the saidparties but does not include] dower or mahr inthe case of persons to whom the MuslimPersonal Law applies. on 08 07 2021 on 22 03 23 CRI APPEAL 134.2014 &135.2021.odt21.It is thus clear that “Dowry” means any propertyor valuable security given or agreed to be given asdirectly or indirectly at or before or any time after themarriage and in connection with the marriage of thesaid parties. It is thus necessary that giving or takingof the property or valuable security must have someconnection with the marriage of the parties. It is wellsettled that being a penal provision the same has to bestrictly construed. 22.In a case Ashok Kumar Vs. State of Haryanareported in12 SCC 350 in paragraph no.14 and19 the Supreme Court has made followingobservations : 14. The expressions “or any time after marriage” and “inconnection with the marriage of the said parties” wereintroduced by the amending Act 684 and Act 43 of1986 with effect from 2 10 1985 and 19 11 1986respectively. These amendments appear to have been madewith the intention to cover all demands at the time beforeand even after the marriage so far they were in connectionwith the marriage of the said parties. This clearly shows theintent of the legislature that these expressions are of widemeaning and scope. The expression “in connection with themarriage” cannot be given a restricted or a narrowermeaning. The expression “in connection with the marriage”even in common parlance and on its plain language has tobe understood generally. The object being that everything which is offending at any time i.e. at before or after themarriage would be covered under this definition but the on 08 07 2021 on 22 03 24 CRI APPEAL 134.2014 &135.2021.odtdemand of dowry has to be “in connection with themarriage” and not so customary that it would not attract onthe face of it the provisions of this section.19. We have already referred to the provisions of Section 304 Bof the Code and the most significant expression used in thesection is “soon before her death”. In our view theexpression “soon before her death” cannot be given arestricted or a narrower meaning. They must be understoodin their plain language and with reference to their meaningin common parlance. These are the provisions relating tohuman behaviour and therefore cannot be given such anarrower meaning which would defeat the very purpose ofthe provisions of the Act. Of course these are penalprovisions and must receive strict construction. But eventhe rule of strict construction requires that the provisionshave to be read in conjunction with other relevantprovisions and scheme of the Act. Further the interpretationgiven should be one which would avoid absurd results onthe one hand and would further the object and cause of thelaw so enacted on the other.23.It is clear from the observations made by theSupreme Court that expression “in connection with themarriage” cannot be given a restricted or narrowermeaning. “In connection with the marriage” even in acommon parlance and on its plain language has to beunderstood generally. The object being that everything which is offending at any time i.e. before or after themarriage would be covered under this defnition butthe demand of dowry has to be “in connection with themarriage” and not so customary that it would notattract on the fact of it the provisions of this Section. on 08 07 2021 on 22 03 25 CRI APPEAL 134.2014 &135.2021.odt24.The Hon’ble Supreme Court in the above cited casehas referred one case of Ran Singh Vs. State of Haryanareported in4 SCC 70 and Satvir Singh Vs. Stateof Punjab reported in8 SCC 633 wherein it isheld that customary payments in connection with birthof a child or other ceremonies are not covered within theambit of “dowry”. 25.In a case of Appasaheb and another Vs. State ofMaharashtra reported in9 Supreme Court Casespage 721 it is held that demand of money on account ofsome fnancial stringency or to meet some urgentdomestic expenses for purchasing manure cannot betermed as demand for dowry as said word is normallyunderstood.26.In the instant case merely one month after themarriage deceased Kalindi had informed to her parentsto give Rs.50 000 to her husband for purchasing amotorcycle. The expression “in connection with themarriage” cannot be given a restricted or narrowermeaning. We are aware of the mind set up of the people on 08 07 2021 on 22 03 26 CRI APPEAL 134.2014 &135.2021.odtof our society particularly the husband’s side. It isalways expected from the wife and her family members even after the marriage to present the husband a newmotorcycle luxurious articles like T.V. refrigerator Washing machine etc. In the instant case demand ofRs.50 000 for purchasing the motorcycle is not for thepurpose of business or any other cause. The defencehas suggested to the prosecution witnesses and evenexplanation has also been tendered in the statementunder section 313 of Cr.P.C. that the appellant accusedno.1 Sharad was already having a motorcycle even priorto the marriage. This further strengthen theobservations made by us that the said demand ofRs.50 000 for purchasing a motorcycle was inconnection with the marriage even though motorcyclewas not required by the appellant accused no.1 Sharad.If we understood the dowry a well known social customand practice in India in the facts of the instant case since demand of Rs.50 000 for purchasing amotorcycle was made one month after the marriage only irresistible inference could be drawn that said on 08 07 2021 on 22 03 27 CRI APPEAL 134.2014 &135.2021.odtdemand is in connection with the marriage and thusconstitute a ‘dowry demand.’ So far as the demand ofgold ring at the time of Dhonde Feast is concerned weare agree with the submissions made by the learnedsenior Counsel Mr. Sapkal on behalf of theappellants accused that in Dhonde Feast generally gold ring is presented to the husband and therefore the same falls under the customary payment and thusdoes not cover within the ambit of word “dowry”.27.Deceased Kalindi died within eight months andsome odd days of the marriage. On the date of theincident i.e. on 15.9.2012 deceased Kalindi hadinformed to her brother PW 3 Dada about the assaultand beating by accused for non fulfllment of thedemand. It is a proximate link between the cruelty inconnection with the demand of dowry and death ofdeceased Kalindi resulting from it. The demand of saidamount of Rs.50 000 for purchasing a motorcycle andallegations about cruelty particularly on the date ofincident itself positively indicates that soon before thedeath deceased Kalindi was subjected to cruelty by the on 08 07 2021 on 22 03 28 CRI APPEAL 134.2014 &135.2021.odtappellant accused no.1 Sharad in connection with thesaid demand of dowry. The allegations have been madeabout the demand of Rs.50 000 for purchasing amotorcycle only against the appellant accused no.1 Sharad and since deceased Kalindi was subjected tocruelty on account of non fulfllment of the said demandtriggered by the subsequent event that at the Dhondefestival appellant accused no.1 Sharad was not offered agold ring allegedly by appellant accused no.1 Sharad we extend the beneft of doubt to the appellants originalaccused nos.2 Ashok Bhaurao Thange and 3 BhimabaiAshok Thange in criminal appeal no.1314.28.It is well settled that once the three ingredients ofsection 304 B of IPC i.e. i] death of a woman is causedby any burns or bodily injury or occurs otherwise thanunder the normal circumstances ii] within seven yearsof her marriage and iii] it is shown that soon before herdeath she was subjected to cruelty or harassment thepresumption under section 113 B would follow. It isheld to be rebutable presumption and accused bysatisfactory evidence can rebute the presumption. In on 08 07 2021 on 22 03 29 CRI APPEAL 134.2014 &135.2021.odtthe instant case the accused could not rebute thepresumption and even without aid of presumption theprosecution has proved that the appellant accusedSharad was responsible for the death of deceasedKalindi. Even the explanation tendered by theappellant accused No.1 Sharad about death of deceasedKalindi in her matrimonial home by accidental burnsappears to be false. There is no attempt at all to explainas to how the poisonous substance found in thestomach contents of deceased Kalindi and as to how thedeceased Kalindi had sustained 100% burns if at all shehad sustained burns accidentally. Even the tenor ofthe evidence of PW 4 Dr. Pardeshi indicates that therewas no possibility of accidental burns.29.In a case Vijay Purushottam Surushe and anotherVs. State of Maharashtra reported in 2011Bom.C.R.(Cri) 120 relied upon by the learned senior counsel Mr.Sapkal for the appellants in the facts of the said case the exact acts of ill treatment its nature and its effectnamely such ill treatment would drive victim to commitsuicide are all left to imagination as no facts have come on 08 07 2021 on 22 03 30 CRI APPEAL 134.2014 &135.2021.odtforward. However in the instant case on the day of theincident itself deceased Kalindi had informed to herbrother PW 3 Dada that she was subjected to assaultand beating by the accused persons on account of non fulfllment of the demand. Deceased Kalindi had madea phone call to her brother PW 3 Dada at about 10.30am and on the same day she died due to burns in hermatrimonial home and also otherwise than under thenormal circumstances at about 3.00 p.m. Thus thefacts and circumstances of the case cited are altogetherdifferent and cannot be made applicable to the facts ofthe present case.30.In a case of Appasaheb and another Vs. State ofMaharashtra reported in AIR 2007 Supreme Court 763 relied upon by the learned senior counsel Mr. Sapkal forthe appellants it is held by the Supreme Court thataccused demanding money for domestic expenses andfor purchase of manure thus cannot be convictedunder section 304 B of IPC. In paragraph no.9 of thejudgment the Supreme Court has made followingobservations : on 08 07 2021 on 22 03 31 CRI APPEAL 134.2014 &135.2021.odt“9. Two essential ingredients of Section 304B IPC apart from others are(i) death of woman is caused by any burns or bodily injury or occursotherwise than under normal circumstances andwoman is subjected tocruelty or harassment by her husband or any relative of her husband for orin connection with any demand for "dowry". The explanation appended toSub sectionof Section 304B IPC says that "dowry" shall have thesame meaning as in Section 2 of Dowry Prohibition Act 1961.Section 2 of Dowry Prohibition Act reads as under :2. Definition of "dowry" In this Act "dowry" means any property orvaluable security given or agreed to be given either directly or indirectly by one party to a marriage to the other party to the marriage or(b) by the parent of either party to a marriage or by any other person to either party to the marriage or to any other person at or before or anytime after the marriage in connection with the marriage of the said parties but does not include dower or mahr in the case of persons to whom theMuslim Personal Lawapplies.In view of the aforesaid definition of the word "dowry" any property orvaluable security should be given or agreed to be given either directly orindirectly at or before or any time after the marriage and in connectionwith the marriage of the said parties. Therefore the giving or taking ofproperty or valuable security must have some connection with themarriage of the parties and a correlation between the giving or taking ofproperty or valuable security with the marriage of the parties is essential.Being a penal provision it has to be strictly construed. Dowry is a fairlywell known social custom or practice in India. It is well settled principle ofinterpretation of Statute that if the Act is passed with reference to aparticular trade business or transaction and words are used whicheverybody conversant with that trade business or transaction knows orunderstands to have a particular meaning in it then the words are to beconstrued as having that particular meaning.939 Kanchanben Purshottambhai and others reported inAIR 2015 SC315 and Durga Prasad and anotherVs. State of M.P. reported in 2010 AIR SCW 3673 reliedupon by the learned Senior counsel Mr. Sapkal forappellants the facts of these case are altogetherdifferent and cannot be made applicable to the facts ofthe present case.35.In view of the discussion above we are of theconsidered opinion that prosecution has proved the caseunder section 304 B 498 A of the Indian Penal Code on 08 07 2021 on 22 03 34 CRI APPEAL 134.2014 &135.2021.odtagainst the appellant accused no.1 Sharad AshokThange in Criminal Appeal No.1314 and theappellants accused no.2 Ashok Bhaurao Thange and 3 Bhimabai Ashok Thangeis herebypartly allowed.ii.The impugned judgment and order passed bythe learned Additional Sessions Judge Ahmednagar dated 26.2.2014 in Sessions CaseNo.3812 to the extent of appellant accused Sharad Ashok Thangeis hereby modifed to the extentof sentence as under : iii.The appellant accused Sharad Ashok Thange(original accused no.1) is hereby convicted forthe offence punishable under section 304 B ofthe Indian Penal Code and sentenced to sufferR.I. for 10years and to pay a fne ofRs.5 000 in default ofpayment of fne to suffer R.I. for 6 months instead of imprisonment for life.iv.Conviction of appellant accused Sharad AshokThangeunder section498 A of the Indian Penal Code and sentencing on 08 07 2021 on 22 03 36 CRI APPEAL 134.2014 &135.2021.odthim to suffer R.I. for a period of three years andto pay fne of Rs.2 000 in default of paymentof fne to suffer R.I. for six months standsconfrmed.v.The appellant accused no.1 Sharad AshokThange is entitled for the set off from the dateas directed by the trial court.vi.Both the sentences shall run concurrently.vii.Criminal Appeal No.1314 is herebyallowed.viii.The impugned judgment and order passed bythe learned Additional Sessions Judge Ahmednagar dated 26.2.2014 in Sessions CaseNo.3812 to the extent ofappellants original accused no.2 AshokBhaurao Thange and no.3 Bhimabai w oAshok Thange is hereby quashed and set asideand the appellants original accused nos.2 Ashok Bhaurao Thange and no.3 BhimabaiAshok Thange are hereby acquitted from all thecharges levelled against them.ix.Fine amount if any paid by them shall berefunded to them. on 08 07 2021 on 22 03 37 CRI APPEAL 134.2014 &135.2021.odtx.The appellant accused Sharad Ashok Thangein criminal appeal no.1314 and theappellants accused no.1 Asok Bhaurao Thangeand 2 Bhimabai Ashok Thange shall executeP.B. of Rs.15 000 each with one surety of thelike amount each to appear before the highercourt as and when the notice is issued inrespect of any appeal or petition fled againstthe judgment of this Court. Such bail bondsshall remain in force for a period of six monthsfrom the date of its execution. xi.Both the criminal appeals are accordinglydisposed off.( SHRIKANT D. KULKARNI J. ) ( V.K. JADHAV J. )...AAA

While granting an interim injunction the Commercial Court can impose conditions on the Plaintiff to protect the Defendant: High Court of Karnataka

While granting an interim injunction on an application filed under Order 39 Rule 1 and 2 CPC, the Commercial Court can impose conditions on the Plaintiff while granting an order of injunction so as to protect Defendant in the event of Plaintiff not succeeding. This was held in WHOLCOM TRADING PRIVATE LIMITED v. SRI. V. PRASAD [COMAP. No.56 OF 2021] in the High Court of Karnataka by the division bench consisting of CHIEF JUSTICE MR. ABHAY S. OKA, and  MR. JUSTICE SURAJ GOVINDARAJ. Facts are an application under Order 39 Rule 1 and 2 had been filed seeking for an order of temporary injunction restraining the defendants, the trial court granted the same but imposed certain conditions. Aggrieved by the same that Plaintiff has filed an appeal seeking to set aside the conditions imposed in the order. The counsel for the Appellant submitted that balance of convenience lied in favor of the Plaintiff thus it was not permissible for the trial court to impose the conditions so imposed by the trial Court. The imposition of the condition of payment of rentals every month without being able to make use of the said premises would cause grave and irreparable harm to Plaintiff. The counsel appearing for the respondent submitted that Plaintiff, if so interested, can always take possession of the property and make payment of the due amounts. Defendant has complied with all the obligations and has put up construction by investing huge amounts of money, the only manner in which the interest of Defendant can be safeguarded is by way of conditions imposed by the trial Court. The Court also made reference to the judgment of Apex court in Wander Ltd. And Another –v- Antox India P.Ltd, wherein the court observed that “The Court, at this stage, acts on certain well-settled principles of administration of this form of interlocutory remedy which is both temporary and discretionary. The object of the interlocutory injunction, it is stated is to protect the Plaintiff against injury by violation of his rights for which he could not adequately be compensated in damages recoverable in the action if the uncertainty were resolved in his favor at the trial. The need for such protection must be weighed against the corresponding need of Defendant to be protected against injury resulting from his having been prevented from exercising his own legal rights for which he could not be adequately compensated. The Court must weigh one need against another and determine where the “balance of convenience lies” The Court also made reference to the judgement of Apex court in M/s Gujarat Pottling Co.Ltd. &amp; Others –v- The Coca Cola &amp; Co. &amp; Others, wherein it was held that “The object of the interlocutory injunction is to protect the Plaintiff against injury by violation of his right for which he could not be adequately compensated in damages recoverable in the action if the uncertainty were resolved in his favor at the trial. The need for such protection has, however, to be weighed against the corresponding need of Defendant to be protected against injury resulting from his having been prevented from exercising his own legal rights for which he could not be adequately compensated. The Court must weigh one need against another and determine where the “balance of convenience”

1 COMAP. No.56 OF 2021 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 21ST DAY OF APRIL 2021 THE HON’BLE MR. ABHAY S. OKA CHIEF JUSTICE THE HON’BLE MR. JUSTICE SURAJ GOVINDARAJ COMAP. No.56 OF 2021 WHOLCOM TRADING PRIVATE LIMITED HAVING ITS OFFICE AT 199 1 HSR LAYOUT SECTOR 1 AGARA VILLAGE SARJAPURA ROAD 2ND FLOOR CABIN A 22ND MAIN ROAD BEGUR HOBLI BENGALURU 560 102 REP. BY ITS MANAGING DIRECTOR MR. BHADRAVATHI SATYANARAYAN GANESH ... APPELLANT BY SRI. G. KRISHNAMURTHY SENIOR COUNSEL FOR SRI. SIMHA DUTTA.S ADVOCATE) SRI. V. PRASAD S O LATE Y. VENKATAPPA AGED ABOUT 49 YEARS RESIDING AT NO.1 C GIDDAPANAHALLI VILLAGE SULIBELE HOBLI HOSKOTE TALUK BENGALURU RURAL DISTRICT 560 067 BY SRI. ASHOK HARANAHALLI SENIOR COUNSEL FOR SRI. M.S.DEVARAJU ADVOCATE FOR C RESPONDENT PH) THIS APPEAL IS FILED UNDER SECTION 13(1A) OF THE COMMERCIAL COURTS ACT 2015 READ WITH SECTION 104 AND ORDER XLIII RULE 1(R) OF THE CPC 1908 PRAYING TO ALLOW THIS APPEAL AND MODIFY THE ORDER DATED 25.02.2021 AND SET ASIDE THE FOUR CONDITIONS IMPOSED BY THE HON’BLE X … RESPONDENT 2 COMAP. No.56 OF 2021 ADDL. DISTRICT AND SESSIONS JUDGE BENGALURU RURAL DISTRICT BENGALURU THROUGH ORDER DATED 25.02.2021 ON I.A.NO.1 FILED UNDER ORDER XXXIX RULE 1 AND 2 OF THE CPC 1908 IN COMM.O.S.NO.753 2021 IN THE INTEREST OF EQUITY AND JUSTICE. THIS APPEAL COMING ON FOR ADMISSION AND HAVING BEEN RESERVED FOR ORDERS ON 08.04.2021 THIS DAY SURAJ GOVINDARAJ J. PRONOUNCED THE FOLLOWING: JUDGMENT The Appellant is before this Court seeking modification of the order dated 25.02.2021 passed by the X Addl. District and Sessions Judge Bangalore Rural District Bangalore in his order dated 25.02.2021 on IA 3 filed under Order 39 Rule 1 and 2 of Code of Civil Procedure 1908 in COM. OS. No. 753 2021 by setting aside the conditions imposed in the said order. COM.OS. No. 753 2021 is filed by the Appellant herein seeking a declaration that the cancellation of the lease dated 18.06.2020 made and executed on 23.10.2020 registered as document No.HSK 1 05788 2020 21 is 3 COMAP. No.56 OF 2021 void and not binding on the Plaintiff. An application under Order 39 Rule 1 and 2 had been filed seeking for an order of defendants therein or anybody acting on their behalf from creating any right title or interest in the suit schedule property. The suit schedule property is an office space measuring 2 01 706 sq.ft with common area of 1 45 560 sq.ft in a building constructed in property bearing No.119 Ekarajapura Near Sun Pharma Factory Hoskote Siddlaghatta Road Sulibele Hobli Hoskote Taluk Bengaluru Rural District Bengaluru. The case of the appellant plaintiff is that: 4.1. The aforesaid property belongs to the Defendant the Defendant having partially constructed a warehouse being desirous of leasing the same had approached a real estate agency the Real estate agency had approached the Plaintiff to 4 COMAP. No.56 OF 2021 take the said property on lease the Plaintiff after inspecting the warehouse was satisfied with the location and the structure of the warehouse and as such upon negotiation a lease agreement came to be executed on 18.06.2020 whereunder the Plaintiff had agreed to pay a security deposit of Rs.1 17 99 800 and a monthly rental of Rs.39 33 267 . 4.2. The said security deposit was to be paid in three instalments of Rs.39 33 267 the first instalment was paid at the time of execution of the lease which had been paid on 18.6.2020 the second instalment to be paid on completion of the work relating to installation of fire hydrant system and issuance of ‘No objection certificate’ and third instalment was to be paid on all necessary statutory compliance with the physical possession of the warehouse would be handed over to the 5 COMAP. No.56 OF 2021 4.3. Plaintiff contends that the lease agreement was signed and executed by the representative of Plaintiff viz. Prithvi Kowshik who was employee of the Plaintiff who tendered his resignation on 12.09.2020. 4.4. While awaiting the compliance of the obligation by Defendant the Plaintiff received a letter in July 2020 from some of the local villagers alleging that there are certain illegalities in the construction of the warehouse there was an encroachment of certain properties including a kaludarias regards which a proceeding is pending in a Court of law. 4.5. On receipt of the said information complainant Plaintiff had approached Defendant seeking for an explanation towards which no proper explanation was issued by Defendant. It is alleged that the Plaintiff thereafter on enquiry 6 COMAP. No.56 OF 2021 became aware of two different plan sanctions obtained by Defendant one panchayat and the other from Hoskote Planning Authority certain other litigations between the Defendant and neighbouring landowners and as such the Plaintiff sought for further clarification from the Defendant. As regards this also no information or clarification was received. 4.6. At this juncture Plaintiff came to know or became aware of the fact that the Defendant in conspiracy with the former employee of the Plaintiff viz. Mr.Prithvi Kowshik who resigned on 12.09.2020 had got executed a cancellation of the lease deed on 23.10.2020 and got the same registered in the office of the jurisdictional sub registrar’s office. In the said cancellation agreement there was a mention of Demand Draft bearing No . 970671 7 COMAP. No.56 OF 2021 drawn on Canara Bank Hokote having been handed over to the said Prithvi Kowshik. 4.8. The cancellation of lease deed being illegal and impermissible the Plaintiff coming to know of the fact that the Defendant was seeking to defraud the Plaintiff of its legal rights under the registered lease agreement had filed COM. OS. No. 753 2021 seeking a declaration cancellation of the lease deed is void and not binding on the Plaintiff. On service of notice Defendant entered appearance and denied all the allegations made by Plaintiff. The Defendant contended that 5.1. Mr.Prithvi Kowshik authorised signatory on behalf of Plaintiff had approached Defendant cancellation and it is in that background the agreement has been cancelled. 8 COMAP. No.56 OF 2021 5.2. Be that as it may the petitioner does not have any objection to cancel the cancellation subject to Plaintiff making payment of the due amounts and taking over the property and making payment of the due rentals thereon. 5.3. As the other allegations encroachment of the property and or the plan sanctions the same was denied by defendants. It was contended by Defendant that Defendant has been ready and willing to perform his part of the obligations. It is in fact the Plaintiff who was unable to perform its obligation that the Plaintiff did not have the wherewithal to go ahead with the lease agreement they did not have the solvency or financial ability to comply with the same. It is for this reason the lease deed came to be cancelled. 9 COMAP. No.56 OF 2021 5.5. Defendant having borrowed a huge amount of monies from third parties is required to return the said monies and this reason Defendant was looking out for prospective lessees. If Plaintiff were to go ahead with the lease and make payment of the amounts due Defendant would not deal with the property and was ready to restore the lease deed dated 18.06.2020 and make available the same to its use. On similar grounds objections to interlocutory application was also After hearing the parties the trial Court came to a conclusion that the Plaintiff had made out a prima facie case in its favour and also came to a conclusion that there are doubtful circumstances surrounding execution of cancellation of lease deed on 20.03.2020 hence the balance of convenience was also held to be in favour of the Plaintiff but however the trial Court 10 COMAP. No.56 OF 2021 also recognised the fact that granting of an injunction as sought for is likely to cause loss to the Defendant. In view thereof the trial court allowed the application for grant of a injunction by following conditions: 6.1. The Plaintiff shall return DD No.970671 dated. 23.10.2020 for Rs.39 33 267 to the defendant. 6.2. The Plaintiff shall deposit 2nd and 3rd installments totally amounting security deposit Rs.78 66 534 before the Court. 6.3. The Plaintiff shall deposit agreed rent of the suit schedule property i.e. Rs.39 33 267 per month before the Court from 2.1.2021 till 28.02.2021. 6.4. The Plaintiff shall continue to deposit agreed monthly rent as and when it becomes due on or before 5th day of succeeding month till disposal of the suit. On such return of DD the Defendant is at liberty to get it cancelled and to use the amount. On such deposit of amount as per condition No.2 & 3 same shall be kept in F.D. in any nationalised bank in the name of the Court and the succeeding party can claim the rent portion with interest. If the suit schedule property is occupied by the Plaintiff the security deposit amount and its interest shall go to the Defendant or otherwise it will be refunded to the Plaintiff. The Plaintiff shall comply the above condition no.1 to 3 on or before next date of hearing. If he fails to 11 COMAP. No.56 OF 2021 comply any of automatically cancelled. the conditions T.I. stands It is aggrieved by the same that Plaintiff is before this Court on appeal seeking to set aside the conditions imposed in the order as extracted hereinabove. Sri.G.Krishnamurthy learned Senior counsel for the Appellant would submit that: The Appellant has filed a suit seeking for a declaration that the cancellation of the lease deed is bad in law. The trial Court having come to a conclusion that a prima facie case is made out by the Plaintiff balance of convenience lies in favour of the Plaintiff and that the hardship that may be caused to the Plaintiff cannot be compensated in terms of money it was not permissible for the trial Court to impose the conditions so imposed by the trial Court. 8.2. The Appellant is only aggrieved by the conditions the conditions not being required to be so imposed he submits that the said conditions are 12 COMAP. No.56 OF 2021 required to be deleted from the order dated 25.02.2021. 8.3. The Demand Draft dated 23.10.2020 has not been received by the Plaintiff inasmuch as the said Demand Draft is stated to have been handed over to Sri.Prithvi Kowshik on 23.10.2020 when in fact the said Prithvi Kowshik had resigned from the services of the Plaintiff on 12.09.2020 itself. Since Sri.Prithvi Kowshik is no longer in the employment of the Plaintiff and the Demand Draft had been handed over to him post his resignation the Plaintiff is not in a position to obtain the Demand Draft from Sri.Prithvi Kowshik and hand it over to Defendant. Be that as it may he submits that the Defendant being in touch with said Prithvi Kowshik it is the Defendant who can approach said Prithvi Kowshik and obtain the Demand Draft. The Appellant has neither 13 COMAP. No.56 OF 2021 received the Demand Draft nor encashed the 8.4. The Plaintiff is ready to deposit the second and third instalments of the security deposit however imposition of the condition of payment of rentals every month without being able to make use of the said premises would cause grave and irreparable harm to the Plaintiff. The Defendant has not complied with the terms and conditions of the lease deed without such compliance the Plaintiff is unable to take possession of the Per contra Sri. Ashok Haranahalli learned Senior counsel appearing for the respondent defendant would submit that: 9.1. The respondent defendant is still ready and willing to hand over the property subject matter of the lease agreement to the Plaintiff by restoring 14 COMAP. No.56 OF 2021 the cancelled lease agreement. The Plaintiff if so interested can always take possession of the property and make payment of the due amounts. 9.2. He further submits the Defendant has complied with all the obligations has put up construction by investing huge amounts of money the only manner in which the interest of the Defendant can be safeguarded is by way of conditions imposed by the trial Court. If the Plaintiff were to fail to establish its contentions more so when the Defendant is willing to restore the Lease Deed and the suit is dismissed then the Defendant would neither have been able to make use of his property nor rent the property and furthermore the Defendant would not have earned any money out of the property during the interregnum The trial Court has therefore rightly imposed the conditions as done. 15 COMAP. No.56 OF 2021 9.3. As regards the Demand Draft dated 23.10.2020 he submits that the Defendant has obtained Demand Draft from its Bankers and given it to Sri. Prithvi Kowshik representative of the Plaintiff. Said Demand Draft is made out in the name of the Plaintiff. Therefore the Plaintiff cannot now contend that condition No.1 cannot be complied with. It is for the Plaintiff to obtain the demand draft from its employee and return it to the If the Plaintiff neither wants to take possession of the land and building nor make payments of the amounts due in the lease deed the interest of Defendant would suffer irreparably and there is no manner of the Defendant being able to make good the losses which would be caused to the Defendant as such he submits that the appeal as filed may be dismissed. 16 COMAP. No.56 OF 2021 10. Heard Sri.G.Krishnamurthy learned Senior counsel for Sri.Simhadutta.S learned counsel for the Appellant and Sri.Ashok Haranahalli learned Senior counsel Sri.M.S.Devaraju learned counsel for the respondent. Perused papers. 11. The points that would arise for our determination are: Whether while granting interim injunction on an application filed under Order 39 Rule 1 and 2 CPC the Commercial Court can impose conditions ii) Whether the conditions imposed by Commercial Court are proper and correct or do they require interference at the hands of this Court iii) What order 12. Answer to Point No.1: Whether while granting interim injunction on an application filed under Order 39 Rule 1 and 2 CPC the Commercial Court can impose conditions 17 COMAP. No.56 OF 2021 12.1. The facts as stated above are not in dispute except firstly Plaintiff alleging that the Defendant has not discharged all its obligations whereas the defendants alleging that it has discharged all the obligations secondly that the cancellation of the lease deed was got executed through Sri. Prithvi Kowshik who is no longer an employee of the Plaintiff and thirdly that the conditions imposed are onerous ought not to have been imposed. 12.2. The execution of lease agreement registration of the lease agreement the payments required to be made under the same are not in dispute. 12.3. As stated earlier the agreement between the parties was to the effect that the Defendant would building permissions and licences and lease it out to the Plaintiff. The construction made is not in dispute however the Plaintiff contends that Defendant 18 COMAP. No.56 OF 2021 has not obtained necessary permissions and licences and as such the Plaintiff is unable to take possession of the property. 12.4. Suit has been filed seeking for a declaration that the cancellation of the lease deed is void and not binding on the Plaintiff and in the said suit an injunction is sought for restraining the defendants from creating any right title and interest in the suit schedule property thereby implying that property is required to be maintained in status quo without the Defendant being able to use the property by way of letting it out to any one else or selling the property. If the Plaintiff wants an equitable relief he must do equity by complying with his part of the agreement by depositing the monthly rentals. But the Plaintiff is not willing to do so. 12.5. A Court while dealing with a matter of granting an injunction against the Defendant restraining the 19 COMAP. No.56 OF 2021 Defendant from doing any particular act if the said injunction order were to have the effect of causing any harm injury or loss to the Defendant even though on a comparative analysis the harm loss and injury caused to the Plaintiff may be more than that which would be caused to the Defendant it is but required that the said harm loss and injury that may be caused to the Defendant on account of passing of an order of injunction be compensated in the event of the Plaintiff failing in his suit. 12.6. This being so since if not for the order passed by a Court of law there would be no loss harm caused or likely to be caused to such Defendant. The Apex Court in the case of Wander Ltd. And Another v Antox India P.Ltd. 1 SCC 727] at para 5 has held as under: “5. Usually the prayer for grant of an interlocutory injunction is at a stage when the existence of the legal right asserted by the Plaintiff and its alleged violation are both contested and uncertain and remain uncertain till they are established at the trial on evidence. The 20 COMAP. No.56 OF 2021 Court at this stage acts on certain well settled principles of administration of this form of interlocutory remedy which is both temporary and discretionary. The object of the interlocutory injucntion it is stated is to protect the Plaintiff against injury by violation of his for which he could not adequately be compensated in damages recoverable in the action if the uncertainty were resolved in his favour at the trial. The need for such protection must be weighed against the corresponding need of the Defendant to be protected against injury resulting from his having been prevented from exercising his own legal rights for which he could not be adequately compensated. The Court must weigh one need against another and determine where the “balance of convenience lies”. The interlocutory remedy is intended to preserve in status quo the rights of parties which may appear on a prima facie. The Court also in restraining a defendant from exercising what he considers his legal right but what the Plaintiff would like to be prevented puts into the scales as a relevant consideration whether the Defendant has yet to commence his enterprise or whether he has already been doing so in which latter case considerations somewhat different from those that apply to a case where the Defendant is yet to commence his enterprise are attracted.” 12.7. The of M s Gujarat Pottling Co.Ltd. & Others v The Coca Cola & Co. & Others5 SCC 545] at para 43 has held as under: 43. The grant of an interlocutory injunction during the pendency of legal proceedings is a matter requiring the exercise of discretion of the Court. While exercising the discretion the Court applies the following tests —whether the Plaintiff has a prima facie case whether the balance of convenience is in favour of the Plaintiff and 21 COMAP. No.56 OF 2021 whether the Plaintiff would suffer an irreparable injury if his prayer for interlocutory injunction is disallowed. The decision whether or not to grant an interlocutory injunction has to be taken at a time when the existence of the legal right assailed by the Plaintiff and its alleged violation are both contested and uncertain and remain uncertain till they are established at the trial on evidence. Relief by way of interlocutory injunction is granted to mitigate the risk of injustice to the Plaintiff during the period before that uncertainty could be resolved. The object of the interlocutory injunction is to protect the Plaintiff against injury by violation of his right for which he could not be adequately compensated in damages recoverable in the action if the uncertainty were resolved in his favour at the trial. The need for such protection has however to be weighed against the corresponding need of the Defendant to be protected against injury resulting from his having been prevented from exercising his own legal rights for which he could not be adequately compensated. The Court must weigh one need against another and determine where the “balance of convenience” lies.Ltd. (SCC at pp. 731 32). In order to protect the Defendant while granting an interlocutory injunction in his favour the Court can require the Plaintiff to furnish an undertaking so that the Defendant can be adequately compensated if the uncertainty were resolved in his favour at the trial. 12.8. Thus while granting an order of injunction it is the bounden duty of any Court of law to consider the comparable damage loss or injury that may be caused both the Plaintiff and or Defendant and it would be the duty of the Court to protect the Defendant from any losses which may 22 COMAP. No.56 OF 2021 be caused on the Plaintiff failing in the suit such losses being caused on account of the injunction issued on an application being made by such a plaintiff. 12.9. We cannot agree with the contentions of Sri.G.Krishnamurthy learned Senior counsel that since prima facie case the balance of convenience and irreparable injury has been held to be in favour of the Plaintiff injunction order ought to have been issued without imposing any conditions. As stated earlier it may be that the irreparable comparative injury caused to the Plaintiff is greater than that which may be caused to the Defendant however when there is any injury which to be caused Defendant it would but be required for a Court of law while granting an order of injunction to impose such conditions as may be necessary to safeguard the interest of the Defendant against 23 COMAP. No.56 OF 2021 whom an injunction order is passed in the event of the Plaintiff not succeeding in the suit. 12.10. We therefore answer Point No.1 by holding that while granting an interim injunction on an application filed under Order 39 Rule 1 and 2 CPC the Commercial Court can conditions on the Plaintiff while granting an order of injunction so as to protect the Defendant in the event of the Plaintiff not 13. Answer to Point No.2: Whether the conditions imposed by the Commercial Court are proper and correct or do they require interference at the hands of this Court 13.1. The subject matter of the contract has been explained hereinabove. Suffice it to say that there was a lease deed entered into between the Plaintiff and Defendant under the said lease deed there were various obligations to be performed by both the parties the defendant owner was to construct and hand over the 24 COMAP. No.56 OF 2021 permission. Plaintiff was required to make a deposit of a certain security amount and make payment of the monthly lease rentals. 13.2. Though Plaintiff alleges that the Defendant has not complied with its obligations the Defendant contends that the Defendant has complied and is ready to hand over the constructed area to Plaintiff. This is again refuted by Plaintiff. 13.3. The veracity of these facts cannot be ascertained at the Interlocutory stage and the same would require a trial to be held and these aspect to be in such circumstances aforesaid conditions have been imposed by the trial Court while granting an order of injunction in favour of the Plaintiff restraining the Defendant from creating any encumbrance or dealing with the property subject matter of the lease. 25 COMAP. No.56 OF 2021 13.4. Thus it cannot be disputed that on the passing of an order of injunction the Defendant would be unable to make use of the property which the Defendant would normally have been able to make use of. Admittedly the rentals per month for the property has been agreed upon between the parties. Thus the loss which may be caused has been determined and agreed upon by the parties. It is for this reason that the trial Court while granting an order of injunction in order to interest of the Defendant has imposed the conditions. 13.5. The first condition as regards return of the Demand Draft as on today has been rendered academic inasmuch as the Demand Draft dated 23.10.2020 has spent itself and has expired. The Defendant therefore would be in a position to seek for cancellation of the said Demand Draft and remittance of the amount into its accounts if 26 COMAP. No.56 OF 2021 there are any documents required to be executed by the Plaintiff like a letter etc. the Plaintiff is directed to execute such documents to enable the the Demand Draft No.970671 dated 23.10.2020 and for remittance the amount covered 13.6. The second condition as regards deposit of the second and third instalments of the security deposit is in terms of the lease deed entered into between the parties the trial Court has only directed to deposit the said amounts in the Court needless to say the same would not for now be made available to the defendants. Hence we find no infirmity in this condition also. 13.7. The third and fourth conditions are as regards the deposit of the monthly rentals as agreed upon under the lease deed. This being for the reason 27 COMAP. No.56 OF 2021 that Defendant would not be able to earn from the said property while Defendant is prevented by order of injunction from leasing or dealing with the property. If not for the order of injunction the Defendant would have been in a position to lease the property and earn rentals Defendant has agreed to reinstate the lease deed the Plaintiff has expressed its inability to take possession of the property on account of the Defendant not having discharged its obligations. Whether each of the parties has discharged its obligation or not would be decided after completion of the trial. It is to secure the interests of both parties that the third condition is imposed. We find no infirmity in this condition also. 13.8. However taking into consideration that as per the order of the trial Court the said amounts have to be deposited by the next date i.e. 17.04.2021 and the Plaintiff has been before this Court from 28 COMAP. No.56 OF 2021 22.03.2021 prosecuting the above appeal we are of the considered opinion that the time to comply with the said condition would be required to be extended and as such the same is extended by a further period of one month from 17.04.2021. The amounts stated in condition No.2 3 and 4 to be deposited by the Plaintiff by 17.05.2021. Needless to state that if such amounts are not so deposited by that date the interim order of injunction granted by trial Court will automatically stand vacated. On such deposit being made the same would be kept in a fixed deposit initially for a period of one year and renewed from time to time until the resolution of the matter. In the event the order of injunction stands vacated on account of non compliance of the above conditions if any third party rights are created by Defendant the same will be subject to the final outcome of the suit. 29 COMAP. No.56 OF 2021 14. Answer to Point No.3: What order 14.1. The order of the trial Court dated 25.02.2021 is modified as under: restraining the Defendant from creating any third party rights is confirmed. There would be no requirement for the Plaintiff to return DD No.970671 dated 23.10.2020 for a sum of Rs.39 33 267 to the Defendant. The Defendant may however approach the concerned Bank for cancellation of the said DD and credit the amount covered under the said DD into its account. In this connection if any documents are required to be executed by the Plaintiff as required by the Bank the Plaintiff shall execute such 30 COMAP. No.56 OF 2021 The second condition requiring the Plaintiff to deposit the second and third installments of security deposit totally amounting to Rs.78 66 534 remains unaltered. The third condition requiring the Plaintiff to The fourth condition requiring the Plaintiff to deposit the agreed rent of the suit schedule i.e. Rs.39 33 267 per month from 02.01.2021 till 28.02.2021 remains unaltered. deposit the further monthly rent as and when it becomes due on or before 5th day of succeeding month till disposal of the suit remains unaltered. same shall be remitted into a fixed deposit in any of the nationalised Bank in the name of the Court and renewed from time to time until the disposal of the suit. On deposit of the aforesaid amounts the 31 COMAP. No.56 OF 2021 The succeeding party shall be entitled to receive the said amount along with interest. In the event of the deposits not being made by Plaintiff the injunction order will stand vacated any third party rights created by the Defendant would however be subject to the result of the suit. With the above observations the appeal is partly No order as to costs. CHIEF JUSTICE Sd Sd JUDGE

False accusation of sexual harassment sets back women empowerment: Delhi High Court

The issues in this case involved false allegations of sexual harassment against the accused which was brought up before the bench of Delhi High Court consisting of Justice Subramonium Prasad in the matters between Dr Karunakar Patra v State and Ors. W.P. (CRL.) 502/2021 decided on 24.1.2022. The facts of the case are petition filed by a Delhi University professor seeking the quashing of a first information report (FIR) registered by his neighbour under Sections 354 and 506 of IPC.The Professor lived in a house which was damaged due to the actions of the respondent lady Meena and often engaged in quarrels with the Petitioner and his wife.Her brother, Jatin also threatened  and abused the wife and entire family with dire consequences.The wife then filed an FIR against Jatin  but it was not registered.Later, Jatin again molested the wife and she called the police, but was later forced to take back her complain and submit an apology.Later, she filed a civil suit seeking demolition of the illegal construction in their area. The counsel for petitioners contended the petitioner and his family were out of town, and neighbors demolished the reinforced concrete water tank that had been built for his loft apartment. Neighbors even built a room and toilet and broke the pipe used to supply water to the petitioner’s apartment. While the petitioner has made several representations to the Delhi Development Authority and Delhi Police to take action for the illegal construction, no action has been taken against them, allegedly because their neighbor’s daughter-in-law is an Officer in the Delhi Police. The counsel for respondents contended petitioner and his wife are regular complainants and this both filed several complaints about the construction being done in their neighbourhoods. He claimed that letters were sent to the Delhi Municipal Authority (MCD) for the necessary action to be taken regarding the complaints of illegal construction, and that the request was also sent to the SDM for further action to be taken. He stated that for every complaint made by the petitioner and his wife, the necessary actions were taken in accordance with the law. The Delhi High Court quashed the FIR  and held that bringing such cases trivializes a serious crime and casts doubt on the veracity of the allegations made by all other victims. The content of the FIR was sketchy in nature and lacked any detail about the crimes allegedly committed. A thorough reading of the matter revealed that the FIR was merely a counterattack and was only registered to compel the plaintiff and his wife to withdraw complaints against neighbors with a covert motive to take revenge on the petitioner and to hold grudges against himself and his wife out of a private and personal grudge and suffering over cases of sexual harassment were recorded in a flash, noting that this effectively hindered the goal of women’s empowerment. Click here to read the judgement

IN THE HIGH COURT OF DELHI AT NEW DELHI Date of decision: 24th January 2022 IN THE MATTER OF: W.P.(CRL) 502 2021 & CRL.M.A. 3511 2021 DR KARUNAKAR PATRA ..... Petitioner Through Mr. Kumar Piyush Pushkar Advocate ..... Respondent Through Mr. Chirag Khurana Advocate for Mr. Ashish Aggarwal ASC for the State Complainant Respondent No.2 Bhayana HON BLE MR. JUSTICE SUBRAMONIUM PRASAD SUBRAMONIUM PRASAD J. This petition has been filed under Article 226 227 of the Constitution of India 1950 read with Section 482 Cr.P.C. seeking the quashing of FIR No. 89 2021 dated 07.02.2021 registered at PS Jahangir Puri under Sections 354A 506 of the Indian Penal Code 1860502 2021 was demolished by one Mrs. Meena Kumar Respondent No.2. The Respondent No. 2 subsequently constructed a room and toilet and in the process broke the pipe that would be used to supply water from the water tank to the Petitioner’s flat. When the Petitioner returned he was shocked to see that there was no water and when he objected illegality of constructions Respondent No.2 and her family assured the Petitioner that they would reconstruct it. However they failed to do so and the Petitioner installed a plastic water tank with his own money. It is stated that the Petitioner’s wife suffers from multiple ailments and that the illegal construction is posing a serious threat to her life as it is blocking ventilation. The Petitioner’s wife has made several requests as well as wrote multiple letters to the DDA authorities regarding the illegal construction instituted by Respondent No.2 and her family. Multiple representations were also given to the police authorities however neither the DDA nor the police acted upon these complaints. It is stated that the laxity on the part of these authorities was due to the fact that Respondent No.2’s daughter in law was a Constable with the Delhi Police. It is stated that as a consequence of the complaints Respondent No.2 and her son namely Jatin abused and threatened the Petitioner’s wife along with the entire family with dire consequences. Thereafter the Petitioner’s wife lodged a criminal complaint dated 19.01.2017 at PS Jahangir Puri against W.P.502 2021 Respondent No.2 Jatin and the daughter in law. However no FIR was registered despite the disclosure of a cognizable offence. It is stated that Jatin again molested the Petitioner’s wife as a result of which she called up the police. However due to police pressure the Petitioner’s wife was forced to compromise with Jatin and the latter submitted an apology letter dated 27.07.2018. It is stated that an RTI dated 12.01.2017 filed by the Petitioner’s wife to enquire about the details regarding the action taken by DDA against the illegal constructions revealed that DDA claimed to have information about them. Accordingly the Petitioner’s wife filed a Civil Suit vide Suit No. 826 2017 dated 23.10.2020 seeking demolition of the illegal construction with Respondent No.2 being made party to that suit as Respondent No.8 therein. It is stated that on 26.10.2020 the Petitioner was attacked by one Mohan Singh who allegedly conspired with Respondent No.2 who had apparently assured him that no action would be taken by the police against him on account of her daughter in law working with Delhi Police. The Petitioner thereafter filed a complaint at PS Jahangir Puri and the police register a non cognizable report dated 28.10.20202 under Sections 323 506 IPC. However no FIR was registered. It is stated that on 21.11.2020 infuriated by the filing of the civil suit Jatin started abusing the Petitioner’s wife and threatened her with dire consequences and as a result the Petitioner’s wife submitted a W.P.502 2021 written complaint dated 21.11.2020 at PS Jahangir Puri. Yet again no FIR was registered. It is stated that in response to the written complaint the police called the Petitioner and pressurized the Petitioner and his wife to compromise the matter. On their refusal to do so it is stated that Respondent No.2 in collusion with the police lodged the instant impugned FIR on 07.02.2021. It is stated that without giving a copy of the FIR to the Petitioner the police took the Petitioner to the police station and asked him to pay Rs. 5 00 000 as a bribe to settle the matter. It is stated that the Petitioner along with his wife were let off around 12:00 AM only after the intervention of his lawyer. It is stated that the Petitioner has been asked to join investigation at odd hours on several occasions. 3. Mr. Kumar Piyush Pushkar learned Counsel appearing for the Petitioner has submitted that the instant FIR deserves to be quashed as the same has been lodged with a mala fide intent and is an attempt to coerce and arm twist the Petitioner into withdrawing the complaint that has been lodged by the Petitioner’s wife against the son of Respondent No.2 Jatin who is a habitual offender. He has submitted that more than 20 complaints have been filed by the Petitioner’s wife against Respondent No.2 and her family members and that the same are pending before various authorities. He has submitted that the instant impugned FIR contains nothing but bald allegations and has been registered in connivance with the police as the daughter in law of Respondent No.2 is a part of Delhi Police. 4. Mr. Pushkar has submitted that the instant FIR is an abuse of the W.P.502 2021 process of law and was only filed after the Petitioner’s wife had filed the civil suit and then filed a written complaint against Respondent No.2’s son. He has argued that the ambiguous general allegations against the Petitioner have been made without mentioning the date and time of the offence and therefore are indicative of how the same are manufactured and concocted. He has submitted that no evidence or proof has been forwarded by Respondent No.2 to substantiate her allegations and therefore it can be presumed that the same is false frivolous malicious and vexatious in nature. The learned Counsel has submitted that this Court has the power under Section 482 Cr.P.C. to quash the instant FIR and has placed on record multiple judgements to buttress this submission. He has further informed this Court that the Petitioner is a man of high stature who has been teaching as a professor at Delhi University and that the instant FIR taints his reputation and thereby closes all the doors to future prospects for the Petitioner. He has submitted that there also exists CCTV footage which proves that the Petitioner did not commit the alleged acts against Respondent No.2. Per contra Mr. Ashish Aggarwal learned ASC for the State has submitted that the Petitioner and his wife are habitual complainants and that both of them have filed several complaints regarding the construction that has taken place in their neighborhood. He has submitted that the regarding their complaints of illegal construction letters had indeed been sent to the Municipal Corporation of Delhifor taking necessary action and that the request had also been sent to the SDM for taking further action. He has stated that appropriate action has been taken as per the law on each and every complaint which has been filed by the Petitioner and his wife. The learned ASC has brought to the notice of this Court that on W.P.502 2021 27.02.2021 the Petitioner had been dismissed from his RWA secretary post for abusing his position and that these complaints were solely filed against the residents as the Petitioner was angry about his removal. He has argued that the son of Respondent No.2 Jatin does not live in that neighborhood and only visits his parents occasionally. He has further stated that on 26.10.2020 Kalandra under Sections 106 150 Cr.P.C. had been prepared against the Petitioner his wife and their neighbor. 8. Mr. Madhusudan Bhayana learned Counsel for Respondent No.2 Complainant has also argued and placed his written submissions on record. These submissions state that the Petitioner is an extortionist and that allegations made in his petition are false and baseless. The written submissions further state that in Parbatbhai Aahir & Ors. v. State of Gujarat Anr. the Supreme Court had laid down broad principles in relation to Section 482 Cr.P.C. and had stated that the inherent powers of this Court could not be invoked to quash criminal proceedings involving serious and heinous crimes which were not private in nature and had a serious impact upon society. Further it has been stated that sexual harassment cases cannot be quashed under Section 226 227 of the Constitution of India and same needs to be decided through the process of Heard Mr. Kumar Piyush Pushkar learned Counsel for the Petitioner Mr. Ashish Aggarwal learned ASC for the State and Mr. Madhusudan Bhayana learned Counsel for Respondent No.2 Complainant and perused the material on record. 10. The Supreme Court has time and again laid down the parameters that must be adhered to by a High Court while exercising its inherent power W.P.502 2021 under Section 482 Cr.P.C. to quash an FIR. Along with the parameters it has been consistently observed by the Apex Court that the inherent power in a matter of quashment of FIR has to be exercised sparingly and with caution and only when such exercise is justified by the test specifically laid down in the provision itself. In this context it would be pertinent to reproduce Section 482 Cr.P.C.: 482. Saving of inherent powers of High Court. Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code or to prevent abuse of the process of any Court or otherwise to secure the ends of justice." In State of Haryana and Ors. v. Bhajan Lal and Ors. 1992 SuppSCC 335 the Supreme Court provided a precise clearly defined set of inflexible guidelines laying down instances where such an inherent power could be exercised for quashment of an FIR. The relevant portion of that judgment has been reproduced as under: 102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice though it may not be possible to lay down any precise clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad W.P.502 2021 kinds of cases wherein such power should be exercised. 1) Where the allegations made information report or the complaint even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused. 2) Where the allegations in the first information report and other materials if any accompanying the FIR do not disclose a cognizable offence justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code. 3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the 4) Where the allegations in the FIR do not constitute a cognizable offence but constitute only a non cognizable offence no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code. 5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. 6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned ActW.P.502 2021 to the institution and continuance of the proceedings and or where there is a specific provision in the Code or the concerned Act providing efficacious redress for the grievance of the aggrieved party. 7) Where a criminal proceeding is manifestly attended with mala fide and or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge. 103. We also give a note of caution to the effect that the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases that the court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of allegations made in the FIR or the complaint and that the extraordinary or inherent powers do not confer an arbitrary jurisdiction on the court to act according to its whim or caprice." 12. Therefore quashing of criminal proceedings is called for only in a case where the complaint does not disclose any offence or is frivolous vexatious or oppressive. If the allegations set out in the complaint do not constitute the offence of which cognizance has been taken by the Magistrate it is open to the High Court to quash the same. It is not necessary that a meticulous analysis of the case should be done before the trial to find out whether the case would end in conviction or acquittal. If it appears on a reading of the complaint and consideration of the allegations therein in light of the statement made on oath that the ingredients of the offence are disclosed there would be no justification for the High Court to interfere14 W.P.502 2021 SCC 350]. 13. A perusal of the material on record in the present case in this Court’s considered opinion reveals that the contents of the FIR are sketchy in nature and are void of any specifics regarding the offences which have allegedly been committed. While this Court is cognizant of the fact that an FIR is not an encyclopaedia which must disclose all facts and details however in the instant case a bare reading of the impugned FIR No.89 2021 prima facie indicates that the FIR arises out of bald allegations and contradictory statements. 14. Furthermore a reading of the Status Report also does not reveal anything about the offences being referred to in the impugned FIR. The Status Report states that the Petitioner and his wife were habitual complainants and have filed multiple complaints against the construction that would take place in the neighbourhood and therefore it is evident that the instant FIR was maliciously instituted with an ulterior motive for wreaking vengeance on the Petitioner and with a view to spite him and his wife due to a private and personal grudge. A comprehensive reading of the matter at hand reveals that the impugned FIR was merely a counterblast and was solely registered to arm twist the Petitioner and his wife into withdrawing the complaints that had been filed against Respondent No.2 and her family. 15. This Court expresses its anguish at how provisions such as Sections 354A 506 IPC are falsely invoked at the drop of a hat to register one’s displeasure at the conduct of another individual. This merely trivialises the offence of sexual harassment and casts a doubt on the veracity of the allegations filed by every other victim who has in reality faced sexual W.P.502 2021 harassment thereby setting back the cause of women empowerment. 16. This Court therefore deems it fit to exercise its inherent power to quash FIR No. 89 2021 dated 07.02.2021 registered at PS Jahangir Puri under Sections 354A 506 IPC to prevent the abuse of the process of any Court and to secure the ends of justice. 17. With the above observations this petition is allowed. All the pending application(s) if any are disposed of. SUBRAMONIUM PRASAD J. JANUARY 24 2022 W.P.502 2021

University is bound to take care of the health of the students and teachers: High Court of Delhi

Judicial notice can be taken of the fact that various organizations and institutions have gone out of their way, during the current pandemic, to make various facilities available to their employees and other stakeholders, in order to safeguard their health during the current surge of the COVID- 19 pandemic. The JNU ought not to be an exception in this regard. This was held in JAWAHARLAL NEHRU UNIVERSITY TEACHERS ASSOCIATION THROUGH: MOUSHUMI BASU &amp; ORS.v. JAWAHARLAL NEHRU UNIVERSITY THROUGH: VICE CHANCELLOR &amp; ANR [W.P.(C) 5263/2021] in the High Court of Delhi by single bench consisting of JUSTICE PRATHIBA M. SINGH. The facts are that the writ petition has been filed by the Students Union and the Teachers Union at JNU. The Petitioners are seeking various directions to the Respondents including a direction for setting up COVID care facilities in the University Campus, a COVID response team, and certain Oxygen facilities inside the University Campus premises. The counsel for the petitioner submitted that the main grievance of the Petitioners is that administration of the University as also the Govt. Authorities to whom letters were written have been completely silent to the repeated requests of the Petitioners qua setting up a COVID care facility and oxygen production facilities. Accordingly, they have been forced to approach this Court. The right to life and health of all the residents/occupants on the campus is under severe jeopardy. The counsel for the respondent submitted, she does not have instructions as to what steps have been taken within the University for dealing with the second wave of COVID-19 within the campus. She seeked time to take instructions from the relevant authorities. The Counsel on behalf of the GNCTD and the SDM submitted that if the administration permits, they are willing to coordinate with the faculty, students, and the administration, in order to set up a COVID care facility, which would be attached to some hospital. The court observed that “The first letter was sent by the Petitioners i.e., the students and the teachers of JNU to the Administration on 13th April 2021, which shows that it has been almost a month since they have been following up but the same has completely failed to evoke a response. If this is true, this would constitute gross neglect by the JNU administration in a situation which is completely alarming.”

IN THE HIGH COURT OF DELHI AT NEW DELHI Date of decision: 11th May 2021 W.P.(C) 5263 2021 JAWAHARLAL NEHRU UNIVERSITY TEACHERS ASSOCAITION THROUGH: MOUSHUMI BASU & ORS. Through: Mr. Abhik Chimni Mr. Lakshay Garg Mr. Shashwat Mehra Advocates M 98684 42108). ..... Petitioners JAWAHARLAL NEHRU UNIVERSITY THROUGH: VICE CHANCELLOR & ANR. ..... Respondents Through: Ms.Monika Arora Standing Counsel with Mr. Shriram Tiwary Advocate for R 1. Tripathi Standing Counsel GNCTD with Mr. Aditya P Khanna Advocate. Santosh Kumar JUSTICE PRATHIBA M. SINGH Prathiba M. Singh J.This hearing has been done through video conferencing. CM APPL. 16182 20215263 2021 WP(C) 5263 2021 The present writ petition has been filed by the Students Union and the Teachers Union at the Jawaharlal Nehru Universityas also two Professors who teach at the University. The Petitioners are seeking various directions to the Respondents including a direction for setting up COVID care facilities in the University Campus as also a COVID response team and certain Oxygen facilities inside the University Campus premises. The case of the Petitioners is that due to the outbreak of the second wave of the COVID 19 pandemic around the second week of April the Petitioners wrote a letter to the Registrar of the Respondent University highlighting the alarming situation due to COVID 19 on the JNU campus seeking various steps to be taken for controlling the situation. Thereafter a notification is stated to have been issued on 18th April 2021 by the Deputy Registrar of the JNU constituting a COVID 10 task force and a COVID 19 response team in JNU. On 18th April 2021 another letter had again been sent by the Petitioners to the Registrar of JNU stating the massive surge of the number of positive cases within the JNU campus premises and highlighting the need for urgent steps to be taken. The same was followed up with further letters on 19th April 2021 to the Vice Chancellor JNU and on 23rd April 2021 to the ADM New Delhi requesting immediate intervention for setting up COVID care facilities within the campus. The Petitioners thereafter are stated to have contacted the SDM for setting up of the isolation and quarantine facilities. However despite repeated letters to the authorities of the University the Secretary of Ministry of Education the Secretary of the University Grants Commission etc. no action is stated to have been taken for setting up of a COVID care facility W.P.(C) 5263 2021 filed. within the campus premises. Further repeated letters to the SDM of the area have also not evoked any response. Hence the present petition has been The Petitioners themselves are stated to have requested the faculty of Centre for Social Medicine and Community Health for drawing of plans for COVID care which has submitted a proper proposal in this respect. Further there is also a plan which has been devised by the School of Life Sciences JNU for producing Oxygen within the campus itself. 7. Mr. Chimni ld. Counsel appearing for the Petitioners submits that the main grievance of the Petitioners is that administration of the University as also the Govt. Authorities to whom letters were written have been completely silent to the repeated requests of the Petitioners qua setting up a COVID care facility and oxygen production facilities. Accordingly they have been forced to approach this Court. He submits life and health of all residents occupants in the campus is under severe jeopardy. He further submits that there is no doubt that there is space within the JNU and the SDM along with the administration in the JNU ought to be directed to create a COVID care facility within which the faculty and the other Departments of the University are willing to cooperate. Ld. Counsel further submits that the JNU administration is guilty of `dereliction of duty’. Issue Notice. On behalf of the Respondent JNU Ms. Monika Arora ld. Counsel accepts notice and submits that since she is appearing on an advance copy she does not have instructions as to what steps have been taken within the University for dealing with the second wave of COVID 19 within the campus. She seeks time to take instructions from the relevant W.P.(C) 5263 2021 authorities. 10. Mr. Aditya P. Khanna ld. Counsel accepts notice on behalf of the GNCTD and the SDM and submits that since the entire campus is within the control of the JNU administration they are unable to do anything. However if the administration permits they are willing to coordinate with the faculty students and the administration in order to set up a COVID care facility which would be attached to some hospital. 11. Considering the rigour of the current COVID 19 pandemic wave and the correspondence which has been placed on record there is no doubt that the JNU administration ought to have reacted with swiftness and alacrity. The first letter was sent by the Petitioners i.e. the students and the teachers of JNU to the Administration on 13th April 2021 which shows that it has been almost a month since they have been following up but the same has completely failed to evoke a response. If this is true this would constitute gross neglect by the JNU administration in a situation which is completely alarming. The University is bound to take care of the health of the students and teachers and make available the facilities to the extent possible within the University campus especially considering the prevalent shortages for hospital beds etc. Judicial notice can be taken of the fact that various organisations and institutions have gone out of their way during the current pandemic to make various facilities available to their employees and other stakeholders in order to safeguard their health during the current surge of the COVID 19 pandemic. The JNU ought not to be an exception in this regard. As per the numbers pleaded in the writ petition there were total of 74 cases around 18th April 2021 which has increased to 211 as on 7th May 2021. If these figures are correct there has been a three fold increase in the W.P.(C) 5263 2021 number of cases in just three weeks. In view of the above the following directions are issued: i) The Registrar JNU to immediately give instructions to the ld. counsel and file a status report as to what are the steps taken by the administration of the JNU in respect of the requests made and letters written by the Petitioners administration for dealing with the COVID 19 pandemic situation in the JNU campus since 2020 and especially since 13th April 2021. ii) The Vice Chancellor Registrar of JNU to also ascertain the necessity and feasibility in respect of creation of the COVID care facility in the JNU campus and file a status report thereof. The report shall also take into consideration the proposals given by the Centre for Social Medicine and Community Health as also the proposal for in house production of oxygen given by the School of Life Sciences. The authorities in JNU to consider if there is any modification required to the said proposals as has been suggested by the students and teachers associations. The modalities for creation of COVID care facility shall be mentioned in the report. The SDM ADM of the concerned area to also place on record a status report as to whether such a COVID care facility can be created at JNU in accordance with the guidelines applicable and if so indicating the manner in which the doctors and paramedics as also nurses would be made available W.P.(C) 5263 2021 for the said facility and whether they would be tied up with any particular hospital and if so name the said hospital after obtaining its concurrence. 13. The Registrar of the Respondent University shall convene a meeting today itself at 5 P.M chaired by the Vice Chancellor along with the other internal administrative staff as also the concerned SDM ADM of the area to work out the formalities and the protocols in this respect. 14. A second meeting shall also be convened by the Registrar chaired by the Vice Chancellor other administrative staff SDM ADM concerned along with six representatives of the Students and the Teachers Union as also the departments which have given the proposals at 11 AM tomorrow i.e. 12th May 2021 to discuss the said proposals letters for setting up of a COVID care facility in the JNU campus. The said meetings can be held through a virtual 15. Let the status reports explaining the feasibility modalities and timelines for setting up of a covid care centre preferably with oxygenated beds as directed be emailed by both the JNU administration as also the ADM SDM of the concerned area to the Court Master by 9 A.M. on 13th May 2021. 16. List on 13th May 2021 at 2:30 PM. 17. The digitally signed copy of this order duly uploaded on the official website of the Delhi High Court www.delhihighcourt.nic.in shall be treated as the certified copy of the order for the purpose of ensuring compliance. No physical copy of orders shall be insisted by any authority entity or litigant. MAY 11 2021 mw AK PRATHIBA M. SINGH J W.P.(C) 5263 2021

The Court finds  prima facie an offense and the petitioner is not maintainable due to bar of Section 76(2) under Bihar Prohibition Excise Act, 2016: High court of Patna

The petitioner was arrested under Section 30(a) of the Bihar Prohibition and Excise Act, 2016. This is in connection with Sherghati PS Case No. 354 of 2020 dated 28.07.2020. This judgment was given in the high court of Judicature at Patna by honorable Mr. Justice Ahsanuddin Amanullah on the 6th  of August 2021 in the case of Aniket Singh versus the state of Bihar criminal miscellaneous No. 37686 of 2020, Mr. Shivendra Prasad, Advocate Represented as the advocate for the petitioner and Mr. Umesh Lal Verma represented the state of Bihar as the additional Public Prosecutor, the proceedings of the court were held via video conference. The following are the facts of the case, the allegations against the petitioner were that he illegally stored fruit beer in his hotel situated at Nai Bazar, Sherghati, 534 cans, each containing 300 ML of fruit beer containing 0.6 to 0.8 % alcohol, has been recovered from the police and has been taken into custody as alcohol is illegal in the state of Bihar. The counsel representing the petitioner held that the prosecution case is mala fide because according to the chemical examination the percentage of alcohol was only 0.6 to 0.8 % which is considered under the limit. Under BIS (Bureau of Indian Standards) they have prescribed a limit of 4 % of alcohol. After referring to a judgment by this court in Cr. WJC No. 627 of 2017 dated 05.12.2017, Any alcoholic beverage or potable liquor under section 2(4) of the Bihar prohibition excise act is an offense and prohibits intoxicant liquor. When both the section 2(4) and 2(6) are read together it emphasizes that the recovery would not constitute as an offense and further the counsel held that the petitioner has no other criminal antecedent. The counsel for the petitioner held that the fruit beer had been given to the distributor of fruit beer and the same person occupied the room of the petitioner where the alcohol was recovered and therefore the petitioner has no connection with the said recovery. The Additional Public Prosecutor held that according to the notification issued by the Ministry of Health and Family Welfare (Food Safety and Standard Authority of India), anything more than 0.5 % ethanol will be considered as an alcoholic beverage and the fruit beer contained 0.6-0.8% which will be held has an offense under the Bihar Prohibition Excise act the APP added that any drink from Kingfisher, Budweiser and Heineken Company containing ethyl alcohol with the same percentage would also be considered as an offense. After considering the facts and circumstances of the case the court held that “The Act further stipulates that the owner of the premises would also be liable for such recovery. Thus, the Court finds that prima facie an offense having been made out under the Act, the present petition under Section 438 of the Code of Criminal Procedure, 1973 would not be maintainable due to bar of Section 76(2) of the Act.  In the aforesaid background, the petition stands dismissed as not maintainable. Interim protection granted to the petitioner under order dated 16.07.2021, stands vacated.” Click here to read the judgment

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

A decree obtained under Land Acquisition Act is an executable decree and no contempt can be maintained for non-compliance with such decree: Supreme Court of India

The weapon of contempt is not to be used in abundance or misused. the Land Acquisition Act is a complete code by itself and lays down detailed procedure for the acquisition of land, payment of compensation, and common law principles of justice, equity and good conscience cannot be extended contrary to provisions of the Statute. Such an observation was made by the Hon’ble Supreme Court before Hon’ble Justice R. Subhash Reddy &amp; Hon’ble Justice Hrishikesh Roy in the matter of M/s. Soorajmull Nagarmull vs Sri Brijesh Mehrotra &amp; Ors [CONTEMPT PETITION(C) NOS.726­728 OF 2017]. The facts of the case were that land admeasuring 29.38 acres belonging to the petitioner were acquired under provisions of the Land Acquisition Act, 1894. The notification under Section 4(1) of the Act was issued at the first instance on 25.03.1981. Pursuant to abovesaid notification, possession of the land along with the structures was taken on 20.08.1981. Said land was subsequently declared as a protected forest under Section 29 of the   Indian Forest Act, 1927.  Notification to that effect was issued under Indian Forest Act on 04.09.1990. As no award was passed pursuant to the notification issued under Section 4(1) of the Act, a fresh notification under Section 4(1) of the Act was issued on 24.05.1995 and there was also further notification to the same effect on 17.08.1996. When the subsequent notification was issued, the same was challenged before the High Court. The said writ petition was allowed in the year 1998.  The Hon’ble Supreme Court noted that the latest notification issued under Section 11 of the 2013 Act respondents have not invoked the urgency clause at all.  When the notification was issued under Section 11 of the 2013   Act,   without invoking the urgency clause, the question of extending the benefits as per Section 40 of the 2013 Act will not arise. Additionally, the Hon’ble Supreme Court referred to the case of J.S. Parihar v. Ganpat Duggar  &amp;  Ors. (1996) 6 SCC 291 wherein it was held that once there is an order passed by the Government on the basis of directions issued by this Court, there arises a fresh cause of action to seek redressal in an appropriate forum. Furthermore, the Hon’ble Supreme Court wherein it was held that the weapon of contempt is not to be used in abundance or misused.  It is further observed that discretion given to the court in dealing with the proceedings under the Contempt of Courts Act is to be exercised for maintenance of court’s dignity and majesty of law and further an aggrieved party has no right to insist that the court should exercise such jurisdiction, inasmuch as contempt is between contemner and the court. Finally, the Hon’ble Supreme Court dismissed the instant appeal in view of the above. Click Here To Read The Judgment. Judgment Reviewed by: Rohan Kumar Thakur The facts of the case were that land admeasuring 29.38 acres belonging to the petitioner were acquired under provisions of the Land Acquisition Act, 1894. The notification under Section 4(1) of the Act was issued at the first instance on 25.03.1981. Pursuant to abovesaid notification, possession of the land along with the structures was taken on 20.08.1981. Said land was subsequently declared as a protected forest under Section 29 of the   Indian Forest Act, 1927.  Notification to that effect was issued under Indian Forest Act on 04.09.1990. As no award was passed pursuant to the notification issued under Section 4(1) of the Act, a fresh notification under Section 4(1) of the Act was issued on 24.05.1995 and there was also further notification to the same effect on 17.08.1996. When the subsequent notification was issued, the same was challenged before the High Court. The said writ petition was allowed in the year 1998.  The Hon’ble Supreme Court noted that the latest notification issued under Section 11 of the 2013 Act respondents have not invoked the urgency clause at all.  When the notification was issued under Section 11 of the 2013   Act,   without invoking the urgency clause, the question of extending the benefits as per Section 40 of the 2013 Act will not arise. Additionally, the Hon’ble Supreme Court referred to the case of J.S. Parihar v. Ganpat Duggar  &amp;  Ors. (1996) 6 SCC 291 wherein it was held that once there is an order passed by the Government on the basis of directions issued by this Court, there arises a fresh cause of action to seek redressal in an appropriate forum. Furthermore, the Hon’ble Supreme Court wherein it was held that the weapon of contempt is not to be used in abundance or misused.  It is further observed that discretion given to the court in dealing with the proceedings under the Contempt of Courts Act is to be exercised for maintenance of court’s dignity and majesty of law and further an aggrieved party has no right to insist that the court should exercise such jurisdiction, inasmuch as contempt is between contemner and the court. Finally, the Hon’ble Supreme Court dismissed the instant appeal in view of the above. Click Here To Read The Judgment. Judgment Reviewed by: Rohan Kumar Thakur The Hon’ble Supreme Court noted that the latest notification issued under Section 11 of the 2013 Act respondents have not invoked the urgency clause at all.  When the notification was issued under Section 11 of the 2013   Act,   without invoking the urgency clause, the question of extending the benefits as per Section 40 of the 2013 Act will not arise. Additionally, the Hon’ble Supreme Court referred to the case of J.S. Parihar v. Ganpat Duggar  &amp;  Ors. (1996) 6 SCC 291 wherein it was held that once there is an order passed by the Government on the basis of directions issued by this Court, there arises a fresh cause of action to seek redressal in an appropriate forum. Furthermore, the Hon’ble Supreme Court wherein it was held that the weapon of contempt is not to be used in abundance or misused.  It is further observed that discretion given to the court in dealing with the proceedings under the Contempt of Courts Act is to be exercised for maintenance of court’s dignity and majesty of law and further an aggrieved party has no right to insist that the court should exercise such jurisdiction, inasmuch as contempt is between contemner and the court. Finally, the Hon’ble Supreme Court dismissed the instant appeal in view of the above. Click Here To Read The Judgment. Judgment Reviewed by: Rohan Kumar Thakur Additionally, the Hon’ble Supreme Court referred to the case of J.S. Parihar v. Ganpat Duggar  &amp;  Ors. (1996) 6 SCC 291 wherein it was held that once there is an order passed by the Government on the basis of directions issued by this Court, there arises a fresh cause of action to seek redressal in an appropriate forum. Furthermore, the Hon’ble Supreme Court wherein it was held that the weapon of contempt is not to be used in abundance or misused.  It is further observed that discretion given to the court in dealing with the proceedings under the Contempt of Courts Act is to be exercised for maintenance of court’s dignity and majesty of law and further an aggrieved party has no right to insist that the court should exercise such jurisdiction, inasmuch as contempt is between contemner and the court. Finally, the Hon’ble Supreme Court dismissed the instant appeal in view of the above. Click Here To Read The Judgment. Judgment Reviewed by: Rohan Kumar Thakur Finally, the Hon’ble Supreme Court dismissed the instant appeal in view of the above.

C.P(C).Nos.726 7217 These contempt petitions are filed under Section 12 of Constitution of India and Rule 3(C) of the Rules to Regulate Proceedings for Contempt of the Supreme Court 1975 alleging that respondents have wilfully and deliberately violated C.P(C).Nos.726 7217 The land admeasuring 29.38 acres belonging to the petitioner situated at Bhagalpur Bihar was acquired under provisions of the Land Acquisition Act 1894will apply as much C.P(C).Nos.726 7217 Section 6 of the Act pursuant to subsequent notification. The and the respondent­State was directed to initiate fresh acquisition proceedings or to take any other action available Alleging wilful and deliberate violation of the directions issued in the aforesaid order passed on 17.08.2015 earlier contempt petitions were filed in Contempt Petition(C) Nos.726­ 2013 Act the contempt petitions were disposed of vide order “It has been submitted by the learned senior to Fair Compensation and Transparency in Land Acquisition Rehabilitation and Resettlement Act 2013 survive and therefore the learned senior counsel appearing for the petitioner seeks permission to C.P(C).Nos.726 7217 The respondent­State has subsequently filed I.A.Nos.28­30 of We have heard Dr. A.M. Singhvi and Mr. Gopal Sankarnarayanan learned senior advocates appearing for the wilfully the series of directions issued by this Court. It is urgency clause and inspite of directions for payment of to Section 40 of the 2013 Act and by treating the land as acquired was used for construction of office and residential C.P(C).Nos.726 7217 buildings and inspite of the same contrary to various directions issued by this Court land is treated as agricultural forest land a concept unknown to law. It is submitted that when the applications were filed for correction of the order dated Counter affidavit is filed on behalf of the respondents case of the respondents that in compliance of the directions issued by this Court in the order dated 17.08.2015 a fresh made on behalf of the State that a fresh notification would be left open all the issues. It is stated that in view of the order under Section 11 of the 2013 Act and after following the C.P(C).Nos.726 7217 there was no violation of any directions issued by the Court the determination of compensation it is always open for the petitioner to avail remedy under Section 64 of the 2013 Act Without availing such remedy under guise of contempt In the order dated 17.08.2015 passed by this Court in Civil Appeal Nos.10394­10396 of 2011 while quashing the acquisition proceedings on the ground that proceedings were in the Act respondent­State was directed to initiate fresh acquisition proceedings or to take any other action available under law. Consequent to abovesaid order dated 17.08.2015 respondents have issued fresh notification on 14.11.2015 C.P(C).Nos.726 7217 notification was issued thereafter on 14.02.2020. Pursuant to notification issued under Section 11 of the 2013 Act on 14.02.2020 award inquiry was conducted. Petitioner has filed In view of the order dated 10.02.2020 passed by this dated 12.11.2020 it cannot be said that respondents have violated the directions issued by this Court in the order dated same is pending. With regard to submission of Dr. Singhvi learned senior counsel that the respondents have not granted 2013 Act without invoking urgency clause the question of C.P(C).Nos.726 7217 arise. In the judgment in the case of J.S. Parihar v. Ganpat Kumar appearing for the respondents it is observed by this cause of action to seek redressal in an appropriate forum Further in the judgment of the Court in the case of Delhi equity and good conscience cannot be extended contrary to provisions of the Statute. In the judgment in the case of R.N that a decree obtained under Land Acquisition Act is an that weapon of contempt is not to be used in abundance or 16 SCC 291 25 SCC 339 34 SCC 400 C.P(C).Nos.726 7217 law and further an aggrieved party has no right to insist that the 2013 Act on 14.02.2020 and the award passed by the deliberately and intentionally violated any directions issued by this Court attracting the provisions of Contempt of Courts Act 1971. Though detailed submissions were advanced by the value while it is open to the petitioner to avail the remedies directions issued by this Court. Section 64 of the 2013 Act C.P(C).Nos.726 7217 the award by written application to the Collector may seek 66 of the 2013 Act. Even after adjudication made by such aforesaid reasons these contempt petitions are dismissed with no order as to costs. We make it clear that we have not on the determination of market value in the award dated

Fair and proper investigation is a right of every citizen and in case of any violation remedy under Section 156(3) of Crpc to be invoked: Allahabad High Court

In case an informant feels that proper or fair investigation is not being carried out by the investigating officer, the aggrieved can then approach a Magistrate for relief under Section 156(3) of the Code of Criminal Procedure (Crpc), instead of invoking writ jurisdiction of the High Court under Article 226 of the Constitution. The Allahabad High Court presided over by J. S.P. Kesarwani &amp; J. S. Ahmed laid down this ratio in the case of Ajay Kumar &amp; Ors. Vs. State of U.P. &amp; Ors, [Criminal Miscellaneous Writ Petition No. 15692 of 2020]. The Court in this case has clubbed several petitions. The Petitions were filed under Article 226 of the Constitution with a prayer to direct the Police authorities to carry out the fair and proper investigation in various criminal cases. The Petitioner argued that they have a right to seek directions from the High Court under Article 226 of the Constitution if the investigating authority/agency is not functioning properly. They further, argued that there was no need to invoke Section 156(3) of the Crpc as the High Court has the power to pass such directions. The High Court in this case had two questions before it that is whether the concerned Magistrate has the power to direct the police authorities to carry out fair and proper investigation. Secondly, whether the petitioners can directly approach the High Court under Article 226 of the Constitution without exhausting the remedy under Section 156(3) of the Crpc. The Court in this case was of the opinion that every investigation has to be conducted in a fair manner and in accordance with the law. The Court further stated that “Fair and proper investigation is the primary duty of the investigating officer. In every civilized society, the police force is invested with powers of investigation of a crime to secure punishment for the criminal and it is in the interest of the society that the investigating agency must act honestly and fairly and not resort to fabricating false evidence or creating false clues only with a view to secure a conviction because such acts shake the confidence of the common man not only in the investigating agency but in the ultimate analysis in the system of dispensation of criminal justice. The proper result must be obtained by recourse to proper means, otherwise, it would be an invitation to anarchy.” The Court emphasized the importance of fair investigation stated that “It is equally important that interested or influential persons are not able to misdirect or hijack the investigation, so as to throttle a fair investigation resulting in the offenders escaping a punitive course of law. These are important facets of the rule of law. Breach of rule of law amounts to negation of equality under Article 14 of the Constitution of India.” The Court also stated that such fair trial and scope of Article 21 was of the opinion that “A fair trial includes fair investigation as reflected from Articles 20 and 21 of the Constitution of India. If the investigation is neither effective nor purposeful nor objective nor fair, the courts may if considered necessary, may order a fair investigation, further investigation or reinvestigation as the case may be to discover the truth so as to prevent miscarriage of justice.” The Court also relied upon landmark judgments of Maneka Gandhi Vs UOI and Subramanian Swamy vs. CBI. The Court lastly stated that the proper remedy for proper and fair investigation of trials was under Section 156(3) of Crpc and not Article 226 of the Constitution. Reliance was placed on the landmark judgment of Vinubhai Haribhai Malviya v. State, where the Supreme Court was of the opinion that, “Magistrate’s power under Section 156(3) of the Crpc is very wide, for it is this judicial authority that must be satisfied that a proper investigation by the police takes place. To ensure that a ‘proper investigation takes place in the sense of a fair and just investigation by the police – which such Magistrate is to supervise – Article 21 of the Constitution of India mandates that all powers necessary, which may also be incidental or implied, are available to the Magistrate to ensure a proper investigation which, without doubt, would include the Ordering of further investigation.” Click here to read the judgement

Judgment reserved on 12.01.2021 Judgment delivered on 27.01.2021 Court No. 48 1. Case : CRIMINAL MISC. WRIT PETITION No. 156920 Petitioner : Ajay Kumar Pandey Respondent : State Of U.P. And 2 Others Counsel for Petitioner : Sachida Nand Tiwari Counsel for Respondent : G.A 2. Case : CRIMINAL MISC. WRIT PETITION No. 157520 3. Case : CRIMINAL MISC. WRIT PETITION No. 157620 4. Case : CRIMINAL MISC. WRIT PETITION No. 157620 Petitioner : Shashi Gangwar Respondent : State Of U P And 5 Others Counsel for Petitioner : Varinder Singh Counsel for Respondent : G.A Petitioner : Smt. Deepu Devi Respondent : State Of U.P. And 2 Others Counsel for Petitioner : Ajay Kumar Kashyap Counsel for Respondent : G.A Petitioner : Ganesh Bind And Another Respondent : State Of U P And 3 Others Counsel for Petitioner : Ulajhan Singh Bind Counsel for Respondent : G.A Petitioner : Ram Raksha Respondent : State Of U P And 2 Others Counsel for Petitioner : Sanjay Kumar Mishra Counsel for Respondent : G.A Petitioner : Khushnuma Respondent : State Of U.P. And 4 Others Counsel for Petitioner : Firdos Ahmad Counsel for Respondent : G.A Petitioner : Smt. Shilpi Mitchell Innes Respondent : State Of U.P. And 11 Others Counsel for Petitioner : Shree Prakash Giri Counsel for Respondent : G.A 7. Case : CRIMINAL MISC. WRIT PETITION No. 157820 6. Case : CRIMINAL MISC. WRIT PETITION No. 157820 5. Case : CRIMINAL MISC. WRIT PETITION No. 157720 8. Case : CRIMINAL MISC. WRIT PETITION No. 170520 Petitioner : Manju Devi Respondent : State Of U P And 14 Others Counsel for Petitioner : Diwan Saifullah Khan Abhishek Ankur Chaurasia Counsel for Respondent : G.A 9. Case : CRIMINAL MISC. WRIT PETITION No. 163420 10. Case : CRIMINAL MISC. WRIT PETITION No. 156920 Petitioner : Mangari Devi Respondent : State Of U.P. And 6 Others Counsel for Petitioner : Ram Awtar Counsel for Respondent : G.A Petitioner : Rama Devi Respondent : State Of U.P. And 6 Others Counsel for Petitioner : Anil Kumar Tripathi Counsel for Respondent : G.A Petitioner : Lalit Kumar Tiwari Respondent : State Of U P And 2 Others Counsel for Petitioner : Arun Kumar Tiwari Counsel for Respondent : G.A 11. Case : CRIMINAL MISC. WRIT PETITION No. 157220 12. Case : CRIMINAL MISC. WRIT PETITION No. 157320 Petitioner : Savita Devi Respondent : State Of U.P. And 12 Others Counsel for Petitioner : Arvind Prabodh Dubey Ashok Kumar Giri Counsel for Respondent : G.A 13. Case : CRIMINAL MISC. WRIT PETITION No. 157420 Petitioner : Anshu Kumar Respondent : State Of U.P. And 3 Others Counsel for Petitioner : Anand Mohan Pandey Om Prakash Katiyar Counsel for Respondent : G.A 14. Case : CRIMINAL MISC. WRIT PETITION No. 163420 15. Case : CRIMINAL MISC. WRIT PETITION No. 170120 Petitioner : Satyanand Singh Respondent : State Of U.P. And 5 Others Counsel for Petitioner : Mirza Ali Zulfaqar Counsel for Respondent : G.A Petitioner : Smt. Indrawati Respondent : State Of U.P. And 3 Others Counsel for Petitioner : Janardan Yadav Counsel for Respondent : G.A 16. Case : CRIMINAL MISC. WRIT PETITION No. 170320 Petitioner : Bharti Respondent : State Of U.P. And 5 Others Counsel for Petitioner : Vikash Chandra Tiwari Counsel for Respondent : G.A 17. Case : CRIMINAL MISC. WRIT PETITION No. 170320 Petitioner : Smt. Devika Mahajan Respondent : State Of U.P. And 6 Others Counsel for Petitioner : Alok Kumar Srivastava Counsel for Respondent : G.A 18. Case : CRIMINAL MISC. WRIT PETITION No. 170420 Petitioner : Rakesh Kumar Yadav Respondent : State Of U.P. And 2 Others Counsel for Petitioner : Sandeep Kumar Devendra Singh Counsel for Respondent : G.A 19. Case : CRIMINAL MISC. WRIT PETITION No. 170420 Petitioner : Ram Dhani Respondent : State Of U P And 6 Others Counsel for Petitioner : Om Prakash Vishwakarma Counsel for Respondent : G.A 20. Case : CRIMINAL MISC. WRIT PETITION No. 170520 Petitioner : Smt Suman Devi Respondent : State Of U P And 4 Others Counsel for Petitioner : Sadhana Singh Archana Singh Counsel for Respondent : G.A 21. Case : CRIMINAL MISC. WRIT PETITION No. 171120 22. Case : CRIMINAL MISC. WRIT PETITION No. 157920 Petitioner : Kiranpal Singh Respondent : State Of U.P. And 2 Others Counsel for Petitioner : Jitendra Singh Counsel for Respondent : G.A Petitioner : Shamim Respondent : State Of U.P. And 5 Others Counsel for Petitioner : Harish Chandra Counsel for Respondent : G.A 23. Case : CRIMINAL MISC. WRIT PETITION No. 163920 Petitioner : Usha Devi Respondent : State Of U.P. And 2 Others Counsel for Petitioner : Chandra Bhan Singh Chandel Counsel for Respondent : G.A 24. Case : CRIMINAL MISC. WRIT PETITION No. 158020 Petitioner : Sujeet Verma Respondent : State Of U.P. And 6 Others Counsel for Petitioner : Anil Kumar Mishra Counsel for Respondent : G.A 25. Case : CRIMINAL MISC. WRIT PETITION No. 170820 Petitioner : Emon Nir Respondent : State Of U.P. And 4 Others Counsel for Petitioner : Mary PunchaMohd. Kalim Counsel for Respondent : G.A 26. Case : CRIMINAL MISC. WRIT PETITION No. 170820 Petitioner : Asha Devi Respondent : State Of U.P. And 7 Others Counsel for Petitioner : Saurabh Kumar Tiwari Kuldeep Kumar Gupta Counsel for Respondent : G.A 27. Case : CRIMINAL MISC. WRIT PETITION No. 171120 Petitioner : Santram Respondent : State Of U.P. And 7 Others Counsel for Petitioner : Renu Devi Dohre Counsel for Respondent : G.A 28. Case : CRIMINAL MISC. WRIT PETITION No. 171720 Petitioner : Chaturbhuj Lal Srivastava Respondent : State Of U.P. And 8 Others Counsel for Petitioner : Sanjay Kumar Srivastava Counsel for Respondent : G.A 29. Case : CRIMINAL MISC. WRIT PETITION No. 171020 Petitioner : Rajkumar Yadav Respondent : State Of U.P. And 4 Others Counsel for Petitioner : Surendra Singh Counsel for Respondent : G.A 30. Case : CRIMINAL MISC. WRIT PETITION No. 163620 Petitioner : Sri Krishna Verma Respondent : State Of U.P. And 5 Others Counsel for Petitioner : Pankaj Kumar Shukla Counsel for Respondent : G.A 31. Case : CRIMINAL MISC. WRIT PETITION No. 163620 Petitioner : SaritaWhether the jurisdictional Magistrate has power to direct the police authority concerned for fair and proper investigation b) Whether the petitioners are justified to file writ petitions under Article 226 of the Constitution of India without approaching the concerned Magistrate under Section 156(3) of the Code of Criminal Procedure 1973 for fair and proper 3. Learned counsel for the petitioners submitted that an important facet of the rule of law is that in criminal justice system investigation into the crime should be fair in accordance with law and should not be tainted Therefore if the investigating authority is not fairly and properly investigating into crime then this court has power to issue appropriate directions under Article 226 of the Constitution of India. They further submitted that once the power is available to this court there is no need to invoke the powers of the concerned Magistrate under Section 156(3) of the Code of Criminal Procedure 1973of the Cr.P.C. to order for fair and proper investigation and therefore the petitioners should have approached the concerned Magistrate for redressal of their grievances Discussion and Findings 5. We have carefully considered the submissions of the learned counsels for the parties 6. Relevant provisions for the purposes of controversy involved in the present writ petitions are Sections 2(c) 2(d) 2(g) 2(h) 36 and 156 Cr.P.C. which are reproduced below “Section 2(c): “cognizable offence” means an offence for which and “cognizable case” means a case in which a police officer may in accordance with the First Schedule or under any other law for the time being in force arrest without warrant Section 2(d): “complaint” means any allegation made orally or in writing to a Magistrate with a view to his taking action under this Code that some person whether known or unknown has committed an offence but does not include a police report Section 2(g): “inquiry” means every inquiry other than a trial conducted under this Code by a Magistrate or Court Section 2(h): “investigation” includes all the proceedings under this Code for the collection of evidence conducted by a police officer or by any personwho is authorised by a Magistrate in this behalf Section 36: Powers of superior officers of police. Police officers superior in rank to an officer in charge of a police station may exercise the same powers throughout the local area to which they are appointed as may be exercised by such officer within the limits of his station Section 156. Police officer’s power to investigate cognizable case. 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 3) Any Magistrate empowered under Section 190 may order such an investigation as above mentioned.” Fair Investigation Rule of Law 7. The criminal justice system mandates that any investigation into the crime should be fair in accordance with law and should not be tainted. It is equally important that interested or influential persons are not able to misdirect or hijack the investigation so as to throttle a fair investigation resulting in the offenders escaping punitive course of law. These are important facets of the rule of law. Breach of rule of law amounts to negation of equality under Article 14 of the Constitution of India. Article 21 of the Constitution of India makes it clear that the procedure in criminal trials must be right just and fair and not arbitrary fanciful or oppressive vide Menka Gandhi vs. Union of India1and Vinubhai Haribhai Malviya and others vs. State of Gujrat and another2 8 SCC 682 AIR 1997 SC 95 large and therefore cannot be alienated from each other. A fair trial includes fair investigation as reflected from Articles 20 and 21 of the Constitution of India. If the investigation is neither effective nor purposeful nor objective nor fair the courts may if considered necessary may order fair investigation further investigation or reinvestigation as the case may be to discover the truth so as to prevent miscarriage of justice. However no hard and fast rules as such can be prescribed by way of uniform and universal invocation and decision shall depend upon facts and circumstances of each case 8. Fair and proper investigation is the primary duty of the investigating officer. In every civilized society the police force is invested with powers of investigation of a crime to secure punishment for the criminal and it is in the interest of the society that the investigating agency must act honestly and fairly and not resort to fabricating false evidence or creating false clues only with a view to secure conviction because such acts shake the confidence of the common man not only in the investigating agency but in the ultimate analysis in the system of dispensation of criminal justice. Proper result must be obtained by recourse to proper means otherwise it would be an invitation to anarchy vide Rampal Pithwa Rahidas vs. State of Maharastra5Menka Gandhi Hussainara Khatoonvs. State of Bihar8 Abdul Rehman Antulay vs R.S. Nayak9 and P. Ramchandra Rao vs. State of Karnatka10 1994 Suppl.SCC 73 12 SCC 421 16 SCC 521 1 SCC 81 1 SCC 225 10 4 SCC 578 10. For the purposes of investigation offences are divided into two categories “cognizable” and “non cognizable”. When information of a cognizable offence is received or such commission is suspected the proper police officer has the authority to enter in the investigation of the same but where the information relates to a non cognizable offence he shall not investigate it without the order of the competent Magistrate. Investigation includes all the proceedings under the Cr.P.C. for the collection of evidence conducted by a police officer or by any person other than a Magistrateproceeding to spot ascertainment of the facts and circumstances of the case discovery and arrest of the suspected offender collection of evidence relating to the commission of the offence and formation of opinion as to whether on the material collected therein to place the accused before a Magistrate for trial and if so to take necessary steps for the same by filing a chargesheet under Section 173 Cr.P.C. vide H.N. Rishbud vs. State of Delhi11. Remedy for Proper Investigation: 11. Section 156(1) confers power upon any officer in charge of a police station to investigate any cognizable case. Section 156(3) provides for a cheque by the Magistrate on the police performing its duties under Chapter XII Cr.P.C. In cases where the Magistrate finds that police has not done its duty of investigating the case at all or has not done it satisfactorily he can issue a direction to the police to do the investigation properly and can monitor the same 12. In Sakiri Vasu vs. State of U.P. and others12Hon’ble Supreme Court considered Section 156(3) Cr.P.C. and after referring to its earlier decisions in Mohd. Yousuf vs. Smt. Afaaq Jahan13Dilawar Singh vs. State of Delhi14State of Bihar vs. A.C. Saldana15and also refering to its judgments on the point of “doctrine of implied powers” in Union of India vs. Paras Laminates Ltd.16 I.T.O. vs. Mohd. Kunhi17 Reserve Bank of India vs. Peerless General Finance and Investment Company Ltd18 Chief 11 AIR 1955 SC 196 12 2 SCC 409 13 1 SCC 627 14 JT 2007SC 585 15 AIR 1980 SC 326 16 4 SCC 453 17 AIR 1969 SC 430 18 1 SCC 642 Executive Officer & Vice Chairman Gujarat Maritime Board vs. Haji Daud Haji Harun Abu19 J.K. Synthetics Ltd. vs. Collector of Central Excise20 State of Karnataka vs. Vishwabharati House Building Co op Society21 held as under “11. In this connection we would like to state that if a person has a grievance that the police station is not registering his FIR under Section 154 Cr.P.C. then he can approach the Superintendent of Police under Section 154(3) Cr.P.C. by an application in writing. Even if that does not yield any satisfactory result in the sense that either the FIR is still not registered or that even after registering it no proper investigation is held it is open to the aggrieved person to file an application under Section 156Cr.P.C. before the learned Magistrate concerned. If such an application under Section 156is filed before the Magistrate the Magistrate can direct the FIR to be registered and also can direct a proper investigation to be made in a case where according to the aggrieved person no proper investigation was made. The Magistrate can also under the same provision monitor the investigation to ensure a proper 12. Thus in Mohd. Yousuf vs. Smt. Afaq Jahan & Anr. this Court observed:of the Code. If he does so he is not to examine the complainant on oath because he was not taking cognizance of any offence therein. For the purpose of enabling the police to start investigation it is open to the Magistrate to direct the police to register an FIR. There is nothing illegal in doing so. After all registration of an FIR involves only the process of entering the substance of the information relating to the commission of the cognizable offence in a book kept by the officer in charge of the police station as indicated in Section 154 of the Code. Even if a Magistrate does not say in so many words while directing investigating under Section 156(3) of the Code that an FIR should be registered it is the duty of the officer in charge of the police station to register the FIR regarding the cognizable offence disclosed by the complaint because that police officer could take further steps contemplated in Chapter XII of the Code only thereafter.” 13. The same view was taken by this Court in Dilawar Singh vs State of Delhi12 SCC 641SCC 23 20 6 SCC 92 21 2003SCC 412 the police has made the investigation or is actually making the investigation which the aggrieved person feels is not proper such a person can approach the Magistrate under Section 156(3) Cr.P.C. and if the Magistrate is satisfied he can order a proper investigation and take other suitable steps and pass such order orders as he thinks necessary for ensuring a proper investigation. All these powers a Magistrate enjoys under Section 14. Section 156states “156(3) Any Magistrate empowered under Section 190 may order such an investigation as abovementioned.” The words “as abovementioned” obviously refer to Section 156which contemplates investigation by the officer in charge of the Police Station.” 15. Section 156(3) provides for a check by the Magistrate on the police performing its duties under Chapter XII Cr.P.C. In cases where the Magistrate finds that the police has not done its duty of investigating the case at all or has not done it satisfactorily he can issue a direction to the police to do the investigation properly and can monitor the same 16. The power in the Magistrate to order further investigation under Section 156(3) is an independent power and does not affect the power of the investigating officer to further investigate the case even after submission of his report vide Section 173(8). Hence the Magistrate can order re opening of the investigation even after the police submits the final report vide State of Bihar vs. A.C Saldanna1 SCC 554Cr.P.C. is wide enough to include all such powers in a Magistrate which are necessary for ensuring a proper investigation and it includes the power to order registration of an F.I.R. and of ordering a proper investigation if the Magistrate is satisfied that a proper investigation has not been done or is not being done by the police. Section 156(3) Cr.P.C. though briefly worded in our opinion is very wide and it will include all such incidental powers as are necessary for ensuring a proper investigation 18. It is well settled that when a power is given to an authority to do something it includes such incidental or implied powers which would ensure the proper doing of that thing. In other words when any power is expressly granted by the statute there is impliedly included in the grant even without special mention every power and every control the denial of which would render the grant itself ineffective. Thus where an Act confers jurisdiction it impliedly also grants the power of doing all such acts or employ such means as are essentially necessary to its execution 27. As we have already observed above the Magistrate has very wide powers to direct registration of an FIR and to ensure a proper investigation and for this purpose he can monitor the investigation to ensure that the investigation is done properly though he cannot investigate himself). The High Court should discourage the practice of filing a writ petition or petition under Section 482 Cr.P.C. simply because a person has a grievance that his FIR has not been registered by the police or after being registered proper investigation has not been done by the police. For this grievance the remedy lies under Sections 36 and 154(3) before the concerned police officers and if that is of no avail under Section 156(3) Cr.P.C. before the Magistrate or by filing a criminal complaint under Section 200Cr.P.C. and not by filing a writ petition or a petition under Section 482 Cr.P.C 28. It is true that alternative remedy is not an absolute bar to a writ petition but it is equally well settled that if there is an alternative remedy the High Court should not ordinarily 29. In Union of India vs. Prakash P. Hinduja and another6 SCC 195it has been observed by this Court that a Magistrate cannot interfere with the investigation by the police. However in our opinion the ratio of this decision would only apply when a proper investigation is being done by the police If the Magistrate on an application under Section 156(3) Cr.P.C. is satisfied that proper investigation has not been done or is not being done by the officer in charge of the concerned police station he can certainly direct the officer in charge of the police station to make a proper investigation and can further monitor the samehas been reiterated by Hon’ble Supreme Court in Sudhir Bhaskar Rao Tambe vs. Hemant Yaswant Dhage22 and Vinay Tyagi vs Irshad Ali23Hon’ble Supreme Court held as under “43. At this stage we may also state another well settled canon of criminal jurisprudence that the superior courts have the jurisdiction under Section 482 of the Code or even Article 226 of the Constitution of India to direct ‘further investigation’ ‘fresh’ or ‘de novo’ and even ‘reinvestigation’. ‘Fresh’ ‘de novo’ and ‘reinvestigation’ are synonymous 22 6 SCC 277 23 5 SCC 762 expressions and their result in law would be the same. The superior courts are even vested with the power of transferring investigation from one agency to another provided the ends of justice so demand such action. Of course it is also a settled principle that this power has to be exercised by the superior courts very sparingly and with great circumspection 44. We have deliberated at some length on the issue that the powers of the High Court under Section 482 of the Code do not control or limit directly or impliedly the width of the power of Magistrate under Section 228 of the Code. Wherever a charge sheet has been submitted to the Court even this Court ordinarily would not reopen the investigation especially by entrusting the same to a specialised agency. It can safely be stated and concluded that in an appropriate case when the court feels that the investigation by the police authorities is not in the proper direction and that in order to do complete justice and where the facts of the case demand it is always open to the Court to hand over the investigation to a specialised agency. These principles have been reiterated with approval in the judgments of this Court in the case of Disha v. State of Gujarat Ors.13 SCC 337]. Vineet Narain v. Union of India1 SCC 226] Union of India v. Sushil Kumar Modi SCC 500 and Rubabbuddin Sheikh v. State of Gujarat2 SCC 200 48. What ultimately is the aim or significance of the expression ‘fair and proper investigation’ in criminal jurisprudence It has a twin purpose Firstly the investigation must be unbiased honest just and in accordance with law secondly the entire emphasis on a fair investigation has to be to bring out the truth of the case before the court of competent jurisdiction. Once these twin paradigms of fair investigation are satisfied there will be the least requirement for the court of law to interfere with the investigation much less quash the same or transfer it to another agency. Bringing out the truth by fair and investigative means in accordance with law would essentially repel the very basis of an unfair tainted investigation or cases of false implication. Thus it is inevitable for a court of law to pass a specific order as to the fate of the investigation which in its opinion is unfair tainted and in violation of the settled principles of investigative canons.” 14. In the case of Vinubhai Haribhai Malviya and others vs. State of Gujrat and another24Hon’ble Supreme Court held as under “23. It is thus clear that the Magistrate’s power under Section 156(3) of the CrPC is very wide for it is this judicial authority that must be satisfied that a proper investigation by the police takes place. To ensure that a “proper investigation” takes place in the sense of a fair and just investigation by the police which such Magistrate is to supervise Article 21 of the Constitution of India mandates that all powers necessary which may also be incidental or implied are available to the Magistrate to ensure a proper investigation which without doubt would include the 24 AIR 2019 SC 5233 ordering of further investigation after a report is received by him under Section 173(2) and which power would continue to enure in such Magistrate at all stages of the criminal proceedings until the trial itself commences. Indeed even textually the “investigation” referred to in Section 156(1) of the CrPC would as per the definition of “investigation” under Section 2(h) include all proceedings for collection of evidence conducted by a police officer which would undoubtedly include proceedings by way of further investigation under Section 173(8) of the CrPC.” 15. In the case of Sudhir Bhaskar Rao Tambe (paras 2 3 and 4) Hon’ble Supreme Court following the judgment in the case of Sakiri Vasuheld that if a person has a grievance that his FIR has not been registered by the police or having been registered proper investigation is not being done then the remedy of the aggrieved person is not to go to the High Court under Article 226 of the Constitution of India but to approach the Magistrate concerned under Section 156(3) Cr.P.C. If such an application under Section 156(3) Cr.P.C. is made and the Magistrate is prima facie satisfied he can direct the FIR to be registered or if it has already been registered he can direct proper investigation to be done which includes in his discretion if he deems it necessary recommending change of the investigating officer so that a proper investigation is done in the matter. Thus the law laid down by Hon’ble Supreme Court is that after registration of the First Information Report if proper investigation is not being done by the investigating officer then informant may approach the magistrate concerned under Section 156(3) Cr.P.C. so that proper investigation is done. A three judges bench of Hon’ble Supreme Court in the case of M. Subramaniam and others vs S. Janki and others quoted with approval the law laid down by two judges bench in the case of Sakiri Vasuand Sudhir Bhaskar and thus it affirmed the principles laid down in those judgments that even if a first information report has already been registered on an application under Section 156(3) Cr.P.C. the Magistrate can direct proper investigation and writ petition for this purpose should not generally be entertained by the High Court in view of the remedy available before the Magistrate under Section 156(3) Cr.P.C 16. In a recent judgment of this court dated 08.01.2021 in Criminal Misc. Writ Petition No.162820a Division Bench of this court has held as under “In the case of M. Subramanian and another Vs. Janki and another Criminal Appeal No.1011) decided on 20.03.2020 the Hon ble Supreme Court observed that if FIR has already been registered then the Magistrate can direct proper investigation to be done which includes his discretion if he deems it necessary recommending change of the investigation officer so that a proper investigation is done in the matter The High Courts have been flooded with writ petitions praying for registration of the first information report or praying for a proper investigation and if the High Courts entertain such writ petitions then they will be flooded with such writ petitions and will not be able to do any other work except dealing with such writ petitions. Hon ble Supreme Court further held that the complainant must avail of his alternative remedy to approach the Magistrate concerned under Section 156(3) Cr.P.C and if he does so the Magistrate will ensure if prima facie he is satisfied registration of the first information report and also ensure a proper investigation in the matter and he can also recommend to the Senior Superintendent of Police Superintendent of Police concerned a change of the investigating officer so that a proper investigation is done The Magistrate can also monitor the investigation though he cannot himself investigate. The observations made by the Hon ble Supreme Court are also in reiteration of the principle laid down by the Hon ble Supreme Court in the case of SUDHIR BHASKARRAO TAMBE VS. HEMANT YASHWANT DHAGE AND OTHERS 2016(6) SCC 277 and in the case of SAKIRI VASU VS. STATE OF UTTAR PRADESH AND OTHERS 2008(2) SCC 409 In view of the aforesaid we do not find any good reason to entertain the writ petition. Consequently considering the submissions of the learned counsel for the parties this writ petition is dismissed leaving it open to the petitioner to avail such remedy as may be available to him under law.” 17. In view of the discussions made above we hold that if an informant petitioner is aggrieved that proper fair investigation is not being done by the investigating officer then he she may approach the concerned Magistrate by moving an application under Section 156(3 Cr.P.C. for appropriate orders instead of invoking writ jurisdiction under Article 226 of the Constitution of India 18. For all the reasons aforestated all the writ petitions are dismissed leaving it open to the petitioners to approach the Magistrate concerned under Section 156(3) of Cr.P.C. for fair and proper investigation Order Date : 27.01.2021

Punishment upheld for criminal force against women : High Court Of Calcutta

The present application has been preferred challenging the proceeding relating to Burrabazar Police Station case no. 809 of 2014 dated 22.12.2014 this was held in the judgement passed by a single bench judge comprising The Hon’ble Justice Tirthankar Ghosh, in the matter Ramesh Chand Singh &amp; Ors. -vs.- The State of West Bengal &amp; Anr [C.R.R. 850 of 2015]. Mr Sekhar Basu, learned Senior Advocate appearing for the petitioners submitted that before the initiation of the present case another case was registered at the same police station being Burrabazar Police Station Case No. 792/14 dated 19.12.2014 under Section 307 of the Indian Penal Code read with Section 25/27 of the Arms Act, He mentioned these because it is the foundation of which was based on the statement of the complainant namely, Santosh Kumar Singh (the present petitioner no.2), The complainant admittedly is Santosh Kumar Singh son of Ramesh Chand Singh. This case was registered based on the statement of Santosh Kumar Singh. The record of this case also reflected that there are two seizure lists the first seizure list which was prepared is concerning Burrabazar P.S. G.D.E. No. 1754 dated 18.12.2014 in between 23.20 hours at the common passage of 2nd floor of 167, Netaji Subhash Road, Jakarta, PS.- Burrabazar, Kolkata-700007 and the following articles were seized: Later, the investigating Agency after the investigation submitted a charge sheet on 22nd January 2015. Meanwhile, we got to know that the complainant also alleges molestation by the present petitioners who have inappropriately touched her private parts and tried to disrobe her, also  It has further alleged that she was thrown at the ground and when her mother-in-law came to her rescue, the petitioners also used physical force upon her mother-in-law and molested her by using criminal force. Mr Basu learned Senior advocate the complaint was registered by the wife of the accused (in Burrabazar PS [ Case no. 792 dated 19.12.2014], Sandeep Upadhaya) after about 3/4 days of the incident.  Mr S. Chakraborty, a learned advocate appearing for the State opposes the contentions advanced by Mr Basu and submitted that the allegations in the FIR taken as a whole make out an offence thereby calling upon the accused persons to face trial in a Court of Law. Court also took into account the contentions advanced by both the parties and also considered the judgment of the Hon’ble Supreme Court in: Vineet Kumar and Ors. –Vs. – State of Uttar Pradesh and Anr., reported in (2017) 13 SCC 369 and Ahmad Ali Quraishi and Anr. –Vs. – State of Uttar Pradesh and Anr., reported in (2020) 13 SCC 435. Also, The Hon’ble Supreme Court referred to the State of Karnataka –Vs. – M. Devendrappa, (2002) 3 SCC 89 The Hon’ble High Court perused the facts and the arguments presented, and thereby, opined that “The case, therefore, warrants invoking the powers of this Court under Section 482 of the Code of Criminal Procedure, as the continuance of the same is an abuse of the process of law and is bound to cause a miscarriage of justice. Thus, all further proceedings relating to Burrabazar P.S. Case No. 809/14 dated 22.12.2014 under Section 354/114 of the Indian Penal Code pending before the learned Additional Chief Metropolitan Magistrate, Calcutta, so far as the present petitioners are concerned are hereby quashed. If the petitioners are on bail they must be discharged from their bail bonds. Accordingly, CRR 850 of 2015 is allowed”.

IN THE HIGH COURT AT CALCUTTA CRIMINAL REVISIONAL JURISDICTION THE HON’BLE JUSTICE TIRTHANKAR GHOSH C.R.R. 8515 Ramesh Chand Singh & Ors. vs. The State of West Bengal & Anr. For the State For the Petitioners Mr. Sekhar Basu Sr. Adv. Mr. Shiladitya Banerjee Mr. Arijit Ganguly Mr. Sandip Chakraborty Heard on : 17.08.2021 01.09.2021 and 07.09.2021 Judgment on Tirthankar Ghosh J: The present revisional application has been preferred challenging the proceeding relating to Burrabazar Police Station case no. 8014 dated 22.12.2014 under Sections 354 114 of Indian Penal CodeOne fired tinted bullet head. 2) One empty cartridge having inscription ‘KF 765’ on its back. The Second seizure list which was prepared in reference to the same G.D.E. no on the same place referred the following items: “One improvised iron made pistol measuring about 7½ inches ii) One live cartidge loaded in the barrel of item no. i. iii) One magazine case. iv) Four live cartridges loaded in the magazine.” The investigating Agency on conclusion of investigation submitted charge sheet on 22nd January 2015 under Section 307 of the Indian Penal Code incorporating the said seizure items and relying upon 17 witnesses to prove its case. Subsequently the investigating authorities also submitted a supplementary charge sheet on 31.03.2015 and the same was after receiving FSL report and the sanction from the concerned authorities under Section 25(1B)(a) 27 of the Arms Act. The investigating Agency in course of investigation in connection with this case also relied upon materials regarding the previous conduct of the said Sandeep Upadhaya which reflected that earlier in connection with Asansole GRPS case no. 03 12 dated 14.01.12 one revolver and three rounds ammunitions were seized. The present case which is subject matter of challenge i.e. Burrabazar Police Station case no. 809 dated 22.12.2014 under Section 354 114 of the Indian Penal Code was in reference to General Diary entry no. 2142 at 20.10 hours and the date of occurrence refers to 18.10.2014 at 21.30 hours. The crux of the allegation in the complaint dated 22.12.2014 which was initiated by one Seema Upadhaya wife of the said Sandeep Upadhaya reference has been made to the incident of 18.12.2014 at about 09.30 PM and she alleged that Ramesh Chand Singh Santosh Singh and Umesh Singh along with four five associates used vulgar languages at her threw away her household articles and when objection was raised the above named persons tried to tear away her wearing apparels and also used physical force thereby assaulting her. The complainant also alleges of molestation by the present petitioners who had inappropriately touched her private parts and tried to disrobe her. It has further been alleged that she was thrown at the ground and when her mother in law came to her rescue the petitioners also used physical force upon her mother in law and molested her by using criminal force. The materials collected during the investigation also reflected that the statement under Section 164 of the Code of Criminal Procedure of Seema Upadhaya was recorded before the learned Magistrate. The contentions which are reflected in the statement are that the complainant reported to her husband that she was teased at the street when her husband went to the said persons he was assaulted and when the complainant and her mother in law tried to prevent such assault being inflicted upon her husband her mother in law was thrown away and she was removed by holding the tuft of her hair. There is a gulf of differences between the allegation wherein the complainant never alleged regarding outraging her modesty or her wearing apparels being torn or she was attempted to be disrobed by the accused persons. Mr. Basu learned Senior advocate by drawing the reference and analogy in respect of the time and place of occurrence as well as the involvement of the complainant and the petitioners emphasized that the present case being Burrabazar PS no. 809 2014 was registered pursuant to the complaint lodged by the wife of the accusedafter about 3 4 days of the incident. According to the learned Senior advocate the present case has been initiated in order to create circumstances for defence by the accused as the complainant along with his father and brother had been roped in the instant case with an ulterior motive for wreaking vengeance and for settling of her private and personal grudge. Mr. S. Chakraborty learned advocate appearing for the State opposes the contentions advanced by Mr. Basu and submitted that the allegations in the FIR taken as a whole makes out an offence thereby calling upon the accused persons to face trial in a Court of Law. Learned advocate for the State has also drawn the attention of this Court to the statement of the witnesses as also the statement of the complainant under Section 164 of the Code of Criminal Procedure which was stated before the learned Magistrate. I have taken into account the contentions advanced by both the parties and also considered the judgment of the Hon’ble Supreme Court in Vineet Kumar and Ors. Vs. State of Uttar Pradesh and Anr. reported in 13 SCC 369 and Ahmad Ali Quraishi and Anr. Vs. State of Uttar Pradesh and Anr. reported in 2020) 13 SCC 435. The learned Senior Advocate for the petitioners has also drawn the attention of this Court to an un reported judgment of this Court being Rajkumar Mondal @ Raja Vs. The State of West Bengal where by relying upon the aforesaid two judgments of Hon’ble Supreme Court proceedings were quashed. In Vineet Kumar the Hon’ble Supreme Court relied upon State of Karnataka Vs. L. Muniswamy and Ors. 2 SCC 699 and reminded the powers of the High Court vested under Section 482 Cr.P.C. by referring to paragraph 7 of the said judgment which is as follows: “7. … In the exercise of this wholesome power the High Court is entitled to quash a proceeding if it comes to the conclusion that allowing the proceeding to continue would be an abuse of the process of the court or that the ends of justice require that the proceeding ought to be quashed. The saving of the High Court s inherent powers both in civil and criminal matters is designed to achieve a salutary public purpose which is that a court proceeding ought not to be permitted to degenerate into a weapon of harassment or persecution. In a criminal case the veiled object behind a lame prosecution the very nature of the material on which the structure of the prosecution rests and the like would justify the High Court in quashing the proceeding in the interest of justice. The ends of justice are higher than the ends of mere law though justice has got to be administered according to laws made by the legislature. The compelling necessity for making these observations is that without a proper realisation of the object and purpose of the provision which seeks to save the inherent powers of the High Court to do justice between the State and its subjects it would be impossible to appreciate the width and contours of that salient jurisdiction.” The Hon’ble Supreme Court also relied upon State of Haryana and Ors. Vs. Bhajan Lal and Ors. 1992 SCC426 and relied upon the categories of cases where power can be exercised under Section 482 of Cr.P.C. which is available in paragraph 102 of the said judgment and is as follows: “102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice though it may not be possible to lay down any precise clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be 1) Where the allegations made in the first information report or the complaint even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused. 2) Where the allegations in the first information report and other materials if any accompanying the FIR do not disclose a cognizable offence justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code. 3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. Where the allegations in the FIR do not constitute a cognizable offence but constitute only a non cognizable offence no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code. 5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. 6) Where there is an express legal bar engrafted in any of the provisions of the Code or the Act concerned to the institution and continuance of the proceedings and or where there is a specific provision in the Code or the Act concerned providing efficacious redress for the grievance of the aggrieved party. 7) Where a criminal proceeding is manifestly attended with mala fide and or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.” The Hon’ble Supreme Court also referred to State of Karnataka Vs. M. Devendrappa 3 SCC 89 and relied upon paragraph 6 and 8 of the said judgment which are as follows: “6. … All courts whether civil or criminal possess in the absence of any express provision as inherent in their constitution all such powers as are necessary to do the right and to undo a wrong in course of administration of justice on the principle quando lex aliquid alicui concedit concedere videtur et id sine quo res ipsae esse non potestSCC 335 : 1992 SCC Cri) 426] .” Before arriving at its conclusion the Hon’ble Supreme Court also relied upon Priya Vrat Singh and Ors. Vs. Shyam Ji Sahai 8 SCC 232 Janata Dal Vs. H.S. Chowdhary and Anr. 4 SCC 305 Dr. Raghubir Saran Vs. State of Bihar and Anr. AIR 1964 SC 1 and Minu Kumari and Anr Vs. State of Bihar and Ors. 4 SCC 359. Paragraph 41 of Vineet Kumarobserved as follows: “41. Inherent power given to the High Court under Section 482 CrPC is with the purpose and object of advancement of justice. In case solemn process of Court is sought to be abused by a person with some oblique motive the Court has to thwart the attempt at the very threshold. The Court cannot permit a prosecution to go on if the case falls in one of the categories as illustratively enumerated by this Court in State of Haryana v. Bhajan LalSCC 335 : 1992 SCC 426] . Judicial process is a solemn proceeding which cannot be allowed to be converted into an instrument of operation or harassment. When there are materials to indicate that a criminal proceeding is manifestly attended with mala fide and proceeding is maliciously instituted with an ulterior motive the High Court will not hesitate in exercise of its jurisdiction under Section 482 CrPC to quash the proceeding under Category 7 as enumerated in State of Haryana v. Bhajan LalSCC 335 : 1992 SCC Cri) 426] which is to the following effect :“102. Where a criminal proceeding is manifestly attended with mala fide and or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.” Above Category 7 is clearly attracted in the facts of the present case. Although the High Court has noted judgment of State of Haryana v. Bhajan LalSCC 335 : 1992 SCC426] but did not advert to the relevant facts of the present case materials on which final report was submitted by the IO. We thus are fully satisfied that the present is a fit case where the High Court ought to have exercised its jurisdiction under Section 482 CrPC and quashed the criminal proceedings.” On an appreciation of the facts of the case and with reference to paragraph 102 category 7 of Bhajan Lal the Hon’ble Supreme Court was pleased to quash the proceeding in Vineet Kumarcase. In Ahmad Ali Quraishiby referring to Vineet Kumarcase and similar set of cases relied upon in Vineet Kumar case in paragraph 23 of the said judgment the Hon’ble Supreme Court observed as follows: “23. In the facts of present case we are fully satisfied that present is a case where criminal proceedings have been initiated by the complainant with an ulterior motive due to private and personal grudge. The High Court although noticed the judgment of this Court in State of Haryana v. Bhajan LalSCC 335 : 1992 SCC Cri) 426] in the impugned judgment but did not examine the facts of the case as to whether present is a case which falls in any of the category as enumerated in Bhajan Lal caseSCC 335 : 1992 SCC426] . The present case clearly falls in Category of Bhajan Lal caseSCC 335 : 1992 SCC 426] and the High Court failed to exercise jurisdiction under Section 482 CrPC in quashing the criminal proceeding initiated by the complaint.” This Court also in an un reported judgment of Rajkumar Mondal followed the dictum laid down by the Hon’ble Supreme Court in Vineet Kumar supra) and Ahmad Ali Quraishi case and in the factual backgrounds and circumstances of the said case quashed the proceedings. The present case involves three petitioners namely Ramesh Chand Singh Santosh Singh alias Vicky and Rohit Singh alias Ricky. The petitioner no.1 happens to be the father and the petitioner nos. 2 and 3 happen to be the two sons of Petitioner no.1. The factual matrix of the case reflects that the case was initiated when the husband of the complainant was taken into custody in connection Burrabazar P.S. case No. 792 dated 19.12.2014 under Section 307 of Indian Penal Code and Section 25 27 of the Arms Act the circumstances reflect that the case was instituted maliciously with an ulterior motive for wreaking vengeance on the accused petitioner and with the view to spite them because of private and personal grudge. The case therefore warrants invoking the powers of this Court under Section 482 of the Code of Criminal Procedure as the continuance of the same is an abuse of the process of law and is bound to cause miscarriage of justice. Thus all further proceeding relating to Burrabazar P.S. Case No. 809 14 dated 22.12.2014 under Section 354 114 of the Indian Penal Code pending before the learned Additional Chief Metropolitan Magistrate Calcutta so far as the present petitioners are concerned are hereby quashed. If the petitioners are on bail they must be discharged from their bail bonds. Accordingly CRR 8515 is allowed. Pending applications if any is consequently disposed of. Interim order is made absolute. All parties shall act on the server copy of this judgment duly downloaded from the official website of this Court. Urgent photostat certified copy of this judgment if applied for be supplied to the parties upon compliance with all requisite formalities.

“If the public servants can be legally protected for the bonafide errors in their action, there is no reason to extend for not extending such a protection to the medical professionals”: Karnataka High Court

The issue whether medical professionals can be protected if they commit bonafide errors in their actions similar to public servants was decided upon by the a bench of Karnataka High Court consisting of  Justice Krishna S Dixit in the matters between Dr Ganesh Nayak v. V Shamanna WP No.21688 oF 2009 decided on 14.1 2022. The facts of the case are that by an order dated 7.5.2009, the Karnataka Medical Council had issued a warning to petitioner Dr. Ganesh Nayak for alleged professional malfeasance, namely certain procedural violations in performing angioplasty on a 65-year-old woman named Smt.Yellamma. This was challenged before the High Court. The counsel on behalf of the petitioners contended this patient has diabetes, neuropathy, nephropathy etc. It was stated that he suffered from various ailments and was treated at different times by different doctors in different hospitals, but the case was brought only to him. Others were not notified of the reason for the show cause. It was alleged that the patient was already 65 years old and suffered from the natural ailments of a shortened life expectancy, and in old age it was natural that some diseases came and remained as inevitable guests.The patient also suffered from a condition in which the functioning of the heart was affected, which increased the probability of death, furthermore the records show that the patient had a long-standing significant problem with the Cardio Vascular Vein and therefore, angiography was done by the petitioner. However, medical records show that the cause of death was a serious bacterial infection. It was later transmitted. There is a big time difference between Angioplasty performed by the petitioner and the death of the patient.There is nothing to indicate that the alleged lack of professional service resulted in death by accelerating deterioration of health. There is no connection or reasonable connection between these and the actions of the petitioner and the death of the patient. The counsel on behalf of the respondents contended that no counsel appeared for the respondents, however, the court noted that “absence of the counsel cannot interdict the disposal of this decade old case on merits, without unnecessarily prolonging its pendency.” The Karnataka High Court held that most cases of medical negligence are initiated recklessly by patients and their relatives in hopes of making quick money. The motivation for those suing for medical negligence is complex, with some suing for money, others sue to plead guilty and others do it to avoid repeating mistakes.The court said the “culture of compensation” acquired in other jurisdictions is increasingly entering the realm of medical services in our society, affecting a healthy doctor and patient relationship. How doctors and paramedics have served our society during the COVID pandemic will not be erased from the public’s memory, and the community should gratefully appreciate the valuable services provided by healthcare professionals.Doctors, like any other professional, is a profession that should be focused towards the motto of service, not profit, and they are obviously not exempted from legal action for medical negligence.

IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 14TH DAY OF JANUARY 2022 BEFORE THE HON’BLE MR. JUSTICE KRISHNA S.DIXIT WRIT PETITION NO.21688 OF 2009DR GANESH NAYAK S O.LATE H K NAYAK AGED ABOUT 66 YEARS R AT.NO.8 7TH CROSS JAKKASANDRA BLOCK KORAMANGALA BANGALORE 560 034. BY SRI. PALECANDA M CHINNAPPA FOR SMT. ANUPAMA HEBBAR ADVOCATE) 1. V SHAMANNA S O LATE VENKATASWAMAPPA AGED ABOUT 65 YEARS R 1 DIED ON 12 03 2013 REP BY HIS LR. 1(A) S NAGARAJ S O V SHAMANNA AGED ABOUT 59 YEARS NO.46 6TH CROSS CAMBRIDGE LAYOUT HALSOOR BENGALURU 560 008. AMENDED V.C.O DATED 14.01.2022. 2. KARNATAKA MEDICAL COUNCIL 70 2ND FLOOR VAIDYAKEEYA BHAVANA K R ROAD BASAVANAGUDI BANGALORE 560 004. REPRESENTED BY ITS PRESIDENT. BY SRI. P JAGANNATHAN ADVOCATE FOR R1(A) SRI. D S HOSMATH ADVOCATE FOR R2) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED ORDER DATED 07.05.2009 PASSED BY THE R2 IN ENQ.NO.7 OF 2008 VIDE ANNEX N. THIS PETITION COMING ON FOR ORDERS THROUGH VIDEO CONFERENCING THIS DAY THE COURT MADE THE FOLLOWING: A delinquent medical practitioner is knocking at the doors of Writ Court for assailing the order dated 7.5.2009 made by the second respondent Karnataka Medical Council a Statutory Body under the Indian Medical Council Act 1956 at Annexure N whereby he was administered the punishment of ‘warning’ for the alleged occupational lapse namely some procedural breach in accomplishing angioplasty to an aged & ailing lady. The Karnataka Medical Council has entered appearance through its Panel Counsel who remained absent when the matter was taken up for consideration twice i.e. in the morning and afternoon sessions the first respondent Complainant having died his son is permitted to come on record to prosecute the defence in the Writ Petition his counsel too is absent however the absence of the counsel cannot interdict the disposal of this decade old case on merits without unnecessarily prolonging its pendency. 3. Having heard learned counsel petitioner and having perused the bulky Petition Papers this court is inclined to grant indulgence in the matter for the following reasons: The vehement submission of learned counsel for the petitioner that the patient namely Smt.Yellamma was from multiple ailments including diabetes Neuropathy Nephropathy etc. and that she was being treated by several other doctors in different hospitals at different times is substantiated from the perusal of material on record however the allegation is made only against the petitioner and no explanation is offered as to why others who had treated her before were not even issued a show cause notice asking for their views this happens to be the first error apparent on the face of the record. b) The records reveal that the patient Smt.Yellamma was already aged 65 years and she was suffering from ailments natural to declining age of life it is a common knowledge that the evening of life some diseases come and stay with beings be it humans or other as inevitable guests an aged person suffering from ailments of the kind is visited by yet another disease more particularly affecting the functioning of heart the degree of mortality increases the records reveal that the patient had some significant problem with Cardio Vascular Vein since long and therefore she had undergone angiogram at the hands of the petitioner however the medical records including the impugned order prima facie show that the cause of death is the serious bacterial infection later contracted is huge time gap between accomplishment of angioplasty by the petitioner and the demise of the patient there is nothing on record to show that the alleged deficiency in professional service accelerated the process of health deterioration that eventually resulted into her death some positive evidentiary material was necessary to eliminate the possible nova causa interveniens therefore there is no reasonable connect or nexus between the medical procedure done by the petitioner and death of the patient vide ARUN KUMAR MANGLIK VS. CHIRAYU HEALTH AND MEDICARE PRIVATE LTD 2019SCC 401. It does not need research to show that more often than not the cases of medical negligence are launched recklessly by the patients and their relatives compensation culture which obtains in other jurisdictions is gradually gaining entry to the field of medical services in our society affecting a healthy relationship of doctor & patient it is tritely said "faith heals and not the medicine" faith here means the one reposed in the treating doctor courts have been nowadays observing that an unscrupulous section of the people are prone to use the slightest opportunity to sue the doctors and hospitals in the hope of making fast buck the motivation of people bringing actions for medical negligence are more complicated: some sue for money others sue for getting an acceptance of guilt some others do it to ensure that errors would not be repeated but a large chunk of cases does not involve bonafide claims cannot be much disputed the compensation culture be it truth or a myth in varying degrees has given rise to risk aversion medical professionals having a complaint made against them gather an impression that there is an unjustifiable attack on their professional integrity and reputation this may lead to a defensive response of the medicos ultimately resulting into enormous cost escalation in medical services if the public servants can be legally protected for the bonafide errors in their action there is no reason to extend for not extending such a protection to the medical professionals. It is said the realm of medicine is an ever growing branch of uncertain knowledge William Oslera Canadian Physician more than a century ago had said that medicine is a science of uncertainty and an art of probability" a host of un assessable factors entering the fray of diagnosis treatment the advancement of science & technology has to some extent reduced the level of such uncertainty and enhanced the degree of probability is also true however it cannot be disputed that the medical field is still in a fluid state a great Indian sage Ramakrishna Paramahamsa had said: "God laughs on two occasions. He laughs when the physician says to the patient’s mother ‘Don’t be afraid... I shall certainly cure your boy.’ God again laughs saying to Himself ‘I am going to take his life and this man says he will save it!..." Even if it is shown that a drug or a procedure did cause an injury it is difficult to ascertain whether this is because of the drug or the procedure for example it might be that the drug or the procedure is not defective if it provides a cure for the vast majority of people although it has undesirable consequences for a small number of people if a patient is of the unlucky few there will be difficulty in concluding that the drug or the procedure was actionably defective this is only to highlight the uncertain causation obtaining in the realm of medical liability this aspect ought to have animated the decision making process that culminated into the impugned order of penalty however that having not happened the impugned order suffers from another legal infirmity. e) Before parting with this case it needs to be observed that: medical and paramedical professionals are inevitable for a healthy society Vedic literature lauds medical practitioner and medicine as ‘vaidyo naaraayano harihi’ nearly meaning that a true doctor as a healer is God and that a true medicine is like the sacred water from the river Ganga during COVID pandemic how the doctors and paramedics served our society does not fade away from the public memory society has to gratefully appreciate the valuable services rendered by the medicos however at times being the victims the medicos are made to apologize to the attackers and this led to the State enacting the Prevention of Violence Against Doctors Medical Professionals and Medical Institutions Act 2018 having said all this this court hastens to add that the doctors is a profession wherein service ought to be the motto and not the profit as any professionals they too are not immuned from legal action for medical negligence as observed by the Apex Court in INDIAN MEDICAL ASSOCIATION VS. V.P.SHANTHA6 SCC 1. In the above circumstances this Writ Petition succeeds a Writ of Certiorari issues quashing the impugned order the petitioner doctor is absolved from the allegations. This court places on record its appreciation for the assistance rendered by Mr.Faiz Afsar Sait Law Clerk cum Research Assistant. Costs made easy. cbc SD JUDGE